The twice and future president: Constitutional interstices and the Twenty-Second Amendment

Minnesota Law Review

Volumn 83, Issue 3, 1999, Pages 565-635

  Peabody, Bruce G ^a   Gant, Scott E ^b  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b Crowell and Moring LLP   (United States)

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[No Author keywords available]

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EID: 0346684294     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (333)

1. 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).
2. 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." Id. The Twenty-Second 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." Id.
3. 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.
4. 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");
5. Bruce E. Fein, Original Intent and the Constitution, 47 MD. L. REV. 196, 206 (1987) ("[T]he twenty-second amendment limits a President to two terms");
6. Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2138 (1996) (noting that the Twenty-Second Amendment "limit[s] the President to two terms");
7. 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.").
8. 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");
9. 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").
10. 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").
11. Although Nixon resigned before completing his second term, he was formally prohibited by the Amendment from being elected to a third term.
12. 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").
13. 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.");
14. 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");
15. 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");
16. see also Blow to Term Limits, UNION LEADER (Manchester, NH), May 24, 1995, available in LEXIS, News Library, ACRNWS File ("The Twenty-Second Amendment . . . provide[s] a definite term limit.") (emphasis added).
17. 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.
18. Later we take up the question of whether a previously twice-elected President can subsequently serve as Vice President. See infra Part III.
19. See U.S. CONST, amend. XXV, § 1.
20. See id. § 3.
21. 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.
22. Id. amend. XX, § 3.
23. Id.
24. 3 U.S.C. §19 (1994).
25. See U.S. CONST, art. II, § 1, cl. 6. This was much more likely to have 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).
26. 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.
27. 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").
28. 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).
29. 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 "[t]oday'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.
30. 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.
31. See Thomas E. Cronin, Presidential Term, Tenure and Reeligibility, in INVENTING THE AMERICAN PRESIDENCY 61, 62 (Thomas E. Cronin ed., 1989).
32. See id. at 62-63.
33. See id. at 64.
34. Id.
35. ARTICLES OF CONFEDERATION art. IX.
36. 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];
37. 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.
38. See SAMUEL ELIOT MORISON ET AL., A CONCISE HISTORY OF THE AMERICAN REPUBLIC 115-16 (2d ed. 1983).
39. 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).
40. See ANTI-FEDERALIST PAPERS, supra note 27, at 141.
41. 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." Id. 31. At one point during the Convention proceedings Hamilton proposed that 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).
42. See Cronin, supra note 22, at 68.
43. See 2 MADISON, supra note 27, at 323.
44. While beginning his career in New York, Morris was appointed as a Pennsylvania delegate to the Constitutional Convention with the support of his political mentor, Robert Morris. See THE READER'S COMPANION TO AMERICAN HISTORY 750-51 (Eric Foner & John A. Garraty eds., 1991).
45. ANTI-FEDERALIST PAPERS, supra note 27, at 117.
46. ANTI-FEDERALIST PAPERS, Id.
47. ANTI-FEDERALIST PAPERS, Id. This argument was made 160 years later by Democratic opponents of 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.
48. Id. at 166.
49. See RICHARD B. BERNSTEIN & JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION SO MUCH, WHY DO WE KEEP TRYING TO CHANGE IT? 150 (1993).
50. See THE FEDERALIST NO. 69, at 415-23 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
51. Id. at 416.
52. THE FEDERALIST NO. 72, at 437 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
53. DAVID KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 325 (1996);
54. see also LOUIS W. KOENIG, THE CHIEF EXECUTIVE 64 (1964) ("[T]he principle of unlimited eligibility for reelection was innocently but irreparably undermined in practice by the man in whose behalf it had been established, George Washington himself.");
55. 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.");
56. 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.");
57. EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS 43 (1948) ("[T]he custom which limits any individual's tenure of the presidential office to two terms was initiated by Washington himself. . . .");
58. Johnathan Mansfield, A Choice Approach to the Constitutionality of Term Limitation Laws, 78 CORNELL L. REV. 966, 995 (1993) (explaining that "George Washington established th[e] precedent" that Presidents should refuse to seek a third-term).
