of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?

A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential than in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow-citizens, after they have by a course of service fiitted themselves for doing it with a greater degree of utility.

A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use of its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.

A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.

These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.

What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2d, greater security to the people. Unless the exclusion be perpetual, there will be no pretence to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing, by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement. As to the second supposed advantage, there is still greater reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and preeminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people,

seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibilty of a perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege.

There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion to approbation and confidence; the advantages of which are at best speculative and equivocal, and are over-balanced by disadvantages far more certain and decisive.

[From the New York Times Magazine, April 27, 1947]

ONLY TWO TERMS FOR A PRESIDENT?

PUBLIUS

A HISTORIAN OPPOSES THE PROPOSED AMENDMENT. LEAVE THE QUESTION TO THE PEOPLE, HE SAYS

(By Henry Steel Commager)

(By Henry Steel Commager, professor of history at Columbia University, is a well-known lecturer and writer on the Constitution. He is the author (in collaboration with Samuel Eliot Morison) of the standard college history textbook, "Growth of the American Republic".)

In the 160 years since the founding of the Republic there have been some 300 attempts by Congress to change the Constitutional provision for Presidential tenure and re-eligibility. Now, mirable dictu, one of these attempts has been successful at least so far as the Congress is concerned-and State Legislatures have the opportunity of passing on an amendment limiting Presidents to two elective terms.

Could the success of this amendment-so easily achieved—have anything to do with the fact that Franklin Roosevelt broke the two-term tradition and that now, for the first time, the party that opposed him is in control? The question-so Congressional debaters insisted with monotonous regularity-was a nonpartisan one. But the amendment was passed by unanimous Republican vote in both houses of Congress, and Representative Sabath had the bad manners to call it "a pitiful victory over a great man now sleeping on the banks of the Hudson."

Let us like the Republicans-consider the amendment in a nonpartisan spirit, judge it purely on its merits, or demerits. And here we are confronted and distracted at once with a veritable Bartlett's compendum of familiar quotations. Proponents of the amendment rang the chances on Washington, Jefferson, Cleveland and Wilson, with tireless regularity: certainly they proved that at one time or another a great many distinguished statesmen hau disapproved of more than two terms for any President.

Yet we should disregard this smoke screen of quotations. We should disregard it for two reasons: because, in the idiom of a past generation, the quotations don't signify, and because quotations cancel each other out. For every apt quotation against two terms which the Library of Congress dredged up for Republican Congressmen there is another, often from the same source, supporting the right of people to exercise their own judgment on the matter.

Quotations may be disregarded, but history should not be disregarded. And history, ancient and recent, has much to tell us that is both edifying and rele vant. For it is instructive to recall that this question of Presidential re-eligibility was thoroughly canvassed by the wise men who made the Federal Constitution. No part of our Constitution received more attention, gave rise to more discussion, than that dealing with the Executive.

It is needless now to rehearse that discussion. What is important is to keep in mind that after the most exhaustive inquiry and debate on the matter of Presi dential re-eligibility the framers left the question open. Whatever opinion individual members may subsequently have expressed, the combined wisdom of the makers of the Constitution dictated the conclusion that this question was best left to the judgment of the American people.

And if we turn from a consideration of the conclusion of the framers to that classic exposition of the Constitution, The Federalist, the moral is the same. Number 72 of The Federalist is devoted entirely to this matter of Presidential re-eligibility, and it is perhaps appropriate to recall what the grandfather of the Republican party, Alexander Hamilton, wrote there:

"Nothing appears more plausible at first sight, nor more ill-founded upon close inspection, than a scheme of continuing the Chief Magistrate in office for

a certain time, and then excluding him from it either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects, and these effects would be for the most part rather pernicious than salutary. *** There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive." These are wise words, but they represent, after all, theory rather than experience. As it happens we are not without experience with this matter of Presidential tenure. Sixteen of our Presidents were elected to the Presidency but once, ten twice, and one four times. Those who sponsor this amendment insist that long tenure of office makes, inevitably, for dictatorship, despotism and tyranny, and the longer the tenure, so the argument runs, the greater the danger. Has there been, in fact, any correlation between tenure of office and "dictatorship" or "tyranny"? Was Washington more dictatorial than John Adams, Monroe than Polk, Cleveland than Harrison, Wilson than Hoover?

