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Undemocratic Vistas

Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy

by George F. Will
Free Press, 260 pp., $19.95

Democracy, Chesterton said, is like blowing your nose—you may not do it well, but you ought to do it yourself. George Will (with many others) has decided that Americans blow their noses so abominably that we must snatch away their handkerchiefs this instant. If the American people continue sending bozos back to Congress, then the power to do so must be taken from them.

We are not talking, here, about the right of people to get rid of congressional bozos. They already possess that. All 535 members of the House, along with thirty-three senators, can be turned out of office in any federal election year. Constitutionally, there was no necessity to have a single incumbent left in the House after this fall’s election. People have never been denied the right to reject candidates. But they have mistreated (we are told) the right to choose them again; and so legislators, after serving a specified number of years, should not have the right to be reelected. In this year’s elections, proposals to limit the terms of senators and congressmen were put on the ballot in fourteen states, including California, Florida, Missouri, and Ohio.

Some, including George Bush, urge this antidemocratic step on apparently democratic grounds—that the people are showing in polls and referendums that they want term limits. What is stopping them? They can limit terms any time they reject their own representatives—a chance they get every two years, the most frequent opportunity in our federal system. Does this mean that they register a velleity with the pollsters but a compulsion in the voting booth? Are they saying, with the cry of a serial killer, “Stop me before I vote again?” Are they votaholics asking that someone make them go cold turkey?

Well, say that is so. What does that tell us about our democracy? The constituents of Candidate A, able to oust that candidate if only they can summon up the will, keep voting for the person; but they want, simultaneously, to deny the constituents of Candidates B through Z the chance to vote for their MC (member of Congress). That is: the constituents of the one candidate they have the best means of knowing and controlling, because they fail to do either, tell other candidates’ constituents—in districts they have no means of assessing—that they must forfeit their constitutional right of voting for whomever they wish. Voters for A, confessing misuse of their own vote, want to take away the freedom of voters for B through Z—a strange exercise in vindication of democracy or even of basic equity.

The vote for a candidate from one’s own district was considered by the Constitution’s drafters the most democratic element in the whole Constitution—James Wilson called it the broad popular base on which alone the pyramid of republicanism could rise.1 The right to choose one’s own representative from one’s own district—in the circumstances that best allow local scrutiny and accountability—creates what the framers considered the “first chamber” of the supreme body of our government. All the other elections were indirect in the original system—senators through state legislatures, president through the electoral college, federal judges through the presidential-senatorial process of nomination and confirmation. Only the House of Representatives could be chosen directly by the people—and now even that right is to be circumscribed. The people flunked their test. They blew their noses badly. Now a right to reject, always there, is to be imposed as a duty to reject elected members of Congress, whose only basis for ineligibility is the fact that they have been chosen by the people. That prior choice constitutes a mark against a candidate, though the founders thought it was a sign of favor to be renewed if the chosen and the choosers found their first alliance fruitful. Re-election was treated as a means of discipline by Madison, who said it would keep representatives in accord with their popular masters:

[Office holders] will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there for ever to remain, unless a faithful discharge of their trust have established their title to a renewal of it.2

Now that means of self-correcting communication between the people and their representatives is to be removed. The people’s prior favor is proof of some innate flaw attaching to the objects of that favor. Not even the best of representatives can be exempted, henceforth, from the damning fact that he or she is a representative—and must therefore, irrespective of merit (or the lack thereof), cease to be a representative at the end of a prescribed term. Madison boasted of the free access the Constitution gave to membership in the House:

Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession, is permitted to fetter this judgment or disappoint the inclination of the people.3

Yet now we would impose a disqualification even though that will fetter the judgment of voters.

This is a doctrine strange enough in itself, but even stranger when it is advanced by George Will as a return to the values of the founders (whence his title, Restoration). If the founders wanted term limits on Congress, it was an easy matter to impose them, in a document that offered far riskier positions to ratifiers in the states. Will says that the subject was raised—Madison even included it in his first draft (“the Virginia Plan”)—but Will claims it was set aside so that delegates could attend to more urgent matters. Later he quotes various people in and around the time of the founding who called “rotation” (periodic removal from office) a good thing; so, on his showing, term limits simply complete a process the framers began but were too distracted to complete.

The picture he has given us is false through and through. Rotation was not a peripheral concern but a central one. It was a fighting matter raised constantly by opponents of the Constitution and resolutely fought off by the draft’s defenders (including Madison). Will could have checked, very easily, the issue’s salience by a simple look at the index to Herbert Storing’s The Complete Anti-Federalist, to its many entries under the headings “reelection” and “rotation.”

This is the essential thing to note about the rotation struggle—that friends of rotation were enemies of the Constitution, who said they would not accept the latter without the former. The enemies of rotation were the friends of the Constitution, who won their fight for the latter by (among other things) keeping out the former. To present rotation as a thing no one cared enough about to pursue for the moment, but would have agreed on if they did, shows little acquaintance with the Constitution’s history. All Will’s references to rotation in the founding period are to a few secondary sources, most of them assembled by intellectual lobbyists for term limits.

