BYU Law Review

Volume 1994 | Issue 2 Article 10

5-1-1994

State-Imposed Congressional Term Limits: What

Would the Framers of the Constitution Say?
Dwayne A. Vance

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Dwayne A. Vance, State-Imposed Congressional Term Limits: What Would the Framers of the Constitution Say?, 1994 BYU L. Rev. 429
(1994).
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State-Imposed Congressional Term Limits: What
Would the Framers of the Constitution Say?
Justice Holmes observed that government is an experiment.
The people are the conductors of that endless experiment and
have the right to tinker with it as they choose, free of unwar-
ranted interference.
Justice Steele Hays1

The debate over congressional term limits dates back t o

the United States Constitution's abandonment of the rotation
in office required by the Articles of Confederation.' Rotation in
office was heavily debated by the Framers of the Constitution,
but ultimately was di~carded.~ Thomas Jefferson was one of
the leading advocates of rotation in office and was disappointed
that it was left out of the Con~titution.~ As a result, the num-
ber of terms a U.S. Senator or Representative may serve is not
limited by the Constitution itself. Recently there has been
widespread public support for some type of congressional term
l i r n i t ~This
. ~ raises the question of whether the Framers of the
Constitution would support congressional term limits if they
were here today.
Part I1 of this Comment describes the various methods
that could be used to implement congressional term limits, and
then reviews the various authorities arguing for and against
state-imposed congressional term limits. Part I11 examines the

1. U.S. Term Limits, Inc. v. Hill, No. 93-1240, 1994 WL 72581, a t *22 (Ark.
Mar. 7, 1994) (Hays, J., dissenting), petition for cert. filed sub nom. U.S. Term
Limits, Inc. v. Thornton, 62 U.S.L.W. 3642 (Mar. 17, 1994) (No. 93-1456).
2. ARTICLESOF CONFEDERATION art. V (1777); see infra note 8 1 and accom-
panying text.
3. See, e.g., Erik H. Corwin, Recent Development, Limits on Legislative
Terms: Legal and Policy Implications, 28 HARV. J. ON LEGIS. 569, 582-87 (1991).
4. Martin E. Latz, The Constitutionality of State-Passed Congressional Term
Limits, 25 AKRON L. REV.155, 157 (1991).
5. A 1990 Gallup Poll showed that 73% of Americans favored term limits for
members of Congress. Corwin, supra note 3, at 570 n.9. Interestingly, a 1993 Gal-
lup Poll showed that only one in four people approved of the job Congress is doing
overall, but a solid majority of the people said their own representative deserved
re-election. Richard Benedetto, Congress Scorned; GOP Scores Points, USA TODAY,
Nov. 8, 1993, at 5A.
430 BRIGHAM YOUNG UNNERSITY LAW WVIEW [I994

Framers' intent concerning term limitations, and the implica-

tions concerning state-imposed congressional term limits. Part
IV concludes that state-imposed congressional term limits are
entirely consistent with the intent of the Framers of the Con-
stitution.

11. THE CURRENT

DEBATEOVER CONGRESSIONAL
TERMLIMITS
A. Constit utional Amendment Limiting Congressional Terms
One way to implement congressional term limits would be
through a constitutional amendment similar to the Twenty-
Second Amendment, which limits the President to two terms.6
Congressional term limits were considered, but ultimately
rejected, when the Twenty-Second Amendment was added to
the Constitution.' In spite of public support for congressional
term limit^,^ Congress is unlikely to propose such an amend-
ment anytime
The Constitution also authorizes two-thirds of the states to
call a Constitutional Convention which could propose a con-
gressional term-limit amendment.1° The amendment would be

6. U.S. CONST.amend. XXII, 8 1.

7. Tiffanie Kovacevich, Comment, Constitutionality of Term Limitations: Can
States Limit the Terms of Members of Congress?, 23 PAC.L.J. 1677, 1682 (1992).
8. See supra note 5. Then-President George Bush also expressed his support
for a constitutional amendment limiting congressional terms. Robert Shogan, Bush
Gives Impetus to Term Limits, L.A. TIMES,Dec. 13, 1990, a t A32.
9. "It is unrealistic to expect two thirds of the members of both houses to
vote for a proposed amendment limiting their own career prospects." Corwin, supra
note 3, at 578. In 1991 alone eight different bills were introduced in Congress
which focused solely on congressional term limits. Kovacevich, supra note 7, a t
1683 & 11.47. "The real problem for the term-limit movement in Congress . . . is
that the bills are unlikely to move out of the Judiciary Committee--ever." Corwin,
supra note 3, a t 578 n.60 (quoting Susan B. Glasser, Advocates of Congressional
Term Limits Push for Votes in Ariz., Wash., Ohio, Flu., ROLLCALL,Feb. 14, 1991).
One of the reasons for this is that Jack Brooks, Chairman of the House Judiciary
Committee, was elected to Congress in 1952 and apparently plans on staying there.
George F. Will, . . . And Across the Nation, WASH. POST, June 24, 1993, a t A19.
I n 1993, a proposed constitutional amendment had only 89 of the necessary 218
supporters to discharge the bill from the judiciary committee. Kenneth J. Cooper &
Richard Morin, Time Runs Out on N.J. Term Limit Plan, WASH. PO=, July 4,
1993, a t A16.
However, not all congressmen have been hostile to a constitutional amendment.
Congressman Bill Gradison stated: "We have to decide if we really trust the peo-
ple. If we do, the Congress will eventually submit a constitutional amendment for
congressional term limitations to the states with or without recommendation-and
then abide by the results." George F. Will, Term Limits: Let the States Decide,
WASH. POST, Nov. 26, 1992, a t A29.
10. U.S. CONST.art. V.
 CONGRESSIONAL TERM LIMITS

valid upon the ratification of three-fourths of the states;"

however, this has never been done successfully.12

B. State-Imposed Congressional Term Limits

In light of the lack of congressional term limits in the Con-
stitution, and Congress' apparent unwillingness to propose
such an amendment, some states have taken it upon them-
selves to impose term limits on the U.S. Senators and Repre-
sentatives from their respective states.13 Colorado was the
first to adopt state-imposed congressional term limits in
1990,14 and in 1992 all fourteen states voting on state-im-
posed congressional term limits passed initiatives imposing
such limits.'' In 1994, at least five of the eight remaining
states using the initiative process are likely to have initiatives
on congressional term limits on their ballots? Only once, in
Washington, has an initiative on this issue failed in a state-
wide vote; yet, Washington passed it the following year.17

