A Journal for Western Man




Limiting Terms of Office in the Original

American States


Dr. Murray N. Rothbard

Issue LXVIII- July 23, 2006



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This is the second part of Dr. Rothbard's 1995 treatise, Bureaucracy and the Civil Service in the United States. The first part can be found here. Additional parts will appear on The Rational Argumentator soon.

The great Italian sociologist Vilfredo Pareto stressed the importance for society of the "circulation of elites," that elites not become entrenched and solidified.[17] In the market, elites circulate rapidly and smoothly, in accordance with the most efficient service to meet the desires of consumers. But what of government? In the sphere of government, there is no built-in process for the circulation of elites, and so the natural tendency for the burgeoning, entrenching and rigidifying of bureaucracy tends to prevail.

The Founding Fathers of the American republics — and it is important to stress that thirteen republican polities were founded in the several states years before the possibly misguided leap into the American Constitution — were very much alive to the problem of bureaucracy and of government power. Guided by a blend of libertarian and classical republican thought, they attempted, for the first time in human history, to construct deliberately a new political order in which government power would be decentralized, and be strictly confined to the task of keeping the peace, of insuring domestic tranquility. The program of at least the dominant libertarian-republican wing of the Founding Fathers consisted of ultra-minimal government: guarding the rights of private property, free markets, and free trade; freedom of speech, press, and religion; separation of government from money, banking, and the economy; allowing neither public debt nor public works; having no standing army but rather relying on popular militia in case of foreign invasion; keeping government revenue and expenditures so low as to be nearly invisible; and generally binding down governmental Power with chains of iron, and watching government like a hawk and with vigilance and deep suspicion, lest it resume its natural tendencies and extend Power beyond its strictest bounds.

Nowhere was this more clearly put than in Trenchard & Gordon's Cato's Letters, English newspaper articles of the 1720s which were reprinted, bound, and proved highly influential in America throughout the eighteenth century. Cato's Letters, which were powerful expressions of libertarian thought, put it this way:

Only the checks put upon magistrates [government officials] make nations free; and only the want of such checks make them slaves. They are free, where their magistrates are confined within certain bounds set them by the people … And they are slaves, where the magistrates choose their own rules … and therefore most nations in the world are undone, and those nations only who bridle their governors do not wear chains.[18]

How did the libertarian republicans propose to accomplish this program and bind down government? There were two parts to this program. The first was to confine government, for the first time in history, by explicit written constitutions, consisting of severely limited grants of power to the government by the sovereign people, these grants to be strictly, narrowly, and harshly interpreted. Also within those constitutions were explicit bills of rights, warning that government may not transgress against the rights of person and property.

The second and equally essential part of the libertarian-republican program of confining government was to make sure that entrenched oligarchies and bureaucracies would not develop. First, the various powers of government would be separated, and each branch would act as a check upon the others. But more important was a second device, which has fallen even more grievously into neglect than the idea of strict construction, bills of rights of person and property, and division of powers. That device was compulsory rotation in office — the idea that in order to keep a bureaucracy and a power elite from becoming entrenched, the terms of office be strictly and severely limited.

Essentially, the Founding Fathers saw that government lacks the swift and smooth circulation of elites provided by the free market.

They saw that the rough analog within government, was giving the public the maximum opportunity to vote out the incumbents, and, in the grand phrase of nineteenth century politics, to "throw the rascals out!" Therefore, the program of what might be called the "classical liberals" of the late eighteenth century, in England as well as in the new American republics, was frequent (usually annual) elections, and strict limitations upon the terms of office.

