August 5, 2010 – Federalist No. 72 – The Same Subject Continued, and Re-Eligibility of the Executive Considered, From the New York Packet (Hamilton) – Guest Blogger: Kelly Shackelford, President/CEO of the Liberty Institute

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Thursday, August 5th, 2010

Federalist No. 71 and 72 deal with the Office of the Executive, specifically how long the President remains in office and his re-eligibility to continue to serve in the same capacity.  While Federalist 71 takes an in-depth look at the four-year duration of the Presidential term, Federalist 72 addresses the question of a sitting President’s re-eligibility, or ability to be re-elected to subsequent terms.

In Federalist 72, Publius, in this case Alexander Hamilton, cites the two factors that the Framers of the Constitution believed should determine whether a President is eligible for re-election, and defends the Framers’ rejection of either temporary or perpetual term limits for a President.

According to Hamilton, the only two factors that should be weighed in considering the ability of a President to be re-elected are the quality of his performance as President and the approval of the voters. The four years of a President’s term should give the voters enough time to judge the abilities of a President, and the prospect of being re-elected should give the President the motivation to do a good job. In other words, Hamilton argued that the voters themselves should be the only judges of a President’s eligibility by refusing to re-elect him when his performance is no longer satisfactory.

In arguing that the voters should be the only limits on the extension of a man’s Presidency, Hamilton cites five disadvantages of excluding a sitting President from re-eligibility. The first disadvantage is that a President who is excluded from seeking office again is hampered not only in his ability to work but also in his desire to act in such a way that the voters would re-elect him given the opportunity, described by Publius as “dimunition of the inducements to good behavior.” The “lame-duck” President’s motivations to act uprightly and for the benefit of the people are severely diminished.

The second disadvantage of imposing term limits in the Executive that Hamilton pointed out in Federalist 72 is that a President with no chance of being re-elected may be tempted to usurp his office for personal gain, with an eye to the day when he will no longer serve as President. Worse, an ambitious man, forbidden to seek re-election, could resort to violence in an attempt to prolong his time in the Presidency.

Hamilton’s third and fourth disadvantages of term limits both relate to the experience that a person gains while serving as President. In short, good experience in serving as President is valuable and should not be lightly thrown aside. The good of the country demands that the people capitalize on the leadership of those who already have the experience gained from years of leading the nation.  Additionally, during times of war or crisis, continuity of leadership in the Executive may be particularly important to the safety of the nation.

Finally, Hamilton’s fifth argument against term limits is that they create constitutionally-sanctioned instability. When a new President is elected, the change in administrations creates transitional instability as the new administration must gain the experience already possessed by the outgoing administration. Moreover, the new President, seeing his election as the people’s endorsement of his ideas over his predecessors, takes responsibility for nominating many of those in charge of day-to-day operations, naturally generating instability during the transition of leadership. Consequently, Hamilton argued that one key factor in the stability of our government is the length of time that the President serves; instead of being viewed as a threat to liberty, a voter-approved extension of a President’s service is a benefit because of the increased experience of the administration.

While arguing against term limits, Hamilton points out two possible advantages to having Presidential term limits: “greater independence in the magistrate” (executive office) and “greater security to the people.” The greater independence of the executive office turns out to be easily manipulated, as a President, excluded from re-eligibility, could choose to relinquish the office to a hand-picked successor, effectively remaining a powerful voice in the administration. Additionally, a President who anticipates leaving his office of President may be less interested in fighting over important issues and making political enemies than preserving friendships and allies.

As to the people’s security, while Hamilton recognizes that the influence of a overly-charismatic President can be lessened by term limits, Hamilton points out that forcing a truly good leader out of office may be regarded as a hindrance to security and a “danger to liberty.” Taken to an extreme, it could even cause the people to reject the Constitution in favor of the leader, removing all constitutional protections granted to the people.

Since George Washington, the first President under the Constitution, stepped down after two terms in office, Americans have commonly accepted two terms as a sufficient amount of time in office for any President. Only a few Presidents have sought a third term, and only one has been successful: Franklin D. Roosevelt, our thirty-second President. Serving throughout the Great Depression and most of World War II, President Roosevelt was elected four times to the office of the President, but passed away in 1945, months after beginning his fourth term. His Presidency was unique in that the people sought the continuity of his leadership through two disasters, and supported him as President for what would have totaled sixteen years.

Following President Roosevelt’s four terms in office, the American people decided that the advantages of term limits in limiting the power of any one President outweighs the five disadvantages that Alexander Hamilton laid out in Federalist 72. In 1947, Congress passed the Twenty-second Amendment to the U.S. Constitution, limiting a President to two terms in office. The Amendment was ratified in 1951, and only two states, Oklahoma and Massachusetts, opposed the Amendment.

Today, very little debate exists over the Twenty-second Amendment and executive term limits, though various members of Congress occasionally propose legislation to repeal the Amendment.  Even now, two hundred years after President Washington stepped down after his second term, Americans generally accept the two-term limit as an adequate amount of time for a President to serve.

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit www.Libertyinstitute.org

 

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