United States Term Limits, Inc. v. Thornton

Revisiting Justice Story in the Debate Over Term Limits and the Reserved Powers Doctrine

"There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere."⁽¹⁾

Introduction

On May 22, 1995, the Supreme Court of the United States held in United States Term Limits, Inc. v. Thornton,⁽²⁾ that neither Congress nor an individual state may adopt term limits for congressional service.⁽³⁾ The Court's five-to-four ruling invalidated the congressional term-limit laws already approved by the voters or legislatures in twenty-three states,⁽⁴⁾ and held that only through passage of a constitutional amendment could such term limits be imposed upon members of Congress.⁽⁵⁾ In affirming a 1994 ruling by the Arkansas Supreme Court that a term limits amendment⁽⁶⁾ to the state's constitution was unconstitutional,⁽⁷⁾ the Court entered into a fervent polemic over the nature and sources of federalism, Constitutional authority, and the powers of the states.⁽⁸⁾

The importance of this decision extends far beyond its immediate effect of preserving the current system of (potentially) unlimited tenure in Congress.⁽⁹⁾ The Court's opinions in Term Limits reflect a tenuous balance of power on the Court that focused essentially upon a debate in existence since our nation's founding: "[H]ow much of the power to regulate American life lies in Washington and how much with the states."⁽¹⁰⁾ The magnitude of the issues presented in Term Limits combined with the narrow divide amongst which they were decided, led one commentator to opine that "the startling aspect of the 5-4 decision . . . was how close the Court came to rewriting the script of modern constitutional law and of long-dominant political thought."⁽¹¹⁾

This Comment, while supportive of the conclusion reached by both the majority and concurring opinions (that "allowing the several states to adopt term limits for congressional service would effect a fundamental change in the constitutional framework"⁽¹²⁾ of our nation, and that "suggesting otherwise . . . runs counter to fundamental principles of federalism"⁽¹³⁾) will question the Court's Tenth Amendment analysis of Arkansas' state constitutional term limits amendment.⁽¹⁴⁾ This Comment will examine the nature and history of the "reserved powers" doctrine⁽¹⁵⁾ utilized by the majority in formulating its determination that "the power to add qualifications [for membership in Congress] is not within the `original powers' of the States, and thus is not reserved to the States by the Tenth Amendment."⁽¹⁶⁾ This Comment is supportive of the majority's secondary contention that "the text and structure of the Constitution, the relevant historical materials, and . . . the `basic principles of our democratic system' all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications [for Congressional membership] in the Constitution."⁽¹⁷⁾ This Comment concludes, however, that the majority's primary argument, that the states cannot set qualifications for congressional membership because the power to do so was not enjoyed by the states prior to the adoption of the Constitution, is inherently flawed. Part II of this Comment briefly discusses the recent background of congressional term limits in American society.⁽¹⁸⁾ Part III presents the facts and prior history of the Term Limits decision.⁽¹⁹⁾ Part IV examines the Court's majority, concurring and dissenting opinions.⁽²⁰⁾ Part V provides a critical analysis of Justice Stevens' majority opinion in terms of its interpretation of the Tenth Amendment to the United States Constitution, as it applies to the issue presented in Term Limits, and will focus upon the majority's use of the writings of Justice Story to support its contentions.⁽²¹⁾ This analysis will demonstrate that the nature of the majority's reasoning, specifically relative to its discussion of the Tenth Amendment was improperly formulated and unjustifiably sought to limit the powers of the several states. Part VI presents a conclusion to this Comment.⁽²²⁾

Background

The American public, in recent years, has shown "consistently overwhelming"⁽²³⁾ support for limiting the terms of elected public officials.⁽²⁴⁾ One result of this sentiment has been the emergence of non-profit organizations like United States Term Limits, Inc., an organization that bills itself as "the greatest grassroots movement in American history," and pushes for states to adopt term-limits provisions for their House and Senate members.⁽²⁵⁾ Across the nation, groups like United States Term Limits, Inc. have advanced two claims in particular, when advocating the adoption of congressional term limits: "1) term limits will restore or return government to the control of citizens or citizen-legislators; 2) with new legislators will come fresh ideas."⁽²⁶⁾ These claims have rung home with those who have become disenfranchised with a current congressional culture that has been characterized by some as entrenched, untrustworthy, reelection-driven and out-of-touch with its constituency.⁽²⁷⁾ Those supporting term-limits initiatives further contend that term limits will "increase the competitiveness of congressional elections and improve the quality of representation by preventing incumbents from becoming entrenched, complacent, and beholden to powerful interest groups which enable the legislators to perpetuate their service."⁽²⁸⁾ In fact, the rise of the term limits movement has paralleled a sharp decline in public support for Congress.⁽²⁹⁾ In the 1990s Congress' approval rating "sagged below thirty percent most of the time, and as low as eighteen percent during the house bank uproar in 1991."⁽³⁰⁾ Further, one 1994 national survey found that "at no time since the Watergate scandal twenty years ago have the American people been more cynical than they are today about the federal government and those who run it."⁽³¹⁾ Analysis of this same survey led one commentator to state: "Just looking at the data, term limits is an idea that almost looks unstoppable, outside of the courts or the Supreme Court stepping in."⁽³²⁾

United States Term Limits, Inc. v. Thornton

"Amendment 73 [to the Arkansas Constitution]⁽³³⁾ was proposed as an initiated petition . . . under Amendment 7 of the Arkansas Constitution⁽³⁴⁾ and approved in the General Election on November 3, 1992, by a vote of 494,326 to 330,836."⁽³⁵⁾ On November 13, 1992, "Bobbie Hill on behalf of herself and the League of Women Voters of Arkansas filed a complaint for declaratory judgment in the Pulaski County Circuit Court seeking to invalidate Amendment 73."⁽³⁶⁾ The original defendants named in the complaint included "incumbent [Arkansas] State constitutional officers and legislators, U.S. Senators and representatives currently in office, the State Democratic Party, the State Republican Party and the State Board of Election Commissioners."⁽³⁷⁾ When the State Attorney General's Office intervened on behalf of the State of Arkansas, they were joined by various organizations advocating term limits including Arkansans for Governmental Reform, Americans for Term Limits, and United States Term Limits, Inc.⁽³⁸⁾ The original complaint was subsequently amended to add Dick Herget, a political supporter of three-term United States Congressman, Ray Thornton, as a party plaintiff.⁽³⁹⁾ Hill, Herget, Thornton, and the State Democratic Party moved for summary judgment to void Amendment Seventy-three.⁽⁴⁰⁾ The State of Arkansas and Arkansans for Governmental Reform moved for dismissal; United States Term Limits, Inc. moved for summary judgment, while the named defendant incumbent state legislators (combined in their efforts under the title of "Unified Members") filed a similar motion.⁽⁴¹⁾

Following a hearing on July 29, 1993 the county circuit court ruled⁽⁴²⁾ that Amendment Seventy-three was not valid under the Arkansas Constitution, because it did not contain an Enacting Clause, and further, section three of the amendment violated the Qualifications Clauses of the United States Constitution.⁽⁴³⁾

On appeal before the Supreme Court of Arkansas, the county circuit court's holding, that the matter was justiciable, was upheld.⁽⁴⁴⁾ The court, however, reversed the circuit court's requirement of an Enacting Clause before Amendment Seventy-three could be effective.⁽⁴⁵⁾ The court did, however, affirm the lower court's finding that section three of Amendment Seventy-three⁽⁴⁶⁾ was invalid in that, "such a restriction on eligibility to stand for election to the U.S. Congress is violative of the respective Qualification clauses of Article 1 of the U.S. Constitution."⁽⁴⁷⁾ A plurality of the court concluded that the states have no authority "to change, add to, or diminish the qualifications set forth in Article 1,"⁽⁴⁸⁾ and rejected the minority's contention that Amendment Seventy-three is constitutional as "merely a ballot access amendment and not a mandate establishing an additional qualification,"⁽⁴⁹⁾ or an outright disqualification of incumbent congressional candidates for reelection. On certiorari to the United States Supreme Court, the case was argued on November 29, 1994.⁽⁵⁰⁾

Opinions

A. The Majority

Justice John Paul Stevens delivered the opinion of the Court in which Justices Kennedy,⁽⁵¹⁾ Souter, Ginsburg and Breyer joined.⁽⁵²⁾ The majority's first step in analyzing the constitutionality of Amendment Seventy-three was to determine whether the Constitution "forbids States from adding to or altering the qualifications specifically enumerated in the Constitution."⁽⁵³⁾ The majority suggested that if the Constitution did forbid the States from making such alterations, the Court could ask whether the fact "that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification," was of any constitutional significance.⁽⁵⁴⁾

1. Powell v. McCormack

In addressing these two issues, the Court first recalled its decision in Powell v. McCormack,⁽⁵⁵⁾ in which the Court reviewed the Qualifications Clauses, "in a case involving an attempted exclusion of a duly elected Member of Congress."⁽⁵⁶⁾ The Court's holding in Powell, that Congress does not have the power to add to or alter the qualifications of its members as set forth in the Constitution,⁽⁵⁷⁾ was used as a starting point for Justice Stevens to argue that the states also are forbidden from making such additions or alterations.⁽⁵⁸⁾

In reviewing Powell, the Term Limits Court looked closely at both Powell's reliance on "History"⁽⁵⁹⁾ as well as "Democratic Principles."⁽⁶⁰⁾ The Term Limits Court's historical discussion examined "the British experience with qualifications for membership in Parliament,"⁽⁶¹⁾ with the conclusion that "`on the eve of the Constitutional Convention, English precedent stood for the proposition that "the law of the land had regulated the qualifications of members to serve in parliament" and those qualifications were `not occasional but fixed.'"⁽⁶²⁾ Consequently, the Powell Court viewed the Constitutional Convention debates as evidencing the "Framers' intent that the qualifications in the Constitution be fixed and exclusive."⁽⁶³⁾ The Term Limits Court further noted that the Powell Court had "complemented that analysis with `an examination of the basic principles of our democratic system.'"⁽⁶⁴⁾ Two fundamental ideas in particular, on which the Powell Court had relied, were relevant in the eyes of the Term Limits majority.⁽⁶⁵⁾ The first idea was "the egalitarian concept that the opportunity to be elected was open to all."⁽⁶⁶⁾ The second was "the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government."⁽⁶⁷⁾ As the Court had stated in Powell, these two principles embraced the conclusion that "`restrictions upon the people to choose their own representatives must be limited to those "absolutely necessary for the safety of the society,"'"⁽⁶⁸⁾ and further, "`"[t]hat the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution."'"⁽⁶⁹⁾

