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The Twice and Future President: Constitutional Interstices and the
Twenty-Second Amendment
February, 1999
83
NAME: Bruce G. Peabody * & Scott E. Gant **
BIO:
* B.A. 1991,
of
** B.A. 1991,
Crowell & Moring LLP,
Kruger, Ileana Kutler, Amy Levine, Stuart Rockoff, Mark Tushnet and Bill
Wallace.
SUMMARY:
... The Twenty-Second Amendment to the United States Constitution states that
"no person shall be elected to the office of the President more than twice." ...
Whatever the precise contours of the "two-term tradition" of presidential
service, until 1940 (when its abandonment was implicitly sanctioned with the
election of FDR to a third term), it seems to have led what Paul and George
Willis describe as something of a "precarious life." ... The examples of Grant
and Theodore Roosevelt suggest that at least two already "twice-elected"
Presidents were prepared to challenge the custom had their political fortunes
unfolded differently. ... During the early part of March 1947, the Judiciary
Committee debated this resolution on the Senate floor, rejecting a proposal to
amend it further to enforce a single six-year presidential term. ... We believe
that neither conception of the Constitution's spirit provides a basis for
declaring unconstitutional the scenarios under which an already twice-elected
President may reassume that Office. ... For instance, we have suggested that a
President nearing the end of his or her second term and determined to stay in
office might run as Vice President with the idea that the President-elect would
step aside, allowing the already twice-elected President (and Vice
President-elect) to serve a third term without running afoul of the
Twenty-Second Amendment's bar on reelection. ...
TEXT:
[*565]
INTRODUCTION
It appears to be a commonly held view that when Bill Clinton's second term
expires, he will be constitutionally prohibited from serving again as President
of the United States. n1 This, we believe, is decidedly incorrect. The
Twenty-Second Amendment to the United States Constitution states that "no person
shall be elected to the office of the President more than twice." n2 Although a
twice-elected President may not again be "elected" to that Office, there are a
number of circumstances in which such a person may still "serve" as President.
We examine these circumstances [*566] in this Article. While distinguishing
between "election" and "service" may seem a matter of semantic parsing, we
believe this differentiation is constitutionally significant and consequently,
we contend that the Twenty-Second Amendment proscribes only the reelection of an
already twice-elected President. n3
The widespread misunderstanding about what the Twenty-Second Amendment
actually prohibits n4 is in large measure due to the fact that it has been
infrequently examined by courts and academicians. And who can blame them? Since
the Amendment was ratified in 1951, only three Presidents before Clinton
(Eisenhower, Nixon and Reagan) have been elected to a second term, n5 and none
of them ever expressed any genuine interest in testing its legal parameters.
Moreover, the relatively straightforward text of the Amendment seemingly
provides little material for scholars to probe. As a result, there [*567] is a
dearth of legal scholarship about the Amendment, n6 and the infrequent
references to it tend to assume (in our view, incorrectly) that it is clear and
its interpretation unproblematic. n7
This Article attempts to redress some of the inattention to the Twenty-Second
Amendment. We strive to contribute to the understanding of the Amendment by
exploring its history, its text, and its meaning. More specifically, the first
major part of this Article (Part II) examines the political and legal traditions
that gave rise to the Twenty-Second Amendment, helping to place the Amendment in
historical context. In Part II we consider, in turn, discussions of the issue of
presidential reeligibility at the Constitutional Convention, how the issue
played out in presidential elections leading up to Franklin Roosevelt's third
and fourth terms (which spurred the subsequent adoption of the Twenty-Second
Amendment), and a long line of congressional efforts to limit presidential
tenure. We then examine in some detail the debates and political processes that
led to Congress's approval of the Amendment and its eventual ratification by the
states. Finally, we conclude our historical analysis by surveying reactions to,
and assessments of, the Amendment since its enactment.
With this historical background in mind, the second major part of this
Article (Part III) focuses on what we consider the central interpretive issue
presented by the Amendment - identifying what, precisely, it proscribes and
allows. We examine this issue by exploring and testing the constitutional-ity of
six scenarios in which an already twice-elected President [*568] might
reassume Office, acting as or again becoming President. n8 Specifically, we
examine whether the Twenty-Second Amend-ment, or some other constitutional
provision, precludes a previously twice-elected President from:
(1) serving as Vice President n9 and then becoming President in the case of
removal, death or resignation of the President; n10
(2) serving as Vice President and then acting as President during a period in
which the President is unable to discharge the powers and duties of the Office,
as authorized by (a) a written declaration from the President him or herself,
n11 or (b) other constitutional mechanisms; n12
(3) becoming Vice President-elect and then President if "at the time fixed
for the beginning of the term of the President, the President-elect shall have
died"; n13
(4) becoming Vice President-elect and then acting as President if "a
President shall not have been chosen before the time fixed for the beginning of
[the] term, or if the President-elect shall have failed to qualify"; n14
(5) acting as President under circumstances provided for by the Succession
Act of 1947, n15 which comes into play if (a) the President and the Vice
President both die, resign, or are unable to discharge their duties, n16 or (b)
the President-elect [*569] and the Vice President-elect are both
constitutionally un-qualified to hold office; n17
(6) becoming President if so chosen by the House of Representatives in the
event no person received a majority of the electoral votes in an election for
President. n18
Part III's assessment of the constitutionality of these six basic scenarios
n19 begins with what might be described as a [*570] conventional legal
analysis of the scenarios, examining the text and legislative history of the
Twenty-Second Amendment as well as other constitutional provisions to assess
whether a twice-elected President could again occupy the Office of President
after the expiration of his or her second term. We then discuss whether the
"spirit" of the Constitution (or the spirit of the Twenty-Second Amendment) may
bear on our inquiry and provide a basis for declaring that one or several of the
scenarios outlined above would be unconstitutional, regardless of the results of
our conventional legal analysis. n20
II. BACKGROUND AND ANTECEDENTS OF THE TWENTY-SECOND AMENDMENT
While much of the proximate impetus for adopting the Twenty-Second Amendment
seems to have derived from partisan opposition to the policies and legacies
associated with Franklin Delano Roosevelt and his unprecedented four terms of
presidential service, supporters of the Amendment - before and after its
ratification - have argued that it codified a longstanding tradition of
presidential term limits. We begin our examination of the Amendment by
uncovering its historical and legal roots. n21
A. The Founding and The Convention Debates
When the American colonies declared independence in 1776, they generally
favored weak executives and strong leg [*571] islatures. n22 Post-independence
state constitutions reflected this preference; in addition to limiting the
executive to a short term of office, a number of states prohibited reelection.
n23 Even before the Articles of Confederation were adopted in 1781, the
disinclination to recognize a strong, independent executive was manifest at the
national level, where executive powers and officers were controlled by the
Continental Congress. n24 The presiding officer in Congress, the president,
exercised a number of executive functions including meeting with state executive
officers and foreign heads of state. In addition, "a principle of rotation was
firmly established for presidents [of the Continental Congress], no doubt
reflecting once again the fear of executive power as a potential threat to
liberty." n25 The Articles of Confederation formally provided that the
president not serve "more than one year in any term of three years." n26
During the Constitutional Convention the question of how long the President
should serve was discussed extensively. n27 In debates on the question during
the summer of 1787, Edmund Randolph, Governor of Virginia and author of the
nationalist "Virginia Plan" for the Constitution (much of which was ultimately
adopted in the final version of the document), n28 called for an executive
chosen by the national legislature and ineligible for more than one term of
service. Measures proposed by other Convention delegates left the question of
reeligibility open-ended and called for some form of pres-idential election, as
opposed to selection by the legislature. n29
[*572] By July 26, the Convention approved a plan in which the executive
was to be chosen by Congress for a term of seven years, with no reeligibility.
n30 Opponents of this plan, including Alexander Hamilton n31 and Gouverneur
Morris, argued in favor of reeligibility and the Committee of Eleven (to which a
number of unresolved issues had been referred by the Convention delegates)
suggested that the Convention adopt a four-year presidential term. n32 On
September 15, an acceptable compromise was finally reached, and the Convention
agreed to a four-year term with election by an electoral college and no
restriction on reeligibility. n33 Morris, author of the
constitution and
most vocal and forceful in arguing against limiting presidential reeligibility.
He maintained that without the option of reeligibility, Presidents would lose
their appetite for "public esteem" and their "love of fame ... the great spring
to noble and illustrious action." n35 Morris also thought that limiting the
presidential term of service would incline a President to corruption and to
"accumulate wealth and provide for his friends." n36 And he intimated that
constitutional restrictions on the terms of presidential service might simply
give way during a crisis: "In moments of pressing danger the tried abilities and
established [*573] character of a favorite Magistrate will prevail over
respect for the forms of the Constitution." n37
After the Convention closed, resistance to open-ended service persisted, as
some critics voiced concerns that reeligible Presidents would "endanger the
public liberty." n38 The Virginia,
conventions called for amendments prohibiting the President from serving more
than two terms. n39 But the merits of not limiting presidential reeligibility
were revisited in The Federalist. In Federalist No. 69 Hamilton elaborated how
the Constitution was premised on a reeligible executive, with democratic checks
to counter the threat of a tyrannical President (or a servile President
continually installed by a domineering Congress in elections thrown to the
House). n40 The President,
years; and is to be re-eligible as often as the people of the
shall think him worthy of their confidence." n41
Defense of a (potentially perpetually) reeligible President was further
developed in Federalist No. 72, which asserted that a number of evils flowed
from limiting the number of terms a President could serve. In arguments
reminiscent of those employed by Morris,
term limits would remove "inducements to good behavior" and diminish the
incentives of ambitious politicians to pursue the public good. n42 Moreover, a
brief or fixed tenure would provide a greater temptation to abuse power. Term
limits would also needlessly exclude the wisdom and insights of experienced
Presidents, which would be especially important for overcoming crises in the new
republic. In addition, electoral continuity was needed to promote stable and
consistent [*574] policies. Ultimately, these arguments prevailed and the
Constitution was adopted with the original Convention language intact - that is,
without a limit on presidential service.
B. The Two-Term Limit: A Cherished Tradition?
There seems to be something of a consensus among scholars that, starting with
George Washington's refusal to run for a third term in 1796, a presidential
two-term tradition was founded and continued uncontested until
reelection to a third term in 1940. As David Kyvig puts it in his history of
constitutional amendments, the notion that a President should serve no longer
than two terms was "established by George Washington, reinforced by Thomas
Jefferson, and observed for one reason or another by the seven other
once-reelected chief executives" up to FDR. n43 Similarly, FDR historian
Kearns Goodwin offers that "ever since George Washington refused a third term,
no man had even tried to achieve the office of the Presidency more than twice."
n44
But a close inspection of the debates on presidential term limits between
1789 and 1939, as well as an examination of political practices during that
period, casts doubt upon these accounts of presidential reeligibility. To begin
with (as we discuss below), Washington himself did not appear to favor limiting
the number of times a President could serve. Furthermore, even Jefferson, the
President most strongly associated with presidential term limits and the
principle of "rotation in office," suggested that there were circumstances
[*575] under which a third term would be appropriate. And even if, prior to the
Twenty-Second Amendment, there was an unwritten rule that Presidents should not
seek a third term, it was a rule questioned by a number of Presidents after
Whatever the precise contours of the "two-term tradition" of presidential
service, until 1940 (when its abandonment was implicitly sanctioned with the
election of FDR to a third term), it seems to have led what Paul and George
Willis describe as something of a "precarious life." n46 If this perspective is
correct, then a better understanding of the mixed historical attitudes towards
the two-term tradition may help refine scholarly attitudes about its
significance and provide additional insight into the purposes and scope of the
Twenty-Second Amendment.
In this analysis of presidential history prior to FDR we seek to address a
number of questions: Was there a fairly identifiable presidential "custom"
regarding the appropriate limits of presidential tenure? If so, how was it
created? What did it proscribe? We engage these questions to clarify the
historical background of the Twenty-Second Amendment and to assess the arguments
made before and after the Twenty-Second Amendment by those who have invoked
"history" in defense of limiting presidential service.
1. George Washington: Founder of a Two-Term Tradition?
As already noted, those recognizing a longstanding historical custom of limited
presidential service usually trace it to President Washington. n47 Some
accounts of the two-term tradition suggest that Washington's refusal to run for
a third [*576] term - despite popular and political enthusiasm for his
continued service n48 - helped steer the nation clear of monarchy and
established a de facto two-term limit on presidential service.
Adherents to this conception of Washington as the "father" of a two-term
tradition point to several pieces of supporting evidence, including a 1792
farewell address (drafted by James Madison) that Washington intended to deliver
upon completing his first term. n49 In the text,
virtues of setting "an early example of rotation in an office of so high and
delicate a nature," and asserted that such a rotation would "accord with the
republican spirit of our Constitution, and the ideas of liberty and safety
entertained by the people." n50
(a term also invoked frequently by
opposition to open-ended service and to secure a powerful foundation for
limiting presidential service in the future.
But
conveyed to the public, since he ultimately ran in 1792 and did not include the
remarks in his 1796 farewell address. n52 Moreover, the evidence that
insubstantial. While he refused a third term in [*577] 1796, n53 despite
continued enthusiasm for his leadership, Washington nowhere decried continued
reelection per se. Washington seems to have retired not out of a sense of
constitutional propriety but because he wanted to leave politics and return to
Mount Vernon. n54 As political scientist Thomas Cronin put it, "
retired, not because he favored a two-term tradition, but because he was tired
and wanted to return to private life." n55
Moreover, it is worth recalling that
Constitutional Convention that explicitly considered and rejected limiting
presidential service and enforcing "rotation in office." n56 Indeed, less than
a year after the Convention, Washington wrote to the Marquis de Lafayette,
indicating that while opinions were likely to vary,
on the eligibility of the same person for President, after he should have
served a certain course of years... I confess I differ widely myself from Mr.
Jefferson and you, as to the necessity or expediency of rotation in that
department. The matter was freely discussed in the convention and to my full
conviction. n57
services of any man who in some great emergency shall be deemed universally most
capable of serving the public." n58
To some extent, of course,
may be less important than how his actions have been perceived and interpreted.
In this way, Washington may have contributed to a "tradition" of two terms of
service, regardless of whether he thought it a necessary part [*578] of the
new republic's political practices. n59 We continue with our investigation to
see, then, if
coherent custom of limited presidential service.
2. Thomas Jefferson and the Tradition of Term Limits
Thomas Jefferson, the next President to be elected twice, spoke unambiguously
and consistently in favor of the "necessity of rotation in office, and most
particularly in the case of the President." n60 Indeed,
intended to serve only one term, but decided that the "unbounded calumnies" of
his Federalist political opponents compelled him to run again. n61 Just before
his second inauguration, Jefferson spoke at length about his views regarding the
acceptable parameters of presidential service, concluding that he favored
precedents,"
after a while who shall endeavor to extend his term" beyond this tenure.
Jefferson explained that his attachment to the principle of rotation and his
distaste for the "perpetual re-eligibility of the same President" was born out
of a fear that "the indulgence and attachments of the people will keep a man in
the chair after he becomes a dotard, that re-election through life shall become
habitual, and election for life follow that." n63 Moreover,
that a continually elected President would become subject to foreign influences,
corruption and threats of force. n64 Despite
dangers of an entrenched Chief Executive and trepidation about presidential
service [*579] beyond two terms, his objection to open-ended reeligibility
does not appear to have been entirely inflexible. In 1805
"there is ... one circumstance which could engage my acquiescence in another
election; to wit, such a division about a successor, as might bring in a
monarchist." n65 Thus, we might fairly conclude that even the most outspoken
presidential advocate for term limits recognized the necessity of deviating from
this general rule under extraordinary conditions.
3. Perceptions of Presidential Term Limits After Jefferson
Between Presidents Jefferson and Andrew Jackson, the question of whether there
should be a limit on the number of terms a President could serve received little
attention from Presidents - although a number of Congressional measures during
this period attempted to address the issue. n66 Jackson, elected to the
presidency in 1828 but still angered by the "corrupt bargain" that denied him
victory in the election four years earlier, n67 called for sweeping changes in
how the President was elected and how long he could serve. In his first message
to Congress in 1829, and in subsequent public statements, n68
for a direct vote for President and for limiting the President to a single term
of four or six years. No measure supporting these changes was passed by
Congress, however.
Martin Van Buren was the only President between Jackson and Lincoln to be
renominated for a second term, although he lost the second election and served
only one term. During Van Buren's administration, Congress passed ten
resolutions calling for a one-term limit on presidential service - perhaps
indicating, as Earl Spangler has argued, [*580] "some intra-party disaffection
with him." n69 In 1840, President-elect William Henry Harrison pledged to serve
only one term, and in 1844, the Whigs included a one-term plank in their
national platform. n70 While he was still a member of Congress, James Buchanan
(who became President in 1857) expressed his support for "the example of
no President shall be more than once re-elected." n71 While we have found no
discussion about whether
called for a single presidential term in a special message to Congress, shortly
after assuming office. In addition, during Johnson's administration, Congress
introduced twelve resolutions recommending single terms for the President. n72
The relative inattention the two-term issue received after
with the presidency of Ulysses Grant. Not long after Grant won reelection in
1872, a serious debate percolated within Republican political circles about the
possibility of his running again in 1876. Although the President himself
remained reticent in public about the subject, n73 the prospect of an 1876 run
met with increasing attention and resistance, and in 1875 the Republican
conventions of a number of states passed resolutions declaring their opposition
to presidential service beyond two terms. n74 Responding to the Pennsylvania
convention's expression of "unalterable opposition" to a third term run, Grant
wrote a letter to the convention president indicating that he was not, [*581]
nor had he "ever been, a candidate for a renomination." n75 Grant further
indicated that he "would not accept a nomination if it were tendered unless it
should come under such circumstances as to make it an imperative duty -
circumstances not likely to arise." n76 But in expanding on this last point,
Grant noted that there were no constitutional prohibitions against serving more
than two terms and that under certain circumstances it might be wise to extend a
President's time in office beyond eight years. n77 On December 15, 1875,
however, the House passed a resolution indicating that retirement from office
after two terms was a "time-honored custom" and that any departure from this
tradition was "unwise, unpatriotic, and fraught with peril to our free
institutions," and interest in a third term for Grant temporarily disappeared.
n78
Although the prospect of a third term was a dead issue for Grant at the end
of 1875, n79 by 1880 his candidacy was alive again (with some convinced that
the lapse of four years between Grant's last service as President made him
reeligible for office). n80 Indeed, as early as the summer of 1878, the
Illinois State Republican Convention endorsed Grant as its candidate for an 1880
run. n81 At the 1880 national Republican convention, Grant led all other
candidates through thirty-five ballots, but on the thirty-sixth ballot
anti-Grant forces combined to nominate James A. Garfield. n82 Despite this
outcome, and notwithstanding the examples of
the prospect of a President serving for at least three terms was clearly very
much alive in 1880. n83
The issue continued to garner attention during the presidency of Grover
Cleveland, the only President to serve two nonconsecutive terms. In 1884
nomination.
he lost his reelection bid four years later. n84 But in 1892, Cleveland was
elected for a second time, and following his victory, thirteen proposed
constitutional amendments were introduced in Congress seeking to limit the
presidential term in a variety of ways. n85
At the beginning of the Progressive era, in an atmosphere of political and
democratic reform, the issue of whether there were any limits on the duration of
presidential service reemerged. n86 The Democratic platform of 1896 declared
it to be the unwritten law of this Republic, established by custom and usage
of a hundred years, and sanctioned by the example of the greatest and wisest of
those who founded and maintained our Government, that no man should be eligible
for a third term of the Presidential office. n87
Shortly after his second inauguration in 1901, President William McKinley was
the subject of third term speculation - speculation diminished after McKinley
insisted he would not [*583] seek a third term and ultimately rendered moot by
his assassination on September 14, 1901. n88
McKinley's successor, Vice President Theodore Roosevelt, eventually raised
serious questions about how long (and under what conditions) a person might
occupy the Office of President. After serving as President-through-succession
for three and a half years,
after his victory,
McKinley's assassination as his first term, and, in support of "the wise custom
which limits the President to two terms," he would refuse any further
nominations. "Under no circumstances will I be a candidate for or accept another
nomination,"
But eight years later
William Taft, had drifted from (and even betrayed) his foreign affairs and
domestic policies n90 - challenged the incumbent for the Republican nomination.
