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Hastings Law Journal

Abstract

Many states have passed, or are considering, statutes to limit the number of terms their members of Congress may serve. These term limits pose fundamental questions about the nature and structure of our constitutional system since term limits may restrict the right to vote in conflict with the Constitution. Section 2 of the Fourteenth Amendment mandates that the "basis of representation" of a state's delegation to Congress be reduced for any state that denies or abridges the right to vote at any election for Representatives in Congress.

In their Article, Professors Killenbeck and Sheppard begin by discussing the contemporary arguments set forth by advocates on both sides of the term limits debate. The authors go further than earlier commentators by focusing on an argument that has received limited attention by the courts or in legal literature-the implications of Section 2 of the Fourteenth Amendment for states imposing term limits. They discuss whether Section 2 is a potential source of unrecognized state authority, allowing the imposition of term limits. The authors also argue that if term limits are found constitutional, states enacting them may pay the draconian price Section 2 would impose. The authors conclude that any state with term limits for members of Congress may be subject to Section 2's mandate that the state's delegation in the House of Representatives be proportionately reduced.

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