The majority in Term Limits refuted the minority's argument that "the narrow holding in Powell, which involved the power of the [United States] House [of Representatives] to exclude a member pursuant to Art. I, § 5, does not control the more general question whether Congress has the power to add qualifications."⁽⁷⁰⁾ The majority maintained that Powell is not limited to such a narrow interpretation in that the "conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome."⁽⁷¹⁾

2. Tenth Amendment and States' Powers

The Term Limits majority next addressed the argument that regardless of the constitutionality of Congress imposing additional qualifications on its membership, the states themselves were not prohibited from doing such.⁽⁷²⁾ The petitioners argued that absent a constitutional prohibition, "the Tenth Amendment⁽⁷³⁾ and the principle of reserved powers require that [the] States be allowed to add such qualifications."⁽⁷⁴⁾ Prior to embarking upon its analysis of the Tenth Amendment, the Court noted that none of the parties' nor amici' briefs submitted call to attention "even a single case in which a state court or federal court has approved of a State's addition of qualifications for a member of Congress."⁽⁷⁵⁾

In responding to the petitioners' argument that "the Constitution contains no express prohibition against state added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State's reserved power,"⁽⁷⁶⁾ the majority offered two separate reasons for their conclusion to the contrary.⁽⁷⁷⁾ First, the majority held that because the power to add qualifications "is not within the `original powers' of the States . . . [it] thus is not reserved to the States by the Tenth Amendment."⁽⁷⁸⁾ Second, the majority stated that even if the States had "possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers [had] thereby `divested' States of any power to add qualifications."⁽⁷⁹⁾

In explaining the theory of "original powers" reserved to the states, the majority recalled the words of Chief Justice John Marshall:

[I]t was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.⁽⁸⁰⁾

Furthermore, the majority noted that although the States "`do "retain[] a significant measure of sovereign authority" . . . [t]hey do so . . . only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.'"⁽⁸¹⁾

The Court provided support for its contention that "the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States," by recalling the writings of Justice Story and Chief Justice John Marshall.⁽⁸²⁾ Justice Story had opined that "`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.'"⁽⁸³⁾ In McCulloch v. Maryland,⁽⁸⁴⁾ Chief Justice John Marshall rejected arguments that "the Constitution's silence on the subject of the state power to tax corporations chartered by Congress implies that the States have `reserved' power to tax such federal instrumentalities,"⁽⁸⁵⁾ by stating that, "`an original right to tax' such federal entities `never existed and [thus] the question whether it has been surrendered, cannot arise.'"⁽⁸⁶⁾ Furthermore, Chief Justice Marshall had stated that "`[t]his opinion does not deprive the States of any resources which they originally possessed.'"⁽⁸⁷⁾

The majority argued that prior to the Constitution's ratification, the states had no right to set qualifications for congressional service, and thus power to do such could not have been reserved.⁽⁸⁸⁾ Furthermore, in adopting "`a plan . . . to create an entirely new National Government' . . . the Framers rejected `the notion that the Nation was a collection of States, and instead creat[ed] a direct link between the National Government and the people of the United States.'"⁽⁸⁹⁾ As such, the majority agreed with Justice Story, that "each Member of Congress is `an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.'"⁽⁹⁰⁾ The Court opined that "Representatives and Senators are as much officers of the entire union as is the President."⁽⁹¹⁾ States, the Court maintained, "thus `have just as much right, and no more, to proscribe new qualifications for a representative, as they have for a president. . . . It is no original prerogative of state power to appoint a representative, a senator, or president for the union.'"⁽⁹²⁾

In furthering its arguments concerning the nature of "original powers," reserved to the states, the Court observed that "in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution."⁽⁹³⁾ Thus, the Court noted:

While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I.⁽⁹⁴⁾

The majority concluded its analysis of the Tenth Amendment by stating that "[t]he Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution."⁽⁹⁵⁾ "Instead," Justice Stevens wrote, "any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty."⁽⁹⁶⁾ Resultantly, the Court held that "[i]n 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."⁽⁹⁷⁾

3. Preclusion of State Power

The remainder of the majority opinion consisted of essentially two alternative arguments to the Tenth Amendment ("reserved powers") analysis.⁽⁹⁸⁾ First, the majority discussed the extent to which the Qualifications Clauses preclude states from adding qualifications for membership in Congress.⁽⁹⁹⁾ Noting that the Powell Court provided ample discussion for this argument, the Court nonetheless provided several additional bases for analysis beyond that contained in Powell to further exemplify the Framers' intentions regarding qualifications for membership in Congress.⁽¹⁰⁰⁾ The majority concluded that the Framers intended the qualifications in the Qualifications Clauses to be exclusive.⁽¹⁰¹⁾ The majority focused on both the "text and structure of the Constitution, [and] the relevant historical materials"⁽¹⁰²⁾ (including Constitutional Convention and Ratification Debates) as well as the responses (to the issue of state-added qualifications for membership in Congress) by Congress itself.⁽¹⁰³⁾ Citing reports from the House Committee on Elections, letters from Thomas Jefferson, and specifically commentary on the contested seatings of William McCreery (as a member of Congress in 1807),⁽¹⁰⁴⁾ and Charles Faulkner (as a member of the Senate in 1887),⁽¹⁰⁵⁾ the majority argued that congressional reaction to states' attempts to add qualifications to congressional membership have traditionally supported the court's finding that such attempts are invalid.⁽¹⁰⁶⁾

Second, the majority opinion struck down the petitioners' contentions that Arkansas' Amendment Seventy-three was not such a "qualification" as proscribed by the Qualifications Clauses, (and was thus allowable as a "ballot-access restriction,") but a valid exercise of state power under Article One, Section Four of the Constitution "to regulate the `Times, Places and Manner of Holding Elections.'"⁽¹⁰⁷⁾

B. Concurrence

Through his brief three and one-half page concurring opinion, Justice Kennedy further explained why the dissent's "course of argumentation runs counter to fundamental principles of federalism."⁽¹⁰⁸⁾ "Federalism," Justice Kennedy theorized, "was our Nation's own discovery."⁽¹⁰⁹⁾ "The Framers," he added, "split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."⁽¹¹⁰⁾ Justice Kennedy further observed that it was appropriate to recall the origins of our nation's founding, "which instruct us as to the nature of the two different governments created and confirmed by the Constitution."⁽¹¹¹⁾ Recalling the republican principles on which our government was formed, and which "continued to guide its operation and practice,"⁽¹¹²⁾ Justice Kennedy stated that "[t]he political identity of the entire people of the Union is reinforced by the proposition, which I take to be beyond dispute, that, though limited as to its objects, the National Government is and must be controlled by the people without collateral interference from the States."⁽¹¹³⁾ Noting that McCulloch "rejected the suggestion that States could interfere with federal powers,"⁽¹¹⁴⁾ Justice Kennedy held "[t]hat the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States."⁽¹¹⁵⁾

In addition to challenging Amendment Seventy-three on grounds that it violated general, time-worn principles of federalism and the relationship between, as well as sources of, state and federal powers, Justice Kennedy noted a proposition inherent to the position of the petitioners "that [Arkansas] can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised it. If the majority of the voters had been successful in selecting a candidate, they would be penalized from exercising that same right in the future."⁽¹¹⁶⁾ Justice Kennedy concluded that "neither the law nor federal theory allows a State to burden the exercise of federal rights in this manner."⁽¹¹⁷⁾

Finally, Justice Kennedy, acknowledging that the arguments in favor of Amendment Seventy-three "are not lacking in force,"⁽¹¹⁸⁾ declared that the true issue regarding term limitations, or ballot access restrictions which have the same effect, is "whether they have a legitimate source, given their origin in the enactments of a single State."⁽¹¹⁹⁾ Answering himself in the negative, Justice Kennedy held:

There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere. Because the Arkansas enactment intrudes upon this federal domain, it exceeds the boundaries of the Constitution.⁽¹²⁰⁾

C. The Dissent

Justice Clarence Thomas authored the Court's dissent in which Chief Justice Rehnquist, Justice O'Connor, and Justice Scalia joined.⁽¹²¹⁾ The heatedness of the debate between the majority and dissent was apparent from Justice Thomas' first words, which noted with sarcasm:

It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them . . . ." The majority . . . defends the right of the people of Arkansas to "choose whom they please to govern them" by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district of the State.⁽¹²²⁾

Justice Thomas then proclaimed that "[n]othing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress."⁽¹²³⁾

As a first premise, Justice Thomas observed that the majority had "fundamentally misunderst[ood] the notion of `reserved powers,'"⁽¹²⁴⁾ and that "[c]ontrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications" for their members of Congress.⁽¹²⁵⁾ Justice Thomas suggested that "[a]s far as the Federal Constitution is concerned, . . . the States can exercise all powers that the Constitution does not withhold from them."⁽¹²⁶⁾ Furthermore, "[t]he Federal Government and the States thus face different default rules: where 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."⁽¹²⁷⁾ Justice Thomas opined: "[I]f we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures."⁽¹²⁸⁾

