Guest Essayist: Andrew Bibby

FDR’s Third Term and the Twenty-Second Amendment

On November 5, 1940, Franklin Delano Roosevelt became the first and only U.S. president to be elected for more than two terms. A newspaper headline depicted the historic moment with a joke that captured the public’s ambivalence toward Roosevelt’s unprecedented break from tradition: “Safe on third!”

On the one hand, no one could deny that Roosevelt’s re-election was truly a remarkable political achievement. Roosevelt had not only won a third term—he did it with a lower percentage of both the electoral and the popular vote than in the prior election, a feat shared only by two other presidents in U.S. history: James Madison in 1812 and Barack Obama in 2012.

On the other hand, Roosevelt’s victory left many Americans, including Roosevelt’s own pro-New Dealers, uneasy. A third term was of course not unconstitutional. But it did mark a radical and potentially dangerous departure from the two-term presidential tradition. As Wendell Willkie argued in his general election crusade against FDR: “if one man is indispensable, then none of us is free.”

Yet articulating precisely why Roosevelt’s break from tradition was harmful to the American experiment in democracy has never been straightforward or uncomplicated. After all, the Founders chose not to include term limits in the Constitution. The decision to reject term limits came about after excruciating debate at the convention in Philadelphia. The framers cited a number of reasons, including faith in the political system to check encroachments on power; a desire to balance stability with rotation; and a conviction that the possibility of re-election would lead to the “faithful discharge of [the rulers’] duties,” as Madison put it. They also had good reason to believe that the indispensable George Washington would be the first president.

Of course, no one knew that George Washington would step down after two terms, nor could anyone safely assume that Washington’s example would act as an effective check on future tyrants. Thomas Jefferson, from France, singled out term limits (or their absence) as one of the greatest weaknesses of the proposed Constitution: “The…feature I dislike, and greatly dislike, is the abandonment in every instance of the necessity of rotation in office, and most particularly in the case of the President.”

In hindsight, Jefferson and the anti-Federalist’s fear of a kind of elective monarchy arising in America seems not to have been warranted. Jefferson followed Washington’s example, as did James Madison and James Monroe, after him. Even Old Hickory stepped down when his two terms were up.

The numbers help tell the story. 22 presidents, that is, 50 percent of all U.S. presidents, have been elected only to a single term. 17 presidents, or just under 40 percent, have been elected to two terms. Only 14 presidents, or 32 percent, have actually served their full second term.

Historically, then, the chances of a third-term presidency are relatively low. The notion of an “eight year rhythm” is also somewhat of a myth. Most presidents either fail to win a second term or simply do not serve their full two terms. Only three presidents prior to FDR seriously sought a third term: Ulysses S. Grant, who was checked by his own party at the Republican National Convention in 1880; Grover Cleveland, who lost to William Jennings Bryan in 1896; and Theodore Roosevelt, who had pledged not to seek a third term, but ran anyway, covering over the awkwardness by saying that his bid in 1912 didn’t count because it was non-consecutive.

Contemporary public opinion polls indicating support for a hypothetical third term, moreover, indicate that the odds of winning a third term were slim in every case. 68 percent of Americans opposed the notion of a hypothetical third term for Truman. 64 percent of Americans opposed a hypothetical third term for Ronald Reagan. 56 percent opposed a hypothetical term for Bill Clinton. 69 percent opposed a hypothetical third term for George W. Bush. 65 percent opposed a hypothetical third term for President Obama.

In all of these cases the likelihood of a president seeking and winning a third term must be viewed as remote, even if it were not for the Constitutional prohibition supplied by the Twenty-Second Amendment. Which raises the question: why the persistent fear of a president winning a third term?

To answer this question, it is useful to briefly revisit some of the reasons for the adoption of the Twenty-Second Amendment.

The Twenty-Second Amendment to the Constitution was proposed by Congress in 1947 and finally ratified in 1951. Section 1 reads in part:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”

One could argue that the 1951 Amendment was something of a fait accompli. It certainly did not constitute new thinking on the subject. Historians note that there have been at least eighty attempts to amend the Constitution. Given the popularity of the idea, the real question is: why did it take so long to pass?

