Rethinking the Twenty-Second
Amendment
In
March of 1947 Congress passed the 22nd 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 32nd president, successfully ran for
a third term and, subsequently, for a fourth. That break with tradition sparked
the movement that became the 22nd 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 22nd
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 22nd 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
22nd 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 22nd
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.