The Supreme Court struck down congressional term limits this week; and the surprising part of the 5-4 decision was not the wooden majority opinion by John Paul Stevens but the elastic dissent by Clarence Thomas. For the justices and their clerks, of course, rhetorical excesses are one of the pleasures of writing dissents, and shouldn't always be taken seriously. But when four justices of the Supreme Court take it upon themselves to re-examine the basic principles of constitutional metaphysics, it seems fair to assume that they have considered some of the implications of the words issued in their name.
"Because the majority fundamentally misunderstands the notion of reserved' powers," Thomas declares grandly at the beginning of his dissent, "I start with some first principles." And what, precisely, are the first principles that Thomas, joined by Justices Antonin Scalia, William Rehnquist and Sandra Day O'Connor, came within one vote of resurrecting? "The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole." Thomas's rhetoric, inadvertently or intentionally, is the rhetoric of Jefferson Davis and John Calhoun. Having rejected the constitutional legacy of the New Deal in the Lopez decision a few weeks ago, Thomas now seems inclined to question the legacy of Reconstruction as well.
Perhaps Thomas didn't really mean to reopen the Civil War; but his language was sufficiently careless to alarm Justice Anthony Kennedy, who emphasized in his concurrence that "it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system." But Kennedy, too, is overstating his case. In fact, the question of which apportionment of the people are sovereign--the people of each state or the people of the nation--was an open question at the Founding, and remained open until it was settled by General Grant's army. Both the Anti-Federalists of the 1780s and the Confederates of the 1860s took Thomas's position--that the people of each state were sovereign and could exercise whatever powers the federal Constitution didn't explicitly forbid.
Taken to its logical conclusion, the Thomas-Calhoun theory seems to imply a right of secession. If the people of Georgia were sovereign, they could judge for themselves whether the federal compact has been breached, and could withdraw from the Union (or nullify federal laws), even if a majority of the people of the United States disagreed with them. If, on the other hand, Lincoln was correct and the people of the United States as a whole were sovereign, then, as Calhoun conceded, "the claimed right for a State of defending her reserved powers against the General Government, would be an absurdity." But although Thomas's position may have been plausible before 1865, the sovereignty debate was resolved clearly and decisively when the South surrendered at Appomatox.
What's so peculiar about Thomas's explosive rhetoric is that he could have challenged Justice Stevens's mechanical opinion for the majority without revisiting the debate between Lincoln and Calhoun. As Thomas notes convincingly at the beginning of his dissent, Stevens's invocation of the right of the people "to choose whom they please to govern them" is a little hollow, given the fact that Court struck down twenty-three state laws passed by popular initiative. Thomas goes on, plausibly enough, to endorse the argument of Roderick Hills of the University of Michigan. The Constitution assigns to the "People of the several States" the right to elect congressional representatives; and Hills argued in his brief that the Arkansas plebiscite on term limits was itself a popular election in which the voters determined that they no longer wished to be represented by long- standing incumbents. If Thomas had stopped here, his dissent would have been coherent, if not totally persuasive. (Is a vote on a term-limits initiative really like a vote in an ordinary election?) But Thomas goes much further. He is unable to take a principled populist position, because he is determined to include a gratuitous reference to the newly fashionable Tenth Amendment. (" The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") Thomas rejects the majority's argument, which was also Chief Justice Joseph Story's argument in his mid-nineteenth-century Commentaries, that the state governments cannot "reserve," under the Tenth Amendment, any powers that they did not already possess before the Constitution was adopted. This ignores, says Thomas, the fact that the Constitution derives its authority from the consent of the people of the states, not the state legislatures.
But Thomas then collapses the crucial distinction between state governments and state people. He insists that term limits are constitutional whether passed by state legislatures or by popular initiative. The concession reveals Thomas's rhetoric about popular sovereignty to be ultimately shallow, since he is willing to let state legislatures interpose themselves between the people of each state and their representatives in Congress. This is the position James Madison explicitly rejected when he insisted that the power to set electoral qualifications was not, under the U.S. Constitution, "subject to the legislative discretion of the states." Instead, the definition of electoral qualifications was "fixed by the state constitutions" and "not alterable by the state governments."
Although Thomas is arguing in the Term Limits case for judicial restraint, some of his rhetoric suggests an eagerness, in future cases, to interject the Court into the political process far more dramatically than it has ventured before. In an odd passage, he suggests that either the majority is wrong about the unconstitutionality of term limits, or else the electoral system that exists without term limits might be unconstitutional because of the overwhelming advantages that incumbents enjoy. "If it can be shown that nonminorities are at a significant disadvantage when they seek election in districts dominated by minority voters," Thomas asks, would the intentional creation of majority black districts "violate the Qualifications Clauses even if it were to survive scrutiny under the Fourteenth Amendment?" He is joking, presumably; but the rest of his opinion underscores the irony that the two leading neo-Calhounians in the country are now Clarence Thomas and Lani Guinier. Furthermore, Thomas has come close to suggesting, in other cases, that the intentional creation of majority black districts can never survive scrutiny under the Fourteenth Amendment. All this is to say that Thomas's devotion to state control over the federal election process will be tested in June when the conservative justices, perhaps joined by Justice Kennedy, will reveal whether or not they have the votes to strike down the Voting Rights Act itself.
The most sobering lesson of the Term Limits decision is to suggest how tendentious the conservative justices have become in their uses of constitutional history. Four members of the Rehnquist Court claim to be devoted to original understanding, but refuse to study any constitutional amendments that were ratified after Bull Run. Justice Kennedy suggests that the Fourteenth Amendment somehow encompasses a federal right to vote, even though most of the Reconstruction Republicans understood the amendment to be limited to civil rights, not political rights. And the hypocrisies converge in the Voting Rights cases where the conservatives, joined by Justice Kennedy, mysteriously rediscover the Fourteenth Amendment and invoke it to limit the power of Congress to draw race-conscious districts, even though the amendment, as originally understood, did not apply to districting at all.
In the wake of the Term Limits decision, it is now clear that conservatives on the Court and in Congress have no coherent theory of federalism to speak of. Since congressional Republicans are determined not to propose a constitutional amendment on term limits, the only solution, as Sanford Levinson of the University of Texas argues, is for the state legislatures to call constitutional conventions that will propose a term limits amendment on their own. If we are to have a constitutional moment, appropriately enough, it will have to come from the people themselves.