In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, the Court held that an Arkansas law prohibiting otherwise eligible congressional candidates from appearing on the general election ballot if they had already served two Senate terms or three House terms was an impermissible attempt to add qualifications to congressional office rather than a permissible exercise of the State's Elections Clause power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives," U. S. Const., Art., I, §4, cl. 1. In response, Missouri voters adopted an amendment to Article VIII of their State Constitution designed to bring about a specified "Congressional Term Limits Amendment" to the Federal Constitution. Among other things, Article VIII "instruct[s]" Missouri Congress Members to use all their powers to pass the federal amendment; prescribes that "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed on ballots by the names of Members failing to take certain legislative acts in support of the proposed amendment; provides that "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" be printed by the names of nonincumbent candidates refusing to take a "Term Limit" pledge to perform those acts if elected; and directs the Missouri Secretary of State (Secretary), the petitioner here, to determine and declare whether either statement should be printed by candidates' names. Respondent Gralike, a nonincumbent House candidate, sued to enjoin petitioner from implementing Article VIII on the ground it violated the Federal Constitution. The District Court granted Gralike summary judgment, and the Eighth Circuit affirmed.
Held: Article VIII is unconstitutional. Pp. 6-15.
(a) Because petitioner's arguments that Article VIII is an exercise of the people's right to instruct their representatives reserved by the Tenth Amendment, as well as a permissible regulation of the "manner" of electing federal legislators under the Elections Clause, rely on different sources of state power, the Court reviews the distinction in kind between reserved state powers and those delegated to the States by the Constitution. The Constitution draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. U. S. Term Limits, 514 U. S., at 801. On the one hand, such retained powers proceed, not from the American people, but from the people of the several States. They remain, after the Constitution's adoption, what they were before, except insofar as they are abridged by that instrument. Sturges v. Crowninshield, 4 Wheat. 122, 193. On the other hand, the States can exercise no powers springing exclusively from the National Government's existence which the Constitution did not delegate. Pp. 6-8.
(b) Petitioner's argument that Article VIII is a valid exercise of the State's reserved power to give binding instructions to its representatives is unpersuasive for three reasons. First, the historical precedents on which she relies--concerning the part instructions played in the Second Continental Congress, the Constitutional Convention, the early Congress, the selection of United States Senators before the Seventeenth Amendment's passage, and the ratification of certain federal constitutional amendments--are distinguishable because, unlike Article VIII, none of petitioner's examples was coupled with an express legal sanction for disobedience. Second, countervailing historical evidence is provided by the fact that the First Congress rejected a proposal to insert a right of the people "to instruct their representatives" into what would become the First Amendment. Third, and of decisive significance, the means employed to issue the instructions, ballots for congressional elections, are unacceptable unless Article VIII is a permissible exercise of the State's power to regulate the manner of holding congressional elections. Pp. 8-10.
(c) The federal offices at stake arise from the Constitution itself. See U. S. Term Limits, 479 U. S. 208, 217, but does not authorize them to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints, U. S. Term Limits, 285 U. S. 355, 366. Rather, Article VIII is plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal. Cf. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9. It not only "instruct[s]" Missouri's congressional Members to promote the passage of the specified term limits amendment, but also attaches a concrete consequence to noncompliance--the printing of an adverse label by the candidate's name on ballots. The two labels impose substantial political risk on candidates who fail to comply with Article VIII, handicapping them at the most crucial stage in the election process--the instant before the vote is cast, Anderson v. Martin, 375 U. S. 399, 402. And, by directing the citizen's attention to the single consideration of the candidates' fidelity to term limits, the labels imply that the issue is an important--perhaps paramount--consideration in the citizen's choice. Ibid. Article VIII thus attempts to "dictate electoral outcomes." U. S. Term Limits, 514 U. S., at 833-834. Such "regulation" of congressional elections is not authorized by the Elections Clause. Pp. 11-15.
191 F. 3d 911, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined, in which Souter, J., joined, as to Parts I, II, and IV, and in which Thomas, J., joined as to Parts I and IV. Kennedy, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O'Connor, J., joined.
