An Essay On Term Limits and A Call For A Constitutional Convention
An Essay On Term Limits and A Call For A Constitutional Convention
Volume 80
Article 7
Issue 1 Fall 1996
Stephen J. Safranek
Repository Citation
Ronald D. Rotunda and Stephen J. Safranek, An Essay on Term Limits and a Call for a Constitutional Convention, 80 Marq. L. Rev. 227
(1996).
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AN ESSAY ON TERM LIMITS AND A
CALL FOR A CONSTITUTIONAL
CONVENTION
RONALD D. ROTUNDA* AND STEPHEN . SAFRANEK**
I. INTRODUCTION
While term limits on state officials are quite common,' and raise no
serious federal constitutional problems,2 term limits on federal legislators
are a different matter.' In United States Term Limits v. Thornton,4 the
Supreme Court, by a five to four majority, declared unconstitutional an
Arkansas law limiting ballot access for incumbent U.S. Senators and
Representatives after Senators had served two terms or Representatives
three terms.5
The Thornton majority held that state efforts to impose term limits
* The Albert E. Jenner, Jr. Professor of Law, University of Illinois College of Law.
** Associate Professor of Law, University of Detroit Mercy, School of Law. He is
indebted to Diana Azzopardi for her extensive help on this article.
1. Over twenty governors now live with them. Miyazawa v. City of Cincinnati, 825 F.
Supp. 816, 821 (S.D. Ohio 1993). Municipal term limits, which date back as far as 1851, are
in effect in approximately 3,000 American cities, including such major metropolises as New
York City, Los Angeles, Houston, New Orleans, and Denver. Danielle Farge, Microcosmsof
the Movement: Local Term Limits in the United States, 4 TERM LIMITS OUTLOOK SERIES 1 &
appendix, pp. 1-16 (No. 2, Aug. 1995). Term limits on state legislators are becoming more
common. As of 1994, 16 states imposed term limits on state legislators. Mark P. Petracca,
Restoring "The University in Rotation": An Essay in Defense of Term Limitation, in THE
POLITICS AND LAW OF TERM LIMITS 57 & n.1 (Edward H. Crane & Roger Pilon eds., 1994).
See generally Stephen J. Safranek, Term Limitations: Do the Winds of Change Blow
Unconstitutional?,26 CREIGHTON L. REv. 321 (1993).
2. See, e.g., Legislature v. Eu, 816 P.2d 1309 (Cal. 1991) (rejecting free speech and equal
protection claims to term limits imposed on state legislative officials).
3. See STEPHEN J. SAFRANEI, THE CONSTITUTIONAL CASE FOR TERM LIMITS: THE
COURTS, THE CONGRESS, AND THE MEANING OF FEDERALISM (1993); Ronald D. Rotunda,
Rethinking Term Limits for FederalLegislatorsin Light of the Structure of the Constitution,73
OR. L. REV. 561 (1994) (discussing the constitutional issues of term limits on federal
legislatures). See also Dominic A. Jannicola, Jr., People v. Constitution: The Congressional
Term Limit Debate and a ConstitutionalDefinition of Qualification, 1994 U. ILL. L. REv. 683
(1994); Daniel Hays Lowenstein, Are CongressionalTerm Limits Constitutional?,18 HARV.
J.L. & PUB. POL'Y 1 (1994); Ronald D. Rotunda, The Aftermath of Thornton, 13 CONSTITU-
TIONAL COMMENTARY 201 (1996); Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term
Limits, Inc. v. Thornton, 109 HARv. L. REV. 78 (1995).
4. 115 S. Ct. 1842 (1995), aff'g United States Term Limits, Inc. v. Hill, 872 S.W.2d 349
(Ark. 1994).
5. Thornton, 115 S. Ct. at 1845.
MARQUETTE LAW REVIEW [Vol. 80:227
Constitution, when ratified by the Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof, as the one or the other Mode of
Ratification may be proposed by Congress ....
U.S. CONST. art. V (emphasis added).
11. Id.(emphasis added).
12. Lawrence Schlam, Legislative Term Limitation Under a "Limited" PopularInitiative
Provision?, 14 N. ILL. U. L. Rnv. 1, 33-34 (1993).