Explaining his run for the presidency and reversal of his earlier position
(insisting that he would refuse further nominations), Roosevelt argued that
since 1904 was his first "election" his reelection in 1912 would not betray
publicly indicated that he would accept a presidential nomination, and June of
the same year, when the Republican Convention assembled, the third term issue
became a prominent part of the campaign. Critics warned of
"inordinate ambition" and the threat of dictatorship should he continue to
serve, and the Democratic platform of 1912 called for a single six-year term.
n92
Despite Roosevelt's challenge, Taft was renominated on the first ballot,
prompting
election, but concern over the third term issue had already been fading since
his defeat at the Republican Convention. Nevertheless, a few [*584] weeks
after the election Taft called for a six-year term presidential limit with no
possibility for reelection. n94 And in February 1913, the Senate passed a
resolution n95 providing for an amendment that also would have limited
Presidents to a single six-year term. The House did not act on the measure. n96
The only other President before FDR to be elected to a second term was
Woodrow Wilson. Before
September 25, 1920) there is some evidence that he aspired to a third term. The
1912 Democratic platform on which Wilson ran included a plank calling for a
constitutional amendment "making the President of the United States ineligible
for reelection" and pledging their candidate to this commitment, n97 but Wilson
distanced himself from this pledge. n98 After Wilson's second election in 1916,
there was speculation that a 1920 Wilson-Roosevelt presidential battle would
render the third term issue unavoidable. n99 While Wilson was not nominated at
the 1920 Democratic convention, he at no time declared himself unwilling to
serve or unfit for reelection.
Prior to FDR, Calvin Coolidge in 1927 made the last presidential statement
related to the question of how long a President could serve. Coolidge, after
serving part of Harding's term and being elected once on his own, indicated that
he did not "choose" to run for President in 1928 (implying that he had the
option to do so). n100
[*585]
C. Turning from Tradition?: FDR and the Third-Term Question
As we have already seen, despite statements by scholars to the contrary, the
custom of a two-term limit on presidential service appears to have been upheld
somewhat contingently. The examples of Grant and Theodore Roosevelt suggest that
at least two already "twice-elected" Presidents were prepared to challenge the
custom had their political fortunes unfolded differently. n101
We turn now to FDR, the only President who has served for more than two full
terms. We do this to understand the immediate background of the debates and
ratification processes that led to the Twenty-Second Amendment, and to see how
the themes that surrounded the two-term issue in the 150 years prior to
Roosevelt's third election played out in 1940 and thereafter. n102
The third-term question was salient during the 1940 election. n103 Although
FDR stated in 1937 that his "great ambition... [was to] turn over this desk and
chair in the White House" on Inauguration Day, interest in (and concern over)
extending the Roosevelt presidency persisted, and over time the President's
interest in running apparently grew stronger, particularly as Germany extended
the Second World War into Western Europe and Scandinavia. n104 In September
[*586] and October of 1940, a special subcommittee of the Senate Judiciary
Committee conducted sixteen days of hearings on "the propriety of a third term."
n105 Campaign literature and political pamphlets railed against the dangers of
allowing a President to serve as a would-be dictator and made thinly veiled
comparisons between Roosevelt and the Axis powers leaders. n106 Republican
presidential candidate Wendell Wilkie, responding to concerns about the issue of
open-ended presidential tenure, announced that if elected he would ask Congress
to make passage of a presidential term limit amendment his first order of
business. n107 As the Democratic National Convention opened in July 1940, FDR's
continuing reluctance to run openly made it unclear who would be the Democratic
nominee. Although
were free to choose whatever candidate they desired, his message was interpreted
to mean he was willing to be drafted, and he subsequently was renominated on the
Convention's first ballot. n108
In response to the nomination, between 1940 and 1943, eight state
legislatures passed resolutions calling for presidential term limits. n109 The
Republican National Convention of 1940 sought a constitutional amendment to
enforce a two-term limit "to insure against the overthrow of our American system
of [*587] government." n110 Seven Gallup polls taken in 1943 and 1944
reported that between 45% and 62% of those surveyed favored a constitutional
amendment that would prohibit Presidents from being elected more than twice,
with support for such an amendment increasing during that period. n111
Nevertheless, Congress took no action on the question during
presidency. FDR's victories in 1940 and 1944 were decisive (although not as
decisive as his previous elections), and in any event interest in establishing a
presidential term limit faded after the attack on Pearl Harbor and the
subsequent involvement of the United States in the war.
FDR's elections to third and fourth terms both illuminate and obfuscate our
understanding of where the nation stood on the question of presidential term
limits at the time. On the one hand, the elections of 1940 (with
majorities in thirty-eight states) and 1944 (majorities in thirty-six states)
might be understood as representing a national plebiscite on the question of
whether a President could serve more than two terms. n112 At the same time,
to his continued service, and, as noted, polls indicate that the percentage of
those favoring a two-term limit on presidential service [*588] increased
steadily between 1940 and 1945. n113 In addition,
cautious in confronting the third-term issue in the 1940 election. According to
Kyvig, he engaged in "an elaborate charade of not running and only accepting a
Democratic draft" for President. n114 When Roosevelt did address the issue of
his continuing service, he remained circumspect and stressed the extraordinary
nature of the times. In his last speech of the 1940 campaign,
obliquely justified a third term by explaining that:
there is a great storm raging now, a storm that makes things harder for the
world. And that storm, which did not start in this land of ours, is the true
reason that I would like to stick by these people of ours until we reach the
clear, sure footing ahead. n115
Whether or not there was a presidential custom limiting service to two terms,
Roosevelt's reelections in 1940 and 1944 demonstrated that it was not a custom
deemed binding by either him or the electorate. And when political interest in
limiting presidential tenure resurfaced following FDR's death and the conclusion
of the war, Roosevelt and his unprecedented four terms of service became the
common referent for those arguing for (as well as against) setting a
constitutional limit. In the eyes of some, the case for limiting presidential
tenure was made vivid by perceived excesses of the New Deal, FDR's aggressive
attempts at power accretion (like the Court-packing plan of 1937 n116 and his
dramatic reorganization of the executive branch n117 ) and the overall [*589]
growth of a powerful "modern" presidency. n118 For those who saw
symbol of economic recovery, national unity, and victory in the war against the
Axis powers, FDR served as the perfect argument for retaining open-ended
presidential service.
D. Congressional Efforts to Codify the Two-Term "Tradition"
Continuing partisan opposition to the policies and politics of FDR, coupled
with the strong showing of Republicans in the 1946 Congressional elections, set
the stage for legislative action on presidential term limits. In the 1946
mid-term election, Republicans achieved majorities in the House and Senate for
the first time since 1929, and they pushed forward a presidential term limits
amendment as one of their first orders of business, as promised during the
campaign.
As already indicated, this was hardly Congress's first attempt to promote an
amendment to limit presidential eligibility. There is a lengthy history of
efforts by both houses of Congress to pass measures that would fix the terms of
service of Presidents, although, until the Twenty-Second Amendment, not a single
proposed amendment on the subject was ever adopted by Congress and passed on to
the states for ratification.
1. Early Congressional Debates on Presidential Term Limits
Adoption of the Constitution did not put an end to the debates over
presidential term limits. Instead, for over a [*590] century and a half after
the Constitutional Convention, members of Congress periodically attempted to
limit the number of terms a President could serve, suggesting that this was a
longstanding and persistent concern of the nation's lawmakers. Indeed, between
1789 and 1947, 270 proposals to limit the terms of office of the President were
introduced in Congress. n119
In 1803, following the contested election of 1800 (which was thrown to the
House of Representatives), Congress first considered a proposal to limit
presidential tenure to two successive terms, and three terms overall. n120 The
measure was soundly rejected. After that, there appears to have been little
congressional interest in the question until President Monroe was nearing the
end of his seventh year in office in 1823. Although there is no evidence
was considering another run, political supporters of the various candidates
hoping to succeed the President pressed for a measure to codify the "principle"
limiting a President to two terms of service. n121 In 1824, the Senate passed a
joint resolution providing that no person should be chosen President for more
than two terms. n122
Following another highly contested election in 1824 (when Jackson lost even
after receiving a plurality of popular and electoral college votes), a number of
proposals to reform the way in which Presidents were elected and the length of
their tenure in office were again considered. Among these was a measure passed
by the Senate in 1826 calling once again for a two-term limit. n123 During
a single term, Congress considered twenty-one proposals seeking to alter the
Constitution's provisions regarding presidential service. However, none of these
measures were passed by both houses. n124
The absence of a serious prospect for a third-term challenge seems to have
resulted in limited congressional activity on the presidential term limit issue
for the next forty years. n125 But in December 1875, responding to the
possibility of a third-term run by President Grant, n126 the House passed, by a
234 to 18 vote, the "Springer resolution" stating that:
the precedent established by Washington and other Presidents of the United
States in retiring from the Presidential office after their second term has
become, by universal concurrence, a part of our republican system of government,
and that any departure from this time-honored custom would be unwise,
unpatriotic and fraught with peril to our free institutions. n127
As indicated in our previous discussion, at the time the Springer resolution
was passed, Grant presented a credible threat to the two-term tradition. But
after encountering political resistance to the idea of his running for a third
term, he ultimately refused to be a candidate in 1876, although he was an
unsuccessful candidate for the Republican nomination in 1880.
The longstanding political movement to limit presidential terms appears to
have gained some strength after 1900, when the number of relevant legislative
proposals increased. n128 In 1912 alone, twenty-one amendments were introduced
in [*592] Congress "proposing a limitation on the Presidential term." n129
Prior to Wilson's first inauguration in 1913, the Senate passed a resolution
limiting the President to a single six-year term by a two-thirds margin, but the
House did not act on the measure. n130
In the 1920s, Congress once again introduced numerous resolutions that sought
to limit presidential service, with early 1927 a particularly active period.
During this time, Representative Fairchild called for an amendment to the
Constitution specifying that:
no person shall be eligible to the office of President who has previously
served two terms, whether by election or by succession due to the removal,
death, resignation, or inability of the President where the term by succession
shall have continued for a period of 2 years or more. n131
Representative Beck introduced a measure almost identical to the House
resolution of 1875 (recognizing the "time-honored" tradition of retiring after
two terms of service). n132 A few weeks later, Senator Robert La Follette, Jr.,
son of the Progressive presidential candidate, introduced a resolution in the
Senate limiting the President to two terms. In January 1928, Senator La
Follette's resolution was reintroduced, amended and passed by the Senate in a
form that was again nearly identical to the 1875 House measure. n133 This was
the last time Congress considered legislation on presidential eligibility before
FDR became a candidate for a third term in 1940. With FDR's candidacy the
movement for term limitations was briefly renewed, but it flagged after FDR's
death, gaining sufficient political energy only after Republicans subsequently
took over the 80th Congress.
On the whole, a review of congressional efforts to enact presidential term
limits suggests that while concerns about the question of reeligibility were
expressed quite steadily, these concerns were not addressed through any
systematic campaign to limit presidential reeligibility. Although members of
Congress had frequently fretted about the threat of Presidents [*593]
entrenching their power through indefinite tenure in office, n134 the
legislative responses to this perceived threat were substantively varied,
somewhat fitfully pursued, and, until 1947, unsuccessful.
2. Proposal and Ratification of the Twenty-Second Amendment
Despite some loss of interest in the question of presidential term limits after
Roosevelt's 1940 election and the eventual involvement of the United States in
World War II, the issue resurfaced not long after the death of FDR and the end
of the war. The strong showing of Republicans in the 1946 elections - and their
resulting possession of majorities in the House and Senate for the first time in
eighteen years - enabled them to advance a term limit amendment.
On January 3, 1947, the first day of the first session of the 80th Congress,
House Judiciary Chairman Earl C. Michener and Speaker of the House Joseph Martin
introduced a presidential term limit amendment, House Joint Resolution 27 (H.J.
Res. 27), n135 which was referred to the House Judiciary Committee. n136 H.J.
Res. 27, as originally written, specified that:
no person shall be chosen or serve as President of the United States for any
term, or be eligible to hold the office of President during any term, if such
person shall have heretofore served as President during the whole or any part of
each of any two separate terms. n137
The proposal was modified by the House Judiciary Committee, which reported H.J.
Res. 27 to the full House on February 5 with the following revision (replacing
the language above):
[*594]
Any person who has served as President of the United States during all, or
portions, of any two terms, shall thereafter be ineligible to hold the office of
President. n138
The House Judiciary Committee's language does not appear to have altered the
original measure's substance: under each proposal, regardless of whether a
President was elected or assumed the Office through some other means, his or her
service was limited to a maximum of two terms. n139
On February 6, H.J. Res. 27 was brought to the floor under a rule allowing
two hours of debate, which Democratic opponents of the measure decried as
inappropriately restrictive for a proposed amendment to the Constitution. n140
Along with forty-seven Democrats (thirty-seven of whom were from the South)
voting for the proposal, all 238 Republicans present supported the measure,
leading some commentators to argue that the Amendment was propelled by partisan
concerns and regional interests. n141
The Senate received H.J. Res. 27, as revised and approved by the House, on
February 7 and referred the measure to its Judiciary Committee. The Senate
Judiciary Committee modified the language still further to provide that:
A person who has held the office of President, or acted as President, on
three hundred and sixty-five calendar days or more in each of two terms shall
not be eligible to hold the office of President, or to act as President, for any
part of another term. n142
Like the original House resolution, the Senate Judiciary Committee's language
addressed presidential service generally, rather than limiting itself, as the
Twenty-Second Amendment ultimately would, to presidential reelection.
During the early part of March 1947, the Judiciary Committee debated this
resolution on the Senate floor, [*595] rejecting a proposal to amend it
further to enforce a single six-year presidential term. n143 Then, on March 10,
the Senate considered an amendment offered by Democratic Senator Warren Magnuson
that would have replaced the Judiciary Committee's language with the seemingly
more straight-forward provision that "no person shall be elected to the office
of President more than twice." n144 Magnuson explained that the language in his
proposal, unlike the "complicated legal language" n145 of the Committee
version, "could be easily understood by everyone, and ... would not involve
complicated legal questions," such as "When is a man Acting President? When does
he assume the office" and, "to what period he should be limited" when "elevated
to the office of President through circumstances beyond his control"? n146
Magnuson argued that his proposal would bypass these questions by focusing on
what was "really intended to be reached" - preventing a President from
"perpetuating himself in office." n147 Finally, Magnuson suggested that the
Judiciary Committee version of the resolution would unduly restrict a person
elevated to the Office of President "through circumstances beyond his control,
and with no deliberation on his part ... but because of an emergency or an
unfortunate circumstance," from subsequently running for office. n148 Although
Magnuson acknowledged that his proposal did not account for the possibility that
someone might serve or act as President without being elected, he discounted
these contingencies as beyond the immediate focus of the 80th Congress and its
concern with limiting the number of times a person could be elected.
A number of Magnuson's colleagues echoed his position on H.J. Res. 27.
Senator Joseph Tydings, one of the authors of the [*596] version of the
resolution that would eventually become the Twenty-Second Amendment, spoke in
favor of Magnuson's Amendment:
What we are trying to do is to stop any man from being elected President more
than twice ... But under the committee amendment a man could be prohibited from
being elected President more than once, provided that he had served more than 1
year prior to the time he was elected President ... I think that provision is a
little stringent. n149
Like Magnuson, Tydings emphasized the restrictive nature of the Senate
Judiciary Committee's language, especially in limiting persons elevated to the
presidency without seeking election to that Office. As Tydings explained:
If it is right to have a limitation of 8 years for a twice-elected President,
then why in heaven's name is it not right to give a Vice President the 3 years
which he may serve in the term of his predecessor plus one full term, rather
than limit him to 5 years [which the committee amendment would do]? n150
A number of Senators were unswayed by the arguments of Tydings and Magnuson and
thought it important to consider the very issues Magnuson's proposal did not
directly address, including, for example, questions about how the amendment
affected persons elevated to the office through non-electoral means. n151
Senator Bourke Hickenlooper spoke out against the Magnuson amendment, explaining
that it would create a "peculiar situation" whereby "an individual who becomes
President by accident, an act of divine providence, or otherwise, and who was
not originally elected to the position, is the only person who can hold
protracted office in the Presidency" (by still being eligible for election and
reelection). n152 Magnuson conceded that this was a fair reading of his
proposal but did not think the amendment should be so [*597] detailed that it
would "deal with contingencies whereby a man because of circumstances beyond his
control is elevated to a high office." n153 Other Senators expressed concerns
about how long an individual could serve as President under Magnuson's proposal.
Senator Robert Taft objected to Magnuson's amendment, pointing out that a person
who was elevated to the Office of President through non-electoral means might
still be elected twice and serve "as long as 11 1/2 years ... [which] is too
long." n154 Perhaps sensing that he did not have sufficient support for his
amendment, Senator Magnuson modified his version of H.J. Res. 27 to prohibit
successive elections, but still found his amendment soundly rejected on the
Senate floor. n155
On March 12, Senator Taft sought a compromise between supporters of
Magnuson's amendment and those still troubled by its inattention to those who
might assume the presidency without being elected to that Office. Taft's
amendment drew on the "election" language of Magnuson's amendment and avoided
the controversy of the Committee amendment, which was seen as unduly restricting
the reeligibility of those called on to act as or become President through no
doing of their own. n156 Specifically, Taft's amendment provided that:
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 2 years of a term to which some other person was elected President,
shall be elected to the office of the President more than once. n157
[*598] The Taft amendment was intended to balance the concerns of those (like
Senator Tydings) who thought that the "five-year" limit provided by the
Committee Amendment was too short and those who thought the "11 1/2 year limit"
of Magnuson's amendment was too lengthy. Taft believed his amendment was
"clearer" than the Committee's amendment, although he did not explain how this
was so (and there are good reasons to believe Magnuson's and Taft's language
left many issues unclear). n158
The compromise Taft worked out with Tydings and others would eventually rule
the day, becoming the language of what we now know as the Twenty-Second
Amendment. No Senate Republican voted against the Taft proposal (just as no
House Republican had voted against H.J. Res. 27), and a substantial bloc of
southern Democrats also voted for the measure, ensuring relatively comfortable
passage by a fifty-nine to twenty-three vote. n159 The next day, March 13, the
Senate returned the measure to the House. After several days of debate, on March
21 the House adopted the Taft version of the proposed amendment by the
constitutionally required two-thirds margin and sent it to the states for
ratification. n160
Within two months of its introduction in the House, the Twenty-Second
Amendment had been presented to the states. Between the filing of the amendment
with the Secretary of State on March 24, and the end of the year, eighteen state
legislatures ratified the measure. "Republican-dominated" and [*599] southern
legislatures tended to pass the measure in relatively short order, but
ratification proceeded very slowly after this first wave of support, and it was
not until 1951 that the required two-thirds of the states approved the proposed
amendment. n161
During the ratification process only twenty-five Republican state senators
and fifty-eight Republican state representatives, out of 3,272 Republican
legislators whose votes were recorded, opposed the Twenty-Second Amendment.
n162 As James Davis explains, the Twenty-Second Amendment was ratified because
of the determination of Republicans (and southerners) "not to see a repeat
performance of four successive presidential victories by another FDR-type
candidate." n163
3. Assessing the Congressional Debates
Having examined the immediate context in which the Twenty-Second Amendment was
proposed, considered and ratified, we move on to a preliminary assessment of the
congressional debates on the Amendment. Specifically, we seek to answer two
questions. First, do the debates reveal the purpose of the Amendment as it was
perceived at the time? Second, how is one to explain the shift from the language
approved by the House, and even that supported by the Senate Judiciary
Committee, to what was eventually endorsed by both houses of Congress and
ratified by the states?