1. "Reserved Powers"--The Tenth Amendment

Contesting the majority's contention that "the States possess only those powers that the Constitution affirmatively grants to them or that they enjoyed before the Constitution was adopted,"⁽¹²⁹⁾ Justice Thomas alleged that the Tenth Amendment's use of the word `reserved' did nothing to support the majority's holding.⁽¹³⁰⁾ He analogized that just as if one were to say that the power to "use a particular facility is reserved to some group,"⁽¹³¹⁾ says nothing about "whether that group had previously used the facility,"⁽¹³²⁾ so does the Tenth Amendment provide that "the people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved `to the States respectively, or to the people.'"⁽¹³³⁾ The dissent thus held that the majority was "wrong to conclude that the people of the States cannot authorize their state governments to exercise any powers that were unknown to the States when the Federal Constitution was drafted."⁽¹³⁴⁾

Justice Thomas then substantiated his Tenth Amendment arguments by distinguishing the issues present in Term Limits from those in cases cited by the majority.⁽¹³⁵⁾ First the dissent cited Garcia v. San Antonio Metropolitan Transit Authority,⁽¹³⁶⁾ contesting the proposition that the "Tenth Amendment covers only `the original powers of [state] sovereignty'"⁽¹³⁷⁾ by noting that Garcia dealt only with the issue of principles of state sovereignty curtailing "Congress' authority to exercise its enumerated powers."⁽¹³⁸⁾ The dissent noted that the issue in the case before the Court was "not whether any principle of state sovereignty implicit in the Tenth Amendment bars congressional action . . . but rather whether Article I bars state action that it does not appear to forbid."⁽¹³⁹⁾ Justice Thomas concluded that the Tenth Amendment resolved this issue "on its face," in that "unless the Federal Constitution affirmatively prohibits an action by the States or the people, it raises no bar to such action."⁽¹⁴⁰⁾

Justice Thomas also challenged the majority's reliance on McCulloch v. Maryland⁽¹⁴¹⁾ for support of its view of the Tenth Amendment. McCulloch held that the Tenth Amendment "indicated that all powers as to which the Constitution does not speak (whether expressly or by necessary implication) are `reserved' to the state level. . . . [and] did not qualify this observation by indicating that the question also turned on whether the States had enjoyed the power before the framing."⁽¹⁴²⁾ "To the contrary," Justice Thomas recalled, "McCulloch, seemed to assume that the people had `conferred on the general government the power contained in the constitution, and on the States the whole residuum of power.'"⁽¹⁴³⁾ Justice Thomas further questioned the soundness of applying McCulloch to Term Limits by noting that the "structure" of McCulloch's analysis refuted the majority's position.⁽¹⁴⁴⁾ "McCulloch," Justice Thomas stated, "[f]or the past 175 years . . . has been understood to rest on the proposition that the Constitution affirmatively barred Maryland from imposing its tax on the Bank's operations."⁽¹⁴⁵⁾ "For the majority, however," Justice Thomas held, "McCulloch apparently turned on the fact that before the Constitution was adopted, the States had possessed no power to tax the instrumentalities of the governmental institutions that the Constitution created."⁽¹⁴⁶⁾ Such a reading of McCulloch, Justice Thomas opined, "makes most of Chief Justice Marshall's opinion irrelevant; according to the majority, there was no need to inquire into whether federal law deprived Maryland of the power in question, because the power could not fall into the category of `reserved' powers anyway."⁽¹⁴⁷⁾

After having challenged the majority's citation of Garcia and McCulloch in support of its holding, Justice Thomas declared that "the only true support for [the majority's] view of the Tenth Amendment comes from Joseph Story's 1833 treatise on constitutional law."⁽¹⁴⁸⁾ Although crediting Story as "brilliant and accomplished,"⁽¹⁴⁹⁾ Justice Thomas suggested that Story's constitutional commentaries, written a half century after the framing, represent not the original understanding of the Constitution, but rather "they represent only his own understanding."⁽¹⁵⁰⁾ Further, Justice Thomas noted that the Court, "[i]n a range of cases concerning the federal/state relation . . . has deemed positions taken in Story's Commentaries to be more nationalist than the Constitution warrants."⁽¹⁵¹⁾ Justice Thomas supported his holding by agreeing with Story's position, "that the only powers reserved to the States are those that the States enjoyed before the framing conflicts with both the plain language of the Tenth Amendment and the underlying theory of the Constitution."⁽¹⁵²⁾

Justice Thomas next challenged the majority's "alternative (and narrower) argument"⁽¹⁵³⁾ as being "inconsistent with the notion of `national sovereignty' for the States or the people of the States to have any reserved powers over the selection of Members of Congress."⁽¹⁵⁴⁾ Leaving to "[p]olitical scientists" the debate over whether members of Congress owe their primary allegiance to the "people of the nation" or the people of one particular state, Justice Thomas argued that "[f]rom the framing to the present . . . the selection of the Representatives and Senators from each State has been left entirely to the people of that State or to their state legislature."⁽¹⁵⁵⁾

In response to the majority's argument against the premise that "the selection of representatives in Congress is indisputably an act of the people of each State, not some abstract people of the Nation as a whole,"⁽¹⁵⁶⁾ Justice Thomas theorized, "[w]hen the people of Georgia pick their representatives in Congress, they are acting as the people of Georgia, not as the corporate agents for the undifferentiated people of the Nation as a whole."⁽¹⁵⁷⁾ In response to the concurring opinion's contention that "the exercise of `reserved' powers in the area of congressional elections would constitute `state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives,'"⁽¹⁵⁸⁾ Justice Thomas alleged that Justice Kennedy had simply stated that "the people of Arkansas cannot be permitted to inject themselves into the process by which they themselves select Arkansas' representatives in Congress."⁽¹⁵⁹⁾

While agreeing with the majority that "the Framers expected the selection process to create a `direct link' between members of the House of Representatives and the people,"⁽¹⁶⁰⁾ Justice Thomas contended that this link was "between the Representatives from each State and the people of that State."⁽¹⁶¹⁾ Justice Thomas added that "the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress."⁽¹⁶²⁾ Because the people of each state, when it comes to the selection of Members of Congress . . . have retained their independent political identity,"⁽¹⁶³⁾ Justice Thomas concluded that "there is absolutely nothing strange about the notion that the people of the States or their state legislatures possess `reserved' powers in this area."⁽¹⁶⁴⁾

Further contesting the majority's interpretation of `reserved' powers, Justice Thomas compared the states' reserved power to set qualifications for membership in Congress with the power to set qualifications for their Presidential electors:⁽¹⁶⁵⁾

While the individual States have no `reserved' power to set qualifications for the office of President, we have long understood that they do have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors--the delegates that each State selects to represent it in the electoral college that actually chooses the Nation's chief executive.⁽¹⁶⁶⁾

"Even respondents," continued Justice Thomas, "do not dispute that the States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions (primarily the First and Fourteenth amendments)."⁽¹⁶⁷⁾ Justice Thomas concluded:

As the majority cannot argue that the Constitution affirmatively grants this power, the power must be one that is `reserved' to the States. It necessarily follows that the majority's understanding of the Tenth Amendment is incorrect, for the position of Presidential elector surely "`spring[s] out of the existence of the national government.'"⁽¹⁶⁸⁾

The dissenting opinion next questioned the majority's contention that the States could not "enjoy `reserved' powers over the selection of their representatives in Congress."⁽¹⁶⁹⁾ Because "the Constitution expressly delegates to the States certain powers over congressional elections,"⁽¹⁷⁰⁾ (through the Times, Places and Manner Clause)⁽¹⁷¹⁾ this "delegation[] of power . . . would be superfluous if the people of the States [already] enjoyed reserved powers in this area."⁽¹⁷²⁾

Justice Thomas argued that the Times, Places and Manner Clause of article I, section 4 does not actually delegate any power to the states. "Instead," he wrote, "it simply imposes a duty upon them," so that "by specifying that the state legislatures `shall' prescribe the details necessary to hold congressional elections, the Clause `expressly requires action by the States.'"⁽¹⁷³⁾ Acknowledging that the "second part" of the Times, Places and Manner Clause grants a power, rather than imposing a duty, Justice Thomas noted that this power was granted "exclusively to Congress, not to the States."⁽¹⁷⁴⁾ Therefore, Justice Thomas concluded, contrary to the majority opinion's assertion, the states must enjoy this "reserved" power over the selection of their congressional representatives.⁽¹⁷⁵⁾

2. Constitutional Deprivation of Power Through the Qualifications

Clauses

The dissent, having argued that the people of Arkansas do enjoy a "reserved" power, next attempted to rebut the majority's contention that the Qualifications Clauses in the Federal Constitution deprive the states of the power to fix term limits or otherwise set qualifications for congressional office.⁽¹⁷⁶⁾

First, Justice Thomas briefly analyzed the Qualifications Clauses from a purely textual perspective.⁽¹⁷⁷⁾ He argued that the clauses are only "recitations of the minimum eligibility requirements that the Framers thought it essential for every Member of Congress to meet."⁽¹⁷⁸⁾ On their face, he opined, the clauses restrict state power "only in that they prevent the States from abolishing all eligibility requirements for membership in Congress [and thus] . . . do nothing to prohibit the people of a State from establishing additional eligibility requirements for their own representatives."⁽¹⁷⁹⁾ Because Congress holds power over the states, Justice Thomas suggested that the Qualifications Clauses provided each state with a guaranty that the legislators elected by other states would meet minimum standards of competence.⁽¹⁸⁰⁾ Thus, if a state decided that their representatives should possess additional qualifications, that state would "have done nothing to frustrate the policy behind the Qualifications Clauses."⁽¹⁸¹⁾ Furthermore, Justice Thomas noted that the structure of the Constitution itself cautioned against "read[ing] constitutional provisions to preclude state power by negative implication."⁽¹⁸²⁾ Recalling that the Constitution, in Article I, Section 10, contains express prohibitions on the states, Justice Thomas concluded that "[t]he fact that the Framers nonetheless made these prohibitions express confirms that one should not lightly read provisions like the Qualifications Clauses as implicit deprivations of state power."⁽¹⁸³⁾