11. Id.
12. Corwin, supra note 3, at 578. Nevertheless, the state legislatures of Utah
and South Dakota have passed "resolutions calling for the convocation of a consti-
tutional convention to adopt a congressional term-limit amendment." Id. at 570 &
n.13.
13. ARIZ. CONST.art. VII, § 18; ARK. CONST.OF 1874 amend. LXXIII, 8 3;
COLO. CONST.art. XVIII, 8 9a; FLA. CONST.art. VI, § 4903); MICH. CONST.art. 11,
$ lo; NO. CONST. art. 111, 5 45(a); MONT. CONST. art. IV, 8; NEB. CONST.art.
XV, 8 20; OHIO CONST.art. VI, 8; OR. CONST.art. 11, 8 20; S.D. CONST. art. 111,
$ 32; CAL. ELEC.CODE 25003(a) (West Supp. 1994); N.D. CENT.CODE$ 16.1-01-
13.1 (Supp. 1993); WASH.REV. CODE§ 29.68.015 to .016 (Supp. 1994); WYO. STAT.
5 22-5-104 (Supp. 1993).
14. Jeffrey L. Sedgwick, The Legal Parameters of Term Limitations for United
States Congressmen and Senators, NAT'LLEGALCENTERWHITEPAPER,No. 3, Apr.
1993, at 2.
15. Id.; accord Robert Reinhold, Move to Limit Terms Gathers Steam After
Winning in 14 States, N.Y. TIMES,Nov. 5, 1992, at B8 (reporting the voting per-
centages in each of the fourteen states that voted on term limitations); George F.
Will, What Voters Did for the System, WASH.POST, Nov. 12, 1992, at A21 (report-
ing that term limits received more votes in 14 states than Perot did in 50 states
a i d that 83% of House incumbents ran essentially unopposed).
16. Debbie Howlett, An "Anti* Electorate Tries to Regain Control, USA TODAY,
Oct. 26, 1993, at 5A.
17. Id. The first time that the initiative was on the ballot in Washington,
"House Speaker Tom Foley actively campaigned against the measure as being too
draconian," and the initiative failed. Id. The following year, Foley spent more time
campaigning for re-election, and less time campaigning against the initiative, and
the initiative passed. Id.
432 BRIGHAM YOUNG UNIV'ERSIW LAW REVIEW [I994

C. The Debate over State-Imposed Congressional Term Limits

Although the constitutionality of these state-imposed con-
gressional term limits has been questioned, the U.S. Supreme
Court has not yet decided a case challenging them. However,
the Speaker of the House, Tom Foley, who was elected t o Con-
gress in 1964, has already filed a lawsuit in federal district
court against the people of Washington challenging the consti-
tutionality of Washington's term limits.'' In February 1994,
that court ruled that the Washington term limits are unconsti-
tutional.lg Additionally, in March 1994, the Arkansas Su-
preme Court ruled, five to two, that Arkansas' term limits are
unconstit~tional.~~ Both the Washington and Arkansas cases
are expected to be appealed t o the U.S. Supreme C ~ u r t . ~The
'
Washington case has been appealed to the Ninth Circuit, and
in the Arkansas case a petition for certiorari was filed with the
U.S. Supreme Court on March 17, 1994.22In the meantime,
commentators are already debating the constitutionality, and
overall desirability, of state-imposed congressional term limits.23

18. See Debbie Howlett, Speaker Foley Challenges Home-State Term Limit,
USA TODAY, June 8, 1993, a t 8A, Will, . . . And Across the Nation, supra note 9,
a t A19.
19. Thorsted v. Gregoire, 841 F. Supp. 1068, 1084-85 (W.D. Wash. 1994).
20. U.S. Term Limits, Inc. v. Hill, No. 93-1240, 1994 WL 72581, a t *8 (Ark.
Mar. 7, 1994), petition for cert. filed sub nom. U.S. Term Limits, Inc. v. Thornton,
62 U.S.L.W. 3642 (Mar. 17, 1994) (NO. 93-1456).
21. Susan B. Glasser, Arkansas Term Limits Case Now Likely to Be First a t
Supreme Court, ROLL CALL, Mar. 10, 1994, available in LEXIS, News Library,
Papers File.
22. U.S. Term Limits, Inc. v. Thornton, 62 U.S.L.W. 3642 (Mar. 17, 1994)
(NO. 93-1456).
23. See Linda Cohen & Matthew Spitzer, Term Limits, 80 GEO. L.J. 477
(1992) (arguing that term limits change incentives facing legislators, and their
expected behavior, for the worse); Neil Gorsuch & Michael Guzman, Will the Gen-
tlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limi-
tations, 20 HOFSTRAL. REV. 341 (1991) (arguing that term limits which only re-
quire rotation out of office, rather than a total prohibition on future terms, are
constitutional); Roderick M. Hills, Jr., A Defense of State Constitutional Limits on
Federal Congressional Terms, 53 U. PI?T.L. REV. 97 (1991) (arguing that the Con-
stitution does not deprive state citizens of the power to impose election qualifica-
tions in addition to those enumerated in Article I of the Constitution); William
Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 HARV. J.L. & PUB.
POL9 95 (1993) (arguing that term limits would foster the type of government
envisioned by the authors of The Federalist Papers); Latz, supra note 4 (analyzing
the various constitutional challenges that can be made to state-imposed congressio-
nal term limitations); Nelson W. Polsby, Some Arguments Against Congressional
Term Limitations, 16 HARV. J.L. & PUB. PoL'Y 101 (1993) (arguing that term limits
are unconstitutional and will weaken Congress and decrease the influence that
Congress has in the American political system); Stephen J. Safranek, Term Lim-
 CONGRESSIONAL m R M LIMITS

This Comment will not focus on many of the issues in-

volved in the debate over state-imposed congressional term
limits. The reader is encouraged to turn to the numerous sourc-

itations: Do the Winds of Change Blow Unconstitutional?, 26 CREIGHTON L. REV.