13. See, e.g., Dellinger, supra note 7, at 1623. In 1979, thirty states submitted
applications asking Congress to call a convention to consider a mandatory balanced federal
budget amendment. Id. Congress was purportedly brought "to the brink of calling a
constitutional convention" because only four more applications were required. Id (quoting
NAT'L L.J., Mar. 5, 1979 at 1, col. 2).
14. Although Congress has proposed numerous amendments to the Constitution, the
states have only ratified 27 amendments and failed to ratify six amendments. RICHARD B.
BERNSTEIN & JEROME ANGEL, AMENDING AMERICA: IF WE LovE THE CONSTITUTION SO
MUCH, WHY Do WE KEEP TRYING TO CHANGE IT? 169 (1993). Unratified amendments
proposed by Congress have dealt with various subjects, such as calculating representation in
the House of Representatives, losing citizenship if a citizen accepts a title of nobility, outlawing
child labor, prohibiting sex discrimination, and treating the District of Colombia as if it were
a state. See Boudreaux & Pritchard, supra note 8, at 152 n.201; 4 RONALD D. ROTUNDA &
JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE
(app.M) 779-82 (2d ed. 1992) (adapted from THE CONSTITUTION OF THE UNITED STATES OF
AMERICA: ANALYSIS AND INTERPRETATION, S. DOC. NO. 92-82, at 51-52 (2d Sess. 1973)).
15. 4 ROTUNDA & NOWAK, supra note 14, app.M at 780. The amendment stated, "[n]o
amendment shall be made to the Constitution which will authorize or give to Congress the
power to abolish or interfere, within any State, with the domestic institutions thereof, including
that of persons held to labor or service by the laws of said State." Id. See also Eric Grant,
Respondingto Imperfection: The Theory and Practiceof ConstitutionalAmendment, 13 CONST.
COMMENTARY 125, 126-27 n.6 (1996) (book review).
MARQUETTE LAW REVIEW [Vol. 80:227
influential treatise:
Congress, whenever two thirds of each house shall concur in the expediency of an
amendment, may propose it for adoption. The legislature of two thirds of the states
may require a convention to be called, for the purpose of proposing amendments.
In each case, three fourthsof the states, either through theirlegislatures,or conventions,
called for the purpose, must concur in every amendment, before it becomes a part of
the constitution.
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 959, at 680
(1833) (emphasis added).
22. Abraham Lincoln, First Inaugural Address (March 4, 1861), reprinted in 4 THE
COLLECTED WORKS OF ABRAHAM LINCOLN 270 (Roy P. Basler ed., 1953) (emphasis added).
23. See, e.g., U.S. CONST. amends. XIII, XIV, XVII, XX.
24. Partick Henry, From the Virginia Convention, in THE THEORY AND PRACTICE OF
CONSTITUTIONAL CHANGE IN AMERICA 102-03 (John R. Vile ed., 1993) ("Let us suppose-for
the case is supposable, possible, and probable-that you happen to deal those powers to
unworthy hands; will they relinquish powers already in their possession, or agree to
amendments? ... If one third of these be unworthy men, they may prevent the application
for amendments.").
MARQUETTE LAW REVIEW [Vol. 80:227
25. 137 Cong. Rec. S559-63 (daily ed. Jan. 15, 1991) (statement of Sen. Hatch), reprinted
in THE THEORY AND PRACTICE OF CONSTITUTIONAL CHANGE IN AMERICA 482 (John R.
Vile ed., 1993) ("The 17th Amendment to the Constitution, for example, -providing for the
direct election of U.S. Senators-was proposed by Congress in 1912 in response to an effort
in the States to call a convention on this subject.").
26. See Boudreaux & Pritchard, supra note 8, at 152 n.201.
27. LESTER BERNHARDT ORFIELD, THE AMENDING OF THE FEDERAL CONSTITUTION
53 (1942).
28. Id. at 1-2.
29. Proceedingsof Convention, The Virginia Plan (May 29, 1787), in 1 THE RECORDS
OF THE FEDERAL CONVENTION OF 1787 22 (Max Farrand ed., 2d ed. 1937).
30. See SPECIAL CONSTITUTIONAL CONVENTION STUDY COMMITrEE, A.B.A.,
AMENDMENT OF THE CONSTITUTION BY THE CONVENTION METHOD UNDER ARTICLE V 15
(1974) [hereinafter A.B.A.].
