The tenth amendment is Michigan's best friend

Under Michigan’s 1964 Constitution, no person was allowed to serve more than three consecutive terms in the House of Representatives or more than two consecutive terms in the Senate, the equivalent of six and twelve years respectively.

But instead of forcing each Michigan legislator to dedicate huge swaths of time to campaigning every two or six years, why not get rid of term limits? Legislators would no longer be forced to think solely in terms the next election, knowing that they’re being term-limited out of office. Within Michigan's Constitution, if Article II, Section 10 which imposed term limits were to be removed, Section 8 which establishes recall elections would remain.

But there’s a problem: it’s illegal. The conversation cannot even take place. In U.S Term Limits v. Thorton, the Supreme Court, in a five to four ruling, struck down state-imposed qualification imposed by the Arkansas Constitution. In so doing, Michigan's law on term limits was likewise ruled unconstitutional.

In the majority opinion, Justice John Paul Stevens wrote that “The right to choose representatives belongs not to the States, but to the people….The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people.”

Additionally, Justice Stevens argued that Arkansas’s actions violated the Tenth Amendment of the U.S. Constitution, the Tenth Amendment reading, “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.”

But, “With this careful last phrase,” Justice Clarence Thomas wrote in the dissent, “the Tenth Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which ‘reserved’ powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level.”

Going by Justice Thomas’s opinion, the powers reserved by the people were powers reserved by the States, be they the people or legislatures of the states, while Justice Stevens’s opinion was just the opposite, saying that the powers reserved by the people were powers reserved by the representatives of the people -Congress.

The Congress defines an age requirement, a residency requirement, and defined the length of Congressional terms, but does not mention term limits. Michigan ought to abandon Article II, Section 10 of its Constitution, the term limits clause. And if Michigan has the gumption, it ought also to tackle the 17th Amendment of 1913 in which the Congress assumed the power to decide the method electing Senators, a power reserved by “the people.”

The 17th Amendment aside, the closer a Supreme Court ruling is, the sooner it should come up for review, be the appeal from a Republican, Democratic, or independent. And in the U.S. Supreme Court, it doesn't get any closer than 5 to 4.

When Michigan imposed term limits on its elected officials in its 1965 Constitution, it included a call for members of Congress to emulate the law nationwide. Whether Michigan decides for or against Congressional term limits, it ought to make a similar call the other states, Republican and Democratic alike, to make their own decisions rather than letting Congress continue to use “the people” synonymously with itself.


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