REBECCA McDOWELL COOK, PETITIONER v.
In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995), we reviewed a challenge to an Arkansas law that prohibited the name of an otherwise eligible candidate for the United States Congress from appearing on the general election ballot if he or she had already served three terms in the House of Representatives or two terms in the Senate. We held that the ballot restriction was an indirect attempt to impose term limits on congressional incumbents that violated the Qualifications Clauses in Article I of the Constitution rather than a permissible exercise of the State's power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives" within the meaning of Article I, §4, cl. 1.
In response to that decision, the voters of Missouri adopted in 1996 an amendment to Article VIII1 of their State Constitution designed to lead to the adoption of a specified "Congressional Term Limits Amendment" to the Federal Constitution. At issue in this case is the constitutionality of Article VIII.
Respondent Don Gralike was a nonincumbent candidate for election in 1998 to the United States House of Representatives from Missouri's Third Congressional District. A month after Article VIII was amended, respondent brought suit6 in the United States District Court for the Western District of Missouri to enjoin petitioner, the Secretary of State of Missouri, from implementing the Article, which the complaint alleges violates several provisions of the Federal Constitution.
909 (1998). The court further held that Article VIII places an impermissible burden on the candidates' First Amendment right to speak freely on the issue of term limits by "punish[ing] candidates for speaking out against term limits" through putting "negative words next to their names on the ballot," and by "us[ing] the threat of being disadvantaged in the election to coerce candidates into taking a position on the term limits issue." 996 F. Supp., at 910; see 996 F. Supp., at 920. Lastly, the court found Article VIII to be an indirect and unconstitutional attempt by the people of Missouri to interject themselves into the amending process authorized by Article V of the Federal Constitution. In doing so, the court endorsed the reasoning of other decisions invalidating provisions similar to Article VIII on the ground that negative ballot designations "place an undue influence on the legislator to vote in favor of term limits rather than exercise his or her own independent judgment as is contemplated by Article V." 996 F. Supp., at 916; see 996 F. Supp., at 920.7 Accordingly, the court permanently enjoined petitioner from enforcing §§15 through 19 of Article VIII.
Although the Court of Appeals' decision is consistent with the views of other courts that have passed on similar voter initiatives,10 the importance of the case prompted our grant of certiorari. 529 U. S. 1065 (2000).
Article VIII furthers the State's interest in adding a term limits amendment to the Federal Constitution in two ways. It encourages Missouri's congressional delegation to support such an amendment in order to avoid an unfavorable ballot designation when running for reelection. And it encourages the election of representatives who favor such an amendment. Petitioner argues that Article VIII is an exercise of the "right of the people to instruct" their representatives reserved by the Tenth Amendment,11 and that it is a permissible regulation of the "manner" of electing federal legislators within the authority delegated to the States by the Elections Clause, Art. I, §4, cl. 1.12 Because these two arguments rely on different sources of state power, it is appropriate at the outset to review the distinction in kind between powers reserved to the States and those delegated to the States by the Constitution.
On the other hand, as Justice Story observed, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution did not delegate to them." 1 Commentaries on the Constitution of the United States §627 (3d ed. 1858) (hereinafter Story). Simply put, "[n]o state can say, that it has reserved, what it never possessed." Ibid.
To be persuasive, petitioner's argument that Article VIII is a valid exercise of the State's reserved power to give binding instructions to its representatives would have to overcome three hurdles. First, the historical precedents on which she relies for the proposition that the States have such a reserved power are distinguishable. Second, there is countervailing historical evidence. Third, and of decisive significance, the means employed to issue the instructions, ballots for congressional elections, are unacceptable unless Article VIII is a permissible exercise of the State's power to regulate the manner of holding elections for Senators and Representatives. Only a brief comment on the first two points is necessary.
