US Term Limits v. Thornton
(majority opinion)
• Article I, § 2, cl. 2 [House of Rep]
– 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.”
• Article I, § 3, cl. 3 [Senate]
– Same (except 30 years old and citizen for 9
years)
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Arkansas Term Limitation Amendment
• Amendment 73
– Any person having been elected to three or
more terms as a member of the United
States House of Representatives [2 or more
terms as Senator] from Arkansas shall not be
certified as a candidate and shall not be
eligible to have his/her name placed on
the ballot for election to the United States
House of Representatives [Senate] from
Arkansas.
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Principal Questions in case
1. Whether the Constitution forbids States to add to
or alter the qualifications specifically enumerated
in the Constitution
– i.e., do the qualifications clauses merely set minimums
which may be augmented, or
– are they the exclusive qualifications?
2. If the Constitution does so forbid, whether the
fact that Amendment 73 is formulated as a ballot
access restriction rather than as an outright
disqualification is of constitutional significance.
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State power to add qualifications
• Powell v. McCormack (congress’ power)
– Congress may not add qualifications
– qualifications in const. are fixed and exclusive
• Framers’ intent
• Historical record
–
–
–
–
convention denied congress power to add qualifications
ratification debates
state ratifying conventions
congressional practice for first 100 years
• Textual construction
– expressio unius exclusio alterius
• Theory - democratic principles
– anti oligarchy (self-perpetuating body)
• Structure - people as sovereign
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Textual Silence on State Power to
Add Qualifications
• Implied limitation on state power vs. express
reservation of state power (10th amend)
– “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively,
or to the people.”
– Const. does not generally define the powers of
states, which are derived from the people of the
states (except as divested by federal const.)
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Reserved Powers
• 10th Amd "reserves" only that which
existed before ratification.
– Story: "the states can exercise no powers
whatsoever, which exclusively spring out of
the existence of the national government,
which the constitution does not delegate to
them. . . . No state can say, that it has
reserved, what it never possessed.”
– Marshall: states never had “an original right
to tax” federal gov’t.
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Thomas’ Default Rule
• If "the Constitution is silent about the exercise of a particular power -- that is, where
the Constitution does not speak either
expressly or by necessary implication -- the
Federal Government lacks that power and
the States enjoy it.”
• Apply rule to McCulloch v. Maryland
– States can tax federal government
– No implied const’l limitations on states
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State Power over Federal Elections
• Source of power (reserved or granted?)
– Article I, § 4
• “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 places of choosing Senators”
– Article I, § 3
• ... two Senators from each state [who shall be] chosen
by the legislature thereof... [but see 17th amend.]
• Do states have additional powers over
federal elections? compare Articles
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No other State Power over
federal elections
• Electing representatives to the National
Legislature was a new right, arising from
the Constitution itself
– not from a pre-existing sovereign power in
the states
– In the absence of any constitutional
delegation to the States of power to add
qualifications to those enumerated in the
Constitution, such a power does not exist
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Constitution restricted this new right of
states to select nat’l representatives
• Historical record
– States imposed unacceptable limits on state reps
– Giving states similar power over federal representatives could hobble federal government
– 3 State conventions asked for amendments
• Implications from text (that framers did not
trust states to control Reps or Senators)
–
–
–
–
Electors Clause (Article I, § 2)
Compensation Clause (Art. I, § 6)
Elections Clause (Article I, § 4)
Eligibility & Judging Clause (Article I, § 5)
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Sovereign Power over Fed Gov’t
• In the People, not in the States
– Hamilton (Federalist 15): great and radical vice"
of the Articles of Confederation was "the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE
CAPACITIES, and as contradistinguished from
the INDIVIDUALS of whom they consist."
– Federal Government directly responsible to the
people, possessed of direct power over the
people, and chosen directly, not by States, but
by the people
• Confirmed by 17th amendment
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Are “the people” the people of
the States or of the Union?
• Amendment 73 was adopted by the People of
Arkansas (not the Legislature)
– In exercising initiative power, State citizens are
acting in place of the Legislature; they are the State
• Federal government is selected by, and
operates on, the people of the United States.
– What does this mean for the 10th amendment:
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.”
• Any change must come via const amendment
12
Is Amendment 73 a “qualification”
or merely a ballot access restriction
• Amendment 73 prohibits incumbents from
appearing on the ballot (not from serving)
• This is an indirect attempt to accomplish
what the Constitution prohibits Arkansas
from accomplishing directly
• See name of case: U.S. Term Limits, Inc.
• Const. is more than sheer formalism
– Amend 73 trivializes and undermines the
qualifications clause
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Symmetry - no new qualifications
• If states have power to set qualifications,
Congress can alter them
– Article I, § 4
• “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
places of choosing Senators”
• Court has already rejected congress’
power to alter qualifications
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Kennedy Concurrence
• Splitting the atom of sovereignty
– The people, as sovereign, have two political
capacities (state and federal)
– Each is protected from incursion by the other
– National gov’t is controlled by the people
without collateral interference by the states
• States have no power, reserved or otherwise, over
the exercise of federal power
• Especially true wrt selection of nat’l representatives
• Corollary?
– State immunity from federal interference?
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Thomas Dissent
• Default rule
– Where constitution is silent on distribution of
power, the power defaults to the states
• what else did framers mean by “reserving” to the
states all power not delegated to fed’l gov’t
• what then of the ending clause “or the people”
• “The people” as state or nat’l entity
– When the const uses the term, does it refer
to the people in their separate capacity as
sovereigns of state gov’t or their unified
capacity as sovereign of the federal gov’t?
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The People or the Peoples
• Popular sovereignty is built upon separate
identity of states and the people as separate entities
– compare use of “the people” elsewhere in
constitution
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Preamble: “We the People”
Art I, s 2: “the people of the several states”
1st amd: right of assembly
2nd amd: right to bear arms
4th amd: search and seaizure
17th: selection of senators
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CSA Constitution
• Preamble:
– WE, the People of the Confederate States,
each State acting in its sovereign and
independent character, in order to form a
permanent federal government…
• State sovereignty (10th amendment)
– The enumeration, in the Constitution, of
certain rights, shall not be construed to deny
or disparage others retained by the people of
the several States.
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