59. DORIS KEARNS GOODWIN, NO ORDINARY TIME 106 (1994).
60. 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.
61. Paid G. Willis & George L. Willis, The Politics of the Twenty-Second Amendment, 5 W. POL. Q. 469, 469 (1952).
62. 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 Washington would 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 Washington would be the first person to be chosen President, and would be willing to serve indefinitely").
63. Richard Brookhiser posits that "[h]ad Washington wanted a third term, there is no question that he would have been reelected once more." RICHARD BROOKHISER, FOUNDING FATHER 100 (1996).
64. On the political impact of Washington's 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.
65. Washington was inclined to retire in 1792 after serving only one term, 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 Washington desired for himself and what he thought appropriate for future presidents were two different matters. See infra notes 53-55 and accompanying text.
66. George Washington, Draft of Farewell Address (1792) in YOUNG B. SMITH, THE THIRD TERM PRINCIPLE AND ITS SIGNIFICANCE TODAY 3 (1940).
67. See generally STANLEY ELKINS & ERIC McKITRICK, THE AGE OF FEDERALISM 290-92 (1993).
68. See our discussion of Jefferson infra Part II.B.1.b.
69. Washington's 1796 Farewell Address was based in part on his 1792 text and completed with the assistance of Alexander Hamilton, but the language on "rotation" was not included. See SMITH, supra note 50, at 25.
70. Earl Spangler notes that "Hamilton pleaded with Washington in 1797-1798 to run again in 1800." EARL SPANGLER, PRESIDENTIAL TENURE AND CONSTITUTIONAL LIMITATION 9 (1977).
71. See MILKIS & NELSON, supra note 43, at 303 ("Washington had stepped down voluntarily from the presidency after two terms . . . not as a matter of principle but because he longed for 'the shade of retirement.'").
72. Cronin, supra note 22, at 77.
73. For a discussion of the Convention debates concerning whether presidential "rotation" should be secured through constitutional mechanisms, see 2 MADISON, supra note 27, at 318-23.
74. Letter from George Washington to the Marquis de Lafayette (Apr. 28, 1788), reprinted in CORWIN, supra note 43, at 389.
75. Id. In 1938, Senator Simeon Fess argued against limiting presidential service by attacking the view that Washington embraced presidential term limits. 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).
76. 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.").
77. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in THE POLITICAL WRITINGS OF THOMAS JEFFERSON 140 (Edward Dumbauld ed., 1955).
78. Jefferson originally supported only a single (seven-year) presidential term, but he was convinced by Washington's example that a person might serve two terms 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.
79. SPANGLER, supra note 53, at 10.
80. See Letter from Thomas Jefferson to John Taylor, in THE POLITICAL WRITINGS OF THOMAS JEFFERSON, supra note 60, at 142.
81. THE POLITICAL WRITINGS OF THOMAS JEFFERSON, Id.
82. See BERNSTEIN & AGEL, supra note 39, at 150.
83. Letter from Thomas Jefferson to John Taylor, in THE POLITICAL WRITINGS OF THOMAS JEFFERSON, supra note 60, at 142.
84. See infra note 72 and accompanying text.
85. In the 1824 presidential election, Jackson received 99 electoral votes, 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 Adams, securing him the presidency. Jackson's supporters asserted that a "corrupt bargain" was struck between Adams and Clay, a charge that became more pointed when Adams named Clay as Secretary of State. See THE ENCYCLOPEDIC DICTIONARY OF AMERICAN HISTORY 228 (John Mack Faragher ed., 4th ed. 1991).
86. At the beginning of each session of Congress for the next five years, Jackson reiterated his interest in making Presidents ineligible for second terms. See STATHIS, supra note 31, at 29.
87. SPANGLER, supra note 53, at 11.
88. See id.; see also Joseph E. Kallenbach, Constitutional Limitations on Reeligibility of National and State Chief Executives, 46 AM. POL. SCI. REV. 442 (1952).
