MISSOURI COMMENTARY: TERM LIMITS: NICE CURES ON THE CHEAP

The result in the Supreme Court term limit case was just as most constitutional scholars anticipated. The 5-4 vote, however, was closer than expected. In one of the most closely watched cases this year, the court rules that states cannot impose term limits on U.S. senators and representatives.

Article I, Section 2 of the Constitution sets forth the basic qualifications for serving in Congress. Members of the House of Representatives must be 25 years of age, be citizens of the United States for at least seven years and be residents of their states (not their districts, interestingly, but only their states). For membership in the U.S. Senate, one must be 30 years of age, a citizen for nine years and a resident of his or her state.

The precise issue was whether these qualifications specified in the Constitution were exclusive or whether the states could add further qualifications as they saw fit.

The broader issue before the court was the nature of the Constitution itself. Do the powers enumerated in the document derive from the people as a whole or from the states as entities of governance? In essence, are Americans citizens of the nation as a whole who also happen to reside in one of the 50 states or are Americans, first of all, citizens of sovereign states who secondarily happen to be citizens of a federal union of those states?

Justice John Paul Stevens read the Qualifications Clause as being exclusive in determining the requirements for membership in the Senate and House. He concluded that this was what the framer intended. Stevens pointed out that under the old Articles of Confederation, the states retained most of the powers of governance. There were "like independent nations bound together only by treaties." Under the articles, there were term-limit provisions requiring "rotation in office," but the concept was eliminated in the new Constitution.

Realizing the weakness of the confederation system of government under the articles, the framers of the Constitution opted for a truly national government with a direct link between that national government and the people. In Stevens' words, the United States was no longer a "collection of states. ... In that national government, representatives (in Congress) owe primary allegiance not to the people of a state, but to the people of the nation."

Justice Clarence Thomas took the opposite view. Since the text of the Constitution was silent on the subject of term limits, the power to deal with the matter was "reserved" to the states. "The ultimate source of the Constitution's authority is the consent of the people of each state, not the consent of the undifferentiated people of the nation as a whole."

The Thomas dissent tracks with the views of those who sought to prevent ratification of the Constitution. Chief amongst those was the vociferous Patrick Henry. In one of his speeches in opposition to the scheme of a strong federal government, Henry said, "I am not really an American.I am a Virginian." He refused "to speak the language of 'we the people.'" He preferred the language of "we the states."

The swing vote was that of Justice Anthony M. Kennedy. Normally allied with the more conservative wing of the court, he voted with the group espousing the power and authority of the federal government. Kennedy disagreed with Thomas' theory that Americans have a political identity only as citizens of a specific state. To profess that belief is to ignore the background and creation of the Constitution itself. There is "a relationship between the people of the nation and their national government, with which the states may not interfere."

For those advocating term limits for Congress, there is only one way to pursue that goal: Amend the Constitution. That isn't easy. The framers didn't want their document tinkered with out of whim or caprice. A Constitutional amendment requires a two-thirds vote of both houses of Congress and ratification by three-fourths of the state legislatures.

Earlier this year, efforts were made in the House to pass several term-limit Constitutional amendments. All fell far short of the mark.

The concept of term limits will not go away. There is a significant constituency that wants to believe that our nation's ills can be solved by prohibiting voters from sending experienced people to Washington. Since it doesn't take a dollar out of anyone's pocket, the term limit idea will remain an attractive but illusory panacea.

~Tom Eagleton is a former U.S. senator from Missouri and a columnist for the Pulitzer Publishing Co.