Petitioner relies heavily on the part instructions played in the Second Continental Congress, the Constitutional Convention, the early Congress, the selection of United States Senators before the passage of the Seventeenth Amendment, and the ratification of certain federal constitutional amendments.13 However, unlike Article VIII, none of petitioner's examples was coupled with an express legal sanction for disobedience.14 At best, as an amicus curiae for petitioner points out, and as petitioner herself acknowledges, such historical instructions at one point in the early Republic may have had "de facto binding force" because it might have been "political suicide" not to follow them.15 This evidence falls short of demonstrating that either the people or the States had a right to give legally binding, i.e., nonadvisory, instructions to their representatives that the Tenth Amendment reserved, much less that such a right would apply to federal representatives. See U. S. Term Limits, Inc. v. Thornton, 514 U. S., at 802 (Tenth Amendment "could only `reserve' that which existed before"); cf. McCulloch v. Maryland, 4 Wheat. 316, 430 (1819) (rejecting argument that States had reserved power to tax corporations chartered by Congress because an "original right to tax" such federal entities "never existed").
In any event, even assuming the existence of the reserved right that petitioner asserts (and that Article VIII falls within its ambit), the question remains whether the State may use ballots for congressional elections as a means of giving its instructions binding force.
The federal offices at stake "aris[e] from the Constitution itself." U. S. Term Limits, Inc. v. Thornton, 313 U. S. 299, 315 (1941). No other constitutional provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment. By process of elimination, the States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under the Elections Clause.
With respect to the Elections Clause, petitioner argues that Article VIII "merely regulates the manner in which elections are held by disclosing information about congressional candidates."17 As such, petitioner concludes, Article VIII is a valid exercise of Missouri's delegated power.
We disagree. To be sure, the Elections Clause grants to the States "broad power" to prescribe the procedural mechanisms for holding congressional elections. Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986); see also Smiley v. Holm, 285 U. S. 355, 366 (1932) ("It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections"). Nevertheless, Article VIII falls outside of that grant of authority. As we made clear in U. S. Term Limits, "the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." 415 U. S. 724, 730 (1974).
Rather, Article VIII is plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal. Cf. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9 (1983) ("We have upheld generally applicable and evenhanded [ballot access] restrictions that protect the integrity and reliability of the electoral process itself"). As noted, the state provision does not just "instruct" each member of Missouri's congressional delegation to promote in certain ways the passage of the specified term limits amendment. It also attaches a concrete consequence to noncompliance--the printing of the statement "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" by the candidate's name on all primary and general election ballots. Likewise, a nonincumbent candidate who does not pledge to follow the instruction receives the ballot designation "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS."
In describing the two labels, the courts below have employed terms such as "pejorative," "negative," "derogatory," " `intentionally intimidating,' " "particularly harmful," "politically damaging," "a serious sanction," "a penalty," and "official denunciation." 191 F. 3d, at 918, 919, 922, 925; 996 F. Supp., at 908; see id., at 910, 916. The general counsel to petitioner's office, no less, has denominated the labels as "the Scarlet Letter." App. 34-35. We agree with the sense of these descriptions. They convey the substantial political risk the ballot labels impose on current and prospective congressional members who, for one reason or another, fail to comply with the conditions set forth in Article VIII for passing its term limits amendment. Although petitioner now claims that the labels "merely" inform Missouri voters about a candidate's compliance with Article VIII, she has acknowledged under oath that the ballot designations would handicap candidates for the United States Congress. Id., at 66. To us, that is exactly the intended effect of Article VIII.
I join the opinion of the Court, holding §15 et seq. of Article VIII of the Missouri Constitution violative of the Constitution of the United States. It seems appropriate, however, to add these brief observations with respect to Part III of the opinion. The Court does not say the States are disabled from requesting specific action from Congress or from expressing their concerns to it. As the Court holds, however, the mechanism the State seeks to employ here goes well beyond this prerogative.
A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State's concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, §4. As the Court observed in U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995), the Elections Clause is a "grant of authority to issue procedural regulations," and not "a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." Id., at 833-834. The Elections Clause thus delegates but limited power over federal elections to the States. Id., at 804. The Court rules, as it must, that the amendments to Article VIII of the Missouri Constitution do not regulate the time or place of federal elections; rather, those provisions are an attempt to control the actions of the State's congressional delegation.