321, 323 (1993) (discussing how courts might analyze the constitutionality of term
limits in light of relevant historical sources and concluding that Colorado term
limits are constitutional); Sedgwick, supra note 14 (arguing that a state may con-
stitutionally impose congressional term limits under the Times, Places & Manner
Clause of the Constitution); Brendan Barnicle, Comment, Congressional Term Lim-
its: Unconstitutional by Initiative, 67 WASH.L. REV. 415 (1992) (arguing that term
limits are unconstitutional when enacted through voters' initiatives and that term
limits are inconsistent with the original intent of the Framers of the Constitution);
Robert C. DeCarli, Note, The Constitutionality of State-Enacted Term Limits Under
the Qualifications Clauses, 71 TEX. L. REV. 865 (1993) (arguing that term-limit ini-
tiatives are permissible additions to the qualifications set forth in Article I of the
Constitution); Anthony E. Gay, Comment, Congressional Term Limits: Good Govern-
ment or Minority Vote Dilution?, 141 U. PA. L. REV. 2311 (1993) (arguing that
term limits would cause a detrimental shift in power from the legislative to the
executive branch of government, reducing the influence of minorities in national
politics); Kovacevich, supra note 7 (arguing that a constitutional amendment is the
only way to limit the terms of congressmen); Joshua Levy, Note, Can They Throw
the Bums out? The Constitutionality of State-Imposed Congressional Term Limits, 80
GEO. L.J. 1913 (1992) (arguing that states do not have the power to impose con-
gressional term limits); Jonathan Mansfield, Note, A Choice Approach to the Consti-
tutionality of Term Limitation Laws, 78 CORNELL L. REV. 966 (1993) (arguing that
term limits are unconstitutional in light of the Framers' social contract theory be-
cause the Constitution requires the maximum amount of substantive voter choice
possible); Julia C. Wommack, Comment, Congressional Reform: Can Term Limita-
tions Close the Door on Political Careerism?, 24 ST. MARYS ' L.J. 1361 (1993) (argu-
ing that state-imposed term limits containing a "write-in" clause are constitutional
but that the goals of term limits will best be achieved by alternative methods);
Corwin, supra note 3 (arguing that term limits are unconstitutional and will not
accomplish their underlying goals); Are Term Limits Constitutional? The Voters
Have Spoken. Now the Courts Must Decide, CAL. LAW., Feb. 1993, at 35 (1993)
(discussion between Joseph Remcho, who is representing the California Legislature
in efforts to strike down term limits, and Dan Rodriguez, a professor of law at
Boalt Hall, on the constitutionality of term limits); see also CENTERFOR LEGISLA-
TIVE STUDIES,NELSONA. ROCKEFELLER INST. OF ~ o v ? ,LIMITINGLEGISLATIVE
TERMS(Gerald Benjamin & Michael J. Malbin eds., 1992) (giving comprehensive
coverage of the-history, likely effects, and pros and cons of term limits); GEORGEF.
WILL, RESTORATION: CONGRESS, TERMLIMITS, AND THE RECOVERY OF DELIBERATIVE
DEMWRACY (1992) (advocating term limits as necessary political reforms); Thomas
E. Cronin, Term Limits-A Symptom, Not a Cure, N.Y. TIMES, Dec. 23, 1990, § 4,
a t 11 (arguing that term limits are an illusory quick-fix for a symptom rather than
a cure for governmental problems); The Inconsistency of Term Limiters, CHI. TRIB.,
Nov. 7, 1992, § 1, at 22 (editorial arguing that term limits eliminate good mem-
bers of Congress whom the people would happily re-elect if given the chance).
In November 1993, Judge Malcolm R. Wilkey, who served on the Federal Court
of Appeals for the D.C. Circuit from 1970 to 1985, gave six lectures on constitu-
tional reform a t Brigham Young University's J. Reuben Clark Law School. Among
the reforms discussed by Judge Wilkey were congressional term limits. Audio re-
cordings of these lectures are on file at the J. Reuben Clark Law School. Judge
Wilkey plans on publishing a book on constitutional reform in the near future.
434 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994
es previously cited for further discussion of those issues. In-
stead, the remainder of this Comment will focus on the intent
of the Framers of the Constitution concerning congressional
term limits. This Comment intentionally passes on a detailed
discussion of the Washington, Arkansas, and other court cases
arguably relevant to this issue. Both the Washington and Ar-
kansas cases summarily treat state-imposed congressional term
limits as an additional qualification to be a U.S. Senator or
Representative without sufficiently explaining why or how
these term limits constitute a q~alification.~~ This type of
analysis clouds the determination of the Framers' intent con-
cerning term limits, which the Arkansas case concedes is
i n c o n c l ~ s i v e and
~ ~ the Washington case blatantly
mischaracteri~es.~~ The U.S. Supreme Court has yet to rule on
state-imposed congressional term limits, and this Comment
proposes that when that determination is finally made, it
should be firmly grounded in the intent of the Framers.

