"A few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent reelections, become members of long standing; will be thoroughly masters of public business…The greater the proportion of new members and the less the information of the bulk of the members, the more apt they will be to fall into the snares that may be laid for them."

–James Madison, The Federalist, No. 53

”The gentlemen deceive themselves; the amendment would defeat their own design. When a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument."

–Alexander Hamilton (arguing at New York ratification convention that term-limits laws would make representatives less accountable to the people)

I think term-limits laws are bad policy-a cure worse than the various diseases of entrenched incumbency. Rather than some arcadian realm of "citizen legislators." term limits would (I conjecture) give us legislators whose main distinctions from the ones we have now would be a relative lack of useful experience, knowledge, and seasoning: a greater inability to coalesce behind leaders, en-sage in reasoned deliberation, and produce coherent legislative programs: a greater dependence on the lobbyists and special interests that finance campaigns and provide employment opportunities for ex-legislators.

I therefore bring a certain bias to the question of whether state laws aimed at forcing long-term incumbents out of Congress should be struck down as unconstitutional, on which the Supreme Court heard arguments on Nov. 29 in an Arkansas case. U.S. Term Limits v. Thornton. But 1 also have a countervailing bias: When in doubt, the Court should let voters try out any damn fool idea they please.

Putting such preconceptions aside as best 1 can, it seems to me that those attacking the constitutionality of the congressional term-limits laws that 22 state electorates have adopted over the past four years have the better of a very complicated argument. It also seems to me that a decision striking down those laws is likely to survive the current popular rage for a term-limits amendment to the Constitution.

More than any big case in recent memory, this one should turn on interpretation of the original intent of the framers, who had experienced term-limits provisions under the Articles of Confederation, who debated the merits of such laws throughout the 1780s and the early decades of the Republic, and who voted unanimously at the Constitutional Convention to remove the congressional term limits that had been part of the Virginia Plan.

If the issue were to be decided by an FFHC (Founding Fathers Head Count), state laws limiting congressional terms would be struck down by a wide margin: James Madison (the father of the Constitution), Alexander Hamilton (the other principal author of The Federalist), John Adams (who wrote in 1787 that "rotation [in office| … is a violation of the rights of mankind [to] be at liberty to choose the ablest and best men"); and Justice Joseph Story (who came along a bit later), among others, all said or strongly implied that the enumeration in the Constitution of certain "qualifications" for members of Congress barred states from adding new qualifications, including restrictions on congressional terms.

Only one prominent member of the founding generation clearly espoused the contrary view. That was Thomas Jefferson, in an 1814 letter. But he was in Paris at the time of the Constitutional Convention, and his letter admitted the issue was a close call.

While no precedent clearly governs this case, one does come close. That is Powell v. McCormack, the 1969 Supreme Court ruling that the House of Representatives had no power to deny a seat to Adam Clayton Powell Jr. for his alleged misdeeds, because the duly elected representative from Harlem met the "qualifications" for House members-of age (25). residency, and citizenship-set forth in Article I, Section 2.

The Powell decision did not specify that states had no power to add new qualifications. But that was the logic and clear implication of the opinion joined by all seven justices who addressed the merits. After reviewing .the historical evidence in detail, they concluded that "the Framers’ understanding [was] that the qualifications for members of Congress had been fixed in the Constitution."

The main points advanced in support of term limits are (1) that notwithstanding Powell, the states have power to supplement the qualifications prescribed in the Constitution, and thus to disqualify long-term incumbents from seeking re-election; (2) that in any event, the term-limits restriction in the Arkansas measure and others like it are not "qualifications" at all, because they allow long-term incumbents to run as write-in candidates (while denying them access to the ballot); (3) that (as Arkansas argues) such ballot-access restrictions fall within the powers delegated to the states by Article I, Section 4.