Bench Memos

A Mild Dissent

Ed Whelan and I agree on so much that I am surprised when we don’t.  But I have to dissent from Ed’s use, in his latest edition today of “This Week in Liberal Judicial Activism,” of U.S. Term Limits v. Thornton as an example of judicial activism.  It’s been a while since I read the case, and I wouldn’t want to endorse every sentence in Justice Stevens’ opinion, but it struck me at the time that the Court had overturned one of the most obviously unconstitutional acts that a state could enact.  The demonstrable presumption of the Constitution is that there shall be no limit to the number of terms a representative or a senator may serve in the Congress.  The only question, it seems to me, is what arm of the national government ought to be responsible for reversing the unconstitutional state enactment.  A good case could be made that Congress has this responsibility, thanks to its power under Article I, section 4 to override any state actions regulating congressional elections.  But I wouldn’t rule out a parallel responsibility in the federal courts as well, for reasons I just discussed below in connection with Federalist No. 80.