Bench Memos

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Re: A Mild Dissent


On further reflection, I agree with Matt that I should not have included U.S. Term Limits v. Thornton (which was decided 12 years ago today) in my This Week in Liberal Judicial Activism entry.  It’s not that I share Matt’s view that Justice Stevens’s majority opinion reached the right result—I’m more persuaded by Justice Thomas’s dissent that the Qualifications Clauses impose minimum, but not exhaustive, requirements for eligibility that the states (but not Congress) can add to—but rather that I believe that Justice Stevens’s opinion undertakes a serious originalist analysis.  My practice in This Week has been to highlight activist opinions that are baseless or even ridiculous, and I can’t say that U.S. Term Limits meets that standard.


My practice is to correct but not conceal my mistakes, so I am removing U.S. Term Limits from my This Week entry but copying it here:

May 22     1995—By a vote of 5 to 4, the Supreme Court rules in U.S. Term Limits v. Thornton that the Constitution bars the people of each state from imposing term limits on their members of Congress.  At issue was a typical term-limits law, an Arkansas constitutional amendment that prohibited candidates for the House of Representatives and the Senate from appearing on the general-election ballot if they had already served, respectively, three terms in the House of Representatives or two terms in the Senate.  The Qualifications Clauses of Article I provide that senators shall be at least 30, citizens for at least nine years, and inhabitants of the states from which they were elected, and that House members shall be at least 25, citizens for at least seven years, and inhabitants of the states from which they were elected.  Justice Stevens’s majority opinion reads the Qualifications Clauses to provide the exclusive requirements for eligibility.  But, as Justice Thomas points out in dissent, the Qualifications Clauses are not set forth as exclusive, and several states in fact adopted additional eligibility criteria (including district residency requirements for House candidates) immediately after ratification of the Constitution.  


Tags: Whelan


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