31. Id. at 17-20.
1996] AN ESSAY ON TERM LIMITS
Committee's first draft because they feared it would give the states
excessive power at the expense of Congress. 2 A major factor that lead
to the Constitutional Convention was that the Articles of Confederation
created a weak central government.33 The drafters recognized this
problem and did not wish to repeat the mistakes that existed under the
Articles. 4 The delegates of the Constitutional Convention compro-
mised and settled on what became Article V, which authorized both the
states and Congress to play an equal role in proposing amendments.
This two-pronged method for proposing amendments ensured that no
single institution could block important amendments. As George Mason
of Virginia declared, it would be improper to require congressional
approval of amendments "because they may abuse their power, and
refuse their consent on that very account. 3 6 And James Madison later
emphasized that Article V "equally enables the general and the State
governments to originate the amendment of errors.. .. "I'
32. PAUL J. WEBER & BARBARA A. PERRY, UNFOUNDED FEARS: MYTHS AND
REALITIES OF A CONSTITUTIONAL CONVENTION 13-18 (1989).
33. l
34. See generally Vile, supra note 25, at 66-67.
35. Id. at 73-74.
36. OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, LIMITED CONSTITUTIONAL
INTERVENTIONS UNDER ARTICLE V OF THE UNITED STATES CONSTITUTION 7 (Sept. 10,
1987).
37. THE FEDERALIST PAPERS No. 43, at 284 (James Madison) (Isaac Krammick ed.
1987).
38. See WEBER & PERRY, supra note 32, at 55-75.
39. Id at 61-75.
40. ROTUNDA & NOWAK, supra note 14, at 771-72 (2d ed. 1992).
41. JOHN R. VILE, CONTEMPORARY QUESTIONS SURROUNDING THE CONSTITUTIONAL
AMENDING PROCESS 7 (1993).
MARQUETTE LAW REVIEW [Vol. 80:227
49. Lincoln J. Connolly, Case Note, Mowing Down a Grass Roots Movement But
Protectingthe Crabgrass:CongressionalTerm LimitsAre Constitutional,50 U. MIAMI L. REV.
661, 705 (noting that both South Dakota (in 1989) and Utah (in 1990) have petitioned Con-
gress for a constitutional convention regarding a term limits amendment).
50. Id. at 703.
51. See Paulsen, supra note 20, at 742.
The very nature of a constitutional convention ... is inherently illimitable in what
it may propose. In'that sense, any federal constitutional convention is necessarily a
"runaway" convention. Certainly the Philadelphia Convention of 1787 fits this
characterization. The delegates pressed the outer limits of their authority in
proposing not simply amendments to the Articles of Confederation, but an entirely
new frame of government. A constitutional convention today would have no less
power to run away from existing structures and practices and propose radically new
government arrangements and greatly enlarged-or diminished-individual rights.
Id.
52. Id.; Reidinger, supra note 20, at 54. The fears may arise from the fact that Article
V was created as a peaceful alternative to a revolution. Walter Dellinger, The Legitimacy of
Constitutional Change: Rethinking the Amending Process, 97 HARV. L. REV. 431, 438 (1983)
("The formal amending process set forth in Article V represents a domestication of the right
to revolution.").
53. See Arthur E. Bonfield, The Dirksen Amendment and the Article V Convention
Process, 66 MICH. L. REV. 949, 998 (1968) (noting that a "runaway convention is no real
danger since the power of the states and Congress [to limit the scope of a constitutional
convention] ... is based on a sound legal and practical basis.").
MARQUETTE LAW REVIEW [Vol. 80:227
The ABA committee concluded that the phrase "for that purpose"
indicates an intent that conventions would only be called for certain
discrete purposes without authority to conduct a general review of the
Constitution. Moreover, limited conventions were in line with the
standard practice among state constitutional conventions at that time.
Most of the state constitutions that provided for conventions explicitly
stated that the conventions could be limited to particular issues.6 '
The ABA committee also concluded that sound policy reasons
support the view that states should be able to call limited conventions.
The convention method of proposing an amendment was meant to be a
workable alternative to proposing an amendment by Congress.62
However, states may not employ this option if the convention agendas
are not limited to particular proposals. In addition, the Committee
found a limited convention to be more consistent with democratic
principles because the voters would be better able to exercise their
franchise if they knew the subject matter to be considered before electing
delegates. If the range of topics to be addressed were known and
limited, the public would be better able to exercise an informed
judgment when choosing among different candidates.
