Law Faculty Articles and Research

The Aftermath of Thornton

Ronald D. Rotunda, Chapman University


I. INTRODUCTION While term limits on state officials are quite common, 1 and raise no serious federal constitutional problems, 2 term limits on federal legislators are a different matter. In U.S. Term Limits v. Thornton 3 the Supreme Court, by a narrow 5 to 4 majority, declared unconstitutional an Arkansas law limiting ballot access for incumbent U.S. Senators and Representatives after they had served two terms (in the case of Senators) or three terms (in the case of Representatives). What next? In considering the aftermath of Thornton, a primary question is whether it should be narrowly interpreted. It is interesting to note that the Arkansas law was written as a ballot access law, not as a permanent disqualification from office. It did not incapacitate or prohibit an incumbent from serving in the U.S. Senate for a third term after having served two terms; he or she was only disqualified from being listed on the ballot. During oral argument, counsel for the respondents agreed that the Arkansas law was not a "qualification," an admission that caused Justice Stevens to remark: "That's a major concession." 4 Conse- quently, Justice Stevens, who wrote the majority opinion, could not simply invalidate the Arkansas law: he had to show that it was really a "qualification." He concluded that it was a qualification because that was the "true intent" of the people of Arkansas; the law "has the sole purpose of creating additional qualifications indirectly."