The dissent's second framework for analysis of the Qualifications Clauses was one based upon "the democratic principles that animated the Framers."⁽¹⁸⁴⁾ Justice Thomas rejected the majority's "inference" that the Clauses "must have been generally understood to preclude the people of the States and their state legislatures from prescribing any additional qualifications for their representatives in Congress."⁽¹⁸⁵⁾ Justice Thomas found that the majority's discussion on this issue

establishes only two more modest propositions: (1) the Framers did not want the Federal Constitution itself to impose a broad set of disqualifications for congressional office, and (2) the Framers did not want the Federal Congress to be able to supplement the few disqualifications that the Constitution does set forth.⁽¹⁸⁶⁾

Thus, Justice Thomas held, "the logical conclusion is simply that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level."⁽¹⁸⁷⁾ Though agreeing with the majority that Congress has no power to prescribe qualifications for its own members, Justice Thomas argued that this in no way implies that the Framers wanted to bar the exercise of a qualification-setting power at the state level.⁽¹⁸⁸⁾ Additionally, Justice Thomas suggested that restrictions on eligibility for office are not "undemocratic," and are "perfectly consistent with the Framers' scheme."⁽¹⁸⁹⁾ Justice Thomas noted that the Court had described "the authority of the people of the States to determine the qualifications of their most important government officials . . . [as] an authority that lies at "`the heart of representative government.'""⁽¹⁹⁰⁾

Following its discussion of democratic principles, the dissent rebutted the majority's assertions that "specific historical evidence supports its view that the Framers did not intend to permit supplementation of the Qualifications Clauses."⁽¹⁹¹⁾ Referencing records from the Philadelphia Constitutional Convention, including documents from the Committee of Detail, Justice Thomas sought to refute the majority's assertion that earlier drafts of the Constitution reflect the Framers' intent that the Qualifications Clauses be the exclusive qualifications for membership in Congress.⁽¹⁹²⁾

Next, the dissent analyzed various comments by the Framers (during the drafting of the Constitution) regarding other constitutional provisions, which the majority had raised in an effort to reveal that the Framers held an unstated intent: "`to minimize the possibility of state interference with federal elections.'"⁽¹⁹³⁾ Justice Thomas concluded from this discussion that "none of the provisions cited by the majority is inconsistent with state power to add qualifications for congressional office."⁽¹⁹⁴⁾

In chronological fashion, Justice Thomas supported the holding of the dissent by discussing debates and statements made during the ratification period of the United States Constitution, to further demonstrate that the Framers had evinced no intentions of depriving the states from exercising the power to add qualifications for members of Congress.⁽¹⁹⁵⁾ Justice Thomas concluded his analysis of the Qualifications Clauses with a discussion of state practice immediately after the ratification of the Constitution:⁽¹⁹⁶⁾ "[T]he fact remains that five of the election laws enacted immediately following the ratification of the Constitution imposed additional qualifications that would clearly be unconstitutional under today's holding."⁽¹⁹⁷⁾ Justice Thomas noted that "this history of state practice . . . refutes the majority's position that the Qualifications Clauses were generally understood to include an unstated exclusivity provision."⁽¹⁹⁸⁾

3. Other Effects

After briefly addressing the majority's discussion of past controversies in the House and the Senate over the seating of candidates who had been elected but allegedly failed to satisfy qualifications, Justice Thomas concluded the dissent by discussing additional possible effects of the majority's decision (beyond just invalidating Arkansas' Amendment Seventy-three) as well as the importance of distinguishing between "ballot access" and "term limit" restrictions.⁽¹⁹⁹⁾

First, Justice Thomas noted that the majority's decision, in addition to negating the term limits on Senators and Representatives enacted by many states, would also mean "that no State may disqualify congressional candidates whom a court has found to be mentally incompetent, who are currently in prison, or who have past vote-fraud convictions."⁽²⁰⁰⁾

The remainder of Justice Thomas' dissent stressed the importance of distinguishing Arkansas' Amendment Seventy-three as merely a ballot access restriction, rather than as a qualification.⁽²⁰¹⁾ Allowing that Amendment Seventy-three "intentionally handicaps a class of candidates"⁽²⁰²⁾ by mandating that covered candidates, "if they are to win reelection . . . must do so by write-in votes."⁽²⁰³⁾ Justice Thomas contended that this effect does not prevent the covered candidates from being elected, nor does it disqualify them from further service.⁽²⁰⁴⁾ Arguing that current federal laws already give incumbent members of Congress significant advantages over challengers for their seats,⁽²⁰⁵⁾ Justice Thomas noted that Amendment Seventy-three "is merely designed to level the playing field on which challengers compete."⁽²⁰⁶⁾ Arguing that because the amendment is not a "qualification" on membership in Congress it does not warrant judicial scrutiny under the Qualifications Clauses of the United States Constitution, Justice Thomas concluded the dissenting opinion by noting:

No matter how narrowly construed . . . today's decision reads the Qualifications Clauses to impose substantial implicit prohibitions on the States and the people of the States. I would not draw such an expansive negative inference from the fact that the Constitution requires Members of Congress to be a certain age, to be inhabitants of the States that they represent, and to have been United States citizens for a specified period. Rather, I would read the Qualifications Clauses to do no more than what they say.⁽²⁰⁷⁾

Analysis

As a starting point for critical analysis of the majority's application of the Tenth Amendment and interpretation of the meaning of "reserved powers" in this case, it may be argued (and was noted by Justice Thomas in his dissenting opinion) that the majority's application of the Tenth Amendment to the issues presented was somewhat anomalous in light of recent United States Supreme Court decisions in which application of the Tenth Amendment was implicated.⁽²⁰⁸⁾ In the recent history of Tenth Amendment cases prior to Term Limits, the United States Supreme Court has examined issues that question "the extent to which principles of state sovereignty implicit in our federal system curtail Congress' authority to exercise its enumerated powers."⁽²⁰⁹⁾ Justice Stevens' majority opinion, however, imported the Tenth Amendment as a means of affirmatively depriving the people of the State of Arkansas the power to enact a state constitutional amendment limiting congressional terms, on the grounds that the Tenth Amendment never reserved such a power, to the people.⁽²¹⁰⁾ Holding that "the power to add qualifications [for membership in Congress] is not within the `original powers' of the States, and thus is not reserved to the States by the Tenth Amendment."⁽²¹¹⁾ the majority referenced the Court's earlier holdings in Garcia v. San Antonio Metropolitan Transit Authority⁽²¹²⁾ and New York v. United States⁽²¹³⁾ to support its contention that "the Tenth Amendment covers only `the original powers of [state] sovereignty.'"⁽²¹⁴⁾ Justice Thomas correctly distinguished, however, the inherent impracticability of comparing these decisions to the current case: the Court's interpretation of "reserved powers" from the holding of cases which curtail congressional power under the Tenth Amendment, is not readily applicable to a case in which the Court is conversely, attempting to curtail state power under the Tenth Amendment.⁽²¹⁵⁾

Dismissing the support the majority assumed from prior Tenth Amendment judicial decisions as inapplicable, Justice Thomas stated that "the only true support for . . . [the majority's] view of the Tenth Amendment comes from Joseph Story's 1833 treatise on constitutional law."⁽²¹⁶⁾ Accepting Justice Thomas' contention, one may inquire as to whether an analysis of the meaning of "reserved powers" in the Tenth Amendment may adequately rest on Justice Joseph Story's or any other commentator's opinions alone.

It has been proposed "that even [Constitutional] interpretation in the narrow sense . . . can take into account context beyond the original understanding, including the past interpretation of the text and the present and imagined future exigencies conditioning its use."⁽²¹⁷⁾ Accepting this proposition that Constitutional interpretation may include past interpretation of Constitutional text, in conjunction with Justice Thomas' observation that only Justice Story's constitutional commentaries provide viable support for the majority's holding with regards to the nature and application of the Tenth Amendment,⁽²¹⁸⁾ it is logical to examine the writings of Justice Story as a basis for critiquing the majority opinion. Prior to embarking upon such review, however, it is appropriate to briefly discuss the historical nature and development of the Tenth Amendment.

A. The Tenth Amendment

"[N]o other provision of the Constitution focuses so clearly on the triangular interrelations among the national government, the state governments, and the People themselves,"⁽²¹⁹⁾ than does the Tenth Amendment. The Tenth Amendment was designed as a "`political bargain,'"⁽²²⁰⁾ created to satisfy those opponents of the Constitution who feared the creation of "`a national colossus, destined to swallow or destroy the defenseless states.'"⁽²²¹⁾ Confirmation of such feelings "was embodied in Article II of the Articles of Confederation: `Each state retains its sovereignty . . . and every Power . . . which is not by this confederation expressly delegated to the United States.'"⁽²²²⁾ This reservation of power was not originally included in the Constitution, nor was its language carried over four years later into the Tenth Amendment where the word "expressly" was omitted from the Tenth Amendment.⁽²²³⁾

Madison's Federalist Forty-four reflects the Framers intent with this issue, wherein Madison stated "that had the language of Article II of the Articles of Confederation been adopted, `Congress would be continually exposed . . . to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority . . . or . . . destroy altogether the force of the restriction.'"⁽²²⁴⁾ The lack of such a provision in the Constitution expressly reserving nondelegated powers to the states, was perhaps one of the greatest issues during the ratification period.⁽²²⁵⁾ Although the Federalists maintained that no such provision was needed in the Constitution, since "the [national] government would `have only the powers expressly delegated to it . . . and that all other powers would be reserved to the States,'"⁽²²⁶⁾ they were unable to defeat the rampant skepticism that existed, and the Tenth Amendment was born.⁽²²⁷⁾ One proponent of the Tenth Amendment, speaking before the Massachusetts Convention on the adoption of the Constitution, stated (far from prophetically) "by positively securing what is not expressly delegated, [the Tenth Amendment] leaves nothing to the uncertainty of conjecture, or to the refinements of implication, but is an explicit reservation of every right and privilege which is nearest and most agreeable to the people."⁽²²⁸⁾