Other commentators have disagreed and claimed that neither
Congress, nor the states, can limit the specific topics to be addressed at
a convention.63 Indeed, some have even argued that a state application
for anything other than a "general" convention is invalid.' Under this
view, the application of every individual state to Congress might have to
be phrased identically, each one calling for a convention with no limits
to its jurisdiction.65
This view is illogical. Regardless of whether the states can impose
61. ld at 15.
62. See supra note 8.
63. See Paulsen, supra note 20, at 736-37.
64. See Schlam, supranote 12, at 38 n.152. See also Charles L. Black, Jr., Amending the
Constitution:A Letter to a Congressman,82 YALE L.J. 189 (1972); Dellinger, supra note 7, at
1623 (arguing that while a convention should be influenced in its choice of agenda by the
grievances that led the states to apply for its convocation, the authority to determine the
agenda and draft the amendments to be proposed should rest with the convention, rather than
with Congress or the state legislature); Walter E. Dellinger, Who Controls a Constitutional
Convention?- A Response, 1979 DUKE L.. 999 (1979) [hereinafter Who Controls a
Convention];Francis H. Heller, Limiting a ConstitutionalConvention: The State Precedents,3
CARDOZO L. REV. 563 (1982) (arguing that states may not limit a convention).
65. Arthur J. Goldberg, The Proposed ConstitutionalConvention, 11 HASTINGS CONST.
L.Q. 1 (1983); Thomas H. Kean, A ConstitutionalConvention Would Threaten the Rights We
Have Cherishedfor 200 Years, 4 DET. C.L. REv. 1087 (1986); Robert M. Rhodes, A Limited
Federal ConstitutionalConvention, 26 U. FLA. L. REV. 1 (1973).
MARQUETTE LAW REVIEW [Vol. 80:227
66. See U.S. CONST. art. II, § 1, cl.8 (referring to the requirements for oath of office).
67. Paulsen, supra note 20, at 738 (footnote omitted).
68. Gerald Gunther, The Convention Method of Amending the United States Constitution,
14 GA. L. REV. 14-18 (1979); William W. Van Alstyne, Does Article V Restrict the States to
Calling Unlimited Conventions Only?- A Letter to a Colleague, 1978 DUKE L.J. 1295, 1298,
1305 (1979).
69. John T. Noonan, Jr., The Convention Method of ConstitutionalAmendment- Its
Meaning, Usefulness, and Wisdom, 10 PAC. L.J. 641 (1979) (asserting that the convention
cannot go beyond what Congress has specified).
70. Paulsen, supra note 20, at 738.
71. A few scholars claim that a convention would cause chaos in an otherwise orderly
government. See, e.g., Goldberg, supra note 65, at 2 (calling the convention system "uncharted
and volatile"); Tribe, supra note 19, at 632 (calling the convention system "exceedingly
unsound").
1996] AN ESSAY ON TERM LIMITS
the convention method, but actually preferred it.72 Let us turn now to
these safeguards.
C. The Ratification Requirement
The first significant check on the convention method of amendment
is that all proposed amendments must be ratified by three-fourths of the
states before they become part of the Constitution. Article V makes this
requirement explicit and no other interpretation is possible. Therefore,
the critics' fear of a runaway convention is unfounded. Even if a
runaway convention violated its mandate, the convention can only
propose amendments and these amendments then must go through the
arduous state-by-state ratification process.
The historical evidence demonstrates that gaining support in thirty-
eight states is not an easy task, even for amendments with broad popular
support. The last two amendments proposed by Congress, the popular
equal rights amendment and an amendment to provide the District of
Columbia with representation in Congress, both failed in their bids for
ratification. The convention proposals face a difficult ratification process
even when a majority of the states support the proposal because the
constitution requires a three-quarters super-majority. 3 Therefore, a
drastic rewriting of the Constitution could occur only if an overwhelming
majority of the American people wanted such a rewrite.
72. Abraham Lincoln stated, "I should, under existing circumstances, favor, rather than
oppose, a fair opportunity [sic] being afforded the people to act upon it." Lincoln, First
Inaugural Address, reprinted in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra
note 22, at 269.
