Interpretation & Debate

Twenty-Second Amendment

Matters of Debate

Common Interpretation

by F.H. Buckley

Foundation Professor at George Mason University Antonin Scalia School of Law; Senior Editor at The American Spectator

by Gillian Metzger

Stanley H. Fuld Professor of Law at Columbia Law School

The Constitution’s Framers puzzled at length over how to select the president. In part, this reflected the novelty of the office. No such position existed under the Articles of Confederation, with Congress instead wielding both legislative and executive powers.  The British monarch was an obvious but also troubling model, given the young republic’s recent revolution against British rule. Presidential term limits were just one item the Framers considered, alongside bigger questions such as whether the presidency would be unitary or collective, who would elect the President (Congress, the people, or an intermediary mechanism such as the Electoral College), and broader debate about the President’s role. 

Surprisingly, many of the Framers—including Hamilton and Madison—supported a lifetime appointment for presidents selected by Congress and not elected by the people. That would have made the presidency what Virginia’s George Mason called an “elective monarchy,” however, and when this was put to a vote it failed by only six votes to four.

If we weren’t to have presidents-for-life, we’d need them to serve for fixed terms. But then could they be re-elected, or would they be term-limited? Most of the Framers didn’t want term limits. What they wanted, until the very end of their Convention, was a President appointed by Congress who could run again. But in that case, warned Gouverneur Morris, presidential candidates would make corrupt bargains with Congress to get re-elected. The solution the Framers adopted departed from a congressional appointment, with Article II’s complicated scheme for choosing a President, and with no term limits.

Washington’s decision to retire after two terms set a convention that lasted for 150 years—even as America industrialized, urbanized, and the national government grew. Term-limit amendments were proposed each year, but never adopted. Why bother, if the convention worked so well?

There’s this to be said for a convention: it permits the kinds of useful departures from a rule that strict laws would make impossible. The crisis of the Second World War was exactly the kind of exception that justified a departure from the term limits convention.  President Roosevelt ran for and was elected to a third term in 1940 and then a fourth in 1944.  Likewise, in 1940—with the Battle of Britain in full swing—Britain amended the Parliament Act which required a general election every five years and extended Winston Churchill’s government for another five-year term.

It was an exceptional time, and departures from conventions are meant for such times.

But here’s the difference. The war over, the British returned to their convention. In America, however, fear that the two-presidential term convention could not be restored, combined with Republican and conservative Democrats’ worries of executive tyranny sparked by the strong Roosevelt presidency, led to enactment of the Twenty-Second Amendment.  In the years since, presidents of both parties—Ronald Reagan and Barack Obama, to name just two—lamented that they could not run for a third term. 

Presidential term-limits are now a constitutional requirement. But should they be?  Would it be better to rely on convention, as the British do, to give ourselves the flexibility needed in an emergency? Or without the constitutional requirement, would presidents today often seek third terms (and perhaps more), quickly putting an end to the two-term convention and raising again the threat of George Mason’s “elective monarchy”?

Twenty-Second Amendment: Let It Be

by Gillian Metzger

Stanley H. Fuld Professor of Law at Columbia Law School

It is hard to have strong feelings about the Twenty-Second Amendment. Much of the debate over presidential term limits is speculative, with little real evidence of their effect and arguments pro-and-con in equipoise. The convention of two-term presidencies that long-predated the Amendment complicates any effort to assess the measure. On balance, enacting the Twenty-Second Amendment may well have been a mistake, but repealing it now would be worse.

The two biggest complaints against the Twenty-Second Amendment are that it yields failed lame-duck second terms and creates instability in personnel and policy. Critics point to the number of failed presidential second-terms since the Amendment was adopted and identify the Amendment as the culprit. Here the Amendment differs from the convention, because the Amendment removes any question of a third term whereas it’s always possible that a President might depart from convention—as FDR ultimately did. That predictability no doubts emboldens Congress and others when dealing with a lame duck president. Consider, for example, the Republican-led Senate’s refusal to hold hearings on President Obama’s final-year Supreme Court nominee. Were there a real risk that Obama might run for a third term, it’s not hard to imagine the Senate Republicans opting for a different strategy.

