Rethinking the Twenty-Second Amendment

   In March of 1947 Congress passed the 22^nd Amendment to the Constitution and by February of 1951 the requisite number of states had ratified it, making it the law of the land. The amendment is short and the formulation that will suffice here is even shorter: “No person shall be elected to the office of the President more than twice.” I here want to put forward two arguments—different, if related—why passing that amendment was a mistake, so that repealing it should be considered. I concede ab initio that in the current political climate reconsideration is highly improbable, but I also believe that it is worth starting a discussion in anticipation of more favorable weather in the future.

   My first argument is the weaker of the two, because it merely looks backward. The second and stronger one, points to the harm it has done and will continue to do.

   When the amendment was formulated, the thirty-third president was in the White House—all but one of his predecessors having served no longer than two terms and with none, to my knowledge, having made serious moves to run for a third. For almost a century and a half, George Washington’s articulated refusal to stay beyond two terms was the model for presidential politics.

   It ended in 1940 when President Franklin Delano Roosevelt, the 32^nd president, successfully ran for a third term and, subsequently, for a fourth. That break with tradition sparked the movement that became the 22^nd Constitutional Amendment.

  I won’t try to give an account of the debate that led to it, except to say that FDR’s success with what has become known as New Deal legislation had evoked much conservative animosity and that his pre-Pearl Harbor moves to support the Allies had been the target of what were called isolationists. No doubt antipathy toward FDR played a role in the approval of a two-term limit, but I have not studied the debates that led to its passing.  

   Given the history of American presidents, I am inclined to say that the 22^nd Amendment was a much more powerful cure than the disease warranted. A single president of 32 went beyond George Washington’s restraint. A president, moreover, who was embroiled, by the time of the third term was envisaged, in a European situation that became World War II. Unprecedented? I’m not in a position to say, but surely far from Business as Usual.

   I will leave it at that, but point out that it is not prudent legislation to create a law in response to a single case of putative transgression of what is desired, especially if there are plausible reasons for that deviation from the norm. To make a trivial analogy, it’s like requiring people always to carry an umbrella in a part of the world in which it rains once every other year.

   The second argument has more bite, because it pertains to now and to the future. The data are surprisingly limited. Since the existence of Amendment 22, only three presidents were potentially poised for a third term: Ronald Reagan, Bill Clinton and George W. Bush, to which one can now add now Barack Obama. Three presidents stepped down, given the 22^nd Amendment, and the fourth will do so.

   But even given so small a sample, it is clear that requiring the second term to be the last has a significant effect on what a president is able to do as a Lame Duck. Both Reagan’s and Clinton’s second terms were affected by that dubious status, situations that were then frequently discussed by commentators on the political scene. And while Obama’s chief woes are a  hostile Republican party that has now also come to control both houses of the Congress, that fact only masks the way in which he is constrained by the 22^nd Amendment.

   The manner in which the United States Constitution parcels out governmental authority, already provides for checks and balances, as the familiar phrase puts it, that is lacking in, say, the parliamentary system of Great Britain. While the 22^nd Amendment was not designed to impose an additional constraint on the country’s chief executive, it does so, distorting the system put in place by the founding fathers.

   I am arguing, in short, that this amendment to limit a president’s term of office should be repealed—first because it was born out of circumstances that were unique, not ongoing and, more importantly, because it has harmful effects that were probably not intended by most of the people who favored it.

   As I said, I have no expectation that moves will be made to act on this recommendation at this time. I bring it up now because no actual person would be affected by a repeal, so that its wisdom or the lack of it can be taken up,a attending to the principles.