The Unconstitutionality of State Congressional Term Limits: An Overview of U.S. Term Limits, Inc. v. Thornton (Sup. Ct. Doc. No. 93-1456)

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The Unconstitutionality of State
Congressional Term Limits: An Overview of
U.S. Term Limits, Inc. v. Thornton (Sup. Ct.
Doc. No. 93-1456)
Thomas M. Durbin
Legislative Attorney
American Law Division
On May 22, 1995, the U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton
(Sup. Ct. Doc. No. 93-1456) in a 5-4 decision held that Arkansas' constitutional
amendment, Section 3 of Amendment 73, providing for limitations on congressional
terms of office was unconstitutional in that it established an additional qualification for
congressional office in violation of Article I, Sections 2 and 3 setting forth the three basic
qualifications of age, citizenship and inhabitancy for Members of Congress. The Court
affirmed the 1994 decision of the Arkansas Supreme Court which had ruled that
Amendment 73 to the Arkansas Constitution limiting the terms of Members of Congress
was unconstitutional in violation of the Qualifications Clauses of Article I because state
term limits imposed an impermissible additional qualification on congressional candidates
(See the Arkansas Supreme case, U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.
2d 349, 355-56 (1994)). The Court also rejected Arkansas' argument that it had the
power under the Elections Clause of Article I, Section 4, Clause 1 to restrict
congressional incumbents' access to the ballot by imposing state term limitations. (See
also, e.g., Bryant v. Hill, Sup. Ct Doc. No. 93-1828, consolidated with U.S. Term
Limits, Inc. v. Thornton, supra).
U.S. Term Limits, Inc. v. Thornton, May 22, 1995
On May 22, 1995, the Supreme Court, relying on the 1969 decision in Powell v.
McCormack (395 U.S. 486, 540), concluded that the power granted to each House of
Congress to judge the qualifications of its Members does not include the power to alter
or to add to their constitutional qualifications. (U.S. Term Limits, slip op. at 15-18). The
Court rejected the Petitioners' argument that the States had power over congressional
qualifications as part of the original powers reserved to them under the Tenth Amendment
providing that "...[The] powers not delegated to the United States by the Constitution...are

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reserved to the States...." According to the Court, the power to add to or amend
congressional qualifications is not within the States' pre-Tenth Amendment original
powers; the Framers intended that the Constitution would be
the exclusive source of congressional qualifications and thus divested the States of any
power to alter such qualifications. (Id., 22-26; 27-36). The Court noted that, if individual
States were to be permitted to provide diverse qualifications for their Members of
Congress, this would have resulted in a patchwork of congressional qualifications which
would have been inconsistent with the Framers' concept of a uniform Congress
representing the people. (Id., 44).
Furthermore, the Court rejected the Petitioners' argument that the Arkansas
Amendment 73 was valid because it was merely an electoral ballot access law prohibiting
certain congressional candidates from appearing on the ballot while allowing them to run
as write-in candidates with a slim chance of success and serve if elected. However, the
Court invalidated Amendment 73 noting that it was an indirect attempt to evade the
Qualifications Clauses' requirements of Article I of the Constitution. (Id., 50-52). Also,
Amendment 73 is not a permissible exercise of state powers under the Elections Clause
of Article I, § 4, Cl. 1 to regulate the "Times, Places and Manner of holding Elections...."
Thus, Petitioners' broad construction of the Elections Clause was held to be basically
inconsistent with that of the Framers' since the Clause was intended to allow States
authority to protect the integrity and regularity of the federal election process and not to
provide for additional qualifications for congressional candidates. (id., 54-55).
The Court concluded that Arkansas Constitutional Amendment 73 cannot
constitutionally stand since the Framers of the Constitution determined that the
qualifications for congressional office be fixed in the Constitution and be uniform
throughout the United States. In the absence of a properly passed federal constitutional
amendment under Article V to allow individual States to determine their own qualifications
for congressional office, state constitutional amendments as well as statutory provisions
would thus erode the structure envisioned by the Framers to form a "...more perfect
Union." (Id., 60-61).
The Supreme Court's decision on May 22, 1995 finding state imposed congressional
term limits unconstitutional would likewise call into question the constitutionality of the
other term limit measures in 23 States which have them. Consequently, any change in the
term limitations for Members of Congress can only constitutionally occur by the passage
and ratification of a constitutional amendment in accordance with Article V of the
Constitution. (Id., 50, 61). The prescribed constitutional qualifications for Members of
Congress are paramount and exclusive and cannot be amended, changed, diminished,
altered, or added to by the States or even by the Congress except by the constitutional
amendment process. (Powell v. McCormack, supra at 543-47).
In a dissenting opinion written by Justice Clarence Thomas and joined by three other
Justices, it was argued that there are no federal constitutional provisions which would
deprive the people of each state to prescribe eligibility for congressional candidates since
these were "reserved" powers of the States.
(Slip dissenting op. at 1-2).