Federal judges, being human, occasionally deliver themselves of nonsense, but oridinarily this is mitigated nonsense. Somewhere in a knuckleheaded opinion lies a kernal of intelligent thought. Truly unmitigated nonsense is something else. It is rare, but on Oct. 7 we saw it in California.
I am talking of an opinion by Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals in the matter of California's Proposition 140. He h eld, in effect, that the people of California were too ignorant or too ill-informed to know what there were voting on in 1990 when they attempted to limit the terms of their state legislators.Under Proposition 140, members of the California Assembly may serve for three two-year terms. No more. Members of the state Senate must retire after two four-year terms. They cannot run again, ever, for the Legislature. It is as if the people had passed a bill of attainder, banishing those whose terms run out.
The question now rumbling through the courst is not whether a lifetime ban on state legislative service is constitutional. (I think it is constitutional, and I also think it stupid. No matter.) The question as posed and answered by Judge Reinhardt is whether the people were afforded "adequate notice of the severity of the limitation to be imposed."
In a perfect world, in which syntax matters, Judge Reinhardt would be impeached for this sentence:
"We invalidate the challenged lifetime ban because we hold as a matter of federal constitutional law that a state initiative measure cannot impose a severe limitation on the people's fundamental rights when the issue of whether to impose such a limitation on these rights is put to the voters in a measure that is ambiguous on its face and that fails to mention in its text, the proponents' ballot argument, or the state's official description, the severe limitations to be imposed."
What "fundamental right" was Reinhardt think of? He explained. It is "the people's fundamental right to elect whomever they choose."
How's that again? This is unmitigated nonsense. The mind boggles. Not since the birth of the Republic have the people had a right to elect "whomever they choose." The Constitution itself limits the people's choice of candidates by reason af age and residence. Until 1914 the people had no say in the election of senators. They cannot vote again for President Clinton.
Every state limits candidacies in one way or another. Prospective officeholders must meet deadlines, pay filing fees, win primaries or round up hundreds of signatures on public petitions. Just five years ago the Supreme Court ruled that Hawaii may effectively exclude write-in candidates. In a 1982 case the high court upheld a Texas statute that requires officeholders to resign one office before seeking others. Thirty-seven states have imposed term limits. The list of exclusionary laws runs on and on.
The 9th Circuit may order reargument before the full court, or the Supreme court may take the case on an expedited appeal. Let's get on with it! Reinhardt's folly is too grave for temporization. I am no friend to term limits, but I believe devoutly that the people of California, subject only to some clearly overriding provision of the U.S. constitution, have a right to amend their own state constitution as they durned well please.
Universal Press Syndicate.