The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. The Constitution was ratified by Conventions in the several States, not by the States themselves, U. S. Const., Art. VII, a historical fact and a constitutional imperative which underscore the proposition that the Constitution was ordained and established by the people of the United States. U. S. Const., preamble. The idea of federalism is that a National Legislature enacts laws which bind the people as individuals, not as citizens of a State; and, it follows, freedom is most secure if the people themselves, not the States as intermediaries, hold their federal legislators to account for the conduct of their office. If state enactments were allowed to condition or control certain actions of federal legislators, accountability would be blurred, with the legislators having the excuse of saying that they did not act in the exercise of their best judgment but simply in conformance with a state mandate. As noted in the concurring opinion in Thornton, "[n]othing in the Constitution or The Federalist Papers ... supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives." 514 U. S., at 842. Yet that is just what Missouri seeks to do through its law--to wield the power granted to it by the Elections Clause to handicap those who seek federal office by affixing pejorative labels next to their names on the ballot if they do not pledge to support the State's preferred position on a certain issue. Neither the design of the Constitution nor sound principles of representative government are consistent with the right or power of a State to interfere with the direct line of accountability between the National Legislature and the people who elect it. For these reasons Article VIII is void.
This said, it must be noted that when the Constitution was enacted, respectful petitions to legislators were an accepted mode of urging legislative action. See W. Miller, Arguing About Slavery 105-107 (1995). This right is preserved to individuals (the people) in the First Amendment. Even if a State, as an entity, is not itself protected by the Petition Clause, there is no principle prohibiting a state legislature from following a parallel course and by a memorial resolution requesting the Congress of the United States to pay heed to certain state concerns. From the earliest days of our Republic to the present time, States have done so in the context of federal legislation. See, e.g., 22 Annals of Cong. 153-154 (1811) (reprinting a resolution by the General Assembly of the Commonwealth of Pennsylvania requesting that the charter of the Bank of the United States not be renewed); 2000 Ala. Acts 66 (requesting targeted relief for Medicare cuts); 2000 Kan. Sess. Laws ch. 186 (urging Congress to allow state-inspected meat to be shipped in interstate commerce). Indeed, the situation was even more complex in the early days of our Nation, when Senators were appointed by state legislatures rather than directly elected. At that time, it appears that some state legislatures followed a practice of instructing the Senators whom they had appointed to pass legislation, while only requesting that the Representatives, who had been elected by the people, do so. See 22 Annals of Cong. 153-154 (1811). I do not believe that the situation should be any different with respect to a proposed constitutional amendment, and indeed history bears this out. See, e.g., 13 Annals of Cong. 95-96 (1803) (reprinting a resolution from the State of Vermont and the Commonwealth of Massachusetts requesting that Congress propose to the legislatures of the States a constitutional amendment akin to the Twelfth Amendment). The fact that the Members of the First Congress decided not to codify a right to instruct legislative representatives does not, in my view, prove that they intended to prohibit nonbinding petitions or memorials by the State as an entity.
If there are to be cases in which a close question exists regarding whether the State has exceeded its constitutional authority in attempting to influence congressional action, this case is not one of them. In today's case the question is not close. Here the State attempts to intrude upon the relationship between the people and their congressional delegates by seeking to control or confine the discretion of those delegates, and the interference is not permissible.
With these observations, I concur in the Court's opinion.
Justice Thomas, concurring in Parts I and IV and concurring in the judgment.
I continue to believe that, because they possess "reserved" powers, "the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 846 (1995) (Thomas, J., dissenting). For this reason, I disagree with the Court's premise, derived from U. S. Term Limits, that the States have no authority to regulate congressional elections except for the authority that the Constitution expressly delegates to them. See ante, at 11. Nonetheless, the parties conceded the validity of this premise, see Brief for Petitioner 25-26; Brief for Respondents 12-13, and I therefore concur.