But as scholars like David Crockett have argued, many factors have contributed to failed second terms—including errors committed by the President or his staff during the first—and political factors wholly separate from term limits often give presidents a narrow window at the outset within which to enact change. Moreover, concerns about their standing in history and preserving their party’s hold on office are strong presidential motivators in a second term, refuting Hamilton’s fears of presidential inactivity or corruption. One could even argue that freedom from the need to seek reelection is a good thing, insofar as it allows Presidents to put their experience and leadership to work by tackling tough policy issues free from reelection considerations—although such efforts may prove overambitious and end in second-term failures.

Hamilton’s fears of “ruinous change” also prove unconvincing under scrutiny. To be sure, executive branch vacancies upon presidential transitions are a substantial problem for effective governance. But that high-level of turnover seems hard to tie to the Amendment, given that the average 2-3 year duration for agency leadership posts falls well within one presidential term. Moreover, it is changes in party control, rather than changes in the President per se, that prove the most disruptive. On the other hand, the importance of party also means that some arguments for term limits fail. Particularly in our current era of deep political polarization and partisan ideological cohesion, it is not clear that putting a different person in the presidency will make much difference to policy or appointments to office and judgeships if the party in control of the presidency stays the same. Arguments about preserving an adequate array of candidates also seem a wash; term limits ensure that new candidates will not be deterred by the power of incumbency, but also operate to exclude the candidate who may be the most popular and who has the strongest record from even contending.

In the end, the question comes down to whether term limits’ putative benefits in preventing presidential tyranny justify the loss in presidential expertise and democratic choice that follows from precluding successful presidents from running for a third term.  Here history and the longstanding two-term convention counsels caution in assuming that term limits are essential to prevent presidential entrenchment; regular presidential elections remain a potent protector. Fears that FDR destroyed the two-presidential-term convention seem overblown; the crisis and extreme circumstances of WWII may well have sufficed to reassert the two-term limit. The very example of FDR’s breach of convention at the height of WWII proves the advantage of leaving a little flexibility in the joints. And simply constitutionalizing the convention ignores the important question of whether two terms is the right limit; perhaps a longer period—three terms, for example—would have been a better option once the flexibility of practice was traded for constitutional surety.

Hence, the adoption of the Twenty-Second Amendment may well have been a mistake. Yet it isn’t easy to roll back the clock. To begin with, the power of the presidency has grown substantially since the Amendment’s adoption, at a minimum raising the stakes of what an extended presidency might mean. The more powerful the presidency, the more justified prophylactic protections against abuse become. Equally significant is the factor of the Amendment’s enactment and the import of its repeal. Having now incorporated the two-term convention into constitutional requirement, returning to a system where a convention governed would be far more difficult. Repeal would convey a freedom to run for multiple terms that did not exist prior to the Amendment’s adoption. Rather than open that box, the better course—at least in the absence of solid evidence of its causing harm—is to let the Twenty-Second Amendment be.

Further Reading:

David A. Crockett, “The Contemporary Presidency: ‘An Excess of Refinement’: Lame Duck Presidents in Constitutional and Historical Context,” 38 Pres. Stud. Q. 707 (2008).

Jeremy Paul, “If It Quacks Like a Lame Duck, Can It Lead the Free World?: The Case for Relaxing Presidential Term Limits,” 43 Conn. L. Rev. 1097 (2011).

Anne Joseph O’Connell, “Vacant Offices: Delays in Staffing Top Agency Positions,” 82 S. Cal. L. Rev. 913 (2009).

Jack M. Beermann, “A Skeptical View of a Skeptical View of Presidential Term Limits,” 43 Conn. L. Rev. 1105 (2011).

Term Limits, Constitutional and Natural

by F.H. Buckley

Foundation Professor at George Mason University Antonin Scalia School of Law; Senior Editor at The American Spectator

The Twenty-Second Amendment limits a President to no more than eight years in office. Mind you, that’s not what the Framers wanted, at their Convention in Philadelphia. One delegate even proposed a lifetime appointment for the President, and his motion was supported by James Madison’s Virginia, Gouverneur Morris’s Pennsylvania, John Dickinson’s Delaware, and New Jersey; and failed by only six states to four. It’s what Alexander Hamilton wanted. Thirty years later, an embarrassed Madison tried to explain away what might have seemed like monarchism to his new political allies, but his opposition to term limits in 1787 was likely sincere.