The congressional debates on the Twenty-Second Amendment revolved around
three broad concerns relevant to our analysis: (1) the sorts of contingencies
the Amendment should address; (2) the effect on presidential (re)eligibility of
having previously acted as or become President without being elected; and (3)
particular sensibilities about absolute limits on the number of years someone
could serve as President under the Amendment.
[*600] Although these issues received considerable attention on the floors
of the House and Senate, our review of the congressional debates suggests that
the text of the Amendment was probably shaped most decisively by the impulse for
compromise. The shift from the House's references to presidential "service" and
"tenure" to the Senate's eventual reliance on simply limiting presidential
"election" appears largely to have been a function of political give-and-take.
Taft, in fact, acknowledged that his amendment was intended to balance the
concerns of proponents and critics of Magnuson's proposal. Similarly, when the
House considered the Senate-endorsed version of the eventual Twenty-Second
Amendment, although some House members found the measure "pregnant with
questions" and indicated that they preferred the original House language, they
recognized the need for "compromise" as part of the legislative process. n164
This willingness to compromise may have contributed to the imprecision that
characterized the language used by members of Congress as they considered H.J.
Res. 27 and its various formulations. Members of both the House and Senate, for
example, often vaguely suggested that they were attempting to limit presidential
"tenure" without elaborating exactly what they had in mind or using the term
consistently. And, as we have seen, those debating the Amendment at times
appeared to conflate the notion of "election" with the other ways in which a
President might come to serve, but at other moments they clearly distinguished
elections from non-electoral means of assuming the Office of President.
Furthermore, congressional interest in not "penalizing" those unelected but
nonetheless called upon to serve or act as President led Congress to focus on
"elections" as the cornerstone of the Amendment's proscriptions - a focus that
prohibited only reelection of an already twice-elected President. In prohibiting
"reelection" only, Congress seemingly glossed over the significance of limiting
subsequent election rather than subsequent "service," and unwittingly (we
presume) left open the possibility of a previously twice-elected President
reassuming Office to again serve (or act) as President.
In view of these observations, it is difficult to divine precisely what those
adopting the Amendment meant for it to foreclose and permit. Neither the general
content of Congress's [*601] deliberations nor the precise words they selected
for the various amendments they considered provide clear guidance on this
question. The evidence does suggest, however, that most members of Congress - or
at least most of those who discussed the Amendment - thought that it was
designed to prevent an individual from becoming entrenched in the presidency,
even if supported by the electorate. n165 Yet it remains difficult to say much
more about Congress's intentions, and this general sentiment alone may not
provide adequate guidance when evaluating the constitutionality of the six
scenarios, an assessment we take up in Part III.
E. The Twenty-Second Amendment Since Enactment
Before proceeding to Part III, we conclude our historical evaluation of the
Twenty-Second Amendment by examining how the Amendment has been assessed and
interpreted in the years following ratification. This review is organized around
four periods: the first three are marked by the presidencies of Eisenhower,
Nixon, and Reagan, and the last extends from the end of Reagan's presidency to
the present. n166 We organize our analysis in this way because the first three
individuals reelected to the presidency following ratification of the
Twenty-Second Amendment have drawn attention to (and prompted criticism of) the
Amendment. n167 At a number of points both Eisenhower and Reagan spoke out
against the Amendment, and an effort to repeal it developed following Nixon's
reelection - and died rapidly after the revelations of Watergate. We review the
period after Reagan to illustrate contemporary evaluations of the Twenty-Second
Amendment, and to suggest [*602] that concern with the Amendment remains very
much alive as we near the turn of the century.
1. The Eisenhower Years
Only five years after ratification of the Twenty-Second Amendment, President
Eisenhower, on the verge of an overwhelming reelection, publicly questioned the
Amendment's wisdom. One month before the 1956 election he told reporters that
the electorate "ought to be able to choose for its President anybody that it
wants, regardless of the number of terms he has served," and explained that the
Amendment may not be "wholly wise." n168
In 1956 two resolutions were introduced in the House to repeal the
Twenty-Second Amendment. n169 And after the new Congress convened in January
1957, five resolutions were introduced to repeal the Amendment. n170 Senator
Richard Neuberger indicated that the intent of at least one of the proposals was
to give "to the American people the right to continue Dwight Eisenhower in
office." n171 Eisenhower responded to these initiatives by indicating that he
would not seek a third term even if the Amendment was repealed, n172 but the
issue of presidential reeligibility continued to receive political attention.
n173
In 1959, the House and Senate held hearings on the Twenty-Second Amendment,
and former President Truman n174 [*603] appeared before the Senate Judiciary
Subcommittee on Constitutional Amendments to criticize the Amendment and urge
its repeal. n175 The Amendment, according to Truman, was unwisely passed by
"
for all time in the future." n176 The Twenty-Second Amendment, Truman added,
put a President "in the hardest job in the world ... with one hand tied behind
his back." n177 Some members of the Subcommittee expressed sympathy with the
repeal position, and the Subcommittee approved a repeal resolution in September
of 1959. But after Eisenhower backed away from his earlier criticism of the
Amendment (calling for "careful thought" on the question of repeal, and
continued experimentation to see how it functioned), n178 the repeal movement
lost momentum. n179
As the election of 1960 neared, however, attention again turned to the
Twenty-Second Amendment. In a press conference on January 13, Eisenhower invited
reporters to look into the question of whether he would be eligible to run as a
vice presidential candidate under the terms of the Twenty-Second Amendment.
n180 As Eisenhower put it, "the only thing I know about the Presidency the next
time is this: I can't run. [*604] [Laughter] But someone has raised the
question that were I invited, could I constitutionally run for Vice President,
and you might find out about that one. I don't know. [Laughter]" n181
The question appears to have been raised somewhat in jest, n182 particularly
since, according to the New York Times, when the issue "had arisen in White
House inner circles" it was quickly rejected based on the belief that if
Eisenhower were serving as Vice President and events called for presidential
succession, he would be bypassed as a successor (because of the terms of the
Twenty-Second Amendment), and the presidency would automatically go to the
Speaker of the House n183 under the terms of the 1947 Succession Act. n184
Since the Speaker might very well be a Democrat, this chain of events was deemed
undesirable.
At a press conference two weeks after Eisenhower first raised the possibility
of his serving as Vice President, he was [*605] asked whether he had received
an "official opinion" on the question. Eisenhower was somewhat circumspect but
he did say that
the afternoon of that [first] press conference, there was a note on my desk
saying a report from the Justice Department - I don't know whether the Attorney
General himself signed this, n185 but the report was, it was absolutely legal
for me to do so. That stopped it right there, as far as I'm concerned. n186
The prospect of a Vice President Eisenhower was raised again briefly when the
Republican National Convention convened in July. On July 21, 1960, at the
Convention, Representative James Fulton announced that he would nominate
Eisenhower to be Vice President alongside Richard Nixon, n187 but Fulton's
proposal seems to have generated little attention or political support.
While Eisenhower ultimately backed away from the idea that he might run as
Vice President, there is some evidence that, despite the constraints of the
Twenty-Second Amendment, he did not completely relinquish his presidential
ambitions at the end of his second term. Only four months after Kennedy's
inauguration in May 1961, Eisenhower indicated that he would [*606] have
considered running for a third term if he had not been constitutionally barred
from doing so and he had been able to foresee Nixon's defeat in the 1960
election. n188 Eisenhower's son, John, also indicated that he and White House
officials believed that had Eisenhower not been barred from running for
reelection, he probably would have done so in 1960. n189 And some political
commentators have speculated that if Eisenhower had run, he would have been
renominated and reelected. n190
2. The Nixon Years
Between Eisenhower and Nixon the Twenty-Second Amendment generated little
political interest. Despite this relative inattention to the Amendment, some
members of Congress called for its repeal. Joint resolutions to do away with the
Amendment were introduced in the Eighty-Seventh, Eighty-Eighth and Eighty-Ninth
Congresses (between 1961-1966), although none of these measures received a great
deal of political support. n191 Moreover, the two Presidents between Eisenhower
and Nixon each offered views on the Amendment. John F. Kennedy supported the
Amendment. Having voted for it as a member of Congress in 1947, he was asked
during an interview at the end of 1962 whether he still supported the Amendment.
Kennedy responded by explaining: "[eight] years is enough, and I am not sure
that a President, in my case if I [*607] were reelected ... [is placed] at
such a disadvantage" in his second term because of the limits of the Amendment.
n192
As for Kennedy's successor, in his memoirs published during Nixon's first
term, Lyndon Johnson endorsed a single six-year term for Presidents. n193 In
fact, proposals for a single presidential term garnered some political attention
during Nixon's first term, and congressional hearings on the issue were held in
1971 and 1973. n194 Nixon himself indicated that the six-year term should be
further studied, n195 although he had voted for H.J. Res. 27 while a member of
the House of Representatives. n196
In fact, his congressional vote notwithstanding, Nixon may have been
interested in repealing the Amendment. n197 This idea had some popular currency
after Nixon's reelection in 1972. In March 1973, Projects for Peace, Inc., a
York
"76," seeking repeal of the Twenty-Second Amendment. n198 But as revelations
about the President's involvement in the Watergate scandal became public the
repeal movement quickly ebbed. n199
[*608]
3. The Reagan Years
After 1972, the most recent serious repeal effort occurred after Ronald
Reagan's reelection in 1984. n200 In September 1985, Reagan told a group of
conservative state legislators that it was "ridiculous" to prevent voters from
sending Presidents to office for more than two terms. n201 During an interview
the following February, Reagan indicated that while no President should advocate
repeal of the Twenty-Second Amendment "with himself in mind," in the future "we
ought to take a serious look and see if we haven't interfered with the
democratic rights of the people" by limiting their ability to choose a
President. n202
In 1986, Congressman Guy Vander Jagt (then Chairman of the National
Republican Congressional Committee) provided an outlet for Republican interest
in repeal that, the President's protests notwithstanding, remained importantly
linked to the prospect of a third Reagan term. In July, Vander Jagt introduced a
joint resolution calling for a repeal of the Twenty-Second Amendment. n203
Although this measure eventually obtained sixty-five co-sponsors, support for a
third Reagan term waned after revelations about the Iran-Contra affair. n204
[*609] There seems to be mixed evidence about how seriously Republican
political forces considered the repeal effort in the 1980s, with some simply
identifying it as an effective fundraising effort or "gimmick." n205 While
political and popular support for a repeal effort gained little headway after
Reagan, the 1986 movement contributed to an ongoing colloquy on the issue, which
carried over into the 1990s.
4. Opposition to the Twenty-Second Amendment After Reagan
Although Ronald Reagan was the last President to serve as a kind of figurehead
for the repeal effort, interest in abolishing the Twenty-Second Amendment has
persisted, even after he left office in 1989. Resolutions to repeal the
Twenty-Second Amendment have been introduced in every Congress since 1991. n206
In addition, a number of public officials - from both major parties, and from
all branches of government - have [*610] publicly criticized the Amendment and
called for its repeal. n207 Moreover, in recent years, a number of scholars
have also spoken out against the Amendment. n208 And popular enthusiasm for
repeal has been sufficient to generate at least one internet site committed to
undoing the Twenty-Second Amendment. n209
Generally, critics have charged that the Amendment was ill-conceived and
needlessly restricts the democratic choices of the electorate. It is also
unpopular among some who believe it hampers presidential effectiveness. But a
number of commentators have suggested that the Amendment is unlikely to be
repealed, at least "in the foreseeable future." n210 Thus, the question whether
there are constitutional means to circumvent the Amendment is not only an
intriguing theoretical problem but potentially an issue of future political
significance.
[*611]
III. INTERPRETING AND APPLYING THE TWENTY-SECOND AMENDMENT: ASSESSING THE SIX
SCENARIOS
While the Twenty-Second Amendment has been referenced in a number of litigation
settings, neither the Amendment's precise limits concerning its central subject
(the reelection of a President) nor the specific scenarios set out in this
Article have been tested in the courts. n211 We proceed now to analyze the
application of the Twenty-Second Amendment and other constitutional provisions
to the "six scenarios" outlined at the beginning of this Article, which
represent the non-electoral processes through which a twice-elected President
might again serve as President.
We divide Part III into two sections. First, we undertake what can be
described as a conventional legal and interpretive analysis. Second, we consider
the nature of legal arguments [*612] rooted in the "spirit" of the
Constitution in general and the spirit of the Twenty-Second Amendment in
particular, and how these arguments might apply to our scenarios.
A. Legal Analysis of the Twenty-Second Amendment
Before proceeding with our constitutional analysis, it may be helpful to recap
the six ways in which a twice-elected President might reassume Office despite
the Twenty-Second Amendment's prohibition against that person again being
"elected to the office of President." Scenarios 1 and 2 involve situations in
which a Vice President becomes President in the event of the chief executive's
death, resignation, or removal, or acts as President during a period in which
the chief executive is unable to discharge the powers and duties of the Office.
Scenarios 3 and 4 also involve the vice presidency, but unlike Scenarios 1
and 2, these provide for the Vice President-elect to become President if "at the
time fixed for the beginning of the term of the President, the President elect
shall have died," n212 or act as President if "a President shall not have been
chosen before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify." n213
Scenario 5 encompasses the circumstances provided for in the Succession Act
of 1947, n214 which comes into play if the President and the Vice President
both die, resign, or are unable to discharge their duties, or the
President-elect and the Vice President-elect are both constitutionally
unqualified to hold office. And Scenario 6 addresses the situation in which the
House of Representatives would "choose" a President in the event that no person
received a majority of the electoral votes in an election for that Office.
We begin our evaluation of the constitutionality of these scenarios by
examining the text of the Twenty-Second Amendment. We then consider the
legislative history of the Amendment and what insight it may provide in
assessing the scenarios. Next, we turn to constitutional provisions other than
the Twenty-Second Amendment that might assist us in determining its application
and scope. And we complete our conventional interpretive analysis by considering
the constitutional principle of separation of powers. In each of [*613] these
subsections our focus is on the applicability of particular constitutional
provisions or principles to the scenarios in general, although specific
scenarios are discussed where one or more of them warrant particular attention.
1. Text
Recall that the Twenty-Second Amendment specifies:
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 President more than once. n215
Notably, the text of the Amendment restricts only reelection of an already
twice-elected President. n216 The words themselves do not (1) limit the amount
of time, consecutively or cumulatively, a person may serve, or (2) proscribe
such a person from reassuming the Office of President by means other than
election. In this respect, the text of the ratified Twenty-Second Amendment
contrasts with the provisions of other versions of the Amendment considered by
Congress, including, for example, the Senate Judiciary Committee's original
language, which categorically declared that a person serving or acting as
President "on three hundred and sixty-five calendar days or more in each of two
terms shall not be eligible to hold the office of President, or to act as
President, for any part of another term." n217
It is also worth noting the Amendment's limit on reeligibility (to a single
reelection) of a person who has "served as President for more than two years of
a term to which some other person was elected President." n218 Although the
Amendment does not detail the ways in which someone might assume the presidency
without being elected, this provision suggests those adopting it were aware that
the Constitution provides for such a possibility.
These observations alone do not dispose of the question whether any of our
scenarios can withstand constitutional [*614] scrutiny. Nevertheless, they
provide evidence that, on its own, the text of the Twenty-Second Amendment does
not preclude a former president from assuming the presidency through any of the
six non-electoral paths to the presidency we have identified.
2. Legislative History and Intent
Because the text of the Twenty-Second Amendment fails to foreclose our six
scenarios, we next consider the legislative history of the Amendment to help
assess their legality. We acknowledge the difficulties of such an approach.
There are well-developed arguments outlining the perils of divining and applying
legislative intent when interpreting statutes. n219 These arguments seem no
less telling when interpreting a measure ultimately adopted as a constitutional
amendment. Indeed, in the context of the amendment process, the problem of
ascertaining legislative "intent" may be magnified by the abundance of
interpreters who have an opportunity to assess, debate, and support (or reject)
the proposed measure. Whose intent counts in construing the legislative intent
of an amendment? The views of the Congress proposing the amendment? n220 The
views of the states ratifying the amendment? n221 What if these diverge? Should
we consider the views of those states voting after an amendment has already
secured the constitutionally required ratification by three-quarters of the
states? All of the difficulties suggested by these questions are compounded by
observing that many of those who ultimately support an amendment never give
voice to their reasons for doing so.
[*615] Interpreting the legislative intent behind the Twenty-Second
Amendment comes with its own special set of problems. First, the debates were
typically marked by a failure on the part of members of Congress to identify
clearly either the purposes of their amendment proposals or the ways in which
they hoped to effectuate the changes they sought. Second - and no doubt related
to the first problem - the debates featured a remarkable lack of precision in
choosing critical words. At various times the objectives of limiting a
President's "service," "terms," "tenure" and "[eligibility for] reelection" were
seemingly referenced interchangeably, as were a number of phrases describing the
procedures through which members of Congress hoped to attain these ends. These
different phrases were employed without substantial attention to the
implications of these word choices, or to the several ways in which the
Constitution already provided terms and procedures for election, succession, and
other ways in which a person might assume the Office of President without being
elected. n222 Third, it is significant that the congressional deliberations
about the Amendment generally have been considered curtailed. The House debates
took place under a restrictive rule limiting debate to two hours (not a
particularly long time for an amendment to the Constitution), and a number of
commentators have suggested that neither the discussions in Congress nor those
in the state legislatures were particularly extensive or informed. n223
These observations about the difficulty of determining the intent behind the
Twenty-Second Amendment might suggest that no conclusions can be reached with
respect to the six [*616] scenarios under which one may serve as President
without being elected to that Office. There are, however, aspects of the
congressional debates that affirmatively suggest at least some of these
scenarios were contemplated (and not foreclosed) by those adopting the
Twenty-Second Amendment. Like its text, the legislative record of the Amendment
reflects some awareness that individuals can assume the Office of President
without being elected. n224 Missing from the legislative record, however, is
evidence that anyone debating the Twenty-Second Amendment anticipated an
individual being elected President and subsequently acting as President or
becoming President through non-electoral means. Nevertheless - and
notwith-standing the Senate's gradual narrowing of its focus to reelection -
members remained conscious of the difference between being elected President on
the one hand and assuming that Office (temporarily or for the duration of the
term of another) on the other.
In the end, we do not mean to suggest that it is impossible to uncover any
legislative purpose from the debates on the Twenty-Second Amendment. The problem
is that the one evident purpose - to prevent another President from serving four
consecutive terms, as FDR had - is so specific and lacking in nuance that it is
of little service in evaluating the constitutionality of our six scenarios.
