Why Term Limits are Actually Unconstitutional

In spite of many conservative and libertarian politicians promising the implementation of term limits for members of the House and Senate, this implementation is actually unconstitutional. If you're now wondering how much hope you have of this changing, it's pretty slim, but is possible, I suppose.

You see, in Article II, Section II of the Constitution it states:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

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."

And Article II, Section III of the Constitiution states:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Nowhere does the language of this centuries-old document denote limits on the number of times a person can be elected to the same office. But why is this a problem? In 1969, the Supreme Court of the United States (which will be referred to as SCOTUS) decided Powell v. McCormack. This case involve a man by the name of Adam Clayton Powell, a Representative from Harlem, New York, who, after failing to respond to civil matters against him, was held in criminal contempt. He was re-elected, but the House of Representatives voted to exclude him from taking his position as a Representative. Is it constitutional for the House to exclude someone if they meet the age, citizenship, and residence requirements that are laid out by the Consitution? 

In a sweeping 7 to 1 decision by the Warren Court, the answer was a resounding no. Chief Justice Earl Warren, in his majority opinion, stated that "As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself." Thus, the Court set precedent that Congress could not add further requirements to prevent a duly elected officer from being seated. 

Then in another case in 1995, the Court ruled on U.S. Term Limits, Inc. v. Thornton. In November of 1992, Alabama adopted Amendment 73 to their constitution which instated term limits and also rendered Representatives who had served for three or more terms, ineligible to run again, and Senators who had served two or more terms, ineligible for re-election. But are the states allowed to add qualifications to those already outlined in the US Constitution?

In a close 5 to 4 decision, the Rehnquist Court ruled that the states could not add such qualifications. The majority opinion, written by Justice John Paul Stevens, insisted that these qualifications often have the intent of "creating additional qualifications indirectly" and would likely result in handicapping certain classes. He also pointed out that "...allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a 'more perfect Union.'" Thus, term limits are unconstitutional. 

Constitutional term limits would require the SCOTUS to take another case related to the matter and then rule that it is constitutional. This is extremely unlikely to happen because the Court rarely overturns precedent. While it has been know to happen (i.e. The famous Brown v. Board of Education (1954)), it does not happen with great frequency. This is primarily to keep the law stable and predictable so that other judges in lower courts are able to rule on cases in concordance with the Constitution. 

Alternatively, Congress could choose to propose and ratify an amendement to the Constitution. This, however, is a nearly insurmountable task. First, someone must propose the amendment. Mere days ago Senator Ted Cruze proposed an amendment that looks very much like the one added to Alabama's constitution in U.S. Term Limits, Inc. v. Thornton (1995). So we have the proposal. Then, the House AND Senate must approve the proposal by a two-thirds majority in each. Let's say, for posterity's sake, that a bunch of people who probably don't want to be subject to limits on their power do, in fact, pass the amendment. It's not over yet. Three-fourths of state legislatures must ratify the amendment. That's 38 of the 50 states. This is the method by which all 27 of our Constitution's current amendments have been added. 

To the same effect, two-thirds of the state legislatures could call for a Constitutional Convention at which the amendment is proposed. The proposal is then distributed to the states for ratification and three-fourths of the states must approve the amendment. While this is a viable option, it has never before been used to create a constitutional amendment.

So, why do politicians continue to make these promises of term limits that they likely cannot keep? I suspect, and this is entirely my own conjecture, that if politicians at least "try" to make this policy come to fruition and they are stopped by the Constitution, then it isn't their fault, at least they tried, and you will still vote for them for doing so. Besides, how many people know that term limits have already been deemed unconstitutional? I didn't. If a politician says they'll make it happen, we have every reason to believe them unless we are aware of the fact that the SCOTUS has already ruled on the issue and deemed it impossible under the current circumstances. 

Until I discovered this interesting tidbit, I myself was a proponent for term limits (imagine my shock at reading they're unconstitutional). There is so little that we know about the law and its effects on government. It may be beneficial for every American to take a course in Constitutional Law if only to learn about the court cases that have had a major impact on the way our government is allowed to function, and especially how those permissions relate to our election of political candidates who make promises they know very well they can't keep. This would be a useful addition to any voter's arsenal of information. Understanding how the government works is vitally important to our election of competent, efficient, and effective government officials since, at the end of the day, they are speaking and acting on our behalf. While I do hate to burst anyone's bubble, as an aspiring student of the law, I feel it is more important to educate than placate. 

If you're interested in this topic or simply must see for yourself that what I'm saying is true, I recommend Oyez.com for searching cases. You can read a brief summary of the case, listen to the oral arguments, and read the entire case which is linked right there on the page. You can find information on the Constitution and how to amend it on LexisNexis.com or just read it in its entirety, which is never a bad idea (I'm a huge fan). The internet is full of false information, so beware and tread carefully. 

Thanks for reading!