The delegates didn’t want term limits and did want a congressionally appointed President. But without term limits, and with Congress doing the appointing, they feared they’d see “corrupt bargains” of the kind that Jacksonians complained of in 1824. Before he was reappointed to a second term, a President would trade favors with Congressmen. And so the delegates abandoned a congressional appointment in favor of Article II’s complicated machinery for choosing a President. That was their way around the need for term limits.

Congress felt very differently about term limits 160 years later, in passing the Twenty-Second Amendment, and we’re bound to ask what changed. There was the recent example of FDR’s four terms, but that by itself wouldn’t have upset the Framers. When Congress proposed the Amendment in 1947, some might have recalled signs of senectitude in FDR’s last year, but regular elections can mostly take care of this, and in any event the Framers who backed a lifetime appointment for the President weren’t unduly worried about that. Something else had changed.

What that was, of course, was the enormous growth in the size of government, the concentration of political power in Washington, and within Washington in the presidency. We’ve seen the same growth of government everywhere, and the same concentration of power in the executive, but it’s especially worrisome in presidential regimes, which explains why subjects in parliamentary regimes enjoy more political freedom than citizens in presidential regimes. Today American presidents wield almost absolute power, and that almost corrupts absolutely, to paraphrase Lord Acton.

This in turn explains why term limits commend themselves in America, but not in Britain or Canada. The rigors of parliamentary debate, and the threat of non-confidence motions, are themselves a form of term limits, and recent presidents and prime ministers in America, Britain, and Canada have on average all served about the same five-year term. For parliamentary leaders, time has seemingly accelerated, with a burn out rate coming more quickly today than in the time of Pitt the Younger (18 years) or Sir John A. Macdonald (19 years). “The trouble,” said Harold Wilson (8 years) in 1974, “is that when old problems recur, I reach for the old solutions. I’ve nothing to offer any more.”

We pay a price for term limits, by sacrificing the benefit of experienced leaders, and were we to see ourselves faced again with the kind of choice Americans were given in 1940, I’d prefer to vote for an FDR than for an inexperienced Wendell Willkie. The question, then, is whether we’d gain more, in terms of political freedom, than we’d lose in terms of the loss of experienced leaders.

If that’s the choice, I’ll go with term limits and political freedom, but there’s a further reason for term limits with a leader so important as the American president, and that’s the need for a periodic shake-up. The Great Books people used to produce a yearly supplement with essays on all of the best and brightest ideas of the day. The books have mostly been pulped, but you might still find dusty copies in a used book store, and they’re an education in the banality of yesterday’s received ideas. You’d see essays on the promise of urban renewal, on the prospects for mass starvation in an over-crowded world, on the need for a planned economy. I have my own candidates for the popular idiocies of today, such as Al Gore’s predictions of immanent climate disasters, but the point is that it’s too easy to fall into a complacent belief in the rightness of one’s ideas. Term limits helps prevent that from happening.

I haven’t mentioned nature’s term limits, death—the last defense against presidents-for-life, whose dreams of conquest must at last come to an end. And shall I die, and this unconquered, says the dying Tamburlaine. We might want to live as long as Methuselah, but all our medical research has made only a little difference in our lifespan, and were it otherwise we might still be talking about Walter Pater and the aesthetic movement.

If only la jeunesse savait, we complain. But they don’t, and all in all that’s probably a good thing.

Further Reading:

F.H. Buckley, The Once and Future King: The Rise of Crown Government in America (Encounter Books, 2015).

F.H. Buckley, The Republic of Virtue: How We Tried to Ban Corruption, Failed, And What We Can Do about It (forthcoming, Encounter Books).

Joe Haines, Glimmers of Twilight 110 (London: Politico, 2003).

William H. Riker, “The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choice,” 78 Am. Pol. Sc. Rev. 1 (1984).

Matters of Debate
The Constitution