B. The Writings of Justice Joseph Story

Unstated by the Term Limits majority (whose reliance on the writings of Justice Story are previously mentioned) is a fact yielded by a cursory review of the life and writings of Justice Joseph Story: Justice Story himself served as an elected member of the United States House of Representatives for the Essex, South District, of Massachusetts.⁽²²⁹⁾ Justice Story, however, four years prior to becoming the youngest person ever to sit on the United States Supreme Court, decided that after spending just a month in Washington as a member of Congress, that he was bored and disgusted with party politics, and returned home to Salem, refusing to run for re-election.⁽²³⁰⁾

The Term Limits majority opinion, however, with regard to its understanding of the Tenth Amendment, depends not upon the words of Joseph Story the congressman, but rather of Joseph Story the Supreme Court Justice.⁽²³¹⁾ Two statements by Justice Story in particular provide the context for the majority's analysis: 1) that "`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,'"⁽²³²⁾ and 2) "`[n]o state can say, that it has reserved, what it never possessed.'"⁽²³³⁾ The first statement further explains the majority's theory of "original powers," meaning only those that the states possessed prior to the adoption of the Constitution.⁽²³⁴⁾ The majority argued, based on the views of Justice Story, that because the states had never before elected United States Representatives to Congress, that the power to set qualifications limiting the terms of such representatives could not be an "original power."⁽²³⁵⁾ Because this power sprang from the existence of the national government, and was not expressly delegated to the states, it could not be exercised by the states as a "reserved power" under the Tenth Amendment. A passage from Justice Story's constitutional commentaries appears to provide general support to these premises:

The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which these powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution. . . .

. . . .

On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment.⁽²³⁶⁾

Justice Story, a strong nationalist, would likely have seen congressional term limits imposed by the citizens of one state through initiative petition, as an attempt to enlarge the construction of the powers reserved to the people under the Tenth Amendment.⁽²³⁷⁾ Justice Story stated:

I hold it to be a maxim, which should never be lost sight of by a great statesman, that the Government of these States is intrinsically too weak, and the powers of the State Governments too strong; that the danger always is much greater of anarchy in the parts, than of tyranny in the head.⁽²³⁸⁾

Justice Story's "major concern, during some thirty-four years of vigorous judicial activity, was to strengthen and expand the powers of the federal government; and some would add he did his best to emasculate the power of the states."⁽²³⁹⁾

It was noted that however, "[e]xtreme though Story's nationalism was . . . it had its limits. His nationalism was primarily judicial nationalism . . . [and] [h]is support of presidential and congressional power was strong at times but lacked consistency."⁽²⁴⁰⁾

Although Justice Story surmised that qualifications beyond those enumerated in the Constitution "could not be added for federal representatives, he noted two caveats to his argument: (1) contrary authority exists, and (2) the people may decide otherwise."⁽²⁴¹⁾ That Justice Story may have found "reserved powers" as constitutional under the Tenth Amendment, an amendment to a state's constitution mandating term limitations on members of Congress adopted by the people of a state, is thus not a far-fetched proposition. Justice Story "considered democracy as something of a euphemism for mob rule and looked upon most elected officials as unprincipled opportunists, catering to the base emotions of a rowdy populace."⁽²⁴²⁾ Justice Story (similar to the modern proponents of term limitations) expressed great concern that people of "narrow outlook were daily increasing in the legislative bodies, men not versed in `the science of government' but in the art of party politics and public opinion."⁽²⁴³⁾ He further insisted that the administration of our government "must be entrusted to men `who have profoundly studied the nature, science, and operations of governments in general; men who intimately understand our relations with foreign states and foreign policy; men who have taken a large survey of all of our national interests, agriculture, manufacturing, commercial, political.'"⁽²⁴⁴⁾ Justice Story believed that legislators who lacked these qualities "were prone to follow the transient wishes of the unthinking majority and were poorly equipped to follow their own sense of what was necessary for society."⁽²⁴⁵⁾ Those who served as legislators "were not meant to be puppets of the people, but, like judges, men of individual conscience, capable of withstanding the odium elicited by unpopular positions on issues affecting the best interests of the country."⁽²⁴⁶⁾ Arguably, the greatest support for the premise that Justice Story may have supported a more progressive interpretation of "reserved powers" (than that attributed to him by the Term Limits majority) that would allow adoption of congressional term limits by the people of a state, comes from a letter sent by Justice Story himself:

I once saw a book advertised, entitled "New Views of the Constitution." I was startled! What right has a man to start new views upon it? Speculations upon our government are dangerous, and should be discountenanced. And upon this point, Edmund Burke has uttered a brief, but important truth: "Governments are practical things, not toys for speculatists to play with." Nevertheless, governments must often change, in conformity to the demands of the times. I have been in public life forty years, and have seen the union change much. You may think you are at last settled! But no! Our laws are written upon the sands of time, and the winds of popular opinion gradually efface them; new layers are to be made, and your old writing renewed or changed.⁽²⁴⁷⁾

These words arguably reflect the thoughts of one who later in life had become more open to the idea of transformation in government. Recognizing that "popular opinion," and the "demands of the times" may effectuate change in government, lends further support to a view of Justice Story that would recognize the enactment of term limits as a valid power "reserved to the people" under the Tenth Amendment. Finally, although Justice Story, with regard to the balance of power between the federal government and the states, has been criticized for being "more nationalist than the Constitution warrants,"⁽²⁴⁸⁾ he deferred greatly on the relation between the judiciary and the people.⁽²⁴⁹⁾ "When the Court does for the people `what they have not chosen to do for themselves,' said Justice Story, `it is usurping the function of a legislator,' and even worse, it is acting as a constitutional convention."⁽²⁵⁰⁾ In Term Limits, the Court found unconstitutional an amendment to the Arkansas State constitution that had been adopted by the people of that state. Based on the above, one might argue that Justice Story may not have agreed with majority's holding with regards to the "reserved powers" of the Tenth Amendment in this case, but rather may have more likely agreed with the people of the State of Arkansas.

Conclusion

Accepting the postulate of Justice Thomas in his dissent that "the only true support for . . . [the majority's] view of the Tenth Amendment comes from" the writings of Justice Joseph Story, it is appropriate to use Justice Story as a basis for a preliminary analysis of this one aspect of the majority's holding.⁽²⁵¹⁾ A brief review of Justice Story's writings suggest, however, that the image of Justice Story described by the majority in support of its narrow understanding of the notion of "reserved powers" under the Tenth Amendment, is not without reproach (or unchallengeable).⁽²⁵²⁾ Justice Story, though an admitted and fervent nationalist concerning the relationship between the states and the federal government, was protective of the integrity of the judiciary, especially with regard to its role in relation to the people.⁽²⁵³⁾ Based on all of the above, it is possible to argue Justice Story's position in a different light: one that is accepting and cognizant of the need for change in government;⁽²⁵⁴⁾ one that notes the powers of "popular opinion" and the "passage of time" as effectuating such change;⁽²⁵⁵⁾ one that is skeptical of those who serve in the legislature;⁽²⁵⁶⁾ and finally, possibly, one that may have upheld as valid, the term limits provisions adopted by the people of Arkansas, at issue in Term Limits.⁽²⁵⁷⁾ Because the majority in Term Limits rested its understanding and application of the "reserved powers" doctrine of the Tenth Amendment on its own perception of Justice Story and other views of Justice Story, one may argue that the majority of the United States Supreme Court may have incorrectly applied the doctrine of "reserved powers" under the Tenth Amendment.

Adam L. Sisitsky^*

1. United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1875 (1995) (Kennedy, J., concurring).

2. 115 S. Ct. 1842 (1995).

3. See id. at 1871.

4. See The Supreme Court's Term-Limits Decision, The Hotline, May 24, 1995, at 1. The following states passed laws limiting terms for members of Congress: Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Maine, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming. See id.

5. See Term Limits, 115 S. Ct. at 1871.

6. See Ark. Const. of 1874, amend. 73 (amended 1992). At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a "Term Limitation Amendment," its preamble stated:

The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of the elected officials.Ark. Const. of 1874, amend. 73, preamble (amended 1992).

The provision at issue in United States Term Limits Inc. v. Thornton applies to the Arkansas Congressional Delegation, providing:

(a) Any person having been elected to three or more terms as a member of the United States House of Representatives 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 from Arkansas.

(b) Any person having been elected to two or more terms as a member of the United States Senate 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 Senate from Arkansas.Ark. Const. of 1874, amend. 73, § 3 (amended 1992).

7. See United States Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (Ark. 1994) (Brown, J., for a plurality), aff'd, 115 S. Ct. 1842 (1995).

8. See Susan Feeney, Are There Term Limits? Founding Fathers' Intentions on Term Limits Still Stir Debate, The Dallas Morning News, May 28, 1995, at J1 (referring to Thomas' minority opinion as a "Blistering 88-page dissent"); William H. Freivogel, Term Limits Ruling Rekindles States' Rights Debate, Pittsburgh Post-Gazette, May 28, 1995, at A10 (commenting on the "nationalistic arguments of Justice John Paul Stevens," and the "states' rights view of Justice Clarence Thomas."); Linda Greenhouse, High Court Blocks Term Limits For Congress in a 5-4 Decision, N.Y. Times, May 23, 1995, at A1 ("[T]he decision revealed a Court riven by profound differences over the very nature and sources of legitimacy of the national Government. The battleground over which the 157 pages of opinions raged was federalism . . . .").

9. See Joan Biskupic, High Court Rulings Bring Federal-State Power Balance to Forefront, Wash. Post, May 25, 1995, at A14. The decision "also revealed a fault line between two camps of justices on the constitutional roots of government authority, which could be equally important in the long run." Id.

10. Id.

11. Linda Greenhouse, Focus on Federal Power, N.Y. Times, May 24, 1995, at A1. The author further stated:

Justice Clarence Thomas' dissenting opinion, signed also by Chief Justice William H. Rehnquist and by Justices Sandra Day O'Connor and Antonin Scalia, would have deposed the Federal Government from its primary role in the constitutional system and resurrected the states as the authentic organs of democratic government.