89. 10 CONG. DEB. 321 (1892) (statement of Rep. Buchanan), reprinted in SMITH, supra note 50, at 8. Buchanan continued his remarks by arguing that "[t]his principle [that no President shall be reelected more than once] is [sic] now become as sacred as if it were written in the Constitution." Id.
90. 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).
91. See SPANGLER, supra note 53, at 20; see generally id. at 17-25.
92. See id. at 21; see also 93 CONG. REC. 1953 (1947) (statement of Sen. Lodge). The states were: Iowa, Kansas, Massachusetts, Minnesota, Nevada, New Hampshire, New York, Ohio, and Pennsylvania.
93. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or Partisan Maneuver?, 7 CONST. COMM. 61, 64 (1990) (quoting Grant).
94. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or Partisan Maneuver?, 1990 (quoting Grant). Id.
95. 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").
96. CONG. GLOBE, 44th Cong., 1st Sess. 228 (1875) (quoting the resolution proposed by Rep. Springer), reprinted in SMITH, supra note 50, at 9.
97. Grant's 1876 "bid" was officially terminated when the Republican National Convention nominated Rutherford B. Hayes.
98. 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.
99. See SPANGLER, supra note 53, at 27-42 (discussing Grant and the possibility of his being elected to a third term).
100. See Stathis, supra note 75, at 64; MORISON ET AL., supra note 28, at 413 (detailing the history of Grant's 1880 "candidacy").
101. 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.
102. Cleveland won the popular vote for three elections in a row, but during the second of these elections (in 1888) he lost the electoral college vote to Benjamin Harrison. Cleveland received 48.6% of the popular vote compared with Harrison's 47.8% but lost the electoral vote 168 to 233. See MILKIS & NELSON, supra note 43, at 462.
103. See Moves to Limit the Term, supra note 72, at 16. According to Congressional Research Service historian Stephen Stathis, Cleveland also "did 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.
104. See generally RICHARD HOFSTADTER, THE AGE OF REFORM (1955);
105. GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM (1963);
106. Nancy Unger, Progressivism (circa 1890s to 1917), in 2 POLITICAL PARTIES AND ELECTIONS IN THE UNITED STATES 888-89 (L. Sandy Maisel ed., 1991).
107. Moves to Limit the Term, supra note 72, at 16 (providing an excerpt from the Democratic platform).
108. See SPANGLER, supra note 53, at 12 (discussing political speculation surrounding McKinley).
109. SMITH, supra note 50, at 11-12 (quoting Theodore Roosevelt) (citations omitted).
110. See MORISON ET AL., supra note 28, at 527 (describing Roosevelt's growing misgivings about Taft).
111. See BERNSTEIN & AGEL, supra note 39, at 157.
112. See SPANGLER, supra note 53, at 12.
113. See MORISON ET AL., supra note 28, at 527-28.
114. See SPANGLER, supra note 53, at 82.
115. See S.J. Res. 78, 62d Cong. (1913).
116. 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).
117. 93 CONG. REC. 1954 (1957) (citations omitted).
118. See KOENIG, supra note 43, at 64 (noting that Wilson "quickly repudiated" the presidential term-limit plank of the Democratic platform).
119. See MILKIS & NELSON, supra note 43, at 304 (arguing that Wilson "would have liked to serve another four years" but was too unpopular to be renominated); SPANGLER, supra note 53, at 12.
120. 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).
121. Roosevelt was elected only once but served almost a full term after McKinley's death and would have been treated as if "twice-elected" under the terms of the Twenty-Second Amendment.
122. 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 Roosevelt's economic and civil rights policies. See Stathis, supra note 75, at 68-72.
123. 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.
124. See generally id. See also MILKIS AND NELSON, supra note 43, at 304. Public opinion regarding a third-term run by Roosevelt appears to have reached a 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.
125. Stathis, supra note 75, at 65; KYVIG, supra note 43, at 325.
126. 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).
