No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
Foundation Professor at George Mason University Antonin Scalia School of Law; Senior Editor at The American Spectator
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”?
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.
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).