But the amendment, it will be said, applies only to more than two terms. The logic of a denial of a third term applies equally to a second, but let that pass. We have had one experience with a President elected to more than two terms. And during that same period, 1933 to 1945, we had an opportunity to see real dictatorship, real despotism, in one country after another. Did Roosevelt's tenure of office for longer than two terms in fact lead to dictatorship, despotism, tyranny? Did it in fact impair the vitality of the American constitutional system or of the republican form of government? As Jefferson said in his first inaugural address, "Let history answer this question."

Nothing reveals more glaringly the danger of deductive reasoning in the realm of politics than the glassy complacency with which otherwise intelligent men assure us that a tenure of more than eight years in the Presidency will lead to dictatorship. Gladstone was Prime Minister of Britain for fourteen years, but there was no dictatorship. Mackenzie King has been Premier of Canada for some twenty years, but Canada has not suffered from dictatorship. Franklin Roosevelt was President for twelve years, but the United States did not experience dictatorship.

Once, when dealing with a perplexing tax case, Justice Holmes was confronted by his colleagues with the old dictum: the power to tax involves the power to destroy. His answer was succinct and conclusive. "Not," he said, "while this court sits." So we might say to all admonitions that long tenure in office leads to dictatorship: Not while the American people are on the job, not while democracy has any vitality.

It was Justice Holmes, too, who said that even for practical purposes, theory is sometimes more important than fact. Let us turn then to the theory of the matter to theory not as vain speculation, but as principle.

There is one principle that is inescapably involved in this question of limited tenure, and that is the principle of democracy. Turn and twist it as you will, the proposed amendment is a vote of no confidence in democracy. What those who support it say is that the American people cannot be trusted to decide wisely on the question of their Chief Executive. Moreover, they say retroactively, the American people, by their decisions in 1940 and 1944, justify this mistrust. They made mistakes then; they are not to be permitted to make similar mistakes in the future.

But why are the people not to be trusted in this, the most important decision that they can make in the ordinary course of politics? They can be trusted, apparently, to vote for a man once, or even twice, for the Presidency, but not three times. They can be trusted to vote for Senators and Representatives any number of times, and Senator O'Daniel's proposal that President and Congressmen alike be limited to a single term received only his own vote. They can be trusted to vote for State executives, State legislators, and even State judges any number of times in most States. They can be trusted to vote on new Constitutions and on Constitutional amendments. It is only in this one political choice that they are to be limited.

Have they merited this distrust? Suffice it to say that in 160 years they have never elected a bad President, a President of whom it could fairly be said that he was dangerous to the republic.

It may be said, to be sure, that the people are not free agents in this matter. They do not exercise real choice, but are limited to the candidates presented to

them by the conventions of the major parties. And history reminds us that Presidents can exercise a very real influence over party conventions, and indeed frustrate popular will through packed and controlled conventions. The most notorious example of this was the Republican convention of 1912.

Yet it is well to remember that however influential Presidents may be in obtaining a second nomination, only one-Roosevelt-obtained a third, and there is little evidence that he or his henchman packed the Democratic convention which gave him that third; it wasn't necessary. Grant, one of the most popular of American Presidents, was unable to win a third nomination; Wilson, who at least flirted with the idea of a third term, was wholly unable to win any support to that notion.

It should be admitted that these precedents are far from conclusive. A shrewd and ambitious President could probably force his nomination on his party a third time if he wished to do so, and if he seemed like a winner. But this is a criticism not of the re-eligibility of the President, but of the convention system. That the convention system needs reform is notorious, but criticism of Presidential control of party conventions comes with bad grace from a party which has consistently blinked at its own "rotten boroughs" in the South. If the present nominating system plays into the hands of unscrupulous politicians, the thing to do is to reform the nominating system, not to limit the democratic process.

This notion that the people are not to be trusted is no new thing in our history. It was a favorite doctrine of the Federalists. It was taken up by Calhoun and the Southern democracy in the generation before the Civil War. It has rarely been heard in blatant form, since then, but it pops up, again and again, in the theory that the people are likely to be carried away by their passions, that democracy may turn into mobocracy, or that men may be misled by pernicious propaganda. Of recent years the favorite form is the argument ad horrendum from European experience. It happened that way in Germany, we are told, or in Italy, or in Spain, so it can happen here.

These insinuations do not rise to the dignity of an argument, for if democracy isn't to be trusted with its most important responsibility, we might as well give up the whole business now and look for something else. Americans have not, in fact, yielded to the blandishments of dictators, been misled by propaganda into countenancing despotism. In theory, to be sure, it is not impossible that they may do so in the future.

Two observations are relevant here. The first is that in a democracy people have a right to make mistakes and to learn by mistakes. The second is that if Americans ever do arrive at the point where they wish to retain a dictator in power, no Constitutional amendment is going to stop them. By that time democracy will be gone anyway.