Indeed, identifying this legislative purpose tells us nothing about the
permissibility of our scenarios under the Twenty-Second Amendment. n225 And yet
the imprecision and relative brevity of the debates make it difficult to discern
another (more illuminating) objective genuinely shared by those supporting the
Amendment. On the whole then, we conclude that the congressional debates on the
[*617] Twenty-Second Amendment do not provide a basis for declaring any of our
scenarios unconstitutional. n226
3. Other Constitutional Provisions
We turn now to provisions of the Constitution other than the Twenty-Second
Amendment and other than the provisions directly related to the six scenarios
n227 relevant to analysis of the constitutionality of our scenarios: the Twelfth
Amendment and the "Guarantee Clause" of Article IV, Section 4. n228 We consider
these provisions in light of their historical purposes and meaning, as well as
their relationship to the Twenty-Second Amendment and the Constitution as a
whole.
a. The Twelfth Amendment
The Twelfth Amendment provides, in part, that "no person constitutionally
ineligible to the office of President shall be eligible to that of Vice
President of the
system for presidential election outlined in Article II, Section 2 of the
Constitution failed to differentiate between votes for presidential and vice
presidential candidates. Instead, electors simply voted for two individuals and
the person receiving the most votes was made President while the next highest
vote-getter became Vice President.
[*618] The Twelfth Amendment was ratified in response to political turmoil
surrounding the election of 1800. When Republican candidates Thomas Jefferson
and Aaron Burr each received seventy-three electoral votes, the election of 1800
was thrown to the House of Representatives. n230 The House eventually selected
uncertain through thirty-six ballots," resulting in soured relations between
Jefferson and Burr, his Vice President. n231 Dissatisfied with these
developments, and drawing on a suggestion made by Alexander Hamilton, Congress
endorsed, and by 1804 the states ratified, the Twelfth Amendment. n232 The
Amendment requires that electoral votes be cast separately for President and for
Vice President.
Presumably, because presidential and vice presidential candidates were not
formally distinguished prior to the Twelfth Amendment, anyone elected as Vice
President was also qualified to be President. n233 However, once the Twelfth
Amendment bifurcated the selection process for President and Vice President it
apparently seemed necessary to stipulate that a person ineligible to be
President was also ineligible to be Vice President.
What is the relationship between the Twelfth and Twenty-Second Amendments?
Does the Twelfth Amendment's eligibility provision prevent someone twice elected
President from serving as Vice President, thereby foreclosing Scenarios 1-4
(those in which a Vice President or Vice President-elect can ascend to the
presidency without being elected to that Office)?
We believe the Twelfth Amendment does not bar any of these four scenarios.
First, it is by no means clear that the term "eligibility" as used in the
Twelfth Amendment refers to or incorporates a person's reeligibility under the
Twenty-Second Amendment. At the time the Twelfth Amendment was written there
was, of course, no Twenty-Second Amendment; [*619] therefore, the Twelfth
Amendment could not have originally meant to preclude someone from being Vice
President who had been elected President twice. Rather, the Twelfth Amendment's
reference to "eligibility" likely pointed only to the "eligibility" provision of
Article II, Section 1, clause 4, which states that
No Person except a natural born Citizen, or a Citizen of the United States
... shall be eligible to the Office of President; neither shall any Person be
eligible to that Office who shall not have attained to the Age of thirty five
Years, and been fourteen Years a Resident within the United States. n234
Second, even if the Twelfth Amendment's eligibility provision is to be read in
light of the proscriptions of the Twenty-Second Amendment, it could be read as
affecting only persons who would become President. If this understanding is
correct, the Twelfth Amendment's provision that "no person constitutionally
ineligible to the office of President shall be eligible to that of Vice
President of the
simply act as President. In other words, a Vice President "constitutionally
ineligible to the office of President" might occupy the vice presidency and
eventually act as President, while being ineligible to assume that Office by
becoming President through succession. This interpretation would seemingly rule
out Scenarios 1 and 3, while still allowing for Scenarios 2 and 4.
Third, and most importantly, even under the most expansive reading of what
constitutional "eligibility" might include - a reading that superimposes the
Twenty-Second Amendment on the Twelfth - there are good reasons for thinking
that the constitutionality of the scenarios would remain unaffected. As we have
been suggesting throughout this Article, we do not believe an already
twice-elected President is "constitutionally ineligible to the office of
President." Even if one leaves aside Scenarios 1-4, n236 there are [*620]
other non-electoral means of reassuming Office available to a twice-elected
President (viz., Scenarios 5 and 6). Thus, if the meaning of "eligibility" under
the Twelfth Amendment was transformed with the adoption of the Twenty-Second
Amendment, the Twenty-Second Amendment still does not render twice-elected
Presidents "constitutionally ineligible to the office of President," and it
therefore cannot be said that the Twelfth Amendment prohibits a twice-elected
President from serving as Vice President. n237
b. The Guarantee Clause
Another constitutional provision warranting attention is the so-called
"Guarantee Clause," which provides: "The
State in this
dating back to ancient
with a variety of different political principles and institutional arrangements,
n239 and consistently contrasted with monarchic rule. n240
In the American context, the republicanism of the Constitution has been
associated with a commitment to popular rule. n241 The Guarantee Clause was
designed to ensure [*621] that this principle was protected in the individual
states. n242 Thus, the Clause pledges that the "United States shall guarantee
to every State ... a Republican Form of Government." n243
Although there is little judge-made law about the meaning of the Guarantee
Clause, n244 we believe the commitments it embodies arguably are challenged or
undermined by a variant of our scenarios. n245 We therefore turn to that
situation.
[*622] Reconsider our preceding discussion in which we posited that a
twice-elected President might be elected Vice President and then reassume the
Office of President. Specifically, suppose that an elected President immediately
resigns (or otherwise steps aside) with the understanding that the Vice
President (former President) will reassume his or her "rightful" office. This
variant of our scenarios n246 could occur either with the ex ante awareness of
the electorate (and complicity of enough of the electorate to ensure election of
the presidential "proxy"), or as a covert activity, of which the public is
informed only after-the-fact. Can either version of this purposeful effort to
avoid the strictures of the Twenty-Second Amendment be condemned under the
Guarantee Clause?
As noted, the Guarantee Clause provides that the "United States shall
guarantee to every State ... a Republican Form of Government," n247 which
suggests that this guarantee primarily "runs from the
individual states." n248 Given the Clause's reference to the states, it would
be understandable to conclude that a challenge to even the purposeful
substitution of a duly elected President in the federal electoral process does
not implicate the Guarantee Clause. Yet, insofar as the states indirectly,
through the electoral college, elect the President of the
one [*623] might conclude that a purposeful effort to substitute another
person for the President-elect undermines the Clause's guarantee of a republican
form of government. Understood in this way, the Clause may be read not only to
provide a "guarantee" to the individual states n250 but also to forbid
constituting the federal government in a manner that conflicts with the
principles of republican government. n251
Nevertheless, we are skeptical that such substitutions would encroach upon
republican principles in a manner (or to an extent) that violates the Clause.
For instance, where the substitution plan is carried out with the ex ante
knowledge of the electorate, allowing the former President to reassume Office
would seem to facilitate rather than frustrate the democratic will (and serve as
a way of circumventing an amendment that may not allow the public to elect the
person they most want to serve as President). Therefore, this substitution would
be at odds with republican principles only if those principles valued the
formalities of democratic procedure above the genuine fulfillment of popular
sentiment.
In contrast, the covert version of the substitution plan is plainly in
tension with the republican commitment to majority rule. n252 Yet even in this
situation, although the public would not have known of the former President's
intention to reassume the presidency, the electorate would have implicitly
sanctioned that person's return to Office through succession by electing him or
her as Vice President. In addition, the reassumption of Office by the former
President would not [*624] forestall the end of the presidential term and the
opportunity for the electorate to exercise its will again. n253
In view of this, our account of the Guarantee Clause does not suggest a basis
for concluding that any other variant of our six scenarios would pose a
constitutional problem. Having an already twice-elected President serve again in
that Office by virtue of being Vice President or Vice President-elect in
Scenarios 1-4 would not, in itself, subvert popular rule. Similarly, on their
own, Scenarios 5 and 6 would not offend republican principles; under these
scenarios only the reassumption of Office by a twice-elected President in a
manner avoiding or overturning popular will would potentially implicate the
Guarantee Clause.
4. The Separation of Powers
Having examined specific constitutional provisions we turn now to consider
whether the principles associated with the "separation of powers" doctrine
inform an assessment of the constitutionality of our six scenarios. But
identifying the appropriate separation of powers principles to apply is no
simple task. To begin with, although ensuring a separation of powers was clearly
an objective of the Founders they did not include specific separation of powers
provisions in the Constitution. n254 The ultimate source of the doctrine of
[*625] separation of powers has been identified as discrete portions of the
Constitution by some, and as the entire document (as well as additional sources)
n255 by others. Thus, when constructing and applying separation of powers
principles one cannot rely on the Constitution's text in the same way one can in
many other interpretive endeavors.
An additional challenge is presented by the fact that the relevant
jurisprudence addressing separation of powers arguments is somewhat conceptually
untidy and difficult to categorize. Throughout its history, the Supreme Court
has applied the doctrine in diverse and sometimes seemingly inconsistent ways.
Legal commentators attempting to make sense of the Court's decisions have
suggested that contemporary separation of powers doctrine is marked by a
struggle between functional and formalist approaches. n256 Under the functional
view, "the Court emphasizes checks and balances" and eschews strict divisions
between various departments and their powers. n257 The Court embraces a
"functional" approach by recognizing that the separation of powers is necessary
to preserve "the essential functions of each branch" but that rigid boundaries
between the branches are neither desirable nor possible. n258 Alternatively,
under the formalist view, the Court acknowledges "the fundamental necessity of
maintaining each of the three general departments of government entirely free
from the control or coercive influence, direct or indirect, of either of the
others." n259
[*626] Under either approach, is there reason to believe any of the
scenarios we have presented run afoul of separation of powers principles? For
instance, recalling our now-familiar example, what if upon nearing the end of
her second term a previously twice-elected President desired to avoid the
strictures of the Twenty-Second Amendment and continue in office for a third
term - or perhaps longer? Might the extension of that President's tenure collide
with separation of powers tenets by, for example, augmenting the President's
power at the expense of Congress?
Irrespective of how improbable this and similar scenarios might seem, we are
unconvinced that separation of powers concerns alone could render them
unconstitutional. After all, there was no limit on presidential service prior to
ratification of the Twenty-Second Amendment in 1951, and no one, to the best of
our knowledge, seriously suggested before then that serving more than two terms
was unconstitutional. Should separation of powers principles be applied
differently today (or in the future) than they were before 1951? Did the
enactment of the Twenty-Second Amendment transform the relationship of the
federal departments in a way that constitutionally forbids what was previously
permitted?
We concede that the meaning of a constitutional provision may be altered by a
subsequent amendment (and even that separation of powers principles may be
altered by amendments to the Constitution and other changes). Nevertheless, we
find no authority in the text of the Twenty-Second Amendment itself, in the
congressional debates surrounding its proposal and ratification, or among any
other evidence, to suggest that the Amendment was designed to, or did, alter the
allocation of federal powers so profoundly that separation of powers concerns
preclude a twice-elected President from reassuming the Office of President even
though not prevented from doing so by the terms of the Amendment itself. n260
[*627]
B. The Twenty-Second Amendment and the "Spirit" of the Constitution
Having engaged in a conventional analysis of the Twenty-Second Amendment's text
and the relevant legislative record, and having examined other constitutional
provisions as well as separation of powers principles, we have not yet found a
compelling basis for concluding that a twice-elected President could not serve
again through the non-electoral means we have identified. One might contend,
however, that we have failed to consider an obvious basis for arguing against at
least some variants of the scenarios we have outlined - namely, that allowing an
already twice-elected President to reassume Office could amount to an end-run
around the Twenty-Second Amendment, thereby undermining the "spirit" of the
Amendment, the entire Constitution, or both. Although we have doubts that the
scenarios discussed here can be found unconstitutional under a conventional
interpretive analysis, can some of them be declared unconstitutional if judged
contrary to the Constitution's spirit?
Consider again a situation in which a previously twice-elected President ran
as Vice President with the understanding that if elected, the President-elect
would step aside and allow the twice-elected President to serve another term.
Would this contravene the spirit of the Twenty-Second Amendment or the
Constitution generally? n261 Might the [*628] answer to this question depend
on whether the American public is aware the President-elect plans to resign? Or
would it matter if the twice-elected President intended to be Vice President and
reassumed the presidency only upon the unforeseen death, resignation, removal or
disability of the President-elect? The answer to these questions, we believe,
may be gleaned by investigating the nature of "spirit" arguments generally and
applying them to the topic at hand.
There have long been suggestions that one might separate the spirit of the
law from its letter. Both The Federalist n262 and the Supreme Court n263
provided numerous early (if ambiguous) reflections on how analysis of the
Constitution's "spirit" might apply to interpretation of the document. In
assessing the power of Congress to charter the second Bank of the United States,
Chief Justice John Marshall offered his famous test of constitutionality which
drew on the letter-spirit dichotomy:
[*629]
Let the end be legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted to that end, which
are not prohibited, but consist with the letter and spirit of the constitution,
are constitutional. n264
That same year, the Court also asserted that "the spirit of an instrument,
especially of a constitution, is to be respected not less than its letter."
n265 And nearly a half century later the Court, invoking the Constitution's
spirit, condemned an act of Congress as interfering with the right to contract
notwithstanding that the Constitution forbade only states from such
interference. As Chief Justice Chase explained:
It is true that this prohibition [of the Contracts Clause] n266 is not
applied in terms to the government of the United States ...
But we think it clear that those who framed and those who adopted the
Constitution, intended that the spirit of this prohibition should pervade the
entire body of legislation, and that the justice which the Constitution was
ordained to establish was not thought by them to be compatible with legislation
of an opposite tendency. In other words, we cannot doubt that a law not made in
pursuance of an express power, which necessarily and in its direct operation
impairs the obligation of contracts, is inconsistent with the spirit of the
Constitution. n267
Although judicial appeals to constitutional spirit may be less frequent than in
years gone by, the invocations have not ceased. n268 Perhaps the most recent
prominent suggestion that the Constitution's spirit matters in the interpretive
process came from Justice O'Connor in her dissent in Garcia v. San Antonio
Metropolitan Transit Authority, where she declared:
The spirit of the Tenth Amendment ... is that the States will retain their
integrity in a system in which the laws of the United States are nevertheless
supreme.
[*630]
It is not enough that the "end [of Congress] be legitimate'; the means to that
end chosen by Congress must not contravene the spirit of the Constitution."
n269
Notwithstanding the Court's continuing invocation of the Constitution's spirit
- and its likewise persistent suggestion that the Constitution's spirit has some
content independent from (although perhaps related to) the Constitution's text -
we are aware of no sustained judicial or scholarly discussions that elucidate
how text and spirit relate to one another or how the question of "spirit" should
be applied in constitutional analysis. We agree with those commentators who have
observed that the actual substance of the letter-spirit dichotomy is somewhat
elusive. n270 And although a full exploration of the subject of the
Constitution's spirit is beyond the scope of this Article, n271 we offer a
sketch of what an analysis of the "spirit" of the Constitution might entail.
It strikes us there are two general tacks for construing the "spirit" of the
Constitution. Under the first conception, the Constitution's "spirit" is linked
with basic principles that precede, inform, or limit interpretation and
application of the constitutional document. The notion that there are such
principles has numerous historical and scholarly adherents and is sometimes
associated with claims that the Constitution rests on "natural law" principles.
n272 The idea seems generally consistent, for example, with Justice Chase's
suggestion in Calder v. Bull n273 that in addition to the explicit commands of
the Constitution, there exist "certain vital principles in our free [*631]
Republican governments, which will determine and overrule an apparent flagrant
abuse of legislative power." n274
Under the second approach, the Constitution's spirit must be gleaned from its
specific provisions (with some provisions perhaps more important than others).
Gilbert Paul Carrasco and Peter W. Rodino argue, for example, that the
Constitution's preamble should be consulted for insight into the overall
"spirit" of the Constitution, for it gives the "document as a whole its
direction" and in this way enhances constitutional interpretation. n275 Unlike
the "exogenous," background principle conception outlined above, this
"endogenous" conception is based on the understanding that whatever one
construes as the constitutional spirit must arise from the existing provisions
of the Constitution. In the words of Chief Justice Marshall, "the spirit [of the
Constitution] is to be collected chiefly from its words." n276
We believe that neither conception of the Constitution's spirit provides a
basis for declaring unconstitutional the scenarios under which an already
twice-elected President may reassume that Office. This conclusion is not based
on the belief that the spirit of the Constitution is irrelevant to
constitutional interpretation, nor is it based on the belief that spirit alone
can never be the basis for declaring something unconstitutional. Rather, it is
based on the particular conviction that spirit alone is not dispositive of the
issues we examine here and does not rule out any of the ways in which an already
twice-elected President might again assume that Office (or at least the six ways
we have identified).
Consideration of the Constitution's spirit does not suggest an entirely
different constitutional outcome than that provided [*632] by conventional
legal analysis with respect to a question as central as: who may serve as
President of the
imagine, for instance, that a twice-elected President should be prevented from
reassuming Office based on a notion about the spirit of the Constitution if it
is clear that the reassumption of Office would be permitted on all other
interpretive bases. n277
But this conclusion does not leave us without a constitutional basis from
which to criticize some of the scenarios we have presented. Although arguments
founded on the spirit of the Constitution are insufficient to hold our scenarios
unconstitutional, one still might object to the scenarios for failing to comport
with the sensibilities our Constitution and constitutional system have
engendered. For example, in considering a conscious effort to circumvent the
proscription of the Twenty-Second Amendment and install President Clinton for a
third term, we might condemn such an undertaking based on
constitutionally-inspired expectations or convictions, while stopping short of
declaring it unconstitutional.
Borrowing a phrase from Stephen Carter, this and other end-runs around the
Twenty-Second Amendment would seemingly amount to "constitutional
improprieties." n278 Although these improprieties are not foreclosed by the
Constitution from a strictly legal standpoint, they may be challenged on other
bases, including arguments informed by [*633] constitutional principles and
commitments. n279 The conclusion that the Constitution does not forbid an act
does not establish that the act comports with Constitution-based values and
arrangements. In addition to engaging in legal analyses we can, and we should,
debate the virtues of proposed acts, drawing on ideas and ideals shaped by our
constitutional system. In so doing, we may avoid constitutional improprieties
beyond the reach of our laws - even our supreme law.
CONCLUSION
Our analysis leads us to the belief that the Twenty-Second Amendment and the
Constitution as a whole leave open possibilities for a previously twice-elected
President to reassume that Office. This prospect creates the potential for
mischief. For instance, we have suggested that a President nearing the end of
his or her second term and determined to stay in office might run as Vice
President with the idea that the President-elect would step aside, allowing the
already twice-elected President (and Vice President-elect) to serve a third term
without running afoul of the Twenty-Second Amendment's bar on reelection. n280
Regardless of whether such a plan was pursued with the knowledge of the
electorate, there would be inevitable conflict over its legality and wisdom.
But the possibility of an already twice-elected President reassuming that
Office also presents opportunities of potential benefit to the polity. Consider
the applicability of our scenarios to Congress's responsibility to provide for
presidential succession after the Vice President. A number of commentators have
charged that the Succession Act of 1947 may supply a chief executive of
questionable popular legitimacy and with uncertain political prospects. n281 If
these [*634] are legitimate concerns, one might begin to correct them by
enacting a new succession statute that allows former Presidents, including
previously twice-elected Presidents, to act as President during a crisis.