A. Rejection of Rotation-in-0fice Requirement

The Framers of the Constitution considered, and rejected,
requiring rotation in office as under the Articles of Confedera-
t i ~ n . ~However,
' it does not necessarily follow that the Fram-
ers would be against any term limits, especially those imposed
by the individual states. The only conclusion that can be safely
drawn is that the Framers decided against requiring rotation
in office on a national scale at that point in time. It is impor-
tant to examine the nature of politics at the time the Constitu-
tion was drafted in relation to the nature of politics today. Only
then can we understand the Framers' intent concerning the
term limits that have recently been enacted.
Additionally, the various state-imposed congressional term
limits do not necessarily resemble the rotation-in-office require-

24. See Thorsted v. Gregoire, 841 F. Supp. 1068, 1075-83 W.D. Wash. 1994);
U.S. Term Limits, Inc. v. Hill, No. 93-1240, 1994 WL 72581, a t *6 to *8 (Ark.
Mar. 7, 1994), petition for cert. filed sub nom. U.S. Term Limits, Inc. v. Thornton,
62 U.S.L.W. 3642 (Mar. 17, 1994) (No. 93-1456). Although the Washington case
does address the various methods of analyzing term limits, even its Tenth Amend-
ment analysis assumes that these term limits are qualifications. See Thorsted, 841
F. Supp. at 1082-83.
25. See Hill, 1994 WL 72581, at *6.
26. See Thorsted, 841 F. Supp. at 1078-79.
27. See supra notes 2-4 and accompanying text.
4291 CONGRESSIONAL TERM LIMITS 435

ment considered by the Framers. In fact, the congressional

term limits that have been enacted vary from state to state.
For example, some states only limit an incumbent's access to
the ballot after a set number of terms, and i t is theoretically
possible for a n incumbent to remain in office by winning a
write-in campaign.28 Other states have come closer to rota-
tion-in-office requirements by defining the limits in terms of a
maximum number of years allowed in office over a specified
period of time," or by only prohibiting consecutive terms?'
Very few states purport to put an absolute ban on further ser-
vice as a representative or senator after a set number of terms
or year^.^' These are only a few examples of the many intri-
cate differences between the state-imposed congressional term
limits. Thus, this Comment only focuses on the ability of the
individual states to generally impose limits in light of the
Framers' intent, rather than addressing specific provisions.

B. Politics and the Framers of the Constitution

1. No career politicians
When the Constitution was drafted, career politicians were
virtually unheard of. The Framers of the Constitution did not
contemplate people making a career of politics; instead, their
elected officials were amateur politicians from all walks of life,
some of whom served their country and the people a t great
personal sacrifice.32When George Washington was elected a s
the first President of the United States, he was "reluctant 'in
the evening of life to exchange a peaceful abode for a n ocean of
diffic~lties,"'~~yet he boldly stepped forward and faithfully
served his country.
The Framers of the Constitution engaged in politics during
a time when "[elvery new election in the States [was] found to
change one half of the representative^."^^ The Federalist Pa-

28. See, e.g., FLA.CONST. art. VI, $ 403).

29. See, e,g., WYO. STAT. 22-5-104 (Supp. 1993).
30. See, e.g., COLO.CONST. art. XVIII, $ 9a.
31. But see, e.g., Mo. CONST.art. 111, $ 45(a).
32. Malcolm R. Wilkey, Lecture at Brigham Young University's J. Reuben
Clark Law School (Nov. 11, 1993) (audio recording on file at the J. Reuben Clark
Law School).
33. GEORGEBANCROFT, HISTORYOF THE FORMATION OF THE CONSTITUTION OF
THE UNITEDSTATESOF AMERICA469 (New York, D. Appleton & Co. 1885).
34. THE FEDERALISTNo. 62, at 389 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
436 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

pers point out that "[flrom this change of men must proceed a
change of opinions; and from a change of opinions, a change of
measures."35The Federalist Papers describe the Senate as "an
assembly of men called for the most part from pursuits of a
private nature, continued in appointment for a short time."36
Additionally, it was thought to be important that men take
knowledge gained in private life to the legislature:
No man can be a competent legislator who does not add to an
upright intention and a sound judgment a certain degree of
knowledge of the subjects on which he is to legislate. A part
of this knowledge may be acquired by means of information
which lie within the compass of men in private life as well as
public stations.37

Therefore, the Framers clearly anticipated a good deal of turn-

over in Congress. Consequently, it is not surprising that the
Framers would deem rotation in office an unnecessary require-
ment under those circumstances.

2. The people as the ultimate source of power and a represen-

tative government accountable to the people
The Federalist Papers paint a picture of politics and democ-
racy as seen through the eyes of the Framers of the Constitu-
tion. James Madison wrote that "to preserve the spirit and the
form of popular government" should be "the great object t o
which our inquiries are d i r e ~ t e d . "He
~ ~ noted "that the ulti-
mate authority . . . resides in the people alone" and that the
government is "substantially dependent on the great body of
the citizens of the United States," with the elected officials
acting as "agents and trustees of the people."39 The Framers
understood that the government must have the public confi-
dence? yet politicians may sometimes "forget their obliga-

35. Id. The Federalist Papers go on to point out that "a continual change
even of good measures is inconsistent with every rule of prudence and every pros-
pect of success." Id. However, the Framers noted that a certain extent of turnover
in Congress is desirable, as opposed to having little or no turnover, in order to
fuel the infusion of fresh opinions and measures into the national government.
36. Id. at 388 (emphasis added).
37. THE FEDERALIST No. 53, at 335 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
38. THE FEDERALIST No. 10, at 55-56 (James Madison) (Henry C. Lodge ed.,
1902); see Kristol, supra note 23, at 95.
39. THE FEDERALIST No. 46, at 292 (James Madison) (Henry C. Lodge ed.,
1902).
40. THE FEDERALIST No. 62, at 390 (Hamilton or Madison) (Henry C. Lodge
4291 CONGRESSIONAL TERM LIMITS 437

tions to their constituents, and prove unfaithful to their im-

portant trust."41 Consequently, it was considered to be impor-
tant that elected representatives be accountable to the people
whom they purport to represent.
Although no term limits were written into the Constitu-
tion, the Framers acknowledged that term limits are one of the
most effective ways to "maintain a proper responsibility to the
pe~ple,'"~and that "frequent elections7' would instill in the
elected representative "an habitual recollection of their depen-
dance on the people."43 The Federalist Papers also noted "that
the government in general should have a common interest with
the people, so it is particularly essential that the [legislative]
branch . . . should have a n immediate dependence on, and a n
intimate sympathy with, the people."44
The Framers recognized a need to strike a balance between
a representative's dependence on the people and stability in the
go~ernment.4~ Although accountability requires a period in
office sufficiently long to accomplish desired objecti~es:~life-
time tenure would be "repugnant to the genius[] of Ameri-
~a."~ Likewise,
' re-election "as a matter of course" would not
serve as a check t o make the elected official accountable?
In 1776, John Adams noted that "a republic 'is a n empire
of laws, and not of men.""g He continued: "The principal dif-
ficulty lies, and the greatest care should be employed, in consti-
tuting this representative assembly. It should be in miniature
a n exact portrait of the people a t large. It should think, feel,

