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No. 66 Term Limits and Lessons from Our Past

June 1, 1995

Term limits are popular with the public, and they can be implemented through an amendment called for by the states through Article V of the U.S. Constitution.

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1. Term limits are popular with voters, but not with Congress or the Supreme Court

Voters in 23 states have imposed term limits on their federal legislators. Nationwide, opinion polls show that support for congressional term limits reaches as high as 80 percent. Still, Congress has refused to propose a constitutional amendment or enact a statute that would require term limits, and it has rejected a bill that would merely authorize term limits for states that have imposed them on their own U.S. senators and representatives.

U.S. Term Limits v. Thornton offered the Supreme Court an opportunity to approve state efforts to impose term limits on Congress. Instead, the Court ruled on May 23, 1995, in a 5-4 decision, that

allowing the several states to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual state, bu t rather--as have other important changes in the electoral process--through the amendment procedures.

2. Proponents of term limits can respond to the Supreme Court decision by lobbying for a constitutional amendment.

One obvious response to the Supreme Court's decision in Thornton is to lobby for a constitutional amendment that would impose term limits on Congress. That was the tactic taken nearly 150 years ago, in response to the landmark decision in Dred Scott v. Sandford. The Supreme Court had held that the Missouri Compromise, which sought to limit the spread of slavery, was unconstitutional. The people responded by enacting the Thirteenth Amendment, prohibiting slavery.

Although Congress already has rejected the constitutional amendment option with respect to term limits, history indicates that some amendments are eventually accepted even though initially rejected. Congress's past refusal to support a constitutional amen dment for term limits does not mean such a proposal would fail to win congressional support in the future.

3. Presidential elections in the U.S. show how the Constitution can, in effect, be amended without a formal amendment.

Technically, we do not vote for the president or vice president. In accordance with Article II, §1 of the Constitution, we vote for electors, who in turn cast ballots for president and vice president. Nevertheless, the names of the presidential elect ors do not appear on the ballot, they conduct no campaigns, and they usually are unknown to the electorate.

In 1952, the U.S. Supreme Court held in Ray v. Blair that the state of Alabama could permit the Democratic Party to require its electors to pledge to vote for the Democratic nominee. Several states do so today, and the outcome of presidential elections is de facto determined by popular vote.

The Blair decision offers a strategy for term limit proponents. A state may be able to authorize a political party to require its candidates to pledge support for enactment of term limits by statute, and to pledge to personally abide by term limits if elected.


4. The Seventeenth Amendment shows how state efforts can lead to formal amendment of the Constitution.

 As first written, the Constitution provided (in Article I, §§3) that U.S. senators were chosen by their state legislatures, not by the people. As early as 1828, the House of Representatives had considered a constitutional amendment to provide for dir ect election of senators, but each time such an amendment was proposed it failed to receive the Senate's support. Nevertheless, by 1912 senators were picked by direct election in 29 of the 48 states. In 1913, the Seventeenth Amendment, providing for direc t election of U.S. senators, was adopted.

This came about through state-level efforts in the South and West, where voters were allowed to cast votes for U.S. senator in "advisory" primary elections. In the southern states--effectively one- party states with strong party discipline--it was relativ ely easy to ensure that the predominantly Democratic state legislature voted for the candidate who won the primary. In the western states, candidates for the state legislature were expected to sign pledges indicating whether they would or would not vote f or the people's choice for the U.S. senate. The state of Nebraska went so far as to require that such pledges be reported on the official ballot.

Through this combination of state-level primary elections and pledges, about 60 percent of the senators were chosen by popular election by 1912, when Congress finally approved popular elections by adopting the Seventeenth Amendment.

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Government & Politics
Ronald D. Rotunda was the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University. He passed away on March 14, 2018. @rrotunda