Term limits, the state courts, and national dominion: the vicissitudes of American federalism.

• Author: Friedelbaum, Stanley H.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Introductory Note and Retrospective

Disillusionment with the political process, brought on in part by extravagant perquisites and their abuse by public officials, has led to persistent calls for reform. The "powers of incumbency," it is charged, have been largely responsible for misrepresenting the intent of the electorate and for the malfunctioning of American political institutions. Claims abound that the democratic process will be best served if the terms of legislators are limited. Such changes, it is asserted, will do much to safeguard the public interest and to ensure a high level of services coupled with reductions in the volume of tax receipts needed to sustain it.(1) Whether major improvements may be expected to result from the restraints envisioned must remain an open question since, at least at the federal level, an end to the "corrosive" effects of incumbency is not likely to occur.

The turmoil that marked recent campaigns for term limits was largely centered in the states though the notion of prescribing maximum terms for officeholders extended with equal weight to members of Congress as well as to state legislators. Since 1990, more than twenty states established state legislative term limits while many moved to place analogous restrictions upon those representing them in the councils of the nation. With respect to limits imposed at both levels, judicial review figured as a force that had to be reckoned with when recurring experiments touching upon the qualifications of legislators were challenged. The rulings of state courts remained significant, if not always conclusive, in the decisionmaking calculus.

A revitalized judicial federalism took on a different aura in relation to these efforts. There were few occasions for a reliance on independent state grounds as the basis for a departure from federal standards. In the states, term limits generally were imposed by way of constitutional amendments. When these applied internally to state legislatures, judicial review was often limited to peripheral issues rather than to reexamination of the core principle of term limits. Beyond such inquiries, state courts were prone to premise consideration of projected restraints upon members of Congress by reference to the federal constitution. No more than an attenuated version of judicial federalism came into play as historically vexing questions reemerged.

Previous fears of an "imperial" presidency, initially prompted by President Franklin D. Roosevelt's election to four terms extending from the early 1930s to the mid-1940s, gave rise to a successful effort to amend the Constitution. The Twenty-Second Amendment, proposed in 1947 and adopted four years later, prescribed no more than two terms with specified exceptions resulting from uncompleted terms.(2) Ratification of the amendment in the states occurred with little contention; in several state legislatures, approval came about without significant debate. The two-term tradition, maintained uninterruptedly during most of the nation's history, reinforced efforts to prevent a recurrence of Roosevelt's abandonment of the practice before and during the wartime years. Although some students of the presidency allege the Twenty-Second Amendment measurably reduced the power of a second-term incumbent, such criticisms found almost no support in the electorate at large,(3) and have been discredited by other scholars.(4)

By contrast, Congress has not acquiesced in any constitutional amendment that would impose oft-suggested term limits of six years in the House of Representatives and twelve years in the Senate. Regardless of widespread public support and countless promises made during political campaigns, members are disinclined to vote for what many take to be self-denying measures, much as the Framers were unwilling to proceed beyond minimal age requirements for elected offices that did not thwart their eligibility during a period marked by relatively short lifespans.

To some extent, the current campaign to institute term limits parallels attempts several decades earlier to eliminate America's "rotten boroughs" and to apply a "one person, one vote" standard to legislative districting and apportionment schemes. Legislators proved as unlikely to mandate major electoral reforms at mid-century as they are today to adopt binding restrictions on incumbency. With respect to the districting dilemma, it remained for the United States Supreme Court to facilitate a redrawing of the political map of the nation by way of a trailblazing decision in Baker v. Carr,(5) a case that opened new vistas of judicial decisionmaking.(6) For good or for ill, such an avenue is not feasible for the imposition of restraints upon the extended tenure of legislators. The only path available seems to lie in the constitutional amending process with all of the institutional impediments and political obstacles that such a choice encompasses. Whether the rigidity associated with mandatory term limits is appropriate or beneficial in a democracy continues to be problematic, though the course of implementation is no longer open to doubt.

That the courts would become active, if at times reluctant, participants in contemporary efforts to impose term limits should occasion little surprise. Of special concern are structural features of the Constitution that are threatened and for whose preservation the judiciary, in the American system, has been held largely responsible.(7) If federalism has developed incrementally and without an explicit constitutional warrant, then surely so many references in the document itself presume the existence of a system, the elements of which could hardly have been made operational in any other way. And the effectiveness of the national government as a working entity, unlike unfortunate experiences under the Articles of Confederation, is dependent upon appropriate judicial responses to prevent an undue weakening of the limited central authority that the Framers established. It is to such defenses that courts, both federal and state, have resorted to guard against intemperate incursions. At issue essentially is the Qualifications Clause of Article I of the Constitution and its amenability, or the lack of it, to modification by the states.(8) Should the latter be permitted, it is charged, states may control and determine the nature of elected national officials in an area from which the states are excluded by the basic tenets of federalism. To this end, a reliance on the courts is required to ensure against such intervention if the national government, in its accustomed form, is to survive and to continue to flourish.

Perhaps the most concerted assaults upon the "evils" of incumbency have come from the state initiative process. The latter has served to convert popular discontent into political action.(9) It is through this mechanism that most proposals have advanced and to which they owe whatever success they have realized at the polls. While a growing voter malaise may have been afforded an outlet, the initiative is not likely to encourage careful consideration of the important questions posed or to provide a deliberative forum for their resolution and for the compromises needed to facilitate it. If the initiative offers the least...