ed., 1902).
41. Id. at 387.
42. THE FEDERALIST No. 57, a t 356 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
43. Id. a t 357-58.
44. THE FEDERALIST No. 52, a t 329 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
45. THE FEDERALIST No. 37, at 217-18 (James Madison) (Henry C. Lodge ed.,
1902).
46. THE FEDERALIST No. 63, at 392-93 (Hamilton or Madison) (Henry C.
Lodge ed., 1902).
47. Id. a t 394-95.
48. THE FEDERALIST No. 53, a t 338 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
49. John Adams, Thoughts on Government: Applicable to the Present State of
the American Colonies (1776), in MICHAELKAMMEN, DEPUTYES& LIBERTYES:THE
ORIGINSOF REPRESENTATIVE GOVERNMENT M COLONIAL AMERICA199, 200 (1969).
438 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

reason, and act like them."50 This is what the Framers of the
Constitution attempted to accomplish.

3. The people$ ability to 'khoose whom they please to govern

them"
Alexander Hamilton stated "that the people should choose
whom they please to govern them.'"' This is entirely consis-
tent with the theme of a representative government which is
accountable to the people (in whom the ultimate source of pow-
e r resides). It does not necessarily follow from Hamilton's state-
ment that the people have a n absolute right to elect whom they
please. Exactly what, then, did Hamilton mean by his state-
ment?
First of all, it is important to remember that Hamilton's
ofbquoted statement was made a t a point in history when
Senators were chosen by the state legislatures, and not directly
by the people.52 If the people had an absolute right to elect
their representatives, why would the Senators be elected by the
legislative bodies instead of directly by the people as was the
House of representative^?^^ Additionally, the Constitution it-
self requires that members of Congress (and the President)
satisfy certain specified qualifi~ations;~making it impossible,
for example, for the people to choose a twenty-year-old person
to govern over them as President of the United States, no mat-
ter how strong the public support for such a n individual. Thus,
Hamilton's statement must be taken in light of the political
circumstances described above. Hamilton recognized that the
ultimate source of the government's authority is the people,
and that such a representative government should be account-
able to the people, allowing them to "choose whom they please
to govern them."55

50. Id.
51. 2 THE DEBATESIN THE SEVERALSTATE CONVENTIONS ON THE ADOFTION
OF THE FEDERALCONSTITUTION 257 (Jonathan Elliot ed., reprint ed. 1987) (2d ed.
1888) [hereinafter DEBATES] (quoting Alexander Hamilton).
52. U.S. CONST.art. I, $ 3, el. 1, amended by U.S. CONST.amend. XVII, $ 1.
53. See U.S. CONST.art. I, $ 2, el. 1.
54. See U.S. CONST.art. I, $ 2, el. 2; id. art. I, $ 3, el. 3; id. art. 11, $ 1, cl.
5.
55. 2 DEBATES,supra note 51, at 257.
4291 CONGRESSIONAL TERM LIMITS

C. The Politics of Today

The politics of today stand in stark contrast to that experi-
enced by the Framers of the Constitution. Consequently, before
passing judgment on state-imposed congressional term limits, it
is important t o compare the politics of today to that envisioned
by the Framers.

1. Career politicians
Today we have career politicians who are virtually guaran-
teed re-election.56In 1988, "more congressmen left office be-
cause of death (seven) than were defeated at the polls (six)."57
Turnover in the House of Representatives is generally less than
the turnover in the former Soviet pol it bur^.^' No longer do we
have a continual infusion of fresh opinions and measures into
the government. No longer do we have men "called for the most
part from pursuits of a private nature, continued in appoint-
ment for a short time."g Two prime examples of this are Tom
Foley, Speaker of the House, and Jack Brooks, Chairman of the
House Judiciary Committee. Tom Foley was elected t o Con-
gress in 1964, and Jack Brooks was elected in 1952?' It is
hard to imagine that either of these Representatives has any-
thing new t o contribute to the government of this country. I t is
also hard t o believe that the Framers of the Constitution antici-
pated such perpetual service in Congress when they decided
not t o include in the Constitution a rotation-in-office re-
quirement.
"The aim of every political constitution is, or ought to be,
first t o obtain for rulers men who possess most wisdom t o dis-
cern, and most virtue to pursue, the common good of the soci-
ety. . . .'"I Opponents of such limits claim that term limits
rob Congress of the most qualified individuals, those with expe-
rience and knowledge."

56. In 1992, 83% of House incumbents ran essentially unopposed. Will, supra
note 15, at A21.
57. Kristol, supra note 23, at 97.
58. Ronald D. Rotunda, No Impediment to Term Limits, WASH. POST,Feb. 13,
1993, at A31.
59. THE FEDERALIST No. 62, at 388 (Hamilton or Madison) (Henry C. Lodge
ed., 1902) (emphasis added).
60. Will, . . . And Across the Nation, supra note 9, at A19.
61. THE FEDERALIST No. 57, at 356 (Hamilton or Madison) (Henry C. Lodge
ed., 1902).
62. See, e.g., Polsby, supra note 23, at 104-05. Alexander Hamilton declared
440 BRIGHAM YOUNG UNIVERSITY LAW FEVIEW [I994
If term limits would result in less capable, less experienced,
and less responsible people running for Congress, indeed,
such measures would be undesirable. If, however, one ran-
domly compares five House members who have been in Con-
gress less than twelve years with five who have been there
longer, i t is unlikely that he will find that the senior repre-
sentatives possess a greater degree of wisdom, knowledge,
and technical mastery than their junior colleague^.^

