Is The Term Limit Unconstitutional? Or Does It Remove The Power From the People?

Filipinos value the American constitutional traditions but are turned off by the fundamental mechanics that nurture these constitutional values.  Part of this “value” recognition is the habit of the Supreme Court of the Philippines to cite American jurisprudence on constitutional law whenever it is confronted with constitutional questions itself.  The classic case of Marbury v. Madison found a comfortable home in a 1936 case of Scheckenburger v. Moran.  Practically, Philippine jurisprudence is intertwined with American jurisprudence in search of constitutional wisdom and directions.

Our fascination with American jurisprudence on constitutional issues was more pronounced in the 1973 case of Javellana v. Comelec. 

Marbury v. Madison and other American constitutional law cases are like mushrooms sprouting abundantly in the Philippine legal  landscape despite our having been waned from American tutelage in 1946. The latest of our “intimacy” with American constitutional heritage is the 2009 case of Lozano v. Nograles.

The 1935 commonwealth constitution, the 1973 Marcos constitution, the 1987 Cory constitution grandly proclaim in their respective Art. II  (Declaration of Principles and State Policies) that “The Philippines is a republican state.  Sovereignty resides in the people and all government authority emanates from them.”

The 1987 provisions though added  the word  “democratic” to the first sentence and it became “The Philippines is a democratic and republican state.” 

Republican form of government is already defined by the article itself.  “Sovereignty resides in the people and all power emanates from them.”  If the people are sovereign, they are empowered to determine who should represent them in the bureaucratic corridors of power.  If they don’t want their representatives they can boot them out of office on elections. This scenario provides in full measure the meaning of what sovereignty and power is all about.

But what happened if they want to put  their elected representatives back to office because of their exemplary service to the people but the constitution says no? Does that not in fact curtail their being sovereign and render meaningless the power conceded to them as the embodiment of what a republican state is all about?  Can the people hold in suspension their being the source of political power and still consider them sovereign?  Or  can they be directed to exercise their power only in a particular way,  but not all the way?   Does this not create an illusion of sovereignty?

You bet it does!

This is where our American constitutional scholars come in to lecture us on constitutional values.

“Why did the Framers of the Constitution reject term limits?   Because they believed that frequent elections were a form of natural term limits:  they required legislators to go repeatedly before the voters to earn their support. Frequent  elections were the best way to prevent abuse of power by Congress.  James Madison called regular elections “the cornerstone of liberty,” and argued in The Federalist  Papers that effective legislators should be returned to office frequently.  He believed that experience was necessary for a legislator to perform in the people’s interests:

“No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which lies within the compass of men in private as well as public stations.  Another part can only be attained, or at least thoroughly attained, by actual  experience in the station which require the use of it.” 

While the proponents of term limits sneer at “professional politicians,”   the Framers of our Constitution thought that experienced and capable legislators were the best guarantors of freedom. And they were wary of inexperienced legislators.  “The greater the proportion of new members, and the less the information of the bulk of the members, the more apt will they be to fall into the snares that lay laid  for them,” argued the writers of the Federalist.

Term limits are specifically addressed in the Federalist No. 72, written by Alexander Hamilton, whose understanding of what motivated politicians was so uncanny that one might speculate such wisdom came from self-reflection as well as observation. He felt that one ill effect of term limits would be a diminution of inducements to good behavior.  There are few men who would not feel much less zeal in the discharge of a duty, when they were conscious that the advantages of the station with which it was connected must relinquished at a determinate period.

Hamilton was no Pollyanna; he knew that the desire for reward is one of the strongest incentives of human conduct.. . the best  security for the fidelity of  mankind is to make their interest coincide with their duty.  Term limits would reduce  the rewards for public service, since leaders would not be able to see their policies through and, therefore, would either find their agendas unfulfilled or would get no credit for them if they were ultimately enacted.

Imagine if you were given a job and told that you will be taken off the job at a certain point in time, no matter how will you do it. What will be your incentive to work hard?  In the same way, if legislators are allotted only a certain number of terms and are not able to see many of their goals achieved, they will have little incentive to do more than keep their seats warm and show up for roll call votes.  Or worse, they can wreak havoc, since they won’t be around to suffer the consequences.

Open elections have the positive incentives that Hamilton mentions, giving legislators the opportunity to pursue their ambitions.  And they also create negative incentives – if a politician does not perform or violates the public trust, the people can throw him or her out of office.

Madison correctly saw the reelection process as a means of popular discipline, accountability and control of elected officials. Officeholders will be compelled  to anticipate the moment  when their power is to cease, when their exercise of it is to be reviewed, and when they descend to the level from which they are raised; there forever to remain unless a faithful  discharge of their trust have established their title to a renewal of it.

Experience was crucial to Hamilton.  “That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well  as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations?”

During the debate for ratification in his home state of New York, Hamilton repeatedly made the following points:

1. The people have the right to judge whom they will and will not elect to public office;
2. Rotation reduces the incentives for political accountability;
3. Rotation  deprives polity of experienced public servants

 

These  arguments were powerful enough  in their time to convince the delegates to reject term limits.  Their strength has not diminished in the two centuries since they were composed.

“Term limits aren’t going to make things any better. They’re only going to make these problems even more difficult to address politically.  With Congress hampered by term limit and filled  rookie legislators still learning the ropes and  short-term ‘veterans’ angling for jobs when their terms run out, it will be next to impossible to get meaningful and effective legislation out of Congress.

Despite the historical record, term limits are being sold as a quick  and painless cure to everything that ails our body politic.  The people behind the term limit are promising one easy solution to a variety of complex problems.  The framers knew that there are no quick fixes, and they found out the hard way that the term limits do not deliver as promised.  That’s why we should honor  their wisdom and foresight by keeping elections open to everyone, even experienced politicians.” (Giving UP on Democracy, Victor Kamber, p. 112-16, ISBN 0-89526-465-X).

Unabashedly, we appropriate every settlement  of key constitutional issues in American landscape, but we do not embrace the structural framework from which they had been nourished.  We define our government as a republican in form but we can hold in limbo the power of the sovereign if it’s exercise is to be made in a particular direction.  While Americans consider term limit as constitutionally distasteful, Filipinos basked in it’s restrictive flavor.

American legislators can hold office for eternity as long as the people reelect them, but we do not want our legislators to serve for more than 2 terms and our President only for a term.

We should go the American way by doing away with term limits.  Let us amend our constitution!