Instead of providing, for example, that the Speaker of the House or the
Secretary of Energy shall assume the Office of President should the need arise,
n282 why not tap an ex-President as temporary presidential caretaker? n283 Such
an individual would have a reservoir of experience and familiarity with demands
of the Office, which could aid the nation in a crisis. n284
Regardless of whether readers subscribe to our conclusions (or our views
about the potential mischief and opportunities flowing from them) we hope our
analysis has made clear that the Twenty-Second Amendment is less simple and
clear than is presumed by many, and that it fails to provide definite answers
about important questions. Given this, and in view of the fact that the
Twenty-Second Amendment allows scenarios for continuing presidential service
that were likely unimagined and surely unaddressed by those who drafted and
ratified it, it is difficult for us to avoid the conclusion, suggested by our
earlier discussions of the congressional debates, n285 that the Amendment was
poorly written.
But we do not believe that the Twenty-Second Amendment should hastily be
repealed or amended. Rather, we counsel a fuller exploration of the Amendment so
that its implications may be better understood. There is inherent value in
understanding even the Constitution's less frequently debated [*635] and
litigated provisions. Moreover, such an exploration has practical value because
some set of circumstances may yet call into question the meaning of the
Twenty-Second Amendment. n286
Presumably, political and popular expectations would discourage the
reassumption of Office, even temporarily, by an already twice-elected President.
Yet, as with the "two-term tradition" that preceded the Twenty-Second Amendment,
existing expectations and perceived customs do not always constrain future
political behavior; whatever reluctance there is to sanctioning a reassumption
of the presidency may someday be tested and ultimately overcome.
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FOOTNOTES:
n1. See, e.g., Lionel Van Deerlin, Second-Term Curse Befalls Bill Clinton,
San Diego Union-Trib., Nov. 12, 1997, at B11, available in LEXIS, News Library,
US File (explaining that after his second term Clinton "cannot serve again");
see also Plugge v. McCuen, 841 S.W.2d 139, 148 (Ark. 1992) (stating that "the
twenty-second Amendment ... limits the President to eight years of service")
(Dudley, J., dissenting).
n2. U.S. Const. amend. XXII, 1. The Amendment further states that "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."
Amendment also stipulates that it did not apply "to any person holding the
office of President" when it was proposed (exempting then-President Truman from
its effects), and provides that it "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."
n3. When using the phrase "twice-elected" we acknowledge that under the
Twenty-Second Amendment a person "who has ... acted as President, for more than
two years of a term to which some other person was elected" is treated as if
"elected" for purposes of determining eligibility for reelection. See id. For
the duration of this Article we shall use the phrases "previously twice-elected"
and "already twice-elected" to include such circumstances.
n4. In addition to being described as preventing an already twice-elected
President from "serving" again, see supra note 1, the Amendment also has been
described as limiting a President's "terms" in Office. See, e.g., Akhil Reed
Amar & Vik Amar, President Quayle?, 78 Va. L. Rev. 913, 939 (1992) (stating that
the Twenty-Second Amendment "limits Presidents to two terms"); Bruce E. Fein,
Original Intent and the Constitution, 47 Md. L. Rev. 196, 206 (1987) ("The
twenty-second amendment limits a President to two terms"); Stephen M. Griffin,
The Problem of Constitutional Change, 70 Tul. L. Rev. 2121, 2138 (1996) (noting
that the Twenty-Second Amendment "limits the President to two terms"); Sean
Wilentz, Over the Hill, New Rep., Oct. 12, 1992, at 40 ("As every schoolchild
should know ... the Twenty-Second Amendment ... limits presidents to two elected
terms in office.").
Still others describe the Amendment as limiting presidential "tenure." See,
e.g., Lyle Denniston, The Center Moves, the Center Remains, 40 N.Y.L. Sch. L.
Rev. 877, 888 (1996) (stating that the Twenty-Second Amendment imposes "a
two-term limit on any president's tenure"); Neil Gorsuch & Michael Guzman, Will
the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed
Term Limits, 20 Hofstra L. Rev. 341, 346 n.24 (1991) (stating that the
Twenty-Second Amendment "limits presidential tenure to two four-year terms").
In general, interpretation and understanding of the Amendment would be
advanced were commentators to describe more precisely the effect of the
Amendment. Cf. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99
Yale L.J. 453, 491 (1989) (explaining that "the Twenty-Second Amendment forbade
the President from seeking a third elected term in office").
n5. Although Nixon resigned before completing his second term, he was
formally prohibited by the Amendment from being elected to a third term.
n6. See John Copeland Nagle, A Twentieth Amendment Parable, 72 N.Y.U. L. Rev.
470, 494 (1997) (calling the Twenty-Second Amendment a "forgotten friend").
n7. See, e.g., Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and
Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 714-15 n.55
(1995) (commenting that any prejudice stemming from the deferral of lawsuits
against a sitting President is tempered because "the Twenty-Second Amendment...
itself assures that plaintiffs will not have to wait more than eight years ...
In rare cases, the Amendment would allow a person to serve as President for ten
years."); Philip Bobbitt, Reflections Inspired by My Critics, 72 Tex. L. Rev.
1869, 1894 (1994) (explaining that the Twenty-Second Amendment "prohibits a
President from serving three terms"); Johnathan Mansfield, A Choice Approach to
the Constitutionality of Term Limitation Laws, 78 Cornell L. Rev. 966, 994
(1993) (calling the Twenty-Second Amendment a "simple[] solution"); see also
Blow to Term Limits, Union Leader (Manchester, NH), May 24, 1995, available in
LEXIS, News Library, ACRNWS File ("The Twenty-Second Amendment... provides a
definite term limit.") (emphasis added).
n8. The Constitution distinguishes between "acting" as President and "being"
or "becoming" President. Compare, e.g., U.S. Const. art. II, 1, cl. 6
(elaborating conditions under which a person might "act as President") with id.
amend. XX, 3 (explaining terms under which a Vice President-elect "shall become
President"). See also Scott E. Gant & Bruce G. Peabody, Musings on a
Constitutional Mystery: Missing Presidents and "Headless Monsters"?, 14 Const.
Comm. 83, 87 n.14 (1997). Here, we consider acting as President and being
President as different ways of "serving" as President.
n9. Later we take up the question of whether a previously twice-elected
President can subsequently serve as Vice President. See infra Part III.
n10. See U.S. Const. amend. XXV, 1.
n11. See id. 3.
n12. See id. 4. The Twenty-Fifth Amendment authorizes "the Vice President and
a majority of either the principal officers of the executive departments or of
such other body as Congress may by law provide" to submit a "written declaration
that the President is unable to discharge the powers and duties of his office"
with the effect that the Vice President shall then act as President.
n13.
n14.
n15. 3 U.S.C. 19 (1994).
n16. See
occurred prior to the ratification of the Twenty-Fifth Amendment, which provides
for the filling of the vice presidency should it become vacant. Prior to 1967,
when the Twenty-Fifth Amendment was ratified, the vice presidency had been
vacant sixteen times. See George C. Edwards III & Stephen J. Wayne, Presidential
Leadership: Politics and Policy Making 460 (1994).
n17. See U.S. Const. amend. XX, 3 (empowering Congress to "provide for the
case wherein neither a President-elect nor a Vice President-elect shall have
qualified").
While Congress has passed a single statute to provide for the succession
circumstances referenced in both Article II, 1 and the Twentieth Amendment, it
might have chosen instead to enact separate laws addressing the contingencies
described by these constitutional provisions. Furthermore, while the Succession
Act of 1947 is the current "law of the land," this legislation might change in
the future; indeed we speculate later about the wisdom and propriety of revised
succession legislation.
n18. See U.S. Const. amend. XII. We presume that this is the scenario most
likely to be viewed as legally suspect. It hinges upon the idea that the House's
"choosing" of a President is not an "election." If the House does not "elect" a
President through its "choosing," then a twice-elected President might not only
reassume the Office as the House's choice as provided for in the Twelfth
Amendment, but also through a statute (as yet unpassed) allowed for by the
Twentieth Amendment. See U.S. Const. amend. XX, 4 (stating that "Congress may by
law provide for the case of the death of any of the persons from whom the House
of Representatives may choose a President whenever the right of choice shall
have devolved upon them").
n19. It may be helpful to conceptualize our scenarios by organizing them
temporally, grouping them by stages in the electoral process. Thus, Scenario 6
would take place only if the election had been thrown to the House; Scenarios 3,
4, and 5b would occur only if a President and Vice President had been "elected"
but had not yet formally entered Office and begun their terms; and Scenarios 1,
2, and 5a could occur only once a term - as defined by the Twentieth Amendment -
had begun (and the President and Vice President had actually been elected).
Scenarios 3, 4 and 5b, then, necessarily beg the question of when has an
"election" taken place and a presidential candidate become a President-elect.
Does this occur after the national election? Is it after the electoral college
has convened and cast its votes, but not yet announced them or had them formally
counted? Or is it after it has convened and had its votes counted and certified
by the President of the Senate and Congress (as specified by the Twelfth
Amendment)? If a person is considered President-elect only upon having his or
her status certified by the electoral college's formal announcement, what is the
constitutional status of a candidate who dies after the college has cast its
votes but before it has convened? For a general discussion of some of these
issues, see Walter Berns, After the People Vote: Steps in Choosing the President
(1983).
n20. Some may suggest that the scenarios set out in this Article are
implausible because the nation would never countenance a President continuing
his or her service through the methods we have identified, and that the
scenarios therefore fail to warrant the attention we have given them. We
disagree for a number of reasons, among these our belief that what is
unimaginable today might become conceivable in the future. Cf. D.M. Risinger,
Honesty in Pleading and Its Enforcement: Some "Striking' Problems with Federal
Rule of Civil Procedure 11, 61 Minn. L. Rev. 1, 57 (1976) (arguing that "today's
frivolity may be tomorrow's law" and noting further that "the law often grows by
an organic process in which a concept is conceived, then derided as absurd (and
clearly not the law), then accepted as theoretically tenable (though not the
law), then accepted as the law"). Moreover, part of taking constitutionalism
seriously is to stretch and test the terms of our constitutional document and
the traditions and practices that it helps to generate. We have tried to do so
here.
n21. Part II generally puts off prolonged discussion of how our historical
observations bear on the six scenarios; these issues are examined closely in
Part III.
n22. See Thomas E. Cronin, Presidential Term, Tenure and Reeligibility, in
Inventing the American Presidency 61, 62 (Thomas E. Cronin ed., 1989).
n23. See id. at 62-63.
n24. See id. at 64.
n25.
n26. Articles of Confederation art. IX.
n27. See The Anti-Federalist Papers and the Constitutional Convention Debates
118-19, 130-31, 141, 166-68, 170 (Ralph Ketcham ed., 1986) [hereinafter
Anti-Federalist Papers]; 2 James Madison, The Debates in the Federal Convention
of 1787 Which Framed the Constitution of the United States of America 48, 270,
274, 282, 287, 313, 318-23, 325 (Gaillard Hunt & James Brown Scott eds., 1987).
According to political scientist Thomas Cronin, "at least sixty votes were taken
on the issues of the proper length of term for the president, of who should do
the electing, and of reeligibility." Cronin, supra note 22, at 65.
n28. See Samuel Eliot Morison et al., A Concise History of the
n29. Early versions of the Constitution included a proposal that the
President be directly elected by the federal legislature. Critics charged that
the only way to guarantee an independent executive under this arrangement was to
limit service to one term. See Anti-Federalist Papers, supra note 27, at 119,
130. The insistence of some Convention delegates that the President be "elected"
rather than chosen by the legislature may lend some support to our supposition
that the House of Representatives' "choosing" of a President (under the terms of
the Twelfth Amendment) is not an "election" as the term is used in the
Twenty-Second Amendment. See supra note 18 and accompanying text (discussion of
Scenario 6).
n30. See Anti-Federalist Papers, supra note 27, at 141. Specifically, Article
Ten of the August 6, 1787 version of the Constitution stated that the President
"shall hold his office during the term of seven years; but shall not be elected
a second time."
n31. At one point during the Convention proceedings
the chief executive be chosen for life, remaining in office as long as he
maintained "good behavior." See Stephen W. Stathis, Presidential Tenure: A
History and Analysis of the President's Term of Office, Cong. Res. Serv. Rep.
No. 81-129, at 10 (1981).
n32. See Cronin, supra note 22, at 68.
n33. See 2
n34. While beginning his career in
political mentor, Robert Morris. See The Reader's Companion to American History
750-51 (Eric Foner & John A. Garraty eds., 1991).
n35. Anti-Federalist Papers, supra note 27, at 117.
n36.
n37.
the Twenty-Second Amendment. The power of Morris's arguments is suggested by
their continuing resonance among those supporting presidential reeligibility
before and after the ratification of the Twenty-Second Amendment.
n38.
n39. See Richard B. Bernstein & Jerome Agel, Amending
Constitution so Much, Why Do We Keep Trying to Change It? 150 (1993).
n40. See The Federalist No. 69, at 415-23 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
n41.
n42. The Federalist No. 72, at 437 (Alexander Hamilton) (Clinton Rossiter
ed., 1961).
n43. David Kyvig, Explicit and Authentic Acts: Amending the U.S.
Constitution, 1776-1995, at 325 (1996); see also Louis W. Koenig, The Chief
Executive 64 (1964) ("The principle of unlimited eligibility for re-election was
innocently but irreparably undermined in practice by the man in whose behalf it
had been established, George Washington himself."); Sidney M. Milkis & Michael
Nelson, The American Presidency 90 (1994) ("[Washington's] retirement set a
precedent for limiting presidents to two terms that endured for nearly 150
years."); Alan Grimes, Democracy and the Amendments to the Constitution 114
(1978) ("There was no argument that the two-term tradition had been begun by
Washington, supported by Jefferson, and observed by all succeeding Presidents
prior to Franklin Roosevelt."); Edward S. Corwin, The President: Office and
Powers 43 (1948) ("The custom which limits any individual's tenure of the
presidential office to two terms was initiated by Washington himself ....");
Johnathan Mansfield, A Choice Approach to the Constitutionality of Term
Limitation Laws, 78 Cornell L. Rev. 966, 995 (1993) (explaining that "George
Washington established the precedent" that Presidents should refuse to seek a
third-term).
n44. Doris
n45. In addition to Franklin Delano Roosevelt, Ulysses S. Grant and Theodore
Roosevelt appear to have been prepared to serve as President for more than two
terms. See infra notes 81-83 and 91-93 and accompanying text.
n46. Paul G. Willis & George L. Willis, The Politics of the Twenty-Second
Amendment, 5 W. Pol. Q. 469, 469 (1952).
n47. Ironically, it is the standing of Washington himself that may have
prompted the constitutional Framers to allow the president to be reeligible.
There is substantial evidence suggesting that the Framers' commitment to
reeligibility was predicated upon the understanding that
continue to serve as President. See Corwin, supra note 43, at 43 (stating that
"the prevailing sentiment of the Convention of 1787 favored the indefinite
reeligibility of the President, a sentiment which was owing in considerable part
to the universal expectation that
chosen President, and would be willing to serve indefinitely").
n48. Richard Brookhiser posits that "had
there is no question that he would have been reelected once more." Richard
Brookhiser, Founding Father 100 (1996). On the political impact of
refusal to run for a third term, see Gordon S. Wood, The Radicalism of the
American Revolution 205-06 (1991) and Brookhiser, supra, at 101-03.
n49.
but he was persuaded by Hamilton, Jefferson, and Madison to make himself
eligible again, and he did not publicly resist his reelection. See Brookhiser,
supra note 48, at 84-85. As we discuss below, there are good reasons to think
that what
future presidents were two different matters. See infra notes 53-55 and
accompanying text.
n50. George Washington, Draft of Farewell Address (1792) in Young B. Smith,
The Third Term Principle and its Significance Today 3 (1940). See generally
n51. See our discussion of
n52.
and completed with the assistance of Alexander Hamilton, but the language on
"rotation" was not included. See Smith, supra note 50, at 25.
n53. Earl Spangler notes that "
to run again in 1800." Earl Spangler, Presidential Tenure and Constitutional
Limitation 9 (1977).
n54. See Milkis & Nelson, supra note 43, at 303 ("
voluntarily from the presidency after two terms... not as a matter of principle
but because he longed for "the shade of retirement.'").
n55. Cronin, supra note 22, at 77.
n56. For a discussion of the Convention debates concerning whether
presidential "rotation" should be secured through constitutional mechanisms, see
2
n57. Letter from George Washington to the Marquis de Lafayette (Apr. 28,
1788), reprinted in Corwin, supra note 43, at 389.
n58.
service by attacking the view that
Fess insisted "I will not admit that he believed that a third term was vicious,
or that he ever thought it was unpatriotic, or that he thought it would not be a
wise course." 93 Cong. Rec. 1949 (1947) (reprinting an excerpt from the
Congressional Digest of 1938).
n59. See Milkis & Nelson, supra note 43, at 90 ("Although Washington did not
intend that it do so, his voluntary retirement set a precedent for limiting
presidents to two terms that endured for nearly 150 years.").
n60. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in The
Political Writings of Thomas Jefferson 140 (Edward Dumbauld ed., 1955).
Jefferson originally supported only a single (seven-year) presidential term, but
he was convinced by
without aggrandizing the powers of the Office. See Milkis & Nelson, supra note
43, at 90; Letter from Thomas Jefferson to John Taylor (Jan. 6, 1805), in The
Political Writings of Thomas Jefferson, supra, at 142.
n61. Spangler, supra note 53, at 10.
n62. See Letter from Thomas Jefferson to John Taylor, in The Political
Writings of Thomas Jefferson, supra note 60, at 142.
n63.
n64. See Bernstein & Agel, supra note 39, at 150.
n65. Letter from Thomas Jefferson to John Taylor, in The Political Writings
of Thomas Jefferson, supra note 60, at 142.
n66. See infra note 72 and accompanying text.
n67. In the 1824 presidential election,
John Quincy Adams 84, and Henry Clay 37. Since no candidate received a majority,
the presidential selection was sent to the House where Clay threw his votes to
"corrupt bargain" was struck between Adams and Clay, a charge that became more
pointed when
Dictionary of American History 228 (John Mack Faragher ed., 4th ed. 1991).
n68. At the beginning of each session of Congress for the next five years,
terms. See Stathis, supra note 31, at 29.
n69. Spangler, supra note 53, at 11.
n70. See id.; see also Joseph E. Kallenbach, Constitutional Limitations on
Reeligibility of National and State Chief Executives, 46 Am. Pol. Sci. Rev. 442
(1952).
n71. 10 Cong. Deb. 321 (1892) (statement of Rep. Buchanan), reprinted in
Smith, supra note 50, at 8. Buchanan continued his remarks by arguing that "this
principle [that no President shall be reelected more than once] is [sic] now
become as sacred as if it were written in the Constitution."
n72. See Moves to Limit the Term, 1787-1947, 26 Cong. Dig. 14, 15 (1947)
(summarizing political initiatives to limit "the Presidential tenure of office"
from 1787 to 1947).
n73. See Spangler, supra note 53, at 20; see generally id. at 17-25.
n74. See id. at 21; see also 93 Cong. Rec. 1953 (1947) (statement of Sen.