127. See KYVIG, supra note 43, at 326.
128. See SPANGLER, supra note 53, at 120.
129. The states were New Jersey, New York and Rhode Island, which passed their resolutions before the 1940 election, and Illinois, Indiana, Iowa, Michigan, and Wisconsin, which passed their resolutions afterwards. See Moves to Limit the Term, supra note 72, at 16.
130. 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.
131. Between April 29 and May 5, 1943, the Gallup polling organization asked "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 Gallup asked a different group a slightly different question: "Would you favor adding a law to the constitution which would prevent any President of the United States 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, Gallup asked: "Would you favor adding a law to the Constitution which would prevent any President of the United States from being reelected after this year's election if he has already served two terms?" Responses were: Yes - 62%, No - 32%, and No Opinion - 6%.
132. Of course, the electorate may have voted for Roosevelt out of compelling expediency even while condemning or thinking unwise the prospect of having a President serve for third and fourth terms.
133. See Kallenbach, supra note 70, at 450 n.43.
134. KYVIG, supra note 43, at 325.
135. HERBERT S. PARMET & MARIE B. HECHT, NEVER AGAIN: A PRESIDENT RUNS FOR A THIRD TERM 268 (1968) (quoting Franklin Delano Roosevelt). Roosevelt's 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.
136. 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);
137. see generally David E. Kyvig, The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment, 104 POL. SCI. Q. 463 (1989).
138. On FDR's reorganization of the executive branch, see RICHARD POLENBERG, REORGANIZING ROOSEVELT'S GOVERNMENT (1966).
139. 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);
140. Fred I. Greenstein, Introduction: Toward a Modern Presidency, in LEADERSHIP IN THE MODERN PRESIDENCY (Fred I. Greenstein ed., 1988).
141. For an argument that features of the "modern" presidency are not recent developments, see JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY (1987) (especially ch. 1).
142. See 93 CONG. REC. 847, 864 (1947) (remarks of Rep. Graham, discussing the history of efforts to limit presidential reeligibility).
143. 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 tunes 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.
144. SEE JAMES L. SUNDQUIST, CONSTITUTIONAL REFORM AND EFFECTIVE GOVERNMENT 41 (1986).
145. See STATHIS, supra note 31, at 29.
146. 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.
147. See SPANGLER, supra note 53, at 10.
148. In 1841, the legislatures of Connecticut, Delaware, Indiana, Maine, Massachusetts, Rhode Island, and Vermont approved resolutions supporting a single presidential term. See STATHIS, supra note 31, at 29.
149. See our discussion of Grant, supra text accompanying notes 73-83.
150. 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.
151. 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.
152. See 93 CONG. REC. 1954 (1947) (excerpt from the Congressional Digest of 1938 reprinted in the Congressional Record at the request of Sen. Kilgore).
153. See id.
154. Id.
155. See Moves to Limit the Term, supra note 72, at 16.
156. 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.
157. 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.
158. 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).
159. See 93 CONG. REC. 47-48 (1947).
160. Id. at 849 (emphasis added).
161. H.R. REP. NO. 80-17, at 1 (1947) (emphasis added).
162. The Committee Report contains no discussion about why the Committee amended the original language of H.J. Res. 27.
163. See KYVIG, supra note 43, at 327.
164. 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)
165. JAMES L. SUNDQUIST, DYNAMICS OF THE PARTY SYSTEM (1983).
166. S. REP. NO. 80-34, at 1 (1947) (emphasis added).
167. 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).
168. Id. at 1863 (remarks of Sen. Magnuson).
169. 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." Id. at 1865.
170. Id. at 1863. Although Magnuson indicated that there was extensive 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.
171. 93 CONG. REC. 1863 (1947).
172. Id.
173. Id. (remarks of Sen. Tydings).
174. Id. at 1865. The five years refers to the limit on presidential service (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.
175. 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).
176. 93 CONG. REC. 1864 (1947) (remarks of Sen. Hickenlooper) (emphasis added).
