Term Limits and their Validity
Term limits are laws that limit the number of terms that a public servant may hold office in order to improve accountability and the imposition of new ideas to reform national development objectives. (Benjamin, 2006). Term limits must be predicated on various legislative tools within the various jurisdictions in order to be effective. (Carey, Niemi, Powell, & Moncrief, 2006). Under the direction of the group known as "U.S. Term Limits," several states in the United States have truly passed laws imposing term limits on their representatives. (Benjamin, 2006). Some of the term limits that have been imposed by the various states have been challenged in the courts of law and the courts have rendered them unconstitutional whereas the courts have upheld their validity. In the U.S. Term Limits, Inc. vs. Thornton, 514 U.S. 779 (1195) the Supreme Court made a landmark ruling that challenged the validity of the of the term limits imposed in Arkansas. The court held that the 73rd Amendment of the Arkansas Constitution was invalid since it was contrary to the U.S Constitution. In Marbury vs. Madison, 5 U.S. 137, the Supreme Court was tasked with hearing and determining a judicial review petition. The Supreme Court ruled that Section 13 of the Judiciary Act was unconstitutional due to the fact that it contravened the original jurisdiction of Supreme Court as envisaged in Article 3 of the U.S Constitution. Section 13 of the Judiciary Act was passed by congress and provided for the writ of mandamus which overstretched the original jurisdiction of the Supreme Court that was clearly set out in the Constitution. These two cases clearly set the precedence in relation to the validity of laws that contravene the constitution. This, in essence, means that term limits need to be proposed as amendments to the constitution or else will be rendered null and void.
Rules of Legal Drafting in the United States
There are certain rules that are any legal drafter within the United States needs to be conversant with. These rules are referred to as the canons of construction and interpretation (Coyle, n.d.). These rules are also used in the interpretation of various statutes by the courts in case there is a dispute that is required to be resolved through the adjudication process. Drafting of a constitutional amendment needs to be done is a manner that will not result in any ambiguity when a statute is being interpreted by the courts of law.
Each Word or Phrase in a Statute or Amendment Must Have a Specified Meaning
The first canon states that each word or phrase in a statute or in an amendment needs to have a specified meaning (Coyle, n.d.). Courts are required to interpret the laws in a manner that does not negate the meaning of a particular word. The amendment, therefore, needs to be concise and every word that is used needs to be relevant to the subject matter of the amendment. Conciseness in the amendment avoids verbose which might lead to obscurity.
Ejusdem Generis: Specific Words Determine the Meaning of General Words
The next canon is derived from the Latin term known as Ejusdem Generis (Coyle, n.d.). This Latin term states that where general words are used right after specific words, it will be construed that those words are only applicable in relation to the specific words. This canon is often used where a statute provides a list of certain things or group of people that are covered under the statutes and the court is required to determine whether the statute is applicable to other things or people that were not listed. An example would be where the amendment states that "the deaf, the blind, and other persons subject to affirmative action" need to be protected under the law. The courts would be required to interpret the meaning of the term "other people" as used in the text. The courts could infer that the term meant other people who had disabilities. Therefore the amendment we propose needs to be cognizant of this rule.
Expressio Unius Est Exclusio Alteriu: Inclusion of One Thing Excludes Others
The final canon is also derived from the Latin expression Expressio Unius Est Exclusio Alteriu (Coyle, n.d.). This term states that inclusion of a particular thing expressly excludes other things. This is also used in scenarios where a statute has listed certain things or a group of people. Most often the courts will interpret the meaning of the list as intending to limit its application to the things or persons that have been listed. In the example that was highlighted earlier, the courts would construe the statement only to be applicable to the blind, the deaf and other persons with disability and not any other category that does not fall within these limits.
The Process of Amending the United States Constitution
Amendment of the Constitution in the United States is provided for under Article Five of the United States Constitution ("Constitutional Amendment Process", 2016). In order for the constitution to be amended, two legislative processes need to be conducted. The first one is actual amendment process either through the congress, where a two-thirds majority vote in both the senate and the House of Representatives or by a convention of states that has been called for by two-thirds of the state legislatures ("Constitutional Amendment Process", 2016). The second process is the ratification of the amendment that has been made. The ratification could either be by the state legislatures or by the state ratifying conventions and three-fourths of the states (ideally around 38 out of the 50 states) are required to consent to the ratification ("Constitutional Amendment Process", 2016). The Congress has the discretion to decide which method will be utilized to ratify a proposed amendment. After the ratification is done the amendment is adopted and becomes part of the Constitution of the United States.
Separation of Powers and the Role of Each Branch of Government
The American legal regime has a carefully structured model that provides for the separation of powers within the country. Separation of powers is enshrined in the United States Constitution (Carrubba, & Zorn, 2010). There are three branches of government as provided for in the Constitution. The first branch is the legislative arm of the government which is provided for under Article 1 of the constitution. The institutions that fall under this arm are the senate and the House of Representatives. The Congress is tasked with the mandate of making laws that bind the entire country. This power absolutely lies in the congress and should not be delegated. Any law that seeks to do this is deemed unconstitutional. This position was reiterated in the Marbury vs Madison case when the congress gave power to the Supreme Court which was not provided for in the constitution. In order for the power that was provided for in Section 13 of the Judiciary act to be enforced, it required a constitutional amendment which was not done.
The next arm of government is the Executive arm of government which is vested in the presidency. This is provided for under Article 2 of the Constitution. The president is the commander in chief of the armed forces and is required to oversee the enforcement of the various laws that are enacted by the congress. The congress is obliged to keep the executive in check and has the authority to restrict the powers of the executive through avenues that are provided for.
The final arm of the government is the judiciary which is vested in the courts of law within the country. The courts have a constitutional duty to interpret the various statutes and also exercise judicial authority in making determinations. The judiciary is also mandated to determine the validity of various statutes that are enacted by the legislature.
The Role of Amending the Constitution in Ensuring the Separation of Powers
The plan to amend the constitution to provide for term limits would ensure that the congress performs its inherent duty to enact laws, the executive will be tasked with the mandate of ensuring that this amendment is adhered to and the judiciary will be tasked with ensuring that this law is interpreted accordingly when a matter is brought before the courts.
References
Benjamin, G. (2006). Term Limits and the Dismantling of State Legislative Professionalism.
Perspectives on Politics, 4(01). http://dx.doi.org/10.1017/s153759270651014x
Carey, J., Niemi, R., Powell, L., & Moncrief, G. (2006). The Effects of Term Limits on State
Legislatures: A New Survey of the 50 States. Legislative Studies Quarterly, 31(1), 105-134. http://dx.doi.org/10.3162/036298006x201742
Carrubba, C., & Zorn, C. (2010). Executive Discretion, Judicial Decision Making, and
Separation of Powers in the United States. The Journal Of Politics, 72(3), 812-824. http://dx.doi.org/10.1017/s0022381610000186
Constitutional Amendment Process. (2016). National Archives. Retrieved 2 April 2017, from
https://www.archives.gov/federal-register/constitution
Coyle, J. The Canons of Interpretation for Choice-Of-Law Clauses. SSRN Electronic Journal.
http://dx.doi.org/10.2139/ssrn.2789838