Article I, §4, provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ... ." Missouri justifies Article VIII as a "time, place, and manner" regulation of election. Restrictions of this kind are valid "provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Missouri's Article VIII flunks two of these three requirements. Article VIII is not only not content neutral, but it actually discriminates on the basis of viewpoint because only those candidates who fail to conform to the State's position receive derogatory labels. The result is that the State injects itself into the election process at an absolutely critical point--the composition of the ballot, which is the last thing the voter sees before he makes his choice--and does so in a way that is not neutral as to issues or candidates. The candidates who are thus singled out have no means of replying to their designation which would be equally effective with the voter.
In Anderson v. Martin, 375 U. S. 399 (1964), we held a Louisiana statute requiring the designation of a candidate's race on the ballot violated the Equal Protection Clause. In describing the effect of such a designation, the Court said: "[B]y directing the citizen's attention to the single consideration of race or color, the State indicates that a candidate's race or color is an important--perhaps paramount--consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot along racial lines." Id., at 402. So, too, here the State has chosen one and only one issue to comment on the position of the candidates. During the campaign, they may debate tax reform, Social Security, national security, and a host of other issues; but when it comes to the ballot on which one or the other of them is chosen, the State is saying that the issue of term limits is paramount. Although uttered in a different context, what we said in Police Department of Chicago v. Mosley, 408 U. S. 92, 96 (1972) is equally applicable here: "[Government] may not select which issues are worth discussing or debating."
If other Missouri officials feel strongly about the need for term limits, they are free to urge rejection of candidates who do not share their view and refuse to "take the pledge." Such candidates are able to respond to that sort of speech with speech of their own. But the State itself may not skew the ballot listings in this way without violating the First Amendment.
We shall follow the parties' practice of referring to the amendment as "Article VIII" even though it merely added new §§15 through 22 to the pre-existing article.
"(a) No person shall serve in the office of United States Representative for more than three terms, but upon ratification of this amendment no person who has held the office of the United States Representative or who then holds the office shall serve for more than two additional terms.
"(b) No person shall serve in the office of United States Senator for more than two terms, but upon ratification of this amendment no person who has held the office of United States Senator or who then holds the office shall serve in the office for more than one additional term.
"(c) Any state may enact by state constitutional amendment longer or shorter limits than those specified in section `a' or `b' herein.
"(d) This article shall have no time limit within which it must be ratified to become operative upon the ratification of the legislatures of three-fourths of the several States."
"(h) fails to ensure that all votes on Congressional Term Limits are recorded and made available to the public."
"I support term limits and pledge to use all my legislative powers to enact the proposed Constitutional Amendment set forth in the Term Limits Act of 1996. If elected, I pledge to vote in such a way that the designation `DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS' will not appear adjacent to my name."
Section 19(5) permits a voter to appeal to the Missouri Supreme Court a determination that a statement should not be placed next to a candidate's name, and §19(6) allows a candidate to appeal to the State's highest court a determination that such a statement should be printed. In either case, clear and convincing evidence is required to demonstrate that the statement does not belong on the ballot adjacent to the candidate's name.
The remainder of Article VIII provides for automatic repeal of the Article should the specified Congressional Term Limits Amendment be ratified, §20; exclusive jurisdiction of challenges to the Amendment in the Supreme Court of Missouri, §21; and severance of "any portion, clause, or phrase" of Article VIII that is declared invalid, §22.
Although respondent intended to run for Congress when he filed suit, under Missouri law he could not formally file a declaration for candidacy until February 1998. App. 25-26.
See League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52 (Me. 1997); Donovan v. Priest, 931 S. W. 2d 119 (Ark. 1996).
While the appeal was pending, respondent Gralike withdrew from the 1998 election and respondent Harmon, a nonincumbent candidate in the 2000 Republican congressional primary in the Seventh District of Missouri, intervened as an appellee. In view of Harmon's participation, there is no contention that this case is moot. See Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974).
Although Judge Hansen, dissenting in part, thought that §§17 through 19 should be severed, leaving the rest of Article VIII intact, the majority declined to do so. 191 F. 3d, at 926, n. 12. Petitioner does not contend here that any parts of Article VIII should be severed if found unconstitutional, but rather urges us to uphold the provision "in its entirety." Reply Brief for Petitioner 1-2.