177. Id. (remarks of Sen. Magnuson).
178. Id. (remarks of Sen. Taft). It is not entirely clear how Taft came up 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." Id. at 1938. 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.
179. See id. at 1944-45.
180. See id. at 1938.
181. Id. (remarks of Sen. Taft, reading his own amendment) (emphasis added).
182. 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.").
183. 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 U.S. 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.
184. 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, "[o]bjection to the vote on the ground[s] of absence of a quorum was made and then withdrawn." Everett Brown, The Term of Office of the President, 41 AM. POL. SCI. REV. 447, 447 (1947).
185. 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).
186. See Stathis, supra note 75, at 70.
187. JAMES W. DAVIS, THE AMERICAN PRESIDENCY 406 (1995).
188. See 93 CONG. REC. 2390 (1947) (remarks of Sen. Michener).
189. 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." Id. at 1946 (remarks of Sen. Revercomb).
190. 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).
191. To the best of our knowledge, no serious repeal effort has been proposed since Clinton's 1996 reelection. Clinton himself has not weighed in on 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).
192. 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.
193. See STATHIS, supra note 31, at 44.
194. See Stathis, supra note 75, at 73.
195. 103 CONG. REC. 825 (1957) (remarks of Sen. Richard Neuberger).
196. See President Bars a 3rd-Term Race Even If 'They Repeal' Ban on It, N.Y. TIMES, Jan. 31, 1957, at 14.
197. 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).
198. 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.
199. 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."
200. 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)).
201. 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).
202. 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.
203. See KYVIG, supra note 43, at 334-35; Stathis, supra note 75, at 73.
204. See Nixon is His Choice, President Indicates, N.Y. TIMES, Jan. 14, 1960. at 17.
205. Dwight D. Elsenhower, 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).
206. Eisenhower's comments prompted some scholarly and political commentary on the issue. Former Secretary of State Dean Acheson, for example, said that the
207. 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.")
208. 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.
209. 3 U.S.C. § 19 (1994).
210. 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.
211. 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.
212. See Vote for Eisenhower: Delegate Says He'll Propose Him for Vice-Presidency, N.Y. TIMES, July 22, 1960, at 8.
213. See Eisenhower Says He'll Speak Out on Issues Confronting the Nation, N.Y. TIMES, May 9, 1961, at 1 ("General Eisenhower also disclose[d] 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 . . . .").
214. 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.
215. See MICHAEL R. BESCHLOSS, MAYDAY: EISENHOWER, KHRUSHCHEV AND THE U-2 AFFAIR 3 (1986).
216. 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.
217. See STATHIS, supra note 31, at 47 n.139.
218. 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. 193. Johnson argued that the "federal machinery" would be strengthened by extending the term of the Presidency from four to six years and mak[ing] 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.
219. LYNDON BAINES JOHNSON, THE VANTAGE POINT: PERSPECTIVES OF THE PRESIDENCY 1963-1969, at 344 (1971).
220. See STATHIS, supra note 31, at 57.
221. See id. at 60.
222. See 93 CONG. REC. 872 (1947) (listing the yeas and nays for H.J. Res. 27).
223. 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.
224. See Four More Years More?, NEWSWEEK, Mar. 5, 1973, at 20; STATHIS, supra note 31, at 47.
225. 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).
226. 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.
227. Stathis, supra note 75, at 78.
228. Id. (quoting Ronald Reagan in an interview with Lou Cannon and David Hoffman of the Washington Post, Feb. 10, 1986).
229. See H.R.J. Res. 687, 99th Cong. (1986).
230. 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%.
231. Stathis, supra note 75, at 80.
232. 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 "[n]o 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).
233. 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.
234. 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. "[T]he 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).
235. 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).
236. Rose argues that "[t]o 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/january 97/terms5.html〉.
237. 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〉.
238. Stathis, supra note 75, at 88; see also KYVIG, supra note 43, at 335. Kyvig notes that steady [c]oncerns 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.
239. 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).
240. U.S. CONST. amend. XX, § 3.
241. Id.
242. 3 U.S.C. §19 (1994).
