Interactive Constitution Essay: Twenty-Second Amendment

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

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

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

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

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

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

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

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