Perhaps the most significant objection to executive limits—one that has deep roots in the American political experience going back to the Revolution—is that term limits are anti-democratic. If the people had “good sense enough to receive a good Government” as James Wilson put it, should they not also be trusted to have the good sense to decide when to throw a leader out of office? Roger Sherman made a similar claim against what he called the “doctrine of rotation.” Why should the people be forced to throw out of office the men “best qualifyed to execute its duties”?

Similar objections were resurrected and put in sharper terms in the late 1940s. Critics of the proposed amendment argued that term limits on the executive would undercut Americans’ faith in their own democracy—in the fate of the republican experiment itself. Historian Henry Steele Commager, commenting on the 1947 proposal, expressed it this way: “There is one principle that is inescapably involved in this question of limited tenure and that is the principle of democracy. Turn and twist as you will, the proposed amendment is a vote of no confidence in democracy.”

Secretary of the Interior Harold Ickes, went even further. The Twenty-Second Amendment, he argued, was not just a theoretical “no confidence” in democracy. According to Ickes, the proposed amendment was a “sinister plot” on the part of “anti-social agencies” to “frighten [the people] into [giving up] their own precious democracy to the advantage of those who have always exploited them and always will.”

Is the Twenty-Second Amendment anti-democratic? Compared to previous Progressive Era Amendments the answer has to be Yes. Whereas the Progressive Era Amendments tended either to expand public control over the electoral process or enhance the power of the central government, the Twenty-Second Amendment both narrows electoral choice and checks federal-executive power.

60 years later, Americans appear to have few regrets. Quite the opposite. In 1956, five years after adoption, 61 percent of Americans opposed changing or repealing the Twenty-Second Amendment. Since then, this number has only gone up. In 1986, 80 percent of Americans opposed repeal. In 2013, that number remained constant at 81 percent. While there have been periodic attempts to get rid of executive limits, the truth is Americans aren’t interested in repeal.

This does not mean that there are not questions worth asking. For example, we might use this occasion to ask why Americans continue to overwhelmingly reject the prospect of repeal. Do Americans approve of the Twenty-Second Amendment because they approve of the principle of rotation? Or do they approve because their trust in government has plummeted—from 77 percent in 1958 to 19 percent in 2015?

Lately, the strongest challenges to the Twenty-Second Amendment tend to come not from philosophical objections, but from more prosaic concerns. Of these, the “lame duck” theory has gained the most traction.

In 1947, Senator Harley Kilgore condemned the proposed constitutional amendment, with the following “lame duck” explanation: “The executive’s effectiveness will be seriously impaired as no one will obey and respect [the President] if he knows that the executive cannot run again.”

In 2014, former Secretary of the Treasury Larry Summers wrote an article in the Washington Post attempting to re-open the debate on term limits. In the article, Summers focused especially on the dismal history of second terms. Ronald Reagan’s second term was marked by the Iran-Contra scandal and “a sense of a president who had become remote from much of the work of his administration.” Bill Clinton’s second term was marred by scandal and impeachment, while most of his major reforms took place in his first term. George W. Bush’s second term was defined by a “futile effort to reform Social Security and was then defined by the debacle of Hurricane Katrina and the nation’s plunge into financial crisis.”

Should we blame the “second term curse” on a failure of leadership, or on structural factors, like increased polarization of the electorate and the ever-growing role of money in politics?

According to Summers, we need to take a closer look at the role of the Twenty-Second Amendment in the “dismal experience” of second terms. This includes “national reflection” on repeal, but also, an open discussion about the possibility of limiting presidents to one term but for a period of six years.

Given the state of public opinion (overwhelmingly against repeal) these and other suggestions to reform executive term limits might seem quixotic. In my view, these provocations are worth thinking about seriously, if only to better equip ourselves for larger debates about the Constitution and its significance in our lives. The Twenty-Second Amendment reminds us that power in a republic is understood as revocable, and therefore responsible to the people.

Andrew S. Bibby, Ph.D. serves as Interim Director, Center for Constitutional Studies and is a Lecturer in History and Political Science at Utah Valley University

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