It is noteworthy that the current, very popular term-limitation movement for legislators has been denounced for placing fetters on the scope of democratic choice. But that of course was precisely the idea of these libertarian republicans, who were just as aware of the tyranny of majorities as they were of the tyranny of elites, as noted in the case of bills of rights and other constitutional limitations imposed upon government.[19]

Despite the unicameral legislature, the subordination of the executive, and the partial subordination of the judges, however, the Pennsylvania Constitution was scarcely a program for democratic despotism. In the first place, all local officials were to be elected by their communities, and not appointed by the state. Secondly, a comprehensive bill of rights was established in the state constitution to limit the government's power over the people. Third, in a fascinating provision unique to Pennsylvania, a council of censors was supposed to meet every seven years to review the actions of the state government in the preceding years and to see whether and where it had exceeded its constitutional powers, from which a new constitutional convention to correct these excesses might be chosen. And fourth, and enforcing severe term limitation, the assemblymen, elected annually, could not serve more than four out of any seven years.[20]

It is both curious and unfortunate that the term-limitation movement has so far been exclusively confined to state and federal legislatures, and has not moved on to include the executive and judicial branches of government. Before the Revolution, the judiciary had never been in the least independent in America. The colonial assemblies themselves exercised judicial functions, and in the seventeenth century the assemblies in Maryland, Virginia, and New England functioned as the supreme judicial arm in their respective colonies. By the eighteenth century, judges were appointed by the Crown and the royal governors, and therefore became an instrument of the British executive power. As part of their struggle for autonomy, the colonial assemblies began to advance the idea of life, or "on good behavior," terms for the higher provincial judiciary, as a means of obtaining some degree of independence for the judiciary from British executive control. The temptation, then, was simply to continue this practice after independence from Britain, even though there was now no British executive to struggle against. Even though the US Constitution established life, or good behavior, terms for the federal judiciary, state judges have generally been popularly elected to a multi-year term.

It is high time, however, for those interested in checking the growth of centralized national power in Washington, to re-examine the idea of fixed terms for the federal judiciary. A fixed term for Supreme Court justices would reduce the despotic power rapidly accumulating into the hands of the nine absolute and unchecked oligarchs who constitute the Supreme Court of the United States.

Not only would such term limits for judges subject the higher federal courts to some sort of check by the public. But, clearly, the hysteria and conflict now surrounding every Supreme Court nomination would be greatly reduced by the knowledge that the public would no longer be stuck with said oligarch for four decades; a fixed term, say of six or eight years, would mitigate the problem and greatly lower the stakes in each appointment.

Murray N. Rothbard (1926-1995) was dean of the Austrian School. This essay (in pdf here) appeared in the Journal of Libertarian Studies, 11:2 (Summer 1995), pp. 3-75. It was originally published on the Internet by the Ludwig von Mises Institute.

[17] Contrary to accepted myth, Pareto was neither a "fascist" nor any other sort of statist. Pareto was an ardent and brilliantly perceptive laissez-faire libertarian and even anarcho-capitalist who understandably became deeply pessimistic about the future of liberty at the turn of the twentieth century. After that, he retreated to his ivory tower, from which he wrote bitter and cynical works about the irrationality of human motivations. See in particular, Piero Bucolo, ed., The Other Pareto (London: Scholar Press, 1980); S. E. Finer, "Pareto and Pluto-Democracy: the Retreat to Galapagos," American Political Science Review 62 (1968), pp. 440-50; and Finer, "Introduction" in Vilfredo Pareto, Sociological Writings (ed., by S. Finer, London: Pall Mall Press, 1966).

[18] David L. Jacobson, ed., The English Libertarian Heritage (Indianapolis, IN: Bobbs-Merrill, 1965), p. 256. In the controversial "Pocock Thesis," J. Pocock sets up an artificial and overblown clash between libertarian and "classical republican" thought, and uses Cato's Letters as his definitive reason why the Founding Fathers were influenced by classical republican rather than libertarian ideas. For the definitive demonstration that Cato's Letters were decidedly libertarian rather than Pocockian, see Ronald Hamowy, "Cato's Letters, John Locke and the Republican Paradigm," History of Political Thought, 11 (1990), pp. 273-94.

[19] "It is a mistaken notion in government, that the interest of the majority is only to be consulted, since . . . the greater number may sell the less, and divide their estates amongst themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against a minority. With as much equity may one man wantonly dispose of all, and violence may be sanctified by mere Power." English Libertarian Heritage, pp. 128-29.

[20] On the Pennsylvania Constitution, see John P. Selsam, The Pennsylvania Constitution of 1776 (1936).

This TRA feature has been edited in accordance with TRA’s Statement of Policy.

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