Taking the opinion at face value, and recognizing that the Court would not actually go so far in the crucible of a real case, it is only a slight exaggeration to say that the dissent brought the Court a single vote shy of reinstalling the Articles of Confederation, the affiliation of sovereign states that the Constitution replaced with the Federal system in 1789.Id.

12. Term Limits, 115 S. Ct. at 1871.

13. Id. at 1872 (Kennedy, J., concurring).

14. See infra Part V. This Comment addresses only one aspect of the Court's decision, which involves the majority's understanding, discussion, and application of the Tenth Amendment and the meaning of "reserved powers." Other scholarly discussions regarding the constitutionality of state-enacted term limits, written prior to United States Term Limits, Inc. v. Thornton, have explored a myriad of constitutional theories, many of which were discussed by the Court in reaching its holding. See, e.g., Neil Gorusch & Michael Guzman, Will the Gentleman Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitations, 20 Hofstra L. Rev. 341 (1991) (arguing that state-imposed term limits may be viewed as a legitimate exercise of state authority to regulate the time, place and manner of congressional elections, rather than as an impermissible qualification for membership in Congress and that such regulations do not violate the First and Fourteenth Amendment rights of candidates or voters); Roderick M. Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991) (arguing that Qualifications clauses do not deprive state citizens of the power to impose election qualifications for members of Congress in addition to those enumerated in the U.S. Constitution); Stephen J. Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L. Rev. 321 (1993) (analyzing the constitutionality of a term limits amendment to the Colorado State Constitution under Times, Places and Manners Clause of Article I, Section 4, as well as the Qualifications Clause of Article I, of the United States Constitution); Robert C. DeCarli, Note, The Constitutionality of State-Enacted Term Limits Under the Qualifications Clauses, 71 Tex. L. Rev. 865 (1993) (arguing that congressional term limits imposed by popularly enacted initiatives are permissible additions to qualifications set out in Article I, § 2 of the United States Constitution); Joshua Levy, Note, Can They Throw the Bums Out? The Constitutionality of State-Imposed Congressional Term Limits, 80 Geo. L.J. 1913 (1992) (concluding that a state may not limit the terms of its members of Congress by examining constitutional clauses addressing the qualifications for membership in Congress, as well as the breadth of states' authority under the Tenth Amendment and the Times, Places and Manner Clause to regulate elections for federal office and applying these provisions to state term limits laws).

15. See infra notes 73-97 and accompanying text.

16. Term Limits, 115 S. Ct. at 1854.

17. Id. at 1856.

18. See infra notes 23-32 and accompanying text.

19. See infra notes 33-50 and accompanying text.

20. See infra notes 51-207 and accompanying text.

21. See infra notes 208-50 and accompanying text.

22. See infra notes 251-57 and accompanying text.

23. Self-Limiting Terms in Congress, N.Y. Times, May 16, 1994, at A16.

24. Id.; see also Thomas J. Brazaitas, Americans Turned Off by Federal Government, The Plain Dealer, Apr. 20, 1994, at 5A (reporting that 71% of respondents favored Congressional term limits based on a national survey of 1500 adults by Market Strategies, Inc. of Southfield, Michigan); David S. Broder, Why Term Limits Will Backfire, The Wash. Post, Jan. 9, 1994, at C7 ("The tenure limits are consistently supported in polls by seventy percent or more of the voters. They have prevailed, when put to vote, everywhere from liberal New York City to conservative Wyoming and Arizona."); Tom Colgan, Term-Limits Issue Will Not Go Away, Chi. Trib., July 1, 1995, at 18 ("[P]ublic-opinion polls show that 80 percent of American voters support term limits for elected officials even though the voters usually re-elect their representatives."). Conversely, however, the voting public has consistently failed to individually limit the terms of its respective representatives through the election process: "Since the 1960's, roughly 95 percent of those [candidates] who sought reelection were returned to office." Daniel M. Shea & Stephen C. Brooks, How to Topple an Incumbent: Advice From Experts Who've Done It, Campaigns & Elections, June, 1995, at 21. Even in 1992 and 1994, election years riddled with supposed "backlash against `business as usual' [and] the `Washington Establishment'" nine out of ten members of Congress were returned to office. Id.

25. See Susan B. Glasser, Fraud Charges Hit Term Limits Crusade, Roll Call, Sept. 24, 1994, at 14.

26. Mark P. Petracca & Darci Jump, Term-limit Express; Politicians Length of Service, Society, Nov. 1993, at 61.

27. See, e.g., Fulani Lenor, Toward a Multi-Party System, It's Time For Those Who Are Liberal to See the Value of Congressional Term Limits, News & Record, Feb. 27, 1995, at A4; J. Jennings Moss, Planks Mirror Clinton; GOP Platform Right of Bush, The Wash. Times, Aug. 20, 1992, at A8; Editorial, White House Doing What's Right, Not What's Popular on Term Limits, The Dayton Daily News, Sept. 15, 1994, at 14A.

28. Sean R. Sullivan, A Term Limit By Any Other Name?: The Constitutionality of State-Enacted Ballot Access Restrictions on Incumbent Members of Congress, 56 U. Pitt. L. Rev. 845, 847 (1995) (footnote omitted).

29. See Self Limiting Terms In Congress, N.Y. Times, May 16, 1994, at A16.

30. Id.

31. Thomas J. Brazaitis, Americans Turned Off By Federal Government, The Plain Dealer, Apr. 20, 1994, at 5A. The author quotes Stanley Greenberg, President Clinton's pollster who helped draft and evaluate the survey: "`I have an awesome respect for the public's commitment to term limits . . . I think one has to understand the American public is committed to term limits.'" Id. (quoting Stanley Greenberg, a pollster for President Clinton).

32. Id. (quoting Frederick T. Sleeper, a pollster for former President George Bush).

33. See supra note 6 and accompanying text.

34. Ark. Const. of 1874, amend. 7 (amended 1925). The second section of Amendment Seven reads as follows:

State Wide Petitions Initiative--The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a Constitutional Amendment by initiative petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions for State-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation.Id.

35. United States Term Limits, Inc. v. Hill, 872 S.W.2d 349, 351 (Ark. 1994) (Brown, J., for a plurality), aff'd, 115 S. Ct. 1842 (1995).

36. Id. at 352 (Brown, J., for a plurality).

37. Id. at 353 (Brown, J., for a plurality).

38. See id. (Brown, J., for a plurality).

39. See id. (Brown, J., for a plurality).

40. See id. (Brown, J., for a plurality).

41. See Hill, 872 S.W.2d at 353 (Brown, J., for a plurality).

42. See id. (Brown, J., for a plurality). Following the July 29, 1993 hearing, "the circuit court handed down its Conclusions of Law that same date . . . ." Id. The court held:

1. The matter is justiciable based on the adverse impact of Amendment 73 on incumbent officeholders and on appellees Hill's and Herget's right to participate in the political process.

2. The omission of an Enacting Clause in the Amendment was a fundamental error and fatal defect in the Amendment.

3. Amendment 73 is a restriction on the qualifications of persons seeking federal congressional offices and violates the U.S. Constitution.Id. (Brown, J., for a plurality).

"A document entitled Findings of Fact, Conclusions of Law, and a Final Order which embraced the Conclusions of Law of July 29, 1993, was entered on September 8, 1993." Id. (Brown, J., for a plurality).

43. See id. (Brown, J., for a plurality). Those clauses read:

§ 2. House of Representatives.

. . . .

[2.] 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.

. . . .

§ 3. Senate

. . . .

[3.] 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 the state for which he shall be chosen.Id. at 355 (Brown, J., for a plurality) (omissions in original) (quoting U.S. Const. art 1. § 2, cl. 2).

44. See id. at 353-54 (Brown, J., for a plurality).

45. See id. (Brown, J., for a plurality).

46. See id. (Brown, J., for a plurality).

47. See Hill, 872 S.W.2d at 353-54 (Brown, J., for a plurality).

48. Id. at 356 (Brown, J., for a plurality).

49. Id. (Brown, J., for a plurality).

50. See United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1842 (1995).

51. See id.; see also id. at 1872 (Kennedy, J., concurring).

52. See id. at 1842.

53. Id. at 1847.

54. Id.

55. 395 U.S. 486 (1969).

56. Term Limits, 115 S. Ct. at 1847. In explaining the historical background of Powell, the Term Limits Court stated:

In November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That Committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, § 2, cl. 2. The Committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278, excluding Powell from membership in the House, and declared his seat vacant.

Powell and several voters of the District from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, § 2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has "no authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution."Id. at 1848 (footnote omitted).

57. See id. at 1848.

58. See id.

59. Id. at 1848.

60. Id. at 1850

61. Id. at 1848. The Court reviewed the Powell discussion of John Wilkes, a member of the British Parliament in the 1700's. Wilkes was convicted of seditious libel after his published attacks on a peace treaty with France, and served a twenty-two month jail sentence. See id. Parliament declared Wilkes ineligible for membership, and although he repeatedly won re-election, Parliament refused to seat him. See id.

62. Term Limits, 115 S. Ct. at 1848 (quoting Powell v. McCormack, 395 U.S. 486, 528 (1969) (quoting 16 Parl. Hist. Eng. 589, 590 (1769))).

63. Id. at 1849.

64. Id. at 1850 (quoting Powell, 395 U.S. at 548).

65. See id.

66. Id. (footnote omitted).

67. Id. at 1851.

68. Term Limits, 115 S. Ct. at 1851 (quoting Powell, 395 U.S. at 543 (quoting 17 Annals of Cong. 874 (1807))).

69. Id. (quoting Powell, 395 U.S. at 534 n.65 (quoting 16 Parl. Hist. Eng. 589-90 (1769))).

70. Id.

71. Id.

72. See id. at 1852.

73. U.S. Const. amend. X ("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.").

74. Term Limits, 115 S. Ct. at 1852.

75. Id.

76. Id. at 1853.

77. See id. at 1853-54.

78. Id. at 1854.

79. Id.

80. Term Limits, 115 S. Ct. at 1854 (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819)).

81. Id. (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549 (1985) (quoting EEOC v. Wyoming, 460 U.S. 226, 269 (1983) (Powell, J., dissenting))).