243. 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.
244. 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.
245. S. REP. NO. 80-34, at 1 (1947).
246. U.S. CONST. amend. XXII.
247. See generally Frank Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 HARV. J.L. & PUB. POL'Y 87 (1984);
248. Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863 (1929-30);
249. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989);
250. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992).
251. 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.
252. Moreover, should the views of those states declining to ratify the amendment be considered?
253. See U.S. CONST. art. II, §1; 3 U.S.C. §19 (1994).
254. 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 "[f]or 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.
255. As the Senate Judiciary Committee explained in its report, "[i]t 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).
256. 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.
257. 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);
258. 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.
259. See supra notes 10-18.
260. 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.
261. Id. amend. XII.
262. See MORISON ET AL., supra note 28, at 145.
263. MILKIS & NELSON, supra note 43, at 413; BERNSTEIN & AGEL, supra note 39, at 63.
264. See BERNSTEIN & AGEL, supra note 39, at 63-65.
265. 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.
266. 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.
267. U.S. CONST, amend. XII (emphasis added).
268. 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.
269. 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.
270. U.S. CONST. art. IV, § 4.
271. Compare NICCOLÒ 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).
272. 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.").
273. 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).
274. 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).
275. U.S. CONST. art. IV, § 4 (emphasis added).
276. 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").
277. 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).
278. 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);
279. Michael S. Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994).
280. 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 "[t]he view that the Guarantee Clause implicates only nonjusticiable political questions . . . [m]ore recently, the Court has suggested that perhaps not all claims under the Guarantee Clause" are nonjusticiable).
281. 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.
282. U.S. CONST. art. IV, § 4 (emphasis added).
283. Deborah Jones Merritt, Republican Governments and Autonomous States: A New Role for the Guarantee Clause, 65 U. COLO. L. REV. 815 (1994).
284. 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.")
285. (quoting THE FEDERALIST No. 45, at 291 (James Madison) (Clinton Rossiter ed., 1961));
286. 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);
287. 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 . . . .").
288. 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).
289. 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.
290. 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.").
291. U.S. CONST. art. II, § 1. The importance of fixed terms in preserving republican rule is stressed by Madison in The Federalist Papers.
292. 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").
293. 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).
294. 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.").
295. 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);
296. William B. Gwyn, The Separation of Powers and Modern Forms of Government, in SEPARATION OF POWERS - DOES IT STILL WORK?, supra, at 74.
297. 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.").
298. 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).
299. Id. at 58.
300. United States v. Nixon, 418 U.S. 683, 707-13 (1974); see also Fisher, supra note 256, at 58.
301. 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).
302. 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.
303. 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 "[b]efore [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 presidential 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 Constitution'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);
304. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §1844 (5th ed. 1891).
305. In the view of one commentator, "[t]he 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.
306. 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).
307. See Morton J. Horwitz, Foreword to The Constitution of Change: Legal Fundamentally 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 . . . .");
308. 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);
309. 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).
310. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819) (emphasis added).
311. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819).
312. See U.S. CONST, art. I, § 10, cl. 1.
313. 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").
314. 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).
315. 469 U.S. 528, 585 (1985) (O'Connor, J., dissenting) (footnote omitted).
316. 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 . . . .").
317. 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?
318. 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).
319. 3 U.S. 3 (Dall.) 386 (1798).
320. Id. at 388. That Justice Chase considered these principles somehow prior to the letter of the Constitution is suggested in his further assertion that "[a]n 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.
321. 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.
322. 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?
323. 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.
324. 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.
325. Presumably, there would also be non-constitutionally-inspired political and policy arguments against those trying to circumvent the Twenty-Second Amendment.
326. 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.
327. 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).
328. 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).
329. 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);
330. Steven G. Calabresi, The Political Question of Presidential Succession, 48 STAN. L. REV. 155 (1995).
331. The succession legislation would need to specify how a choice would be made between a number of ex-Presidents. 284. 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.
332. See supra notes 135-65 and accompanying text.
333. 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.