See Miller v. Moore, 169 F. 3d 1119 (CA8 1999) (Nebraska initiative invalidated on Article V and right-to-vote grounds); Barker v. Hazeltine, 3 F. Supp. 2d 1008 (SD 1998) (South Dakota initiative invalidated on Article V, First Amendment, Speech or Debate Clause, and due process grounds); League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52 (Me. 1997) (Maine initiative invalidated on Article V grounds); Bramberg v. Jones, 20 Cal. 4th 1045, 978 P. 2d 1240 (1999) (California initiative invalidated on Article V grounds); Morrissey v. State, 951 P. 2d 911 (Colo. 1998) (Colorado initiative invalidated on Article V and Guarantee Clause grounds); Simpson v. Cenarrusa, 944 P. 2d 1372 (Idaho 1997) (Idaho initiative invalidated on Speech or Debate Clause and state constitutional grounds, but did not violate Article V); Donovan v. Priest, 326 Ark. 353, 931 S. W. 2d 119 (1996) (in preelection challenge, Arkansas initiative invalidated on Article V grounds); In re Initiative Petition No. 364, 930 P. 2d 186 (Okla. 1996) (Oklahoma initiative invalidated on Article V and state constitutional grounds).
Brief for Petitioner 25, and n. 37; see Reply Brief for Petitioner 4.
Brief for Petitioner 28, 38; Reply Brief for Petitioner 4, 8.
* Justice Souter does not join this Part of the Court's opinion.
For example, the Provincial Congress of North Carolina passed the following instruction on April 12, 1776: "Resolved, That the Delegates for this Colony in the Continental Congress be empowered to concur with the Delegates of the other Colonies in declaring Independency, and forming foreign alliances, reserving to this Colony the sole and exclusive right of forming a Constitution and Laws for this Colony ... ." 5 American Archives 860 (P. Force ed. 1844).
"To deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution." The Speeches of the Right Hon. Edmund Burke 130 (J. Burke ed. 1867).
Brief for Petitioner 28; see also id., at 38.
Petitioner once shared our belief, when, in deposition testimony before the District Court, she admitted that Article VIII does not regulate the time, place, or manner of elections. App. 58.
That much, apparently, also seemed clear to many Members of Congress operating under Article VIII or similar label laws adopted by other States, who consequently tailored their behavior to avoid the ballot designations. For example, in 1997, the House of Representatives voted on 11 different proposals to adopt a term limits amendment to the Constitution; 7 of those proposals were dictated by voter initiatives in 7 different States. Representative Blunt of Missouri introduced the Article VIII version to "ensure that members of the Missouri delegation have the ability to vote for language that meets a verbatim test of [the] Missouri Amendment" and thereby avoid "the scarlet letter provision." 143 Cong. Rec. H494 (Feb. 12, 1997). However, because each of the state initiatives provided a sanction similar to the ballot labels included in Article VIII, some Representatives explained that they were constrained to vote only for the version endorsed by the voters of their States, and to vote against differing versions proposed by congressional members from other States, even though they were supportive of term limits generally. See, e.g., id., at H486 (remarks of Rep. Hutchinson) ("I will vote against the bill of the gentleman from Florida [Mr. McCollum], not because I am opposed to term limits but because this particular resolution does not comply with the term limit instructions approved by the voters and the people of Arkansas"); id., at H490 (remarks of Rep. Crapo) ("Last Congress I supported the McCollum term limits bill that, as I said, supported a 12-year term limit. However, in this Congress I must oppose this bill because of the initiative passed by the people of the State of Idaho which requires me to oppose any term limits measure that does not have the same set of term limit conditions that are included in the initiative that was passed in the State"). As Representative Frank of Massachusetts put it, "[e]very State's Members get to vote on their State's term limits so they make them feel better and they do not get the scarlet letter." Id., at H487. Consequently, the most popular proposal for such an amendment, that of Representative McCollum of Florida, received 217 votes, 10 fewer than it had in the preceding Congress. Id., at H511. As for the Missouri version, it suffered a 353-to-72 defeat. Id., at H497.