82. Id.

83. Id. (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851)).

84. 17 U.S. (4 Wheat.) 316 (1819).

85. Term Limits, 115 S. Ct. at 1854.

86. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 430).

87. Id. (quoting McCulloch, 17 U.S. (4 Wheat.) at 436).

88. See id. at 1855.

89. Id. (quoting Wesberry v. Sanders, 376 U.S. 1, 10 (1964)).

90. Id. (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851)).

91. Term Limits, 115 S. Ct. at 1855.

92. Id. (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851)).

The Constitution's provision for election of Senators by the state legislatures, see Art. I, § 3, cl. 1, is entirely consistent with this view. The power of state legislatures to elect Senators comes from an express delegation of power from the Constitution, and thus was not at all based on some aspect of original state power. Of course, with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were elected directly by the people.Id. at 1855 n.16.

93. Id. at 1856; see also U.S. Const. art. I, § 5, cl. 1 (providing that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members"). "The text of the Constitution thus gives the representatives of all the people the final say in judging the qualifications of the representatives of any one State." Term Limits, 115 S. Ct. at 1855; see also U.S. Const. art. I, § 5, cl. 1 (providing that the salaries of representatives "be ascertained by Law, and paid out of the Treasury of the United States," rather than by individual states); U.S. Const. art. II, § 1, cl. 2 (providing that "[e]ach state shall appoint, in such a Manner as the Legislature thereof may direct, a Number of Electors"). "These Clauses are express delegations of power to the States to act with respect to federal elections." Term Limits, 115 S. Ct. at 1855-56 (footnote omitted). "The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers." Id. at 1856 n.17.

94. Term Limits, 115 S. Ct. at 1856 (quoting United States v. Classic, 313 U.S. 299, 315 (1941)). The Term Limits Court also referred to Hawke v. Smith, 253 U.S. 221 (1920) for the proposition that "`the power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented.'" Term Limits, 115 S. Ct. at 1856 (quoting Hawke, 253 U.S. at 230).

95. Term Limits, 115 S. Ct. at 1856.

96. Id.

97. Id.

98. Id. at 1856-71.

Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the `basic principles of our democratic system' all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.Id.

99. See id. at 1856-60.

100. See id.

101. See Term Limits, 115 S. Ct. at 1860.

102. Id. at 1856.

103. See id. at 1861-62.

104. See id. at 1861-63.

105. See id.

106. See id. at 1862.

107. Term Limits, 115 S. Ct. at 1867.

In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an `effort to dress eligibility to stand for Congress in ballot access clothing,' because the `intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service.' We must, of course, accept the state Court's view of the purpose of its own law: we are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution.Id. (quoting United States Term Limits, Inc. v. Hill, 872 S.W.2d 349, 357 (Ark. 1994) (Brown, J., for a plurality), aff'd, 115 S. Ct. 1842 (1995) (footnote omitted)).

108. Id. at 1872 (Kennedy, J., concurring).

109. Id. (Kennedy, J., concurring).

110. Id. (Kennedy, J., concurring).

111. Id. (Kennedy, J., concurring).

112. Id. (Kennedy, J., concurring).

113. Term Limits, 115 S. Ct. at 1873 (Kennedy, J., concurring).

114. Id. (Kennedy, J., concurring).

115. Id. (Kennedy, J., concurring).

116. Id. at 1874 (Kennedy, J., concurring).

117. Id. (Kennedy, J., concurring).

118. Id. at 1875 (Kennedy, J., concurring).

119. Term Limits, 115 S. Ct. at 1875 (Kennedy, J., concurring).

120. Id. (Kennedy, J., concurring).

121. See id. at 1875 (Thomas, J., dissenting).

122. Id. (Thomas, J., dissenting) (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)).

123. Id. (Thomas, J., dissenting). Justice Thomas added that "[t]he Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people." Id. (Thomas, J., dissenting).

124. Id. (Thomas, J., dissenting).

125. Term Limits, 115 S. Ct. at 1875 (Thomas, J., dissenting).

126. Id. at 1876 (Thomas, J., dissenting).

127. Id. at 1877 (Thomas, J., dissenting).

128. Id. (Thomas, J., dissenting).

129. Id. at 1877-78 (Thomas, J., dissenting).

130. See id. (Thomas, J., dissenting). Justice Thomas further added that:

From the fact that the States had not previously enjoyed any powers over the particular institutions of the Federal Government established by the Constitution, the majority derives a rule precisely opposite to the one that the Amendment actually prescribes: "`[T]he 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.'"Id. (Thomas, J., dissenting) (footnote omitted) (quoting id. at 1854 (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851))).

131. Term Limits, 115 S. Ct. at 1878 (Thomas, J., dissenting).

132. Id. (Thomas, J., dissenting).

133. Id. (Thomas, J., dissenting) (quoting U.S. Const. amend. X).

134. Id. (Thomas, J., dissenting).

The Amendment does not pre-empt any limitations on state power found in the state constitutions, as it might have done if it simply had said that the powers not delegated to the Federal Government are reserved to the States. But the Amendment also does not prevent the people of the States from amending their state constitutions to remove limitations that were in effect when the Federal Constitution and Bill of Rights were ratified.Id. (Thomas, J., dissenting).

135. Id. (Thomas, J., dissenting).

136. 469 U.S. 528 (1985).

137. Term Limits, 115 S. Ct. at 1878 (Thomas, J., dissenting) (quoting U.S. Const. amend. X).

138. Id. (Thomas, J., dissenting).

139. Id. at 1879 (Thomas, J., dissenting).

140. Id. (Thomas, J., dissenting).

141. 17 U.S. (4 Wheat.) 316 (1819).

142. Term Limits, 115 S. Ct. at 1879 (Thomas, J., dissenting).

143. Id. (Thomas, J., dissenting) (quoting McCulloch, 17 U.S. (4 Wheat.) at 410).

144. See id. at 1879 (Thomas, J., dissenting).

145. Id. (Thomas, J., dissenting) (referring to the Bank of the United States).

146. Id. at 1880 (Thomas, J., dissenting).

147. Id. (Thomas, J., dissenting) (footnote omitted).

148. Term Limits, 115 S. Ct. at 1880 (Thomas, J., dissenting).

149. Id. (Thomas, J., dissenting).

150. Id. (Thomas, J., dissenting).

151. Id. (Thomas, J., dissenting). Compare 2 Joseph Story Commentaries on the Constitution of the United States §§ 1063-1069, at 5-9 (2d ed. 1851) (arguing that the Commerce Clause deprives the states of the power to regulate any commerce within Congress' reach) with Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 321 (1851) (holding that Congress' Commerce Clause powers are not exclusive).

152. Term Limits, 115 S. Ct. at 1880 (Thomas, J., dissenting).

153. Id. at 1881 (Thomas, J., dissenting).

154. Id. (Thomas, J., dissenting) (quoting id. at 1855).

155. Id. (Thomas, J., dissenting).

156. Id. (Thomas, J., dissenting).

157. Id. (Thomas, J., dissenting).

158. Term Limits, 115 S. Ct. at 1881 (Thomas J., dissenting) (quoting id. at 1873 (Kennedy, J., concurring)).

159. Id. (Thomas, J., dissenting).

160. Id. at 1882 (Thomas, J., dissenting) (quoting id. at 1855).

161. Id. (Thomas, J., dissenting).

162. Id. (Thomas, J., dissenting). Justice Thomas added that this premise "must baffle the majority, whose understanding of Congress would surely fit more comfortably within a system of nationwide elections." Id. (Thomas, J., dissenting) (footnote omitted).

163. Id. (Thomas, J., dissenting).

164. Term Limits, 115 S. Ct. at 1882 (Thomas, J., dissenting).

165. See id. at 1883.

166. Id. (Thomas, J., dissenting).

167. Id. (Thomas, J., dissenting).

168. Id. (Thomas, J., dissenting) (quoting id. at 1854 (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851))).

169. Id. (Thomas, J., dissenting).

170. Term Limits, 115 S. Ct. at 1883 (Thomas, J., dissenting).

171. See U.S. Const. art I. § 4. This clause reads:

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.Id.

172. Id. (Thomas, J., dissenting).

173. Id. (Thomas, J., dissenting) (quoting id. at 1855).

174. Id. at 1884 (Thomas, J., dissenting).

175. See id. (Thomas, J., dissenting).

176. See id. at 1885 (Thomas, J., dissenting).

177. See Term Limits, 115 S. Ct. at 1885 (Thomas, J., dissenting).

178. Id. at 1885 (Thomas, J., dissenting).

179. Id. at 1885-86 (Thomas, J., dissenting).

180. See id. at 1886 (Thomas, J., dissenting) ("The Qualifications Clauses provide that guarantee: they list the requirements that the Framers considered essential to protect the competence of the National Legislature." (footnote omitted)).

181. Id. (Thomas, J., dissenting).

182. Id. at 1887 (Thomas, J., dissenting).

183. Term Limits, 115 S. Ct. at 1887 (Thomas, J., dissenting).

184. Id. at 1885 (Thomas, J., dissenting).

185. Id. (Thomas, J., dissenting).

186. Id. (Thomas, J., dissenting).

187. Id. (Thomas, J., dissenting).

188. See Term Limits, 115 S. Ct. at 1889-90 (Thomas, J., dissenting).

189. Id. at 1891. (Thomas, J., dissenting) ("The majority appears to believe that restrictions on eligibility for office are inherently undemocratic.").

190. Id. (Thomas, J., dissenting) (quoting Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) (quoting Bernal v. Fainter, 467 U.S. 216, 221 (1984) (quoting Sugarman v. Dougall, 413 U.S. 634, 637 (1973)))). Justice Thomas added: "When the people of a State themselves decide to restrict the field of candidates whom they are willing to send to Washington as their representatives, they simply have not violated the principle that `the people should choose whom they please to govern them.'" Id. (Thomas, J., dissenting) (quoting 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 257 (Jonathan Elliot ed., 2d ed. 1836)).