Lodge). The states were:
Hampshire
n75. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or
Partisan Maneuver?, 7 Const. Comm. 61, 64 (1990) (quoting Grant).
n76.
n77. See Moves to Limit the Term, supra note 72, at 15 (noting that Grant
argued "that the Constitution did not restrict the Presidential term to two
terms, and that under certain circumstances it might be unfortunate to make a
change at the end of eight years").
n78. Cong. Globe, 44th Cong., 1st Sess. 228 (1875) (quoting the resolution
proposed by Rep. Springer), reprinted in Smith, supra note 50, at 9.
n79. Grant's 1876 "bid" was officially terminated when the Republican
National Convention nominated Rutherford B. Hayes.
n80. See 93 Cong. Rec. 1953 (1947) (statement of Sen. Lodge). After the
election of 1876 - which was again thrown to the House - President Hayes
"recommended a single six-year term ... in his first inaugural address." Moves
to Limit the Term, supra note 72, at 15.
n81. See Spangler, supra note 53, at 27-42 (discussing Grant and the
possibility of his being elected to a third term).
n82. See Stathis, supra note 75, at 64; Morison et al., supra note 28, at 413
(detailing the history of Grant's 1880 "candidacy").
n83. Indeed, Spangler has speculated that if not for the 1880 Republican
Convention's rejection of the unit rule - awarding the entirety of a state
delegation's votes to the winner of a majority of the delegates - Grant would
have secured the nomination. See Spangler, supra note 53, at 39.
n84.
the second of these elections (in 1888) he lost the electoral college vote to
Benjamin Harrison.
supra note 43, at 462.
n85. See Moves to Limit the Term, supra note 72, at 16. According to
Congressional Research Service historian Stephen Stathis,
virtually nothing to discourage talk of a fourth nomination" in 1896, although
he was not ultimately selected by his party. Stathis, supra note 31, at 33.
n86. See generally Richard Hofstadter, The Age of Reform (1955); Gabriel
Kolko, The Triumph of Conservatism (1963); Nancy Unger, Progressivism (circa
1890s to 1917), in 2 Political Parties and Elections in the United States 888-89
(L. Sandy Maisel ed., 1991).
n87. Moves to Limit the Term, supra note 72, at 16 (providing an excerpt from
the Democratic platform).
n88. See Spangler, supra note 53, at 12 (discussing political speculation
surrounding McKinley).
n89. Smith, supra note 50, at 11-12 (quoting Theodore Roosevelt) (citations
omitted).
n90. See Morison et al., supra note 28, at 527 (describing
growing misgivings about Taft).
n91. See Bernstein & Agel, supra note 39, at 157.
n92. See Spangler, supra note 53, at 12.
n93. See Morison et al., supra note 28, at 527-28.
n94. See Spangler, supra note 53, at 82.
n95. See S.J. Res. 78, 62d Cong. (1913).
n96. See Moves to Limit the Term, supra note 72, at 16 (describing the
outcome of the "Works' Resolution"); cf. generally Spangler, supra note 53, at
83-92 (discussing the politics of presidential term limits around the period of
the Taft administration).
n97. 93 Cong. Rec. 1954 (1957) (citations omitted).
n98. See Koenig, supra note 43, at 64 (noting that
repudiated" the presidential term-limit plank of the Democratic platform).
n99. See Milkis & Nelson, supra note 43, at 304 (arguing that
have liked to serve another four years" but was too unpopular to be
renominated); Spangler, supra note 53, at 12.
n100. See Spangler, supra note 53, at 13. Coolidge's suggestion that he might
have run for a third term may have prompted passage of the La Follette
Resolution discussed infra note 133. See Smith, supra note 50, at 14 (arguing
that "opposition of Democrats, Progressives and Independents" to the "mere
possibility" of Coolidge serving for a third term prompted passage of the La
Follette Resolution).
n101.
McKinley's death and would have been treated as if "twice-elected" under the
terms of the Twenty-Second Amendment.
n102. We do not offer any conclusions about whether the motivations behind
the adoption of the Twenty-Second Amendment were primarily partisan or were
bound up with a broader concern that an important constitutional custom needed
to be clarified and codified. In general, we do not think it terribly realistic
or feasible to separate entirely these different motivations, and, at any rate,
there is plausible evidence on both sides of the issue. For an argument that the
Twenty-Second Amendment was essentially a partisan measure, see Grimes, supra
note 43, at 113-22. Stephen Stathis also builds a strong case that the Amendment
was passed by a coalition of Republicans and southern Democrats opposed to
68-72.
n103. Speculation about a third term for FDR arose almost immediately after
his 1936 reelection, but FDR's early insistence that he would not run and his
later silence on the issue seem to have somewhat diffused attention towards the
issue prior to 1940. See generally Spangler, supra note 53, at 96-106.
n104. See generally id. See also Milkis and Nelson, supra note 43, at 304.
Public opinion regarding a third-term run by
critical turning point between the summers of 1936 and 1937. During this period
a (narrow) majority of those polled went from being for a "two term limit" to
being against it, although between April 1943 and December 1943, this position
switched again. See Kallenbach, supra note 70, at 450 n.43; see also infra note
111.
n105. Stathis, supra note 75, at 65; Kyvig, supra note 43, at 325.
n106. See Kyvig, supra note 43, at 327 (discussing the remarks of Congressman
Karl Mundt who warned that if Presidents continued to remain in office for
protracted periods "Americans might lose the freedom to vote officials out of
office, as had Germans under Hitler"). See generally Subcommittee of the Senate
Judiciary Committee on the Subject of Limitation of Tenure of Office of the
President of the United States (Sept. 9, 1940) (statement of Jacob Gould
Schurman) (arguing for a strict limitation on the number of years a President
could serve), reprinted in Thomas H. Reed, The Fundamental Issue: A Brief
Against the Third Term (1940).
n107. See Kyvig, supra note 43, at 326.
n108. See Spangler, supra note 53, at 120.
n109. The states were
their resolutions before the 1940 election, and
Limit the Term, supra note 72, at 16.
n110. Kyvig, supra note 43, at 326. The Republican platform of 1944 also
contained a plank for limiting the number of terms a President could serve. See
id.; Moves to Limit the Term, supra note 72, at 16. Wilkie promised to promote
the Convention's pledge immediately upon election.
n111. Between April 29 and May 5, 1943, the
"Would you favor adding a law to the constitution to prevent any President of
the United States in the future from serving more than two terms?" Responses
were: Yes - 47%, No - 46%, and No Opinion - 7%. During the same period
asked a different group a slightly different question: "Would you favor adding a
law to the constitution which would prevent any President of the
from being reelected in the future if he has already served two terms?"
Responses were: Yes - 45%, No - 48%, and No Opinion - 6%. This same question was
asked four times during 1943 and 1944. The responses were: Yes - 45%, No - 49%,
and No Opinion - 7% (May 1943); Yes - 50%, No - 43%, and No Opinion - 7%
(November-December 1943); Favor - 57%, Oppose - 43% (March 1944); and Yes - 54%,
No - 41%, and No Opinion - 5% (June 1944). Also during that same period, in June
1944,
would prevent any President of the
year's election if he has already served two terms?" Responses were: Yes - 62%,
No - 32%, and No Opinion - 6%.
n112. Of course, the electorate may have voted for
compelling expediency even while condemning or thinking unwise the prospect of
having a President serve for third and fourth terms.
n113. See Kallenbach, supra note 70, at 450 n.43.
n114. Kyvig, supra note 43, at 325.
n115. Herbert S. Parmet & Marie B. Hecht, Never Again: A President Runs for a
Third Term 268 (1968) (quoting Franklin Delano Roosevelt).
intimation - that the political crisis facing the nation should allow him to
continue his service - is not dissimilar from the statements made by those who
generally supported limited presidential service, including Jefferson and Grant.
See our discussion of these Presidents, supra notes 65 and 76 and accompanying
text.
n116. On Roosevelt's efforts to "pack the Court" with justices sympathetic to
his New Deal measures, see Mark E. Herrmann, Looking Down From the Hill: Factors
Determining the Success of Congressional Efforts to Reverse Supreme Court
Interpretations of the Constitution, 33 Wm. & Mary L. Rev. 543, 564-65 nn.126-27
(1992); see generally David E. Kyvig, The Road Not Taken: FDR, the Supreme
Court, and Constitutional Amendment, 104 Pol. Sci. Q. 463 (1989).
n117. On FDR's reorganization of the executive branch, see Richard Polenberg,
Reorganizing Roosevelt's Government (1966).
n118. Arguments along this general line developed during the congressional
debates over the Twenty-Second Amendment. As one Representative contended,
interest in the Twenty-Second Amendment grew
directly out of the unfortunate experience we had in this country in 1940 and
again in 1944 when a President who had entrenched himself in power by use of
patronage and the public purse refused to vacate the office at the conclusion of
two terms, but used the great powers of the Presidency to perpetuate himself in
office.
93 Cong. Rec. 857-58 (1947) (remarks of Rep. Karl Mundt). For an argument that
FDR's tenure and the New Deal ushered in the "modern" presidency, see generally
Fred I. Greenstein, Change and Continuity in the Modern Presidency, in The New
American Political System (Anthony King ed., 1978); Fred I. Greenstein,
Introduction: Toward a Modern Presidency, in Leadership in the Modern Presidency
(Fred I. Greenstein ed., 1988). For an argument that features of the "modern"
presidency are not recent developments, see Jeffrey K. Tulis, The Rhetorical
Presidency (1987) (especially ch. 1).
n119. See 93 Cong. Rec. 847, 864 (1947) (remarks of Rep. Graham, discussing
the history of efforts to limit presidential reeligibility).
n120. The resolution specified "that no person who has been twice
successively elected President shall be eligible as President until four years
elapse, when he may be eligible to office for four years and no longer." Moves
to Limit the Term, supra note 72, at 15.
Not surprisingly, each of the three times the presidential selection process
has been sent to the House of Representatives, calls to reform the presidential
selection process, including calls for limiting the number of times a President
could be elected, have followed.
n121. See James L. Sundquist, Constitutional Reform and Effective Government
41 (1986).
n122. See Stathis, supra note 31, at 29.
n123. Neither the 1824 nor the 1826 measure approved by the Senate was
supported by the House. See Moves to Limit the Term, supra note 72, at 15;
Stathis, supra note 75, at 63; Sundquist, supra note 121, at 41 n.1. Kyvig has
mistakenly identified the 1824 and 1826 resolutions as House measures. See
Kyvig, supra note 43, at 326.
n124. See Spangler, supra note 53, at 10.
n125. In 1841, the legislatures of
single presidential term. See Stathis, supra note 31, at 29.
n126. See our discussion of Grant, supra text accompanying notes 73-83.
n127. Moves to Limit the Term, supra note 72, at 15. The measure was
introduced by Representative William M. Springer. See id. Kyvig has mistakenly
identified the 1875 amendment as an initiative of the Senate. See Kyvig, supra
note 43, at 326.
n128. See Moves to Limit the Term, supra note 72, at 16. From 1789 to 1889
Congress passed an average of 1.25 term-limit proposals per session (125 total)
and from 1890 to 1946 an average of 1.79 term-limit proposals per session (100
total), including one proposal to limit the term to 5 years, 79 to limit it to 6
years, 3 to limit it to 7 years, 3 to limit it to 8 years and 14 to limit it to
two terms of 4 years.
n129. See 93 Cong. Rec. 1954 (1947) (excerpt from the Congressional Digest of
1938 reprinted in the Congressional Record at the request of Sen. Kilgore).
n130. See id.
n131.
n132. See Moves to Limit the Term, supra note 72, at 16.
n133. See S. Res. 128, 70th Cong., 1st Sess. (1928); see also Grimes, supra
note 43, at 114-15; Stathis, supra note 75, at 62-64.
n134. For a representative account of these concerns, see 93 Cong. Rec. 852
(1947) (remarks of Rep. Jennings):
Without such a limit on the number of terms a man may serve in the Presidency,
the time may come when a man of vaulting ambition becomes President. Such a man,
clothed with the vast powers of the Presidency and backed by a subservient
Congress, as Commander in Chief of our Army and Navy, could well have in his
hands the two mightiest instrumentalities of governmental power, the sword and
the purse.
n135. Generally speaking, joint resolutions deal with legislative matters of
an unusual nature (such as proposed constitutional amendments) while concurrent
resolutions address issues of organization, procedure, and opinion relevant to
both houses and issues of concern to a single chamber. See Richard A. Watson,
Presidential Vetoes and Public Policy 20 (1993).
n136. See 93 Cong. Rec. 47-48 (1947).
n137.
n138. H.R. Rep. No. 80-17, at 1 (1947) (emphasis added).
n139. The Committee Report contains no discussion about why the Committee
amended the original language of H.J. Res. 27.
n140. See Kyvig, supra note 43, at 327.
n141. See 93 Cong. Rec. 872 (1947) (listing the results of voting for H.J.
Res. 27). Koenig describes the Twenty-Second Amendment as resulting from "a
mixture of political motivations, partisan and personal" and as "posthumous
revenge against Franklin Roosevelt." Koenig, supra note 43, at 66. For
background on the changing partisan alignments that help to explain the
coalition that supported the Twenty-Second Amendment, see generally Walter Dean
Burnham, Critical Elections and the Mainsprings of American Politics (1970) and
James L. Sundquist, Dynamics of the Party System (1983).
n142. S. Rep. No. 80-34, at 1 (1947) (emphasis added).
n143. The proposal, which would have fixed the maximum tenure of all elected
federal officials at six years, was defeated 82-1 on March 7. See 93 Cong. Rec.
1794 (1947).
n144.
n145. Id. Magnuson later explained that the "only purpose [of his amendment]
is to make it simple so that the people of the United States will know what they
are voting on when it is presented to the States."
n146.
discussion in the Judiciary Committee about how the term limit proposal would
affect an acting President, the precise content of this discussion is only
alluded to in the Committee report. See S. Rep. No. 80-34, supra note 142.
n147. 93 Cong. Rec. 1863 (1947).
n148.
n149.
n150.
(under the Senate Committee proposal) for an individual "accidentally" placed in
the presidency for a year, who then desired to run for office. See id. at 1863
(remarks of Sen. Lucas). It is not entirely clear what proposal Tydings favored;
he did indicate at one point that he wished to "see the Presidency limited to
two terms," although it is not obvious how this (vague) formulation would
necessarily address his concerns about limiting the electoral options of those
propelled into the presidency through non-electoral means.
n151. Indeed, many of the very questions that Magnuson suggested were beyond
the immediate purposes of the Amendment seem to have preoccupied the Judiciary
Committee. See S. Rep. No. 80-34 (1947); 93 Cong. Rec. 1863 (1947).
n152. 93 Cong. Rec. 1864 (1947) (remarks of Sen. Hickenlooper) (emphasis
added).
n153.
n154.
with the figure of 11 1/2 years although it appears to have been merely an
example of how long someone might serve (as opposed to a perceived absolute
limit of service) under Magnuson's amendment. Taft and his colleagues do not
seem to be wholly consistent in interpreting the Magnuson amendment on this
point. Despite his references to 11 1/2 years, Taft suggests at one point that
eleven years was the "extreme" for the amendment, and at still another point
argued that the amendment "might permit a man to serve 12 years if the President
should die between the date of the election and the date of his inauguration."
Our analysis is consistent with this last interpretation. It appears that the
Magnuson amendment would have allowed a Vice President to serve as acting
President for what would be essentially a full term (minus only however long the
President served) in addition to two full terms as elected President.
n155. See id. at 1944-45.
n156. See id. at 1938.
n157.
n158. See id. (remarks of Sen. Taft) ("I believe that the language of the
suggested amendment is somewhat clearer than the language of the committee
amendment.").
n159. See 93 Cong. Rec. 1978, 2389 (1947). Article Five of the Constitution
only specifies that "two thirds of both Houses" are required to propose
amendments. One might read this as requiring proposals by two-thirds of the
total membership of each house (a requirement that would invalidate many current
amendments to the Constitution, including the Twenty-Second). Yet in 1920 the
Supreme Court ruled that the two-thirds requirement referred to a quorum rather
than full congressional membership. See The National Prohibition Cases, 253
350, 386 (1920); see also John R. Vile, Contemporary Questions Surrounding the
Constitutional Amending Process 8 (1993). Since those voting numbered
eighty-two, the measure required fifty-five votes for two-thirds passage.
n160. 93 Cong. Rec. 2392 (1947). While the margin of votes met the
constitutional two-thirds requirement, the actual number of voters was
considerably less than the full House. (The final vote in the House was 81-29.)
As Everett Brown notes, "objection to the vote on the grounds of absence of a
quorum was made and then withdrawn."
President, 41 Am. Pol. Sci. Rev. 447, 447 (1947).
n161. See Kyvig, supra note 43, at 331; see also Nelson and Milkis, supra
note 43, at 305 (describing the ratification process). The four years it took to
ratify the Twenty-Second Amendment was longer than it took to ratify any other
amendment except for the Twenty-Seventh, whose constitutional standing has been
the subject of debate because of the 203 years required for its ratification.
See Stewart Dalzell & Eric J. Beste, Is the Twenty-Seventh Amendment 200 Years
Too Late?, 62 Geo. Wash. L. Rev. 501 (1994).
n162. See Stathis, supra note 75, at 70.
n163. James W. Davis, The American Presidency 406 (1995).
n164. See 93 Cong. Rec. 2390 (1947) (remarks of Sen. Michener).
n165. As Senator Revercomb explained, "I believe there should be a definite
and fixed time beyond which no man, whoever he may be, now or in the future,
through the life of the Nation, may hold the office of President."
(remarks of Sen. Revercomb).
n166. One of the ironic developments of the Twenty-Second Amendment is that a
measure initiated and passed in large measure by Republican efforts has formally
constrained three Republican Presidents (Eisenhower, Nixon, and Reagan) and only
one Democrat (Clinton).
n167. To the best of our knowledge, no serious repeal effort has been
proposed since
the issue, although he has said about running for a third term: "I'd do it
again... if I could." See Nancy Mathis & Alan Bernstein, Clinton Gives City the
Old College Try; President Emphasizes Education, Houston Chronicle, Jan. 10,
1998, at A1 (noting the restrictions of the Twenty-Second Amendment).
n168. Dwight D. Eisenhower, The President's News Conference of October 5,
1956, in Public papers of the Presidents: Dwight D. Eisenhower, 1956, at 860
(David C. Eberhart ed., 1958). Despite this early public support for
reeligibility, Louis Koenig suggests that "both before and after assuming
office" Eisenhower was intrigued with the idea of serving a single term and then
ceding the Office to someone younger. "Eisenhower came within an eyelash of
incorporating this proposal into his first inaugural address ... [but a]t the
last minute he was talked out of it." Koenig, supra note 43, at 64.
n169. See Stathis, supra note 31, at 44.
n170. See Stathis, supra note 75, at 73.
n171. 103 Cong. Rec. 825 (1957) (remarks of Sen. Richard Neuberger).
n172. See President Bars a 3rd-Term Race Even If "They Repeal' Ban on It,
N.Y. Times, Jan. 31, 1957, at 14.
n173. Representative Stewart Udall, with the assistance of the American
Historical Association and the American Political Science Association, surveyed
over thirty leading historians and political scientists on the question of
repealing the Twenty-Second Amendment and reported the results to Congress.
Twenty-four of the twenty-nine who responded favored immediate repeal. See 103
Cong. Rec. 843 (1957).
n174. Truman was exempted from the reach of the Amendment, which specified
that it "shall not apply to any person holding the office of President when this
Article was proposed by the Congress." U.S. Const. amend. XXII, 1.
n175. Truman apparently retreated from an earlier position approving limits
on presidential service, reflected in his statement: "When we forget the example
of such men as Washington, Jefferson and Andrew Jackson, all of whom could have
had a continuation in the office, then we will start down the road to
dictatorship and ruin." 2 Harry S. Truman, Memoirs: Years of Trial and Hope
488-89 (1956). In a 1952 press conference, Truman also indicated that "eight
years were enough for any man to demonstrate what he could do for the welfare of
the nation."
n176. Kyvig, supra note 43, at 334 (quoting Subcommittee on Constitutional
Amendments of the Senate Committee on the Judiciary on Repeal of the 22nd
Amendment (May 4, 1959) (statement of Harry S. Truman)).
n177. Paul B. Davis, The Results and Implications of the Enactment of the
Twenty-Second Amendment, 9 Pres. Stud. Q. 289, 290 (1979) (quoting Harry S.