At the margins, the parties have fought over whether the Elections Clause is even applicable because it is a grant of power to "each State by the Legislature thereof" and Article VIII is the product of referendum. Compare Brief for Petitioner 38, n. 46, with Brief for Respondents 12-13, n. 8. Of course, "[w]henever the term `legislature' is used in the Constitution, it is necessary to consider the nature of the particular action in view." Smiley v. Holm, 285 U. S. 355, 366 (1932). Nevertheless, we need not delve into this inquiry, as it is clear, for the reasons stated in the text, that Article VIII is not authorized by the Elections Clause.
In discussing the Elections Clause issue, respondents have also relied in part on First Amendment cases upholding "time, place, and manner" regulations of speech. Brief for Respondents 13-14. Although the Elections Clause uses the same phrase as that branch of our First Amendment jurisprudence, it by no means follows that such cases have any relevance to our disposition of this case.
The Court of Appeals upheld their First Amendment claim, but based its reasoning on the view that the ballot statements were "compelled speech" by the candidate, and therefore ran afoul of cases such as Wooley v. Maynard, 430 U. S. 705 (1977). I do not agree with the reasoning of the Court of Appeals. I do not believe a reasonable voter, viewing the ballot labeled as Article VIII requires, would think that the candidate in question chose to characterize himself as having "disregarded voters' instructions" or as "having declined to pledge" to support term limits.


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Mootness involves cases where the injury goes away over time. For example, in DeFunis v. Odegaard (1974) the Court reviewed a case involving reverse discrimination of a White student rejected from law school because of diversity policies. However, by the time the case got the Supreme Court, the student was admitted to the law school and was only a year from graduation. Therefore, the Court held the case was moot since no injury remained. In Roe v. Wade (1973) the Supreme Court decided the case even though Roe’s baby was aborted and the injury was moot. Similarly, in Firefighters v. Stotts (1984) the Court decided this case even though there was no injury. In Stotts, those firefighters who lost their jobs due to affirmative action were rehired and hence the case should have been moot. Also, in North Carolina v. Rice (1971) the Court correctly decided a moot case to expunge the criminal record of Rice. In more recent times, the Court has settled a few environmental cases over the issue of mootness. In Friends of the Earth v. Laidlaw Environmental Services (2000) the Court held an environmentalist group could sue a company for polluting the Tyger River since they can no longer use the river for recreational purposes. The defendant claimed the case was moot because they already closed the polluting plant. The Court disagreed because the defendant still owned the plant and could reopen it at any time. In Summers v. Earth Island Institute (2009) the Court held an environmentalist group had no standing against the Forest Service because the dispute was settled prior to reaching the High Court making the case moot. In these environmental cases, once again, the Court protects the federal government, but refuses to do the same for a corporation or individual.
Ripeness is the opposite of mootness. A case can be brought to the Supreme Court too soon, prior to any injury. Poe v. Ullman (1961) is probably the most famous ripeness case. Since Connecticut did not enforce a state statute that made it illegal for married couples to use contraception, it was not ripe. That changed in the Landmark case Griswold v. Connecticut in 1965. The 1947 case United Public Workers v. Mitchell involved public workers questioning the constitutionality of the Hatch Act (denied public workers from working on political campaigns). The Court held that since no injury occurred, the case was not ripe. Similarly, in Doe v. Bush (2003) the Court held a citizen had no standing to challenge to the Iraq War because a “clear” Constitutional issue was not apparent and therefore, the case lacked ripeness.
