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Constitutional Law I
SUNY Buffalo Law School
Gardner, Marty

Constitutional Law
Professor Gardner
1. Introduction: Thornton

Types of Arguments:

1.) Textual: argument based on meaning of words appearing in the document.
2.) Framer’s Intent: not good argument if not couple w/ something else that can stand on its own.
3.) Inference from Bad Consequences
4.) Precedent
5.) Democratic Principles
6.) Historical: With this example, they are rejecting British system of representation.

US Term Limits v. Thornton, Supp. p. 1
Facts: AR adopted a constitutional amendment that prohibits the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if that candidate had already served three terms in the House or Representatives or two terms in the senate. The amendment was formulated as a ballot access restriction rather than a disqualification for membership in Congress. A citizen challenged the amendment.

Issue: May a state impose qualifications for membership in Congress in addition to those in the Constitution?

Holding: No. Constitution forbids states from adding or altering qualifications set out in the text of the Constitution. This case has every kind of Constitutional argument.

In order to explain this conclusion, they:

1. Use Powell v. McCormick as precedent
Holding: Congress can’t add or change qualifications. The framer’s historical understanding was based on the English experience: Wilke’s affair. Framer’s knew about it and agreed that qualifications of those serving in Parliament are fixed. This is historical argument.

2. Describe Democratic Principles
a. Egalitarianism
b. Unlimited popular choice

3. Then describe how this applies to the limited power of the States. Powell doesn’t end case because it only deals with Congress’ inability to impose restrictions, the next section deals with STATE imposed qualifications.
· Petitioners try to make an argument based on 10th amendment. They say Amend 73 is appropriate exercise of State’s reserved power to place additional restrictions on the choices that its own voters make. This is TEXTUAL ARGUMENT.

Court rejects this argument for 2 reasons:

1. Power to add qualifications is not an ORIGINAL power of the states. If states never possessed power the

à Article 9 § 6 Limits the power of Congress. Everything had to be done by 2/3 majority in States
à Article 13 how AOC can be altered—unanimously ratify changes by ALL state legislatures


1. Did not create any single sovereign
-Rather 13 sovereigns
-Could not speak to foreign powers with one voice. Therefore, ineffectual foreign policy

2. Articles lacked a power to nationally levy (charge) taxes
-U.S. treasury was always way too low
-Unable to obtain loans, credit
-1783, Congress fled Philly because afraid of unpaid troops mutiny

3. Lack of national power to regulate commerce between the states
-States imposed duties
-States engaged in series of bitter trade wars—taxes in imports. Bad for prosperity.

4. Congress viewed as joke and consequently lacked qualified candidates/members
-Shay’s rebellion
-Fears of anarchy
-These events led Congress to rewrite articles