Truman).
n178. Dwight D. Eisenhower, The President's News Conference of May 13, 1959,
in Public Papers of the Presidents: Dwight D. Eisenhower, 1959, at 387 (David C.
Eberhart ed., 1960). It is not clear why Eisenhower changed his position about
the wisdom of the Twenty-Second Amendment. Kyvig suggests that "Eisenhower,
reflexively at odds with his predecessor" recanted his position simply to be
contrary to Truman. Kyvig, supra note 43, at 335.
n179. See Kyvig, supra note 43, at 334-35; Stathis, supra note 75, at 73.
n180. See Nixon is His Choice, President Indicates, N.Y. Times, Jan. 14,
1960, at 17.
n181. Dwight D. Eisenhower, The President's News Conference of January 13,
1960, in Public Papers of the Presidents: Dwight D. Eisenhower, 1960-1961, at 23
(Warren R. Reid ed., 1961). Eisenhower's comments prompted some scholarly and
political commentary on the issue. Former Secretary of State Dean Acheson, for
example, said that the prospect of Eisenhower running as Vice President was
"more unlikely than unconstitutional," and Senator Hennings of
concluded that Eisenhower could not only run for Vice President, but could "also
inherit the Presidency." George Dixon, Ike's Right to V.P. Spot,
Jan. 21, 1960, at A23. It is unclear if Louis Koenig was referring to these or
other commentators when he noted that "admirers of former President Eisenhower
... concluded after reading ... [the Twenty-Second Amend-ment's] text that he
could well be restored as chief executive by the route of succession after first
being elected as Vice President." Koenig, supra note 43, at 65.
n182. This view is supported by the laughter at the press conference and by
what the New York Times reported was a "highly qualified source" who explained
"the President was having some fun because in his case the situation could never
arise." Nixon is His Choice, President Indicates, supra note 180, at 17. Stephen
Stathis has also supported this view. See Stathis, supra note 75, at 76 (stating
that "in jest [Eisenhower] raised the intriguing possibility that he just might
run for vice president."); see also Telephone Interview by Bruce G. Peabody with
Stephen W. Stathis, Senior Specialist in American National Government and Public
Administration with the Government Division of the Congressional Research
Service (June 24, 1997). (During the interview, Stathis speculated that
Eisenhower's remarks about running as Vice President was part of the President's
efforts to get reporters to "chase their own tails.")
n183. Nixon is His Choice, President Indicates, supra note 180, at 17. The
fact that the question was debated within the President's "inner circles"
suggests that the matter may not have been taken lightly, at least
preliminarily.
n184. 3 U.S.C. 19 (1994).
n185. President Eisenhower's Attorney General at the time was William P.
Rogers. We wrote him about the report referenced by Eisenhower, asking for his
recollections about counseling "whether President Eisenhower could have, or
should have (from a constitutional standpoint) run as Vice-President after
having already twice been elected, and having served two terms as President." He
responded, in writing, saying:
I have no recollection of any report and doubt that I made such a report either
in writing or orally. The idea that President Eisenhower might want to run for
Vice-President under those circumstances is so outrageous that I cannot imagine
ever having given attention to the subject.
Letter from William P. Rogers to Theresa Ferrero (for Scott E. Gant) (Nov. 12,
1997) (on file with authors). Rogers's account, however, contradicts a New York
Times report that "Vice President Nixon said ... Attorney General, William P.
Rogers had studied the problem [of whether Eisenhower might run as Vice
President]. Mr. Rogers, he said, informed him that under the Constitution the
President could run for the Vice-Presidency if he wanted to." Nixon and
Eisenhower? Well, G.O.P. Can Hope, N.Y. Times, Jan. 17, 1960, at 26.
n186. Dwight D. Eisenhower, The President's News Conference of January 26,
1960, in Public Papers of the Presidents: Dwight D. Eisenhower, 1960-1961, supra
note 181, at 133. We have been unable to find any references by Eisenhower to
the Justice Department report or the prospect of his running as Vice President
in the period between the first and second press conferences, or after the
latter press conference.
n187. See Vote for Eisenhower: Delegate Says He'll Propose Him for
Vice-Presidency, N.Y. Times, July 22, 1960, at 8.
n188. See Eisenhower Says He'll Speak Out on Issues Confronting the Nation,
N.Y. Times, May 9, 1961, at 1 ("General Eisenhower also disclosed that he might
have decided to run for a third term had there been no constitutional amendment
preventing it, and had he been able to foresee the defeat of Richard M. Nixon
...."). However, shortly after the 1960 election, while still serving as
President, Eisenhower indicated that "on balance ... I believe the two-term
amendment was probably a pretty good thing." Dwight D. Eisenhower, The
President's News Conference of January 18, 1961, in Public Papers of the
Presidents: Dwight D. Eisenhower, 1960-1961, supra note 181, at 1045.
n189. See Michael R. Beschloss, Mayday: Eisenhower, Khrushchev and the U-2
Affair 3 (1986).
n190. See Davis, supra note 163, at 406 (stating that "most political pundits
agreed that he [Eisenhower] would have easily won renomination and reelection").
Political scientist James Sundquist is skeptical about how seriously Eisenhower
considered a third-term run, noting that "with his history of serious illnesses
and his belief that no man over seventy should serve as president (he reached
that age just before his second term expired), [Eisenhower] would never have
considered another race." Sundquist, supra note 121, at 132.
n191. See Stathis, supra note 31, at 47 n.139.
n192. See John F. Kennedy, Television and Radio Interview: "After Two Years -
A Conversation with the President" (Dec. 17, 1962), in Public Papers of the
Presidents: John F. Kennedy, 1962, at 892 (Warren R. Reid ed., 1963). Kennedy
also indicated that he had no regrets about supporting the Amendment in 1947.
See id.
n193. Johnson argued that the "federal machinery" would be strengthened by
extending
the term of the Presidency from four to six years and making the incumbent
ineligible for reelection. This stipulation almost became a provision of our
Constitution when it was originally written. The case for it is even stronger in
modern times. The growing burdens of the office exact an enormous physical toll
on the man himself and place incredible demands on his time.
Lyndon Baines Johnson, The Vantage Point: Perspectives of the Presidency
1963-1969, at 344 (1971).
n194. See Stathis, supra note 31, at 57.
n195. See id. at 60.
n196. See 93 Cong. Rec. 872 (1947) (listing the yeas and nays for H.J. Res.
27).
n197. Political scientist Paul Davis indicates that he was twice informed by
the leaders of "Citizens for the Repeal of the 22nd Amendment" that "President
Nixon ... highly encouraged their activities to repeal the Twenty-second
Amendment." Davis, supra note 177, at 301.
n198. See Four More Years More?, Newsweek, Mar. 5, 1973, at 20; Stathis,
supra note 31, at 47.
n199. Historian Harry Jeffrey has speculated that without Watergate the
Twenty-Second Amendment might very well have been repealed, allowing Nixon to
seek and win a third term. See Larry Peterson, Richard Nixon: A President Comes
Home, History's Verdict Still in the Making, Orange County Register, July 15,
1990, at N1, available in 1990 WL 7657131 (quoting from interview with Harry
Jeffrey).
n200. See Kyvig, supra note 43, at 335 (stating that repeal efforts "were
renewed momentarily after Richard Nixon's election to a second term in 1972 and
Ronald Reagan's in 1984"); see also Stathis, supra note 75, at 77-78 (providing
general background on contemporary repeal efforts).
Between the 90th and 97th Congress (1967-1982) over fifty amendments seeking
to limit further the presidential term were introduced (typically proposing a
single six-year term). See Stathis, supra note 31, at 57. In addition, on April
27, 1979, President Carter informed a group of journalists that he favored a
single presidential term of six years instead of the eligibility provisions of
the Twenty-Second Amendment. "I think one six-year term would be preferable. I
think that if I had a six-year term, without any prospect of re-election, it
would be an improvement." Davis, supra note 177, at 302. President Ford voted
for the Amendment as a House member. See id.
n201. Stathis, supra note 75, at 78.
n202. Id. (quoting Ronald Reagan in an interview with Lou Cannon and David
Hoffman of the Washington Post, Feb. 10, 1986).
n203. See H.R.J. Res. 687, 99th Cong. (1986).
n204. The Gallup organization asked three questions gauging attitudes about
the Amendment during 1986. In August of that year Gallup asked: "Have you heard
or read about the proposal to repeal the 22nd Amendment to the Constitution to
enable a president to serve more than two four year terms?" The respondents
answered: Yes - 61%, No - 37%, and Don't Know - 2%. The same group was then
asked: "Would you favor or oppose such a proposal (to repeal the 22nd Amendment
to the Constitution to enable a president to serve more than two four year
terms)?" The respondents answered: Favor - 37%, Oppose - 60%, and Don't Know -
3%. Then in September 1986, Gallup asked: "If this [Twenty-Second] Amendment
were repealed and presidents could run for more than two terms, would you like
to see President Reagan run for a third term, or not?" The respondents answered:
Yes - 39%, No - 58%, and Don't Know - 3%.
n205. Stathis, supra note 75, at 80.
n206. See, e.g., H.R.J. Res. 88, 105th Cong. (1997); H.R.J. Res. 51, 105th
Cong. (1997); H.R.J. Res. 39, 105th Cong. (1997); H.R.J. Res. 38, 105th Cong.
(1997); H.R.J. Res. 19, 105th Cong. (1997); H.R.J. Res. 81, 104th Cong. (1995);
H.R.J. Res. 71, 104th Cong. (1995); H.R.J. Res. 68, 104th Cong. (1995); S.J.
Res. 23, 104th Cong. (1995); H.R.J. Res. 107, 103d Cong. (1993); H.R.J. Res.
101, 102d Cong. (1991).
The 1993 resolution and several others are notable not only for their stated
objective (eliminating the Twenty-Second Amendment) but also for the way they
characterize the application of the Amendment, and the consequences of its
repeal. Repealing the Twenty-Second Amendment would remove "the restrictions on
the number of terms an individual may serve as President." H.R.J. Res. 107,
103d. Cong. (1993) (emphasis added). Like a number of presidential term limit
proposals of the past, the 1993 resolution (among others) incorrectly equates
presidential election with service. See also H.R.J. Res. 71, 104th Cong. (1995);
H.R.J. Res. 19, 105th Cong. (1997); H.R.J. Res. 39, 105th Cong. (1997).
Also notable is that during 1993 and 1994 resolutions were introduced in
Congress providing "no person may serve [as President, among other positions]
... either individually or cumulatively, for more than 12 years." See H.R.J.
Res. 277, 103d Cong. (1993); H.R.J. Res. 324, 103d Cong. (1994).
n207. For instance, former Senator and presidential candidate Eugene McCarthy
concluded in 1989 that "the current evidence is that the amendment has served no
national good." Eugene J. McCarthy, Give Bush Another 100 Days, N.Y. Times, Mar.
3, 1989, at A39. Abner Mikva, who served for five terms in the United States
Congress, for 15 years as a Federal Appeals Court Judge, and as White House
Counsel in 1994-1995, argued that the "two-term limit" should be eliminated.
"The notion of beginning a four-year job as a lame duck thwarts an otherwise
good system." Hat Trick, Washingtonian, Mar. 1997, at 34 (interview of Mikva by
Ken Adelman).
n208. Political Scientist James W. Davis, for example, has argued that the
Amendment "makes a chief executive a lame duck the day after he is reelected."
See Davis, supra note 163, at 406. This view has also been expressed by
presidential scholar Gary L. Rose. See Gary L. Rose, The American Presidency
Under Siege 135-37 (1997). Rose argues that "to further enhance the president's
governing capacity, reformers should also consider repealing the Twenty-Second
Amendment" which turns the President into a "lameduck leader." Id. at 135.
Presidential historians Michael Beschloss and Stephen Ambrose have attacked the
Amendment even more directly, saying "it should be repealed" and calling it a
"damn fool thing to do," respectively. The Second Time Around: An Exploration of
Presidential Second Terms, (Jan. 13, 1997)
<http://www.pbs.org/newshour/forum/january97/terms5.html>.
n209. The site is identified as a "Grassroots Movement to Abolish the 22nd
Amendment of the Constitution of the United States of America," and can be found
at <http://www.trader.com/users/5011/1612/smtm.htm>.
n210. Stathis, supra note 75, at 88; see also Kyvig, supra note 43, at 335.
Kyvig notes that steady
concerns have been voiced about the amendment's negative influence on a
second-term president's power and effectiveness at home and abroad, not to
mention the people's sovereign right to their choice of leaders. [And y]et to
date every effort to initiate repeal has collapsed in the face of perceived
partisan benefit and the obstacles of Article V.
Id.
n211. Although a fair number of judicial opinions refer to the Twenty-Second
Amendment or describe it in passing, we could not find a single reported
decision truly "interpreting" the Amendment - by which we mean deciding a case
or controversy in a way that turns on divining the meaning of the Amendment and
determining its effects.
The Supreme Court has only occasionally mentioned the Twenty-Second
Amendment. See, e.g., Roe v. Wade, 410 U.S. 113, 157 (1973) (citing the
Amendment in discussing the definition of a "person" under the Constitution);
Baggett v. Bullitt, 377 U.S. 360, 370 (1964) (finding a state oath requirement
unconstitutionally vague and asking, rhetorically, whether supporting the repeal
of the Twenty-Second Amendment would be considered "subversive" activity). Other
courts have also had little to say about the Amendment, although a number have
cited it in term limit cases not involving the presidency. See, e.g.,
Legislature of Cal. v. Eu, 816 P.2d 1309, 1326 (Cal. 1991); State ex rel. Rhodes
v. Brown, 296 N.E.2d 538, 540 (Ohio 1973). In one recent case the United States
Court of Appeals for the Ninth Circuit relied on its understanding of the
Twenty-Second Amendment in deciding whether to invalidate a California
referendum limiting the terms of state assembly members. See Bates v. Jones, 131
F.3d 843 (9th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 1302 (1998). There,
the Court explained: "the twenty-second amendment to the Constitution uses
similar language: "no person shall be elected to the office of the President
more than twice ....' There certainly is no confusion that this language imposes
a lifetime ban on the office of the President - even though the amendment does
not specifically use the term "lifetime.'" Id. at 846 (emphasis added). But, for
reasons we discuss below, the Court should have been confused about what the
Twenty-Second Amendment provides, for it is by no means clear that it effects a
"lifetime ban on the office of the President." Id. A similarly overreaching
conclusion about the Amendment was offered by another federal court. See
Halperin v. Kissinger, 434 F. Supp. 1193, 1195 (D.D.C. 1977), rev'd, 606 F.2d
1192 (D.C. Cir. 1979), aff'g in part, cert. dismissed in part, 452 U.S. 713
(1981) (declining to grant the relief requested because President Nixon "is
prohibited by the Twenty-Second Amendment from regaining the Office of
President") (emphasis added).
n212. U.S. Const. amend. XX, 3.
n213. Id.
n214. 3 U.S.C. 19 (1994).
n215. U.S. Const. amend. XXII. We note, incidentally, that there seems to be
no constitutional prohibition against a twice-elected President simply running
for the presidency once again.
n216. We have previously defined "twice-elected" to include a person elected
once "who has [also]... acted as President, for more than two years of a term to
which some other person was elected." See supra note 3.
n217. S. Rep. No. 80-34, at 1 (1947).
n218. U.S. Const. amend. XXII.
n219. See generally Frank Easterbrook, Legal Interpretation and the Power of
the Judiciary, 7 Harv. J.L. & Pub. Pol'y 87 (1984); Max Radin, Statutory
Interpretation, 43 Harv. L. Rev. 863 (1929-30); Cass R. Sunstein, Interpreting
Statutes in the Regulatory State, 103 Harv. L. Rev. 407 (1989); Stephen Breyer,
On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev.
845 (1992).
n220. Article Five provides: "The Congress, whenever two thirds of both
Houses shall deem it necessary, shall propose Amendments to this Constitution
...." U.S. Const. art. V. An amendment may be enacted, however, without Congress
proposing it. See id. (providing that in lieu of Congress's proposing an
amendment, "on the Application of the Legislatures of two thirds of the several
States ... a Convention for proposing Amendments" may be called). Yet each of
the twenty-seven amendments to the Constitution was proposed by Congress rather
than a Convention.
n221. Moreover, should the views of those states declining to ratify the
amendment be considered?
n222. See U.S. Const. art. II, 1; 3 U.S.C. 19 (1994).
n223. Grimes refers to the rule under which the House considered H.J. Res. 27
as a "gag rule." Grimes, supra note 43, at 116. Other commentators on the
debates of the Amendment have similarly concluded that they were seriously
truncated. Louis Koenig, for example, notes that "for all of its controversial
character, the amendment emerged from the House of Representatives with but a
single day's debate." Koenig, supra note 43, at 65. Nor do the state
ratification discussions appear to have been particularly extensive, or to have
stirred much public debate. The Nation noted that the Amendment "glided through
legislatures in a fog of silence - passed by men whose election in no way
involved their stand on the question - without hearings, without publicity,
without any of that popular participation that should have accompanied a change
in the organic law of the country." The Two-Term Limit, Nation, Mar. 10, 1951,
at 216-17. And Koenig observed that the Amendment's "four-year journey through
the state legislatures stirred a minimum of public discussion." Koenig, supra
note 43, at 65.
n224. As the Senate Judiciary Committee explained in its report, "it was the
thought of the committee that the original [House] language did not adequately
care for a contingency that might occur under both the language of article II of
the Constitution as well as the twentieth Amendment thereof," namely, that a
person might serve as President or acting President without having been elected.
S. Rep. No. 80-34, at 2 (1947).
n225. In discussing how a person might succeed from the vice presidency to
act as or become President, Congress seems to have touched on at least part of
Scenario 1 during its deliberations on the Twenty-Second Amendment. The
congressional debates do not appear to have engaged our other scenarios,
however. In the case of Scenarios 2 and 5 this is hardly surprising, since
neither the Twenty-Fifth Amendment nor the Succession Act of 1947 had yet been
enacted. Less clear is why Congress failed to touch upon the issues raised by
Scenarios 3, 4, and 6.
n226. We have focused almost exclusively on the debates in Congress. A
comprehensive history of the Twenty-Second Amendment would also trace the
ratification debates in the states. Our limited research in this area indicated
that the state ratification debates were generally curtailed and press coverage
of those debates spotty. See generally Brown, supra note 160, at 447; Kyvig,
supra note 43, at 328; Donald G. Morgan, Congress and the Constitution 243
(1966); Stathis, supra note 75, at 71; The Two-Term Limit, supra note 223, at
216-17.
Of course, the nature of the debates in the states was quite different from
those in Congress, for the states were deciding only whether to approve the
proposed Amendment, not what language it should contain. Nevertheless, we assume
the states' debates would have something useful to say about the presumed
meaning and implications of the proposed Amendment.
n227. See supra notes 10-18.
n228. U.S. Const. amend. XII; id. art. IV, 4. Although these provisions
traditionally have not been the subject of much litigation, we believe they are
relevant to a comprehensive analysis of our scenarios. It is conceivable that
the courts' treatment of these provisions may change in the future. Moreover,
interpretation is not a task only for the courts; nonjudicial actors also bear a
responsibility to interpret and apply the Constitution - even those parts of it
that courts are rarely asked to consider or have been held nonjusticiable.
n229. Id. amend. XII.
n230. See Morison et al., supra note 28, at 145.
n231. Milkis & Nelson, supra note 43, at 413; Bernstein & Agel, supra note
39, at 63.
n232. See Bernstein & Agel, supra note 39, at 63-65.
n233. While the Constitution did not delineate candidates for President and
Vice President before the Twelfth Amendment, political practice certainly did.