On the contrary, term limits may actually increase the likeli-

hood of attracting the type of men envisioned by James Madi-
son, and the other Framers, to the government."
The current system prevents legislators, especially in the
House of Representatives, from achieving significant power
until they have attained seniority. It discourages people who
have accomplished something in other walks of life from run-
ning for Congress. Such individuals are put off by the notion
that they will have to serve as members of Congress for fif-
teen or twenty years before they have amassed enough influ-
ence for their voices to be heard by the others on Capitol
~i11.~~

T e r n limits would be a n important step towards breaking

down these seniority barriers that are discouraging qualified
people from running for Congress, thereby giving the people
greater freedom of choice in elections. With more and more
members of Congress subject to state-imposed term limits, "the
seniority system will not long endure as a means of allocating
political power and Federal largess. Term-limited members of
Congress will have different incentives from career politicians.
They will work to change the rules of the House and Senate
under which political power is all~cated."~This will be a big
step towards giving the political power back to the people
where it belongs.

that the ability to be re-elected "is necessary to enable the people, when they see
reason to approve of [a representative's] . . . conduct, to continue him in his sta-
tion, in order to prolong the utility of his talents and virtues, and to secure to the
government the advantage of permanency in a wise system of administration." THE
FEDERALIST No. 72, at 451 (Alexander Hamilton) (Henry C. Lodge ed., 1902).
63. Kristol, supra note 23, at 98-99.
64. Id. at 98.
65. Id.
66. Mark P. Petracca, Term Limits Set Us on the Road to Democracy, N.Y.
RMES, Nov. 20, 1992, at A30 (letter to the editor written by a professor of political
science).
4291 CONGRESSIONAL TERM LIMITS 441

2. A supposedly representative government which is no longer

accountable to the people
The re-election as a matter of course enjoyed by incum-
bents today has destroyed the accountability of Congress to the
people. No longer do we have elected officials who retain a
common interest with the people; indeed, some politicians have
spent so much time in Washington D.C. that one wonders if
they remember what their home state is really like. Roger
Sherman warned that this might happen when he advocated
annual elections for U.S. Representatives during the Constitu-
tional Convention. "The representatives ought to return home
and mix with the people. By remaining at the seat of govern-
ment, they will acquire the habits of the place, which might
differ from those of their constituents . . . .'767
Congress is rapidly losing the public confidence,6' and has
proven to be unresponsive to its true source of power, the peo-
ple. Otherwise, Congress would respond to the will of the peo-
ple and at least submit to the people for ratification a constitu-
tional amendment limiting terms. Instead, Congress is doing
the exact opposite and defiantly resisting the people who elect-
ed them, by opposing the people's attempts to limit congressio-
nal terms. "Politicians react to term limits as vampires do to
the A prime example of this is Speaker of the House
Tom Foley's lawsuit challenging the term limits enacted by his
~onstituents.~~
Not all members of Congress are unresponsive and unac-
countable to the people. Senator Malcolm Wallop of Wyoming,
a n excellent example of an elected representative who recogniz-
es that the people are the true source of his authority, is will-
ing to abide by their wishes. Senator Wallop has declared that
he will not seek a fourth term out of respect for Wyoming
voters' belief in term limits, even though he could serve two

67. C O N S ~ I O N CHAFF:
AL REJECTED SUGGESTIONS OF THE CONSTITUTIONAL
CONVENTION OF 1787, at 7 (Jane Butzner ed., 1970) (quoting Roger Sherman).
68. "A recent Gallup Poll showed that only 20% of respondents said they be-
lieve that they can trust the federal government all or some of the time-little
more than half the percentage during the Watergate scandal in 1974." Robert
Shogan, Public Discontent for Lawmakers Hits New High; Drastic Reforms Gain
Favor, LA. TIMES,Mar. 10, 1994 at A5; see also supra note 5 and accompanying
text.
69. Robert D. Novak, Term Limits: In Trenton . . ., WASH.POST,June 24,
1993, at A19.
70. See supra notes 18-19 and accompanying text.
442 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

more terms under Wyoming's recently enacted legi~lation.~'

Perhaps if more members of Congress were like Senator Wal-
lop, formal term limitations would be unnecessary. Unfortu-
nately, that is not the case.

3. The people's ability to "choose whom they please to govern

themn
One of the main arguments used by opponents of state-
imposed term limitations is the people's right of choice. They
invariably quote Alexander Hamilton's statement that "the
people should choose whom they please to govern them."72
What these opponents fail to realize is that the state-imposed
congressional term limits have been imposed by the voice of the
people in all fifteen states which currently have such limits.73
The people have asked for an alternative to incumbents. State-
imposed congressional term limits implemented by the people
are merely the result of the people exercising their right to
choose whom they please to not govern them. Surely the people
have greater freedom to choose whom they please under state-
imposed congressional term limits than they did when the state
legislatures chose the Senators. It is possible that voter apathy
might be attributable, in part, to the feeling that the incum-
bent is going to win anyway, so why bother voting. State-im-
posed term limits will help to dispel that perception and once
again empower the people to exercise their right of choice.
D. State-Imposed Congressional Term Limits Would Be
a Step Toward the Type of Government
Envisioned by the Framers
In short, "the spirit and the form of popular government"
envisioned by the Framers of the C o n ~ t i t u t i o nno
~ ~longer ex-
ists. In light of today's political exigencies, congressional term

71. Wyoming Senator Limits His Own Term, CHI. TRIB., Sept. 11, 1993, $ 1,
at 8.
72. 2 DEBATES,supra note 51, at 257; see, e.g., Latz, supra note 4, at 171;
Kovacevich, supra note 7, at 1702; Corwin, supra note 3, at 588.
73. In 1993, the state legislature of New Jersey almost became the first state
legislature to impose congressional term limits. See Novak, supra note 69, a t A19.
However, the New Jersey Senate failed to even vote on the bill even though the
State Assembly had already voted in favor of it. Cooper & Morin, supra note 9, a t
A16.
74. See THE FEDERALIST No. 10, at 55-56 (James Madison) (Henry C. Lodge
ed., 1902).
4291 CONGRESSIONAL TERM LIMITS 443

limits, particularly state-imposed term limits enacted by the

voice of the people-the true source of power, are entirely con-
sistent with the intent of the Framers of the Constitution. Con-
gressional term limits "would change the culture of Congress
and the culture of our politics" for the better.75

E. Congressional Term Limits Are Necessary to

Prevent the People from Becoming Sheep
and the Government the Shepherd
In the early 1800s, Alexis de Toqueville described the sort
of despotism that America had to fear as a democratic na-
t i ~ nHe
. ~stated:
~
[Americans] are constantly excited by two conflicting pas-
sions: they want to be led, and they wish to remain free. As
they cannot destroy either the one or the other of these con-
trary propensities, they strive to satisfy them both a t once.
They devise a sole, tutelary, and all-powerful form of govern-
ment, but elected by the people."

