Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, December 15, 1994 TAG: 9412220018
SECTION: EDITORIAL PAGE: A23 EDITION: METRO
SOURCE: RAY L. GARLAND
DATELINE: LENGTH: Long
The Supreme Court just heard arguments in the case of Arkansas term limits and will decide by next summer if the U.S. Constitution permits the states to restrict service in Congress.
The new Republican majority in the House of Representatives has promised to bring a constitutional amendment on term limits to the floor within the first 100 days of the new Congress. It would limit House members to six two-year terms and senators to two six-year terms. But approval will require the affirmative vote of two-thirds of the members in both houses. The odds on that happening are roughly equivalent to those on deer coming out for a longer hunting season.
In the past, Congress has dealt with some constitutional hot potatoes, such as representation for the District of Columbia, by sending forth amendments, knowing they weren't likely to command the support of three-fourths of the state legislatures. But congressional term limits are likely to be adopted in a heartbeat. Seldom is found a state legislator who doesn't contemplate his place in a higher firmament of power, and a faster turnover in Congress would mean more opportunities for advancement.
But if it were done, it is better done on the basis of uniformity. It cannot be a very good idea to have some states limiting representatives to three terms; others to six and a great many with no limits at all. This was the hook on which the Arkansas Supreme Court hung its hat in rejecting limits for that state's congressional delegation.
One of the oldest sayings in American politics is "the Supreme Court follows the election returns." Understandably, the court is loath to set itself against the popular will. But even more germane is the court's historic reluctance to infringe on the prerogatives of its sister branches. It has habitually run rough-shod over the Constitution to uphold the power of Congress to boss the states, but rarely has restricted that power.
But even if the court wished to bow to the popular will by upholding state-imposed limits on federal service, it's hard to see how it can find constitutional justification for doing so.
For one thing, it must give due deference to the deliberations of the Founders at the time the Constitution was drafted, and the Founders expressed themselves about as clearly as they could on this subject. The Articles of Confederation that were replaced by the Constitution had limited delegates to no more than three years' service in any period of six years. The Constitutional Convention considered a similar restriction for the House of Representatives but rejected it. One of the leaders of the convention, Alexander Hamilton of New York, declared that the minimal age and residency requirements stated "are defined and fixed in the Constitution and are unalterable by the legislature."
Beyond that is the provision of the 14th Amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ... '' You can certainly make the case that limiting the choice of a representative to Congress, or the number of terms they may serve, abridges a fundamental privilege of citizenship.
And if certain states limit the number of terms their representatives may serve, while others do not, you can claim with all the logic of legislative history at your back that this will create a condition of inherent inequality, both in drafting the nation's laws and distributing the contents of its purse. That is, the citizens of those states permitting an unlimited term of service will be advantaged in the accumulation of legislative power that must necessarily work to the detriment of citizens in those states that limit terms.
But 25 million Americans have voted on propositions limiting legislative service and not one has been defeated. They have heard the arguments against doing so just stated and have rejected them, generally by substantial majorities. Is no weight to be given to the will of the people? Well, only this answer can be given: The republic has survived and prospered for more than two centuries without such limits, and no one can say with confidence the effect their imposition will have. In any case, they should be uniform across the country, and the proper way to get that is by amending the Constitution, just as was done for the popular election of senators and limiting the terms of presidents.
Had this been done years before, the Virginia congressional delegation would certainly have a different face: Sen. John Warner would be gone, as would Reps. Bliley, Boucher, Bateman, Sisisky, Pickett and Wolf. Yet, all six of those represenatives were just overwhelmingly returned to office. But even without term limits, there has been a substantial turnover in Congress: almost a third of the new Senate and just over half of the new House have arrived during the 1990s!
Rep. Herbert Bateman of Virginia's 1st District, a grizzled veteran of 14 years in the state Senate and now elected to his seventh term in the U.S. House, expressed the argument against term limits about as well as it can be stated: "If a representative is too old, too dumb, or too unresponsive - or for any other reason that is unacceptable to a majority of the people - they can and should defeat that individual at the polls. However, a majority should not be denied the right to elect whomever it prefers."
The best argument on the other side is that the weight and complexity of the Congress has become so great that only by limiting seniority can we begin that necessary process of returning power to the states and to the people.
Ray L. Garland is a Roanoke Times & World-News columnist.
by CNB