During the first two presidential elections, for example, John Adams was clearly
elected to serve as Vice President to George Washington. See generally Milkis
and Nelson, supra note 43, at 98-99, 411-13.
n234. U.S. Const. art. II, 1, cl. 4 (emphasis added). This reference to
"eligibility" is the only one found in the body of the original (unamended)
Constitution. Edward S. Corwin has suggested, however, that Congress may add to
the eligibility and qualification requirements of Article II through
legislation. See Corwin, supra note 43, at 42.
n235. U.S. Const. amend. XII (emphasis added).
n236. We leave these aside with the understanding that the argument an
already twice-elected President should not be considered "constitutionally
ineligible to the office of President" because he or she can assume that office
through succession from the vice presidency may seem circular. After all, that
person's very ability to serve as Vice President depends on his or her being
eligible for the Office of President.
n237. We recall that Eisenhower and his advisors considered the advisability
of his running as Vice President in 1960 and apparently presumed he was
ineligible to reassume the presidency through succession if the elected
President (Nixon) needed to be replaced. See our discussion supra notes 180-90
and accompanying text. Why Eisenhower's advisors thought he could serve as Vice
President even while ineligible to be President is unclear, and our efforts to
determine the answer by contacting the Eisenhower Presidential Library and the
National Archives turned up nothing about the issue.
n238. U.S. Const. art. IV, 4.
n239. Compare Niccolo Machiavelli, The Discourses (Bernard Crick ed., 1970)
(emphasizing the importance of civic virtue as the basis for a republican
polity), with The Federalist No. 39 (James Madison) (describing Madison's
account of republican government). See generally J.G.A. Pocock, The
Machiavellian Moment: Florentine Political Thought and the Atlantic Republican
Tradition (1975).
n240. Cf. The Blackwell Encyclopedia of Political Thought 433-34 (1991)
("Whereas a traditional king enjoys personal authority over his subjects and
rules his realm as his personal possession, government in a republic is in
principle the common business (res publica) of the citizens, conducted by them
for the common good.").
n241. The most sustained and important early account of republican government
and its relationship to the Guarantee Clause comes from James Madison. Madison
identified a republican government as one "which derives all its powers directly
or indirectly from the great body of the people, and is administered by persons
holding their offices during pleasure for a limited period, or during good
behavior." The Federalist No. 39, at 241 (James Madison) (Clinton Rossiter ed.,
1961).
n242. Madison conceded that the precise character of republicanism could
vary: "Whenever the States may choose to substitute other republican forms, they
have a right to do so and to claim the federal guaranty for the latter. The only
restriction imposed on them is that they shall not exchange republican for
anti-republican Constitutions." The Federalist No. 43, at 275 (James Madison)
(Clinton Rossiter ed., 1961).
n243. U.S. Const. art. IV, 4 (emphasis added).
n244. In a long line of cases the Supreme Court has held that the Clause is
enforceable only by Congress, and therefore that claims turning on the meaning
or interpretation of the Clause are nonjusticiable. See, e.g., Baker v. Carr,
369 U.S. 186 (1962); Luther v. Borden, 48 U.S. (7 How.) 1 (1849). Regardless of
whether one reads a given judicial opinion as failing to declare that the Clause
is non-justiciable, taken together the fact that the federal courts have been
unwilling to interpret the Clause seems evident. Cf. Akhil Amar, The Central
Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the
Denominator Problem, 65 U. Colo. L. Rev. 749, 753 (1994) (arguing that Luther
did not establish the "general nonjusticiability of the Clause"). For a
discussion of state court and lower federal court decisions addressing the
Clause, see Thomas C. Berg, Comment, The Guarantee of Republican Government:
Proposals for Judicial Review, 54 U. Chi. L. Rev. 208, 214 & n.3 (1987).
n245. Judicial reticence about the Clause does not render it meaningless.
After all, it is neither descriptively accurate nor theoretically tenable to
assert that judges are the only interpreters of the Constitution. See generally
Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the
Constitution, 24 Hastings Const. L.Q. 359 (1997) (arguing for a diffusion of
interpretive powers among both judicial and nonjudicial actors); Michael S.
Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83
Geo. L.J. 217 (1994). Moreover, in recent years numerous commentators have both
argued courts should reach the merits of at least some claims based on the
Guarantee Clause and advanced particular conceptions of what the Clause means.
Many of these arguments were presented on March 18, 1994 at a conference
entitled "Guaranteeing a Republican Form of Government," held at the University
of Colorado School of Law. The articles from that conference are collected in 65
U. Colo. L. Rev. 709 (1994). See also Berg, supra note 244, at 214-16; Thomas A.
Smith, Note, The Rule of Law and the States: A New Interpretation of the
Guarantee Clause, 93 Yale L.J. 561 (1984). Finally, judges themselves may
someday reconsider the view that they should refrain from interpreting the
Guarantee Clause. See New York v. United States, 505 U.S. 144, 184-85 (1992)
(stating that despite "the view that the Guarantee Clause implicates only
nonjusticiable political questions... more recently, the Court has suggested
that perhaps not all claims under the Guarantee Clause" are nonjusticiable).
n246. This situation would most likely arise under Scenario 1, which
specifically provides for succession in the case of resignation, but the former
President could act as President under similar variants of Scenarios 2, 3, and
4.
n247. U.S. Const. art. IV, 4 (emphasis added).
n248. Deborah Jones Merritt, Republican Governments and Autonomous States: A
New Role for the Guarantee Clause, 65 U. Colo. L. Rev. 815 (1994).
n249. See Douglas G. Smith, An Analysis of Two Federal Structures: The
Articles of Confederation and the Constitution, 34 San Diego L. Rev. 249, 312
n.207 (1997) ("Without the intervention of the State legislatures, the President
of the United States cannot be elected at all. They must in all cases have a
great share in his appointment, and will, perhaps, in most cases, of themselves
determine it.") (quoting The Federalist No. 45, at 291 (James Madison) (Clinton
Rossiter ed., 1961)); see also Shlomo Slonim, Designing the Electoral College,
in Inventing the American Presidency 33-60 (Thomas E. Cronin ed., 1989)
(providing background on the framers' debates on the electoral college and
noting a number of ways in which the college was designed to reflect the
interests of the states); Gary L. McDowell, Curbing the Courts 80 (1988) ("By
giving the states a voice in the selection of the president ... the Constitution
allows for regional opinions and interests to be introduced into the public
forum. In this way, the prevailing popular opinion of each state is not excluded
from national affairs ....").
n250. See Hans A. Linde, Who is Responsible for Republican Government?, 65 U.
Colo. L. Rev. 709 (1994) (explaining that the Clause "committed the states to
republican government and committed the nation to guarantee them") (emphasis
added).
n251. Indeed, it would seem strange were the Constitution to commit the
United States to ensuring that the states have republican forms of government
and at the same time allow the United States to be constituted or governed
contrary to the principles of republican government.
One can imagine, however, that the Guarantee Clause does not reference
federal arrangements because the remainder of the Constitution is dedicated to
constructing the federal system, and presumably the Constitution's express
provisions were designed to reflect republican principles. For discussions of
the Founder's views about the Clause and its inclusion in the text, see Berg,
supra note 244, at 226.
n252. See Amar, supra note 244, at 753 ("The concept of Republican Government
does have a central meaning, intimately connected with popular sovereignty and
majority rule.").
n253. U.S. Const. art. II, 1. The importance of fixed terms in preserving
republican rule is stressed by Madison in The Federalist Papers. See The
Federalist No. 39, at 240-41 (James Madison) (Clinton Rossiter ed., 1961)
(describing the features of "the republican form" by examining the state
constitutions, and noting that in the states "the tenure of the highest offices
is extended to a definite period").
n254. The Federalist case for the division of the federal government into
three separate departments was made most systematically and forcefully in The
Federalist Papers. See The Federalist Nos. 47-51 (James Madison). The division
of the legislative, executive, and judicial powers into separate branches of
government was seen as a way to protect the people against tyrannical rule. See
The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961) ("The
accumulation of all powers, legislative, executive, and judiciary in the same
hands, whether of one, a few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition of tyranny."). But the
American separation of powers system was also designed to define (inexactly) the
limits and scope of the legal (and political) powers and functions of the
various branches, in a way that would give each branch specialized
responsibilities and keep power accountable and efficient. See James Ceaser, In
Defense of Separation of Powers, in Separation of Powers - Does It Still Work?
168 (Robert A. Goldwin and Art Kaufman eds., 1986); William B. Gwyn, The
Separation of Powers and Modern Forms of Government, in Separation of Powers -
Does It Still Work?, supra, at 74.
n255. See E. Donald Elliot, Why Our Separation of Powers Jurisprudence is So
Abysmal, 57 Geo. Wash. L. Rev. 506, 508 (1989) ("In a sense, the "text' in
separation of powers law is everything that the Framers did and said in making
the original Constitution plus the history of our government since the
founding.").
n256. See Louis Fisher, Separation of Powers: Interpretation Outside the
Courts, 18 Pepp. L. Rev. 57 (1990) (contending that the Court's jurisprudence
has shifted between formalistic, rigid reading of separation of powers and a
more flexible, pragmatic approach which appreciates the need for overlap and
competition in the assignment of constitutional powers).
n257. Id. at 58.
n258. United States v. Nixon, 418 U.S. 683, 707-13 (1974); see also Fisher,
supra note 256, at 58.
n259. Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935); see
also Stephen L. Carter, From Sick Chicken to Synar: The Evolution of Subsequent
De-Evolution of the Separation of Powers, 1987 BYU L. Rev. 719 (defending the
formalist approach).
n260. In addition, from a practical standpoint, procedural and political
realities substantially constrain the circumstances under which the reassumption
of Office by a twice-elected President could occur. Thus, we do not envision the
reassumption of Office by a previously twice-elected President as capable of
fundamentally altering the balance of power and responsibilities among the three
branches of the federal government. Therefore we are untroubled in this regard
by the prospect of a former President again serving as President for however
long circumstances might permit.
n261. In reflecting on these efforts to have a twice-elected President
reassume Office despite the dictates of the Twenty-Second Amendment, one might
also consider Article II, section 1, clause 8 of the Constitution, which
specifies that "before [the President] enters on the Execution of his Office,"
he shall take the following "Oath or Affirmation": "I do solemnly swear (or
affirm) that I will faithfully execute the Office of President of the United
States and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States."
The Clause invites us to contemplate what is entailed in "preserving,"
"protecting," and "defending" the Constitution. If we are to take the
pres-idential Oath Clause seriously we must consider whether an already
twice-elected President could subsequently act as or become President without
betraying that oath. Cf. U.S. Const. art. VI, cl. 3 (containing the
Const-itution's other oath clause, which provides: "The Senators and
Representatives ... and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this Constitution
....").
The oath clauses seemingly seek to ensure that the official actions of
constitutional officers comport with the commands of the Constitution. See David
Morgan, Congress and the Constitution 47, 94 (1966); Joseph Story, Commentaries
on the Constitution of the United States 1844 (5th ed. 1891). In the view of one
commentator, "the Constitution [through its oath clauses] requires the President
and the members of Congress to independently evaluate the constitutionality of
their actions." K.G. Jan Pillai, Phantom of the Strict Scrutiny, 31 New. Eng. L.
Rev. 397, 451 (1997). Nevertheless, it does not appear that a President's
commitment to the oath would be compromised by reassuming Office under any of
our six scenarios. First, as a practical matter, the presidential Oath Clause
itself has never been the basis for invalidating any statute or official act.
Second, even if the oath does commit a President to acknowledging the supremacy
of the Constitution and accepting an independent responsibility to interpret the
Constitution there are good reasons to believe (as we have argued throughout
this Article), that the reassumption of Office comports with the Twenty-Second
Amendment and the Constitution generally. Therefore, it does not seem as though
an already twice-elected President's return to the Office would constitute a
failure to preserve, protect or defend the Constitution.
n262. The Federalist Papers makes a few references to the "spirit" of
Constitution, but these references do not give particular insight into the
question of how to construe the concept. For instance, Federalist No. 81 defends
the Supreme Court against the charge that it will construe "the laws according
to the spirit of the Constitution ... [in a way that will] mould them into
whatever shape it may think proper." The Federalist No. 81, at 482 (Alexander
Hamilton) (Clinton Rossiter ed., 1961).
n263. See Morton J. Horwitz, Foreword to The Constitution of Change: Legal
Fundamentality Without Fundamentalism, 107 Harv. L. Rev. 32, 51 n.91 (1993) ("Up
through 1840, the Supreme Court used some version of the letter-spirit dichotomy
86 times ...."); cf. Kent Greenfield, Original Penumbras: Constitutional
Interpretation in the First Years of Congress, 26 U. Conn. L. Rev. 79 (1993)
(discussing the Founders' arguments based on the spirit of the Constitution);
William Michael Treanor, The Case of the Prisoners and the Origins of Judicial
Review, 143 U. Pa. L Rev. 491, 498 (1994) (explaining that "many of the founding
generation were "anti-literalists' who believed constitutions should be
interpreted in light of their spirit") (footnote omitted).
n264. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819) (emphasis
added).
n265. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819).
n266. See U.S. Const. art. I, 10, cl. 1.
n267. Hepburn v. Griswold, 75 U.S. 603, 623 (1869); see also Sinking-Fund
Cases, 99 U.S. 700, 744 (1878) ("[A] law which violates the spirit of the
Constitution is as much unconstitutional as one that violates its letter.")
(Bradley, J., dissenting); David P. Currie, The Constitution in the Supreme
Court: Civil War and Reconstruction, 1865-1873, 51 U. Chi. L. Rev. 131, 182
(1984) (referring to Chase's decision and explaining that "Marshall had
encouraged such an interpretation by his reference to the "spirit' of the
Constitution").
n268. See Stephen Gardbaum, Rethinking Constitutional Federalism, 74 Tex. L.
Rev. 795, 816 (1996) (discussing references to the "spirit" of the Constitution
in the interpretive process).
n269. 469 U.S. 528, 585 (1985) (O'Connor, J., dissenting) (footnote omitted).
n270. See Horwitz, supra note 263, at 51 n.91; see also Gardbaum, supra note
268, at 816 ("As far as I am aware, the Supreme Court has never explicitly
discussed the question whether the "spirit' of the Constitution is part of the
Constitution for interpretive purposes....").
n271. A more exhaustive treatment of the Constitution's spirit would have to
address comprehensively a number of questions, including: (1) is there such a
thing as the Constitution's spirit?; (2) how is the spirit to be identified?;
(3) does, or should, the spirit play a role in interpreting the Constitution
(and can it ever be identified with sufficient particularity to serve as a basis
for adjudication)?; (4) if the spirit is relevant to constitutional
interpretation, what role should it play?; (5) can the Constitution's spirit
ever displace or trump textual provisions?; and (6) if the Constitution's spirit
is capable of trumping its text, are all textual provisions equally amenable to
being trumped, or are some more susceptible than others?
n272. See Gary Jacobsohn, The Supreme Court and the Decline of Constitutional
Aspiration 67-69 (1986) (arguing that there is a connection between natural law
and understanding the spirit of the Constitution).
n273. 3 U.S. 3 (Dall.) 386 (1798).
n274. Id. at 388. That Justice Chase considered these principles somehow
prior to the letter of the Constitution is suggested in his further assertion
that "an act of the Legislature (for I cannot call it a law) contrary to the
great first principles of the social compact, cannot be considered a rightful
exercise of legislative authority." Id.
n275. Gilbert Paul Carrasco & Peter W. Rodino, Jr., "Unalienable Rights," the
Preamble, and the Ninth Amendment: The Spirit of the Constitution, 20 Seton Hall
L. Rev. 498, 508-09 (1990). Carrasco and Rodino actually suggest that the
Declaration of Independence and the Preamble should both serve as bases for
discerning the Constitution's spirit. See id. at 509.
n276. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819). This
notion, of course, presents additional questions about the Constitution's
spirit: What portions of the Constitution are relevant to determining its
spirit? Assuming the Constitution's spirit is based on the existing text, can
the spirit be transformed through amendments?
n277. Were the issue to arise, it likely would be difficult to isolate claims
based on spirit from those based on "conventional" interpretative modalities.
But to the extent an argument against non-electoral reassumption of office is
predicated only on the spirit of the Constitution, we are disinclined to
conclude such concerns could, or should, render the proposed reassumption of
Office unconstitutional.
n278. Stephen L. Carter, Constitutional Improprieties: Reflections on
Mistretta, Morrison, and Administrative Government, 57 U. Chi. L. Rev. 357,
391-92 (1990). What Carter calls a constitutional impropriety is
an official act that a court ought not or does not forbid but that nevertheless
is contrary to the spirit of the document, as reflected in the document's
history and in its role in the constitutional story that We the People of the
United States, tell about ourselves. A constitutional impropriety, although not
identical in a positivist sense to an unconstitutional act, is every bit as
offensive to the Constitution, and ought therefore to be every bit as troubling
to those who care about constitutionalism.
Id. at 391-92. Carter's phrase and argument are useful insofar as they offer a
framework for thinking about acts that may not be unconstitutional but may
nevertheless offend constitutional principles and our sensibilities about what
is advisable under our constitutional system.
n279. Presumably, there would also be non-constitutionally-inspired political
and policy arguments against those trying to circumvent the Twenty-Second
Amendment.
n280. The twice-elected President might even choose a "running mate" who did
not meet one or more of the presidential qualifications listed in Article II,
thereby automatically triggering the provisions of Twentieth Amendment, section
three, allowing the Vice President-elect to act as President through the process
described in Scenario 4.
n281. Allan Sindler has argued that a succession statute should provide "a
rapid and stable process which will produce a successor considered legitimate
and acceptable by the public." Allan P. Sindler, Unchosen Presidents 10 (1976).
Former President Harry S. Truman argued that "any man who stepped into the
presidency should have at least some office to which he had been elected by a
vote of the people." See John D. Feerick, From Failing Hands 204 (1965) (quoting
Harry S. Truman).
n282. 3 U.S.C. 19 (1994). We have noted in another article, see Gant &
Peabody, supra note 8, that there is a compelling argument that the succession
statute is unconstitutional. See generally Akhil Reed Amar & Vikram David Amar,
Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995);
Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stan.
L. Rev. 155 (1995).
n283. The succession legislation would need to specify how a choice would be
made between a number of ex-Presidents.
n284. If the measures we have described here sound implausible to even the
most imaginative of readers, we submit that while they might never occur under
"ordinary" political circumstances, they might be deemed as acceptable
alternatives during emergencies, especially if it was felt that the leadership
of a twice-elected incumbent was necessary in overcoming a crisis. Indeed, as we
have seen, FDR and his supporters made something of this argument in supporting
his candidacy in 1940 and 1944. See supra Part II.C.
n285. See supra notes 135-65 and accompanying text.
n286. Eisenhower's apparent consideration (however briefly) of running as
Vice President suggests the plausibility of a set of circumstances that might
test the meaning of the Twenty-Second Amendment. Moreover, when President
Clinton's second term expires on January 20, 2001, he will be the youngest
American President to have completed two terms. This will leave him with at
least the opportunity for continuing his career in public service. Although
seemingly implausible given Clinton's impeachment and trial before the Senate as
this Article goes to print, were Clinton someday to be elected Vice President,
or to serve in some other position putting him in line for presidential
succession (viz., certain positions in Congress or the Cabinet), the strictures
of the Twenty-Second Amendment might well be put at issue.