Such a government does not necessarily tyrannize the people,

but it is dangerous just the same.
The will of man is not shattered, but softened, bent, and guid-
ed; men are seldom forced by i t to act, but they are constantly
restrained from acting. Such a power does not destroy, but i t
prevents existence; i t does not tyrannize, but it compresses,
enervates, extinguishes, and stupefies a people, till [they are]
. . . reduced to nothing better than a flock of timid and indus-
trious animals, of which the government is the shepherd."

The ability to elect government officials alone will not prevent

this type of despotism. "By this system the people shake off
their state of dependence just long enough to select their mas-
ter and then relapse into it again."79 Even Thomas Jefferson
warned, "If [the people] become inattentive to the public affairs,
. . . Congress and Assemblies, Judges and Governors, shall all
become wolves."80

75. Kristol, supra note 23, at 99.

76. 2 ALEXIS DE TOQUEVILLE,DEMOCRACY IN AMERICA316-21 (Phillips
Bradley ed. & Henry Reeve trans., Alfred A. Knopf, Inc. 1972) (1835).
77. 2 id. at 319.
78. 2 id.
79. 2 id.
80. Letter from Thomas Jefferson to Col. Edward Carrington (Jan. 16, 1787),
444 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

Due to the nature of politics at the time the Constitution

was drafted, this sort of despotism had little chance of actually
occurring. Frequent turnover in Congress and accountability to
the people kept the government in check. However, that is not
true today. At the risk of sensationalizing the issue, when vot-
ers file to the polls and unconsciously re-elect the same mem-
bers of Congress time after time after time, one has to wonder
if they are much more than sheep blindly following a shepherd.
This appears to be contrary to the type of government envi-
sioned by the Framers.
F. The Constitutional Framwork and
Its Intended Application
The Articles of Confederation mandated that the state
delegates t o Congress would rotate on a regular basis by stat-
ing, "[Nlo person shall be capable of being a delegate for more
than three years in any term of six years."s1 This rotation-in-
office requirement was not carried over into the United States
Constitution. Instead, the Constitution sets forth the number of
years that U.S. senators and representative serve in a single
term, but it is silent regarding the number of terms a senator
or representative may serve.
1. The Times, Places and Manner Clause v. the Qualifications
Clauses
Much of the debate over state-imposed congressional term
limits has attempted t o define the issue in terms of either the
Times, Places and Manner Clause,82 or the Qualifications
Clausess3 of the Constitution. However, it is not clear that

quoted in GARREWW. SHELDON,THE P O L ~ I C APHILOSOPHY

L OF THOMASJEFFER-
SON 69-70 (1991).
81. ARTICLES OF CONFEDERATION art. V (1777).
82. "The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such Regulations, except as
to the Place of chusing [sic] Senators." U.S.CONST.art. I, 5 4, cl. 1.
83. "No Person shall be a Representative who shall not have attained to the
Age of twenty five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State in which he shall
be chosen." U.S. CONST. art. I, 5 2, cl. 2.
"No Person shall be a Senator who shall not have attained to the Age of thirty
Years, and been nine Years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State for which he shall be chosen." U.S.
CONST.art. I, § 3, cl. 3.
4291 CONGRESSIONAL TERM LIMITS 445

state-imposed congressional term limits fit neatly into either

one of these characterizations. This leaves unanswered the
question: what was the Framers' intent concerning congressio-
nal term limits, particularly those that might be imposed by
the individual states?
a. The Times, Places and Manner Clause (Manner
Clause). The Manner Clause gives the individual states the
power to regulate the "Times, Places and Manner of holding
Elections for Senators and Representatives," but reserves t o
Congress the power to alter the state regulations by law.84
This Clause "met with little discussion in the [Constitutional]
Conventi~n."~~ However, it was hotly debated during the state
ratifying convention^.^^ The states "were disturbed by the
word 'manner' because they thought it had virtually unlimited
meaning" and "gave Congress ultimate and unfettered discre-
tion t o alter elections. No other entity, legislative, executive, or
judicial, state or federal, could control this dis~retion."~' Pro-
ponents of the Constitution argued "that the federal govern-
ment would restrain itself from abusing this power unless the
federal government's very existence was threatened."88 Alex-
ander Hamilton argued that the reason Congress was given
ultimate power in this Clause was "to prevent the dissolution
of the federal government by the state^.'"^ Many states called
for an amendment limiting Congress' power to enact regula-
tions under the Manner Clause to "cases where a state shall
neglect or refuse t o make the regulations therein mentioned, or
shall make regulations subversive of the rights of the people t o
a free and equal representation in Congres~."~~ Such an
amendment was never adopted.
It appears that the Manner Clause was intended t o give
the states broad powers in regulating federal elections, and
that Congress would only intervene if the states took action
that threatened the existence of the federal government. It
would be difficult t o characterize state-imposed term limita-
tions as threatening the existence of the federal government.
However, it is not entirely clear that such limits can properly

