May/June 1995

Big Government’s Barricade to Term Limits

The recent five-to-four Supreme Court ruling overturning congressional term limits imposed by 23 states, while regrettable, has at least helped focus the debate over the nature of government in America as we approach the 21st century. As many commentators have noted, while the vote could not have been closer, the opinions rendered — by Justice John Paul Stevens for the majority and Justice Clarence Thomas for the minority — could hardly have been further apart philosophically.

According to a recent Gallup Poll, a majority of Americans don't just dislike the federal government, they actually live in fear of it. No issue has better symbolized the distance between Americans and their government than term limits. People are weary of professional politicians, career legislators who've formed a kind of ruling elite. Careerists assume it's their right to run the lives of 260 million Americans and are disdainful of those who claim a right to be left alone by government.

Some 80 percent of Americans support term limits for Congress, while inside the Beltway there is a visceral hatred of the concept. A citizen legislature? Don't be ridiculous! According to Newt Gingrich, the people at U.S. Term Limits "don't have a clue how to run this country." The disconnect between the people and Congress is enormous.

Speaking as a board member of U.S. Term Limits, I should say that I don't have a clue how to run this country. But, then, neither does Gingrich or anyone else. The whole point of the current sea change in American politics is that the experiment in big government that's been going on in this country and throughout the world has finally been judged a failure. We don't want somebody running the country. We want to be free to run our own lives. In essence, what we're seeing in politics today is a reassertion of the vision of the Founders. Politically, Americans are not just rejecting Democrats, they're rejecting government control over their lives — a fact many Republicans would do well to learn. All of which brings us back to that five-to-four Supreme Court decision in U.S. Term Limits v. Thornton. As Linda Greenhouse in the New York Times and attorney John Kester in the Wall Street Journal pointed out in May, the Thornton decision wasn't mere quibbling over technical legalisms. In Kester's words, that decision and the earlier Lopez decision involved "the heavy artillery of first principles." And those of us who've been following Supreme Court "debates" over the past few decades can only rejoice over that.

For 60 years, ever since FDR threatened to pack the Court, we've witnessed an Orwellian newspeak that has flipped the Constitution on its head. No longer is it a document that protects individual Americans' rights to life, liberty, and property. Instead, it has became a source of legitimacy for every government program to come down the pike. No longer. True, Justice Stevens still came through for the big government establishment. But his contorted logic and plaintive appeal to ignore the clear meaning of the Tenth Amendment had a weak and hollow ring. In contrast, Justice Thomas's eloquent and forceful defense of what most Americans take to be the true purpose of the Constitution has the ring of the future.

"Nothing in the Constitution," writes Thomas, "deprives the people of each state of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The 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."

Indeed, Thomas's excellent concurring opinion in Lopez lays further groundwork for a judicial philosophy that takes seriously the purpose of the U.S. Constitution. Such a position would have been ridiculed by the statist elite not many years ago. We take no little pride, therefore, in the work of Cato's Center for Constitutional Studies under the direction of Roger Pilon and his assistant, Timothy Lynch, who've done yeoman work in demonstrating that governmental action first needs authority to be legitimate.

The judicial debate is shifting in our direction. The confluence of a political movement that wants to revisit and repeal much of the New Deal with a judicial philosophy that served this nation well for the century and a half before the New Deal represents a force to be reckoned with. One way or another, the American people are going to turn Congress into a citizen legislature. The dissent in U.S. Term Limits v. Thornton is a source of inspiration for doing so.

Ed Crane is the founder and president emeritus of the Cato Institute. Under his leadership, the Cato Institute grew to become one of the nation’s most prominent public policy research organizations.