73. One commentator has stated, "the dominant function of Article V... is not to
facilitate, but to clog.... ." Van Alstyne, supra note 68, at 1299. See State ex rel. Harper v.
Waltermire, 691 P.2d 826, 830-31 (Mont. 1984) (discussing the nature of supermajority voting
and the specific means by which a constitutional convention can be called). See also Myers
v. United States, 272 U.S. 52 (1926) (Brandeis, J., dissenting); Kathleen M. Sullivan,
ConstitutionalConstancy,Why Congress Should CureItself ofAmendment Fever,17 CARDOZO
L. REV. 691 (1996).
MARQUETTE LAW REVIEW [Vol. 80:227
74. Congress exercises control over ratification. See Coleman v. Miller, 307 U.S. 433
(1939); Dillon v. Gloss, 256 U.S. 368 (1921); see also AMERICAN ENTERPRISE INST., A
CONSTITUTIONAL CONVENTION: How WELL WOULD IT WORK? 22-23 (1979); STAFF OF
HOUSE COMM. ON THE JUDICIARY, 87TH CONG., STATE APPLICATIONS ASKING CONGRESS
TO CALL A FEDERAL CONSTITUTIONAL CONVENTION 11-16 (Comm. Print 1961). The Court
in Hawke v. Smith, stated that the framers' intent was clear; the use of "legislatures" within
the ratification process called for an "action by deliberative assemblages representative of the
people .. " Hawke v. Smith, 253 U.S. 221, 227 (1920).
75. OFFICE OF LEGAL POLICY, supra note 36, at 43.
1996] AN ESSAY ON TERM LIMITS
83. See Weber, supra note 47, at 61-63; WEBER & PERRY supra note 32, at 75-77, for a
more detailed discussion of the profitable nature of a convention delegate campaign.
84. See Schlam, supra note 12, at 38-39, regarding delegates to a national constitutional
convention.
85. See, e.g., Reidinger, supra note 20, at 54.
86. U.S. CONST. amend. XVIII, repealed by U.S. CONsT. amend. XXI.
87. U.S. CONST. amend. XXI.
88. See Dellinger, supra note 7, at 1623.
89. Noel T. Dowling, A New Experiment in Ratification, 19 A.B.A. J. 383 (1933).
Dowling wrote that the Twenty-First Amendment
was projected into a perfectly clear legal field: not a constitutional provision, not a
statute, not a decision-nothing specifically in point-either to guide or to warn.
Something more was involved than the repeal of the Eighteenth Amendment
.... Here was the beginning of a new experiment in government, perhaps of great
significance for the future operation of the American system. A different method of
amending the Constitution was to be tried out.
Id. at 383.
90. See id.
1996] AN ESSAY ON TERM LIMITS
V. CONCLUSION
Given the numerous safeguards built into the convention method of
amending the Constitution under Article V, fears regarding the use of
this method are unfounded. In fact, the convention method provides
greater protection than the Congressional method. The convention
method, favored by people such as President Lincoln,96 is subject to
many constraints, but Congress may propose an amendment to the states
at any time with no limits on the subject matter of those amendments.
While Congress is unlikely to propose a term limits amendment,
91. Id.
92. 307 U.S. 433 (1939). See also Ronald D. Rotunda, Running Out of Time: Can the
E.R.A. Be Saved, 64 A.B.A. J. 1504, 1507 (1978) (discussing Coleman v. Miller and the
"political questions" doctrine); VILE, supra note 41, at 23.
93. Coleman, 307 U.S. at 456.
94. Id at 450.
95. See Stewart Dalzell & Eric J. Beste, Is the Twenty-Seventh Amendment 200 Years
Too Late?, 62 GEO. WASH. L. REv. 501, 544-45 (1994) (arguing that the question is
justiciable). Other commentators argue that such issues should be nonjusticiable and are
inappropriate for judicial review. See also ROTUNDA & NOWAK, supra note 14, at 283-286.
See, e.g., Fritz W. Scharpf, JudicialReview and the PoliticalQuestion: A FunctionalAnalysis,
75 YALE L. J. 517, 589 (1966).
96. Lincoln, First Inaugural Address, reprinted in 4 THE COLLECTED WORKS OF
ABRAHAM LINCOLN, supra note 22, at 269.
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