84. U.S.CONST.art. I, 9 4, cl. 1.

85. Safranek, supra note 23, at 328.
86. Id.at 329-40.
87. Id. at 331.
88. Id. at 334.
89. Id. at 341.
90. Id. at 332.
446 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

be characterized as permissible state regulations of federal

elections under the Manner Clause.
b. The Qualifications Clauses. Opponents of state-im-
posed term limits argue that states are adding a qualification
to those enumerated in the Constitution-that the candidate
not have already served for more than a specified number of
years. They claim that the list of qualifications in the Constitu-
tion has "been interpreted consistently and correctly by the
courts as setting maximum requirements that may not be al-
tered by Congress or the states.'"' Proponents of state-im-
posed congressional term limits argue that "the discussion of
the qualifications [at the Constitutional Convention], the word-
ing of the Qualifications Clause[s], and the structure of the
Constitution all suggest that the qualifications for senators and
representatives were meant to ensure that states sent minimal-
ly qualified candidates to Congre~s."~~ Unlike the Manner
Clause, the Qualifications Clauses were not the subject of sig-
nificant debate at the Constitutional C~nvention.'~"The
[sparse] debate over the Qualifications Clause[s] in the state
ratifying debates stands in stark contrast t o the breadth and
ferocity of the argument over the [Manner] Clause."94
"Joseph Story often is considered one of the preeminent
sources of constitutional interpretation because of his propin-
quity to the era of ratification and his long tenure on the Su-
preme Opponents of state-imposed term limits rely
on the fact that "Story thought that the enumeration of quali-
fications in the Constitution excluded all other qualifica-
tions."96
It is far from clear that Joseph Story's view of the exclusiv-
ity of the Qualifications Clauses is the correct one, or that
state-imposed congressional term limits are even contrary t o
his view. Whether these term limits can even be characterized
as a "qualification" is more of a debate over semantics than it
is over constitutional interpretation. Like the Manner Clause
analysis, the analysis of the Qualifications Clauses seems a bit
forced. "The lack of any evidence indicating a limitation on the

91. Corwin, supm note 3, at 579.

92. Safranek, supra note 23, at 350.
93. Id. at 350-54.
94. Id. at 354.
95. Id. at 344.
96. Id. at 358.
4291 CONGRESSIONAL TERM LIMITS 447

states to add qualifications, at a convention that was called in

large measure to limit state power, is as determinative as his-
tory can be."97

2. The Tenth Amendment

If state-imposed congressional term limits cannot be prop-
erly characterized as falling under the Manner Clause or the
Qualifications Clauses, what is left? The Tenth Amendment is
a catch-all provision that specifically reserves to the respective
states any "powers not delegated to the United States by the
Constitution, nor prohibited by it to the States?' If neither
the Manner Clause, nor the Qualifications Clauses adequately
address the issue of state-imposed congressional term limits,
then it may be proper t o analyze it under the Tenth Amend-
ment.
Regarding his interpretation of the Qualifications Clauses,
"[Joseph] Story admitted that no less an authority than Thom-
as Jefferson had opposed [his] view."ggJefferson believed "that
the Tenth Amendment provides the states and the people with
any power not given explicitly to the federal go~ernment."'~~
Jefferson further elaborated this view by stating, "To take a
single step beyond the boundaries thus specially drawn around
the powers of Congress is to take possession of a boundless
field of power, no longer susceptible of any definition."lo1
Thus, "[tlhe Qualifications Clause[s], being expressed in the
negative, merely set[] forth minimum qualifications beyond
which the states are free to add."lo2This line of reasoning is
consistent with the form of government described in The Feder-
alist Papers-one in which the ultimate power and authority
resides in the people, giving the people control over their elect-
ed representatives.
Joseph Story "added that even if one conceded that states
have the power to add qualifications, state legislatures are not
the entity capable of exercising this power, only the people of

97. Id. at 353.

98. U.S. CONST.amend. X.
99. Safranek, supra note 23, at 358.
100. Id. at 358-59.
101. Thomas Jefferson, Opinion on the Constitutionality of the Bill for Estab-
lishing a National Bank (Feb. 15, 1791), in JEFFERSON POWELL, LANGUAGES OF
POWER:A SOURCEBOOK OF EARLYAMERICANCONSTITUTIONAL HISTORY41, 42
(1991).
102. Safranek, supra note 23, at 358-59.
448 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I994

the state have this power."'03 In all ffiteen states imposing

congressional term limits, these limits have been enacted by
the voice of the people declaring their will. "Story admitted
that his position was not conclusive. Instead, he thought his
theory shifted the burden of proof to the states to show that
they have the power to add qualifications beyond those found
in the Constit~tion."'~~ The presently enacted state-imposed
congressional term limits have carried this burden of proof.

IV. CONCLUSION
The Constitution should be interpreted as a flexible docu-
ment capable of adapting t o present day exigencies in light of
the Framers' intentions. Even the Framers themselves, or at
least some of them, never imagined that the political structure
they created would have the longevity it has enjoyed. James
Madison objected that one member of the House for every forty
thousand inhabitants would render the House excessive with
the impending increase in population.'" Nathaniel Gorham
replied, "The government . . . will not last so long as to produce
this effect. Can it be supposed that this vast country, including
the western territory, will one hundred and fiRy years hence
remain one nation?"lo6Despite these doubts, the government
has lasted, but it must adapt t o conform more closely to the
Framers' vision if it is to ultimately survive.
The government must acknowledge that its ultimate source
of power is the people and once again become accountable to
the people for its actions. The voice of the people has spoken,
and the people want congressional term limits. "Term limita-
tion is a first step on the arduous road leading to the restora-
tion of political institutions that are capable of nurturing repre-
sentative democracy, democratic citizenship and the ennobling
art of self-government."'" If Congress is truly a representa-
tive body which is responsive to the people, then it should pro-
pose an amendment to the Constitution limiting congressional
terms and present it to the people for ratification. Congress'
refusal t o do so is the best evidence that it is not the represen-
tative body that the Framers of the Constitution envisioned,

103. Id. at 359.

104. Id.
105. BANCROFT,
supra note 33, at 294.
106. Id. at 294-95.
107. Petracca, supm note 66, at A30.
4291 CONGRESSIONAL TERM LIMITS 449

thus giving credence to the argument that the Framers would

support today's state-imposed congressional term limitations. It
is a sad fact that if the states are not allowed to impose con-
gressional term limits, Congress never will, in spite of the will
of the p e o p l e t h e supposed ultimate source of power.
Dwayne A. Vance