The political questions doctrine was released in Baker v. Carr (1962). Baker v. Carr was a political questions case because it dealt with state districting guidelines for elections. However, the Court incorrectly ruled on the case saying that state house and senate seats have to be divided equally and proportionally based on population. The Court held that the Constitution says the Federal Government must assure each state has a Republican form of government. However, Republican and Democratic forms of government are not the same thing. The Court ruling in Baker v Carr implemented a Democratic form of government, not a Republican one (Luther v. Borden in 1849 said establishing Republican forms of government among the states was a political question). Elections and disputes between the Executive and Congress are generally seen as political questions beyond the powers of the Court. For example, the Court has held impeachment (Nixon v. United States, 1993), presidential termination of treaties (Goldwater v. Carter, 1979), amending the Constitution (Coleman v. Miller, 1939), and apportionment of state districts (Colegrove v. Green, 1946 overruled by Baker v. Carr, 1962) were political questions. On the other hand, the legislative veto (INS v. Chadha, 1983) and the exclusion of members from Congress (Powell v. McCormick, 1969) were not political questions. Of course, the most famous political questions case was Bush v. Gore (2000). In this case, the Court incorrectly decided that the Florida recount violated the equal protection clause for using different counting methods amongst the Florida counties. However, the Court correctly held that the Florida Supreme Court introduced violated the Florida constitution by creating new election law and only the Florida legislation could introduce and implement election law. Court jurisprudence doctrines of ripeness, mootness, standing, and political questions check Supreme Court power. However, the Court does not decide these types of cases in a consistent manner and generally decide them in favor of the government over the rights of individual citizens.
In most cases regarding overturned statutes and laws, the Court would eventually overrule itself to keep up with the changing times. The Court has essentially overruled prior decisions over a hundred times in the Court’s history. In most of these cases, the Court caved to political pressure from Congress and the voting public since the corrected decisions were worse than the original ruling. Here are some of the critical overturned cases by the Court: The Legal Tender Cases following the Civil War allowed the government to print paper money despite the fact the government defaulted on the payment to individual citizens. The right of employer and employee contracts over wages and hours in Lochner v. New York (1905) was overruled in West Coast Hotel v. Parrish (1937). This allowed the Federal government to control wages and hours of most American citizens. Child labor laws were left to the States in Hammer v. Dagenhart (1918) until it was overruled in United States v. Darby (1941). The Court, Congress, and history books never consider cases where children want to work and adults need longer hours to support their families. Instead, the new precedent denies these fundamental rights to people who are willing to do the work. To make matters worse, many wage, hour, and child labor laws were discriminatory because they only targeted certain businesses and genders. Some overruled cases, on the other hand, are good decisions to protect human rights. In Minersville School District v. Gobtitis (1940) the Court held that mandatory flag salutes in schools was constitutional even if it violated someone’s religious believes. This ruling was correctly overturned just three years later in West Virginia v. Barnette (1943). In Pennsylvania v. Nelson (1956) the Court held a Pennsylvania sedition law was unconstitutional because it conflicted with the Smith Act (Congress sedition law). While Congress was debating legislation to overturn the decision to allow both state and federal sedition laws to coexist the Court overruled itself in Uphaus v. Weiman (1959). In Olmstead v. United States (1928) the Court held that wiretaps outside the premises of the accused was Constitutional since there was not any search and seizure. Chief Justice Taft handed down the opinion and opened the door for Congress to act to correct this loophole. Congress debated the issue for nearly 40 years and could never reach a compromise over the legalities of wiretapping. In Klatz v. United States (1967) the Court acted and overruled Olmstead v. United States. Another example was the overruling of Bowers v. Hardwick (1986) by Lawrence v. Texas (2003), but the Courts methodology in doing so was highly flawed and created bad law.
The bottom line is that decisions and majority opinions handed down by the Court are never final supreme laws of the land otherwise the Court would have no power to overrule precedent. The Court has no say over certain cases because of standing, mootness, ripeness, and political questions. Congress may also fail to comply with decisions by the Court or Congress may act to overturn Court rulings with new laws and statutes. The National Bank issue showed that the interpretation of the Constitution is a task completed by all three branches of government and not just the Court. All branches of government take an oath to protect and serve the Constitution and the Constitution itself says Congress shall pass no laws which violate the Constitution nor should they pass any ex post facto laws or bill of attainers. The only way for Congress and the Executive to accomplish this task is to understand and interpret the Constitution (It is not just the task of the Supreme Court and the judicial system). Sometimes Congress and the Court work well together to protect the rights of individuals. For example, in Katzenbach v. Morgan (1966) the Court upheld a federal statute as a proper interpretation of the Fourteenth Amendment to protect the voting rights of Puerto Ricans in New York.

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