From: baldwin@csservera.scs.usna.navy.mil (J.D. Baldwin)
Newsgroups: alt.politics.elections,misc.legal
Subject: Re: A term limit contradiction?
Date: 6 Nov 92 18:09:25 GMT
	<1992Nov6.163927.27373@magnus.acs.ohio-state.edu>
Followup-To: alt.politics.elections
Organization: Comp. Sci. Dep't., U.S. Naval Academy, Annapolis, MD
In-reply-to: jebright@magnus.acs.ohio-state.edu's message of 06 Nov 92 12:39:27 -0400

[Please note that I fiddled with the distributions on this article.]

In article <1992Nov6.163927.27373@magnus.acs.ohio-state.edu>
jebright@magnus.acs.ohio-state.edu (James R Ebright) writes:
>Simple, the US Constitution supersedes state constitutions in areas where
>they conflict.  And the US Constitution has a clear statement on who is
>eligible to run for the US House and the US Senate (and the President and
>Vice President, for that matter).

I see nothing in the Constitution to support your conclusion here.
See below:

   Article I.

   Sect. 1. All legislative powers herein granted shall be vested in 
   a Congress of the United States, which shall consist of a Senate 
   and a House of Representatives. 

   Sect. 2. The House of Representatives shall be composed of members 
   chosen every second year by the people of the several states, and 
   the electors in each state shall have the qualifications requisite 
   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
   for electors of the most numerous branch of the state legislature. 
   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
   No person shall be a representative who shall not have attained to 
   the age of twenty-five years, and been seven years a citizen of 
   the United States, and who shall not, when elected, be an 
   inhabitant of that state in which he shall be chosen. 

	[. . .]
   
   Sect. 5. Each house shall be the judge of the elections, returns 
            ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
   and qualifications of its own members, [. . .]
   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Maybe I missed something, but I don't think so.

>If this weren't true, --pick a state-- could prohibit --pick a race--s
>from running for Congress.  And I bet some would have if they thought they
>could get away with it.

But of course states under the original, un-amended Constitution could
and did do exactly that.  In fact, they did something far (morally,
not legally) worse: they prohibited races from *voting*.  This went on
legally until the (post-Civil War) XIVth and XVth Amendments.  The
XVth is irrelevant to office-holding; it addresses only voting.  The
XIVth Amendment could probably be used to prohibit states from
prohibiting members of races from holding office ("privileges and
immunities of citizens"), but it would take some pretty convoluted
reasoning to apply this Amendment to term limits.  Not that there's
any shortage of convoluted reasoning in U.S. case law.

There is an out, though.  Article I, Section 5 (quoted above) has been
used recently (1984?) to validate the election of a representative who
was *defeated* in the real election in his district in Indiana (as
certified by the Indiana Secretary of State and the final vote count),
over and above the "real" (certified) winner.  If it can be used for
that purpose, then conceivably a member could run in violation of term
limits, win the election, and simply have the House certify him as the
winner.  None of that makes term limits unconstitutional, though,
merely unenforceable.
--
 From the catapult of:              |+| "If anyone disagrees with anything I
   _,_  J. D. Baldwin, Comp Sci Dept|+| say, I am quite prepared not only to
 _|70|___:::)=}-  U.S. Naval Academy|+| retract it, but also to deny under
 \      /   baldwin@usna.navy.mil   |+| oath that I ever said it." --T. Lehrer
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Newsgroups: alt.politics.elections,ics.views