In order to sort out the mishmash of fleeting references used by Will (i.e., by his sources), it is necessary to consider the role of rotation in the different schemes of government where it was used or proposed. Term limits were not simply a Good Thing wherever used. Even when they were imposed, they were imposed on certain offices to complement the role of other (unfettered) offices in the same system.

1. Rotation in the States

Will quotes as a general recommendation of rotation the praise of that principle in the 1780 constitution of Massachusetts.4 It is true that seven states, forming new constitutions in the early days of independence, adopted some kind of rotation, but six of them limited it to one office, the executive.5 Stung by the experience of royal governors they could neither dismiss nor control, the fledgling states adopted charters that attempted to restrict executive powers. Most governors were elected only for a year, and limited, typically, to three terms in six or seven years; some were also subject to recall. But the experience of war made people unhappy with the limits placed on the governor (who was commander in chief of the militia). When states were required to dismiss successful governors in mid-campaign, they came to regret the limits they had placed on the office, as even Jackson Turner Main, an admirer of the revolutionary constitutions, had to admit:

By 1783 most people had perceived the perils of withholding essential executive powers and recognized the benefits that a strong governor could bestow. Enthusiasm for the principle of rotation in office diminished when constitutions forced six of the above twelve [successful governors] to retire. The revolutionary reaction against the monarchical principle had run its course, and would give way now to a resumption of authority.6

So the state’s experience with rotation was largely an unhappy one—a fact that would be cited when some people tried to rotate the federal executive. Jefferson, it is true, clung to an ideal that had proved impractical when, in suggestions for a new Virginia constitution in 1783, he limited governors to a single term. But Madison criticized the idea with vigor:

It takes away one powerful motive to a faithful and useful administration, the desire of acquiring that title to a re-appointment. By rendering a periodical change of men necessary, it discourages beneficial undertakings which require perseverance and system, or, as frequently happened in the Roman Consulate, either precipitates or prevents the execution of them. It may inspire desperate enterprises for the attainment of what is not attainable by legitimate means. It fetters the judgment and inclination of the Community [a preview of Madison’s language in Federalist No. 57]; and in critical moments would either produce a violation of the constitution, or exclude a choice which might be essential to the public Safety. Add to the whole that by putting the Executive Magistrate in the situation of the tenant of an unrenewable lease, it would tempt him to neglect the constitutional rights of his department, and to connive at usurpation by the Legislative department, with which he may connect his future ambition or interest. 7

But what of the 1780 constitution of Massachusetts, with which Will began this consideration of rotation at the state level? It is true that Article VIII of the Declaration of Rights in that document says that “the people have a right, at such periods and in such manner [here unspecified] as they shall establish by their frame of government, to cause their public officers to return to private life” (emphasis added).8 But the Massachusetts constitution goes on to spell out “the frame of government,” and it contains no provision for rotation. The document says that a right is retained, though the commonwealth no longer wants to exercise it—the Article was clearly a sop thrown to those who favored rotation. This experience of the states could never be guessed from Will’s sketchy references to the principle of rotation in state documents.

  1. 1

    James Wilson, “Lectures on Law,” in The Works of James Wilson, edited by Robert Green McCloskey (Harvard University Press, 1967), pp. 402–403.

  2. 2

    James Madison, Federalist No. 57 (Bantam, 1982), p. 291, italics added.

  3. 3

    Madison, Federalist No. 57, p. 290, italics added.

  4. 4

    Will’s source here is a paper on term limits submitted to the Massachusetts legislature earlier this year (Mark P. Petracca, “Rotation in Office: The Massachusetts Commitment”).

  5. 5

    Five states (Delaware, Maryland, North Carolina, Pennsylvania, Virginia) passed constitutions with a rotation provision in 1776, one (Georgia) in 1777, and one (South Carolina) in 1778. All these rotated the chief executive. Those with executive councils (Delaware, Pennsylvania, South Carolina) naturally rotated those as well. Only Pennsylvania put term limits on its legislators; Pennsylvania was the odd man out, with a unicameral legislature and other untypical features (like its Council of Censors). See Ben Perley Poore, The Federal and State Constitutions (Government Printing Office, 1878), pp. 274–275, 379–380, 819–825, 1,412, 1,542–1,548, 1,617–1,618, 1,910–1,911). Some states used rotation in the upper chambers not in the sense of reeligibility but of staggered elections (as in the federal Senate).

  6. 6

    Jackson Turner Main, The Sovereign States, 1775–1783 (Franklin Watts, 1973), p. 194.

  7. 7

    Madison, “Observations on Jefferson’s Draft of a Constitution for Virginia,” in Julian Boyd, editor, The Papers of Thomas Jefferson, Vol. 6 (Princeton University Press, 1952), p. 312. Hume’s essay “Idea of a Perfect Commonwealth,” whose influence on Madison was demonstrated by Douglass Adair, opposed rotation as “throwing men of whatever abilities, by intervals, out of public employments” (Essays, Moral, Political, and Literary, edited by Eugene F. Miller, Liberty Classics, 1985, p. 515).

  8. 8

    Text as printed in Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (University of Massachusetts Press, 1978).

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