WASHINGTON -- Digging deeply into history for guidance on a major constitutional dispute of today, the Supreme Court reaches the congressional term-limits issue this week.
In recent days, the justices and their clerks have been poring over a stack of blue, red, green and yellow briefs, preparing for a 90-minute hearing tomorrow and for a later ruling that just might shake the foundations of Congress.
The constitutional question is one of the most basic the court has faced in years, and one the court has never considered in the Constitution's 207-year history. As recently as two weeks ago, lawyers were still jockeying for the prized opportunity to argue one side or the other.
The issue is a simple one: Can states bar incumbents in Congress from running for re-election indefinitely -- or can that be done only by amending the Constitution itself?
The question remains exactly the same as it was five months ago, when the court promised to review it. But the political atmosphere surrounding it has changed markedly.
In Congress, as Republicans take control of both houses, the sentiment in favor of term limits has spread and deepened, with a promised vote this year at least in the House on a constitutional amendment. No matter what happens in the court, advocates of term limits mean to keep pressing for a change in the Constitution itself, to extend term limits to members of Congress from every state.
Popular idea
The voters in six more states showed again this month how popular the idea is, approving ballot measures to curb congressional service. They did so by margins of approval ranging from a high of 70 percent to a low of 51 percent. That brings the total to 22 states. None of those term-limits laws has been enforced, but that did not stop the court from taking on the first term-limits case to reach it.
If the Supreme Court justices pay attention to today's politics, they might detect the strong suggestion of a popular revolution in favor of changing Congress in a basic way. That, of course, is a part of the rhetoric of term-limits advocates and their lawyers, with their arguments filled with strong suggestions that the court defer to the people's choice.
"The entire political theory of the Constitution from its origins to its adoption is based upon the will of the people," argues the National Committee to Limit Terms.
Supporters of term limits point out that, after the votes cast this month, about 10 percent of the U.S. population -- some 24.5 million people, out of 248 million -- has now voted "yes" on congressional term limits.
Term-limits advocates took part in the successful effort to deny re-election to House Speaker Thomas S. Foley after the senior Democratic leader joined in a lawsuit seeking to nullify Washington state's congressional term-limits measure.
But not everything political this year necessarily favors the idea of term limits. While incumbents survived in more than 90 percent of the congressional contests, the Election Day results might also be read as an object lesson on the power of the voters to get rid of officeholders they no longer support.
Two senators and 35 members of the House were denied re-election; earlier in the year, voters had turned out four other House members in primary elections. The defeat of 35 House incumbents in the general election was the highest rejection rate in 20 years.
And that is a point that opponents of term limits already were stressing to the court, suggesting that the justices let the people decide for themselves how long to keep an incumbent.
For example, Rep. Henry J. Hyde, a conservative Republican from Illinois and an opponent of term limits who was just re-elected to his 11th term, submitted a lengthy essay to the court on the theme that term limits interfere fundamentally with the right of the people to choose their representatives.
Mr. Hyde, who is expected to become the chairman of the House Judiciary Committee, has promised to let a constitutional amendment go to the House for a vote.
Focus on history
No one outside the Supreme Court can say for sure whether politics will be on the justices' minds as they ponder the constitutionality of term limits. The wide array of legal points laid before the court focuses heavily on history: the debates at the Constitutional Convention in 1787, the day-to-day editing of the document's language by its draftsmen, the controversies in the state ratifying conventions, and the early history of legislatures in the original states.
Because no justice has ever cast a vote on congressional term limits, it is not clear whether the court will focus most heavily on the Constitution's language, or on its background, or on contemporary views of how the government of today should be composed.
Essentially, term limits are being considered against the background of four clauses in the Constitution:
L Two provisions that opponents of term limits are relying on:
* A clause that specifies that members of the House must be at least 25 years old, a U.S. citizen for at least seven years, and a resident of the state to be represented.
* A clause that specifies that senators must be at least 30 years old, a U.S. citizen for at least nine years, and a resident of the state to be represented.
L Two provisions that advocates of term limits say favor them:
* A clause that allows states to decide the "manner of holding elections" to Congress.
* The 10th Amendment, added to the Constitution in 1791, saying that powers not given to the federal government by the Constitution are left for the states and the people to exercise.
As the legal dispute has sharpened, much of the debate has centered on the two "qualifications" clauses cited by opponents of term limits. Those, according to foes of term limits, are the only qualifications allowed, so an anti-incumbency qualification is thus unconstitutional. But according to supporters of term limits, pTC those clauses merely set minimum qualifications, leaving the states with the option of adding more, especially controls on candidates' access to the ballot.
Debating those points, the two sides have summoned history from the time of the Constitution's origin.
Opponents of term limits make much of the fact that the original convention voted unanimously to delete a suggestion that term limits be imposed on Congress. As Rep. Ray Thornton, an Arkansas Democrat just re-elected to his 12th term, argues, the convention's deletion of that language "was a fully informed, deliberate rejection of the concept."
But those who support limits have their own example from the convention, noting that it deleted proposed language that would say specifically that the qualifications listed for members of Congress were exclusive. That is a point stressed by, among others, the Arkansas Republican Party.
Although the fight before the court is ultimately a nationwide battle, it is an Arkansas fight to begin with. The only congressional limits measure actually under review is an Arkansas amendment, which was adopted by a 60 percent-to-40 percent margin by state voters two years ago.
Under that proposal, typical of many states' limits laws, members of the House would be barred from running after serving three two-year terms, and senators after serving two six-year terms.
President Clinton, the Arkansan in the White House, has thrown his administration's support to the opponents of term limits. The government's top advocate before the court, Solicitor General Drew S. Days III, has personally taken on the assignment of making the federal government's case against limits.
THE 'SPIN' ON HISTORY
The Supreme Court may be forced, as it ponders the term-limits issue, to choose among competing versions of American history -- including conflicting views of the case of a Marylander seated in Congress in 1807, William McCreery.
Mr. McCreery had won a seat over a rival, Joshua Barney, but Mr. Barney contended that Mr. McCreery could not serve because he did not live in Baltimore. Under a 1790 law, Maryland was divided into six districts, and candidates were required by Maryland to live in their district at least a year before election as its representative. Mr. McCreery ran for the Baltimore seat.
The dispute led to the first significant debate in Congress over the meaning of the Constitution's clause that spells out the qualifications for those who seek seats in the House and Senate -- the clause at the center of the Supreme Court's current case on term limits.
In 1807, the House gave Mr. McCreery his seat. But what does that mean to history?
To opponents of term limits, Mr. McCreery's success shows that Congress understood the Constitution's list of qualifications to be exclusive, and that no state could add any others -- such as Maryland's residency requirement. A key committee, that side notes, made the point that the Maryland law was thus unconstitutional.
Those who support term limits, however, note that the key committee's final report deleted all reference to constitutional issues, and focused solely on where Mr. McCreery actually lived. The most that can be said of the incident, that side argues, is that a House majority was "unwilling to embrace the proposition" that no state could add qualifications.
Washington Bureau of The Sun