191. Id. at 1894 (Thomas, J., dissenting).

192. See id. at 1894-96 (Thomas, J., dissenting).

193. Id. at 1896 (Thomas, J., dissenting) (quoting id. at 1857).

194. Term Limits, 115 S. Ct. at 1896 (Thomas, J., dissenting). Justice Thomas' analysis includes discussion of four constitutional provisions. First, "the constitutional requirement that congressional salaries be ascertained by Law, and paid out of the Treasury of the United States." Id. (Thomas, J., dissenting) (quoting U.S. Const. art. I. § 6, cl. 1). Second, "the Elector-Qualifications Clause of Article I, § 2, which specifies that in each State, the voters in House elections "`shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature.'" Id. (Thomas, J., dissenting) (quoting U.S. Const. art. I, § 2). Third, under "Article I, § 5, "`[e]ach House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members.'" Id. at 1897 (Thomas, J., dissenting) (quoting U.S. Const. art. I, § 5). Fourth, "the Clause giving Congress the power to override state regulations of `[t]he Times, Places and Manner of holding [congressional] Elections.'" Id. (Thomas, J., dissenting) (quoting U.S. Const. art. I, § 4, cl. 1).

195. See id. at 1900-03 (Thomas, J., dissenting).

196. See id. at 1903-08 (Thomas, J., dissenting).

197. Id. at 1908 (Thomas, J., dissenting).

198. Id. (Thomas, J., dissenting).

199. See id. at 1908-14 (Thomas, J., dissenting).

200. Term Limits, 115 S. Ct. at 1909 (Thomas, J., dissenting).

201. See id. at 1911 (Thomas, J., dissenting).

202. Id. (Thomas, J., dissenting).

203. Id. at 1909 (Thomas, J., dissenting).

204. See id. at 1911 (Thomas, J., dissenting).

205. See id. at 1911; see also 2 U.S.C. §§ 61-1, 72a, 332 (1994) (permitting members of the Senate and House of Representatives to have sizable taxpayer-funded staffs); 2 U.S.C. § 123b (1994) (establishing the House Recording Studio and the Senate Recording and Photographic Studios); 39 U.S.C. § 3210 (1994) (permitting Members of Congress to send "franked" mail free of charge).

206. Term Limits, 115 S. Ct. at 1911 (Thomas, J., dissenting).

207. Id. at 1913-14 (Thomas, J., dissenting).

208. See supra notes 135-40 and accompanying text.

209. Term Limits, 115 S. Ct. at 1878 (Thomas, J., dissenting) (emphasis added); see also Scott Gardner, Comment, Recent Decisions--Constitutional Law--Tenth Amendment--State Sovereignty as a Limit on Congressional Power, New York v. United States, 31 Duq. L. Rev. 1898 (1993) (identifying two lines of cases in recent history of Tenth Amendment cases, "each apparently having its own standards for determining whether a Congressional act is in violation of the Tenth Amendment.") (citing New York v. United States 505 U.S. 144 (1992); National League of Cities v. Usery 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); Gregory v. Ashcroft 501 U.S. 452 (1991); South Carolina v. Baker, 486 U.S. 505 (1988); South Dakota v. Dole, 483 U.S. 203 (1987); Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981)).

210. See supra notes 72-97 and accompanying text.

211. Term Limits, 115 S. Ct. at 1854.

212. 469 U.S. 528 (1985).

213. 505 U.S. 114 (1992).

214. Term Limits, 115 S. Ct. at 1878 (Thomas, J., dissenting) (emphasis added) (alteration in original) (quoting id. at 1854) (emphasis added).

215. See supra notes 135-40 and accompanying text.

216. Term Limits, 115 S. Ct. at 1880 (Thomas, J., dissenting); see also supra notes 148-52 and accompanying text.

217. Thomas C. Grey, The Uses of an Unwritten Constitution, 64 Chi.-Kent L. Rev. 211, 233-34 (1988).

218. Term Limits, 115 S. Ct. at 1880 (Thomas, J., dissenting); see also supra notes 148-52 and accompanying text.

219. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1491 (1987).

[T]he final clauses of this Amendment confirm the ultimate sovereignty of a unitary American People. Consistent with that sovereignty, the Amendment betrays an obvious concern with keeping all governmental power strictly within the limits of the People's delegations. The national government is not to exercise "powers not delegated to [it] by the Constitution;" and states are not to exercise any powers "prohibited" by the Constitution, "delegated" to national agents, or "reserved . . . to the people" through state constitutions. Strictly speaking, the Tenth Amendment affirms the sovereignty of the People, not the sovereignty of state governments: It resoundingly affirms the structural conclusion that governments have no sovereignty to violate the Constitution and get away with it.

In fact, the Amendment can be seen as containing a tantalizing suggestion that the very division of delegated sovereign powers between two different sets of agents can promote the ultimate sovereignty of the People. In particular, the Amendment hints that the reservation of limited law-making "powers . . . to the States respectively" is somehow connected to preventing the federal government from exercising "powers not delegated to it." Limited state governments can help maintain limits on the national government.Id. at 1491-92 (footnotes omitted) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States § 1906, at 611-12 (2d ed. 1851)).

220. Raoul Berger, Federalism: The Founders' Design 87 (1987) (quoting W. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 40 (1970)).

221. Id. at 78 (quoting A. Mason, "The Bill of Rights: An Almost Forgotten Appendage," in The Future of Our Liberties 39, 47 (S. Halperin ed., 1982) (footnote omitted)).

222. Id. at 79 (quoting 1 Samuel Eliot Morrison & Henry Steele Commager, The Growth of the American Republic 287 (4th ed. 1951) (footnote omitted)).

223. See id.

224. Gardner, supra note 209, at 888-89 (quoting The Federalist No. 44, at 30 (James Madison) (Jacob E. Cooke ed., 1961) (footnote omitted)).

The omission of one word in translating Article II of the Articles of Confederation . . . was seized upon twenty-eight years later by Chief Justice Marshall in McCulloch v. Maryland, striking the first judicial blow to the Tenth Amendment. McCulloch presented the question of whether Congress, under its Article I enumerated powers, had the authority to incorporate a bank. The Court held that the act incorporating the bank was constitutional. With respect to the Tenth Amendment, the Court noted that there is no language in the Constitution "which, like the Articles of Confederation, excludes incidental or implied powers." The Court found that since the Framers of the Tenth Amendment had omitted the word "expressly," they meant to avoid the difficulties which resulted from its inclusion in the Articles of Confederation, namely, the construction of the term so that the government was left without any real powers, save those few granted in Article I, narrowly construed.Id. at 889 (footnotes omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819)).

225. See Terrence M. Messonnier, A Neo-Federalist Interpretation of the Tenth Amendment, 25 Akron L. Rev. 213, 214 (1991).

226. Berger, supra note 220, at 79 (omission in original) (footnote omitted) (quoting W. Murphy, The Triumph of Nationalism: State Sovereignty, the Founding Fathers, and the making of the Constitution 403 (1967)).

227. See id.

228. 1 Debates in the Several State Conventions on the Adoption of the Federal Constitution 137 (Jonathan Elliot ed., 2d ed. 1836).

229. See James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought 36 (1971).

230. See id. at 37. This fact alone could lend support to arguments that Justice Story himself may have supported enactment of some form of term limitations on members of Congress.

231. See supra notes 82-90 and accompanying text.

232. United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1854 (1995) (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851)).

233. Id. (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 627, at 434-35 (2d ed. 1851)).

234. See supra notes 84-90 and accompanying text.

235. See supra notes 88-92 and accompanying text.

236. 1 Joseph Story, Commentaries on the Constitution of the United States §§ 419-426, at 298-302 (2d ed. 1851) (footnote omitted).

237. See Safranek, supra note 14, at 359-60. Justice Story later stated explicitly in his constitutional commentaries that the enumerations within the Qualifications Clauses of the Constitution exclude all other qualifications on membership in Congress. See id. at 357 (footnoting 1 Joseph Story, Commentaries on the Constitution § 625, at 433-34 (2d ed. 1851)). He did not, however, discuss the notion of whether "incumbency" may be considered a qualification that could be prescribed by state-enacted term limits. See id. at 358. Nor did Justice Story discuss whether term-limits enacted by amendment to a state's constitution would constitute an unconstitutional qualification. See id. at 357-59.

238. 1 Life and Letters of Joseph Story 296 (William W. Story ed., 1851); see also supra note 151 and accompanying text.

239. McClellan, supra note 229, at 238.

240. Id. at 263.

241. Safranek, supra note 14, at 360 (footnoting 1 Joseph Story, Commentaries on the Constitution of the United States §§ 624-626, at 433-34 (2d ed. 1851)).

242. McClellan, supra note 229, at 269 (footnote omitted).

243. Id. at 271.

244. Id. (quoting Joseph Story, Statesmen--Their Rareness and Importance: Daniel Webster, 7 New Eng. Mag. 89, 90 (1934)).

245. Id.

246. Id.

247. McClellan, supra note 229, at 61 (quoting 1 Life and Letters of Joseph Story (William W. Story, ed., 1851)).

248. United States Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1880 (1995) (Thomas, J., dissenting).

249. See Berger, supra note 220, at 191.

250. Id. (quoting 1 Joseph Story, Commentaries on the Constitution § 426, at 302 (2d ed. 1851)).

251. See supra note 148 and accompanying text.

252. See supra notes 229-47 and accompanying text.

253. See supra note 249-50 and accompanying text.

254. See supra note 247 and accompanying text.

255. See supra note 247 and accompanying text.

256. See supra note 242 and accompanying text.

257. See supra Part V.B.

* Dedicated to my parents, brothers, and sister for their encouragement and support; to my friends, especially my editors, for their patience; and to Professor George Dargo.