Big Government’s Barricade to Term Limits

May/​June 1995 • Policy Report

The recent five‐​to‐​four Supreme Court ruling overturningcongressional term limits imposed by 23 states, whileregrettable, has at least helped focus the debate over the natureof government in America as we approach the 21st century. As many commentatorshave noted, while the vote could not have been closer, theopinions rendered — by Justice John Paul Stevens for the majorityand Justice Clarence Thomas for the minority — could hardly havebeen further apart philosophically.

According to a recent Gallup Poll, a majority of Americansdon’t just dislike the federal government, they actually live infear of it. No issue has better symbolized the distance betweenAmericans and their government than term limits. People are weary ofprofessional politicians, career legislators who’ve formed a kindof ruling elite. Careerists assume it’s their right to run the livesof 260 million Americans and are disdainful of those who claim aright 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 NewtGingrich, the people at U.S. Term Limits “don’t have a cluehow to run this country.” The disconnect between the peopleand Congress is enormous.

Speaking as a board member of U.S. Term Limits, I should saythat I don’t have a clue how to run this country. But, then, neitherdoes Gingrich or anyone else. The whole point of the current sea changein American politics is that the experiment in big governmentthat’s been going on in this country and throughout the world hasfinally been judged a failure. We don’t want somebody running thecountry. We want to be free to run our own lives. In essence,what we’re seeing in politics today is a reassertion of thevision of the Founders. Politically, Americans are not justrejecting Democrats, they’re rejecting government control overtheir lives — a fact many Republicans would do well to learn. Allof which brings us back to that five‐​to‐​four Supreme Courtdecision in U.S. Term Limits v. Thornton. As Linda Greenhouse inthe New York Times and attorney John Kester in the Wall Street Journalpointed out in May, the Thornton decision wasn’t mere quibblingover technical legalisms. In Kester’s words, that decision andthe earlier Lopez decision involved “the heavy artillery offirst principles.” And those of us who’ve been followingSupreme Court “debates” over the past few decades canonly rejoice over that.

For 60 years, ever since FDR threatened to pack the Court,we’ve witnessed an Orwellian newspeak that has flipped the Constitutionon its head. No longer is it a document that protects individual Americans’rights to life, liberty, and property. Instead, it has became asource of legitimacy for every government program to come downthe pike. No longer. True, Justice Stevens still came through for the biggovernment establishment. But his contorted logic and plaintiveappeal to ignore the clear meaning of the Tenth Amendment had aweak and hollow ring. In contrast, Justice Thomas’s eloquent andforceful defense of what most Americans take to be the truepurpose 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 prescribeeligibility requirements for the candidates who seek to representthem in Congress. The Constitution is simply silent on thisquestion. And where the Constitution is silent, it raises no barto action by the states or the people.”

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

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

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