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THE NATION : TERM LIMITS : Reading Today's Bias Into 'Original Intent'

May 28, 1995|Jack Rakove | Jack Rakove, a professor of history at Stanford University, is the author of "James Madison and the Creation of the American Republic" (HarperCollins). His new book, "Original Meanings: Politics and Ideas in the Making of the Constitution" will be published next year by Knopf

STANFORD — The surprising aspects of the U.S. Supreme Court's decision last week prohibiting states from imposing term limits on members of Congress do not lie in the result. Most legal observers expected the court to reach this conclusion--affirming that so fundamental a change in the political character of the federal government can be made only by constitutional amendment.

The surprise lies elsewhere: in the narrow 5-4 margin and in the curious reversal of positions that enabled the majority to vanquish the dissenters on the chosen ground that three of them--Justices Clarence Thomas, Antonin Scalia, and William H. Rehnquist--avowedly prefer to defend. For whatever else it accomplishes, the decision in U.S. Term Limits vs. Thornton is an ironic victory for the original meaning of the Constitution against those who insist that fidelity to the intentions of its Framers offers the most sound constitutional interpretation.

The idea that originalism (as it is called) is the one true rule of interpretation came to the fore during the mid-1980s--when Atty. Gen. Edwin Meese III called for a return to a "jurisprudence of original intention." The rejection of the Supreme Court nomination of Robert H. Bork, its chief prophet, was widely taken as a defeat for this school. But appeal to the original intentions or meaning of the Constitution is a recurring trope in U.S. jurisprudence and politics--even when it is clear that the real controversy is not about what happened in 1787 but what should happen today.

The court's division over term limits confirms that we should expect to see a continuing dispute, in the months and even years to come, over which of two old "stories" gives a better account of the character of the federal Union and Constitution. The originalist story that the majority just barely affirmed is the one that gained strength with the Civil War and has prevailed since the New Deal. It emphasizes the preeminence of the national government over the states, and tends to deny that states retained vast sovereign powers they could exercise free of national supervision.

But the story Thomas tells in his dissenting opinion is an old one, too. Its pedigree runs back to the concerns of the Anti-Federalists--who opposed the Constitution and the states'-rights theories of the 1790s. This history emphasizes the limits on national authority, and allocates much power to the states. That the second African American justice to sit on the court joins a tradition usually associated with John C. Calhoun is a mild irony. What matters more is how well the views of Thomas, Scalia and Rehnquist correspond with the dominant views of the new Republican Congress.

Thomas' dissent thus indicates the lines along which future disputes will be fought. His opinion offers little hard evidence that the Framers of 1787-88 intended or understood that the states would retain the right to set additional qualifications for election to Congress beyond those specified in the Constitution. Instead, he looks to the general powers reserved to the states or the people under the Tenth Amendment.

In his view, it is not enough that the Constitution lists explicit qualifications for election to Congress, or even that it gives the Congress wide authority to revise state electoral regulations. As he sees it, the Tenth Amendment and general principles of federalism give the states the power to impose additional qualifications for election to Congress--including those that would place incumbents at a great disadvantage. For example, requiring them to run as write-in candidates.

The reasons to think that the majority got the story right are straightforward.

First, a scheme of term limits was part of the original Virginia Plan--the starting point of the deliberations at the Constitutional Convention--but it was quickly and unanimously eliminated. Such a rule had been in place under the Articles of Confederation--its first victim, in fact, was James Madison--but it clashed with the Framers' evident desire to create a national political elite of experienced, not amateur, lawmakers.

Second, though the Framers did discuss additional qualifications for election to Congress beyond the bare requirements of age, residence and citizenship, they found it nearly impossible to specify uniform constitutional rules that would work for all states at all times. The alternative was to empower Congress to adopt additional requirements--of property, for example--at its discretion. But that would only make it possible for a sitting Congress to manipulate the rules to its advantage. Thus, Hugh Williamson, with a foresight that should warm our hearts, warned that such power would enable lawyers, who might well dominate Congress, to "secure future elections . . . to their own body."

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