Term Limits: History, Democracy and Constitutional Interpretation

Abstract

The Supreme Court's 1994 October Term produced a number of major constitutional decisions; decisions that were often, but not always, by the narrowest of majorities. The bulk of these five to four cases will require, as Justice Frankfurter once remarked, considerable "litigating elucidation" before the effect of each on the shape of our higher law can be ascertained with any degree of certainty. This is hardly surprising. Important constitutional issues that sharply divide the Court may require the author of a majority opinion, if he or she is to maintain the majority, to negotiate with other justices about the language and scope of what is published. This can lead to an opinion that is relatively vague or purposely ambiguous. Some of the cases that seem to fit this category and will require "litigating elucidation," addressed redistricting and race, affirmative action, the limits on congressional power to regulate activities under the commerce clause, and the nature of permissible governmental support of religious activities.