U.S. Term Limits v. Thornton

Justice Thomas, in an opinion joined by Chief Justice Rehnquist, Justice O'Connor, and Justice Scalia, dissented. "It is ironic," he began, "that the Court bases today's decision on the right of the people `to choose whom they please to govern them'" when its ruling indicated that neither the people of Arkansas nor their legislature had a right to make such a choice. "Nothing in the Constitution," Justice Thomas wrote,

deprives the people of each State of the power to prescribe eligibility requirements for candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

Beginning an opinion which stretched to more than 87 pages without footnotes--slightly longer than that of the majority opinion and Kennedy's concurrence--Justice Thomas addressed "first principles" since "the majority fundamentally misunderstands the notion of `reserved' powers." Because the Constitution is based on the principle that all powers stem from the people, Justice Thomas held, it was incumbent on the Court to point to a place in that document which would have expressly forbidden the people of Arkansas from voting to enact Amendment 73. Justice Thomas then took apart the majority's Tenth Amendment argument, which it had made by reference to cases as widely separated in time as McCulloch v. Maryland (1819) and Garcia v. San Antonio Metropolitan Transit Authority (1985). "Despite the majority's citation of Garcia and McCulloch," Justice Thomas wrote, "the only true support for its view of the Tenth Amendment comes from Joseph Story's 1833 treatise on constitutional law." As valuable as Story's insights were in Commentaries on the Constitution of the United States, Justice Thomas wrote, Story had not been one of the framers.

Having addressed the Tenth Amendment argument from a number of perspectives, Justice Thomas wrote of Amendment 73, "Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures." The Qualifications Clause, he held, was not that "something," and he addressed this topic in a lengthy argument. He then turned to the historical record, finding that "[t]o the extent that the records from the Philadelphia [constitutional] Convention itself shed light on this case, they tend to hurt the majority's position." As for the majority's claim that the absence of discussion of term limits during the ratification period proves the framers' intention, Thomas wrote that this argument " . . . cuts both ways. The recorded ratification debates also contain no affirmative statement that the states cannot supplement the constitutional qualifications." Justice Thomas then addressed various other historical items and assessed the logical implications of the Court's ruling. Drawing to a conclusion, he returned to his starting-point: the absurdity of a law that prevented the people from having electoral choice on the basis that they must have electoral choice. "Either the majority's holding is wrong," Justice Thomas wrote, "and Amendment 73 does not violate the Qualifications Clauses, or . . . the electoral system that exists without Amendment 73 is no less unconstitutional than the electoral system that exists with Amendment 73."