There is one other principle that is involved in this question of a limitation on Presidential tenure. It is not as obvious as the principle of democracy; it was, in fact, barely hinted at in the Congressional debates on the amendment, but it is of vital importance. And that is the principle that the Constitution should contain limitations not on the machinery of government but on its scope.

This so far have we drifted from sound Constitutional doctrine-takes a bit of explaining. The framers of our Constitution were determined, above all, to erect barriers against arbitrary government, to insure a "government of laws and not of men." That government was good, they knew, which did not have the power to be bad. And in innumerable ways they threw restrictions around gov ernment. But those restrictions were designed to fence off, as it were, certain areas from government control. There were some things no government could do, some rights no government could invade. Parliament, as James Otis neatly put it, could not make two and two five, nor could Parliament, or any government, deprive men of their life or liberty or property without due process of law.

And to make sure that government could not invade these sacred domains. governments were limited, and limitations written into the Constitution and the Bill of Rights. But the limitations were on the realm or scope of government. Where government had, of necessity, authority, it must clearly have sufficient authority to do the job well. To confuse limitations on the realm or scope of government with limitations on the authority of government when it operates in its proper field is a fundamental error.

From time to time we have committed this error in our law-making, but heretofore with the possible exception of the Prohibition amendment-we have not committed it in our Constitution. The original Constitution set careful limits to the realm of government, but where authority was granted, it was granted

fully. And that is the interpretation which John Marshall and most of his successors placed upon the Constitution.

Now for the first time we are adding to our Constitution a limitation on the power of government, or of the people in their relation to their government. We are confusing what belongs in a Constitution with what belongs in administration, or in ordinary politics.

The concept of democracy was far more limited in 1787 than it is today, and the framers of the Constitution confessed to more and deeper misgivings about it than any statesman would admit today. Yet, with all their misgivings, all their uncertainty about the future, the framers did not make the fundamental mistake we are now asked to make. They did not write into the Constitution a limitation upon the exercise of power in that field where power must be exercised. They left this matter to the judgment of the people not only because, in the long run, they trusted the people, but because logically, that was the right place to leave it.

It still is.

[From the Congressional Digest, January 1947]

THE POWERS OF THE PRESIDENT OF THE UNITED STATES-PRO AND CON The current controversy over (1) the tenure of office and (2) the line of succession.

MOVES TO LIMIT THE TERM, 1787-1947

The principle involved in the choice and duration of office of the President of the United States is set forth in the Constitution of the United States which was written by the Constitutional Convention at Philadelphia in 1787; was ratified by the States in 1788 and became operative in 1789.

The question of the term of office of the President was taken up in the Constitutional Convention on May 29, 1787, when Edmund Randolph, Governor of Virginia, presented to the Convention a plan of government consisting of 15 resolutions, No. 7 of which provided for a single executive "to be chosen by the national legislature for a term of . . . years. . to be ineligible a second time." The Randolph resolutions were known as the "Virginia Plan.” On the same day a plan was presented by Charles Pinckney of South Carolina whereby the Executive was to be elected for a term of years (left blank in the resolution), and was to be re-eligible. Both plans were referred to the Committee of the Whole.

On June 1 the question of instituting an Executive was taken up by the Convention. On a motion for a seven-year term, New York, New Jersey, Delaware, Pennsylvania and Virginia voted "aye"; Connecticut, North Carolina, South Carolina and Georgia voted "no." The vote of the Massachusetts delegates was divided and the motion was declared carried.

On June 2 a motion to make the Executive ineligible after seven years was carried, 7 to 2.

On June 15 Mr. Patterson of New Jersey offered a substitute for the Randolph plan. Article 4 of the Patterson plan recommended the election of an Executive to continue in office for a term of years and to be ineligible for a second time. Alexander Hamilton of New York then proposed a plan, Article 4 of which recommended that the supreme executive authority be vested in a "Governour" to be elected to serve during good behavior.

On June 19 the Randolph plan was reported by the Committee of the Whole. It provided that the Executive should be elected for a seven-year term and should be ineligible a second time. On July 17 an amendment striking out the provision for "ineligibility for a second time" was adopted by the Convention by a 6 to 4 vote.

One suggestion was made that the Executive be elected for twenty years. A suggestion that the Executive be appointed by the national legislature was opposed on the ground that the Executive would be too dependent on the legislature and, in order to get rid of that dependence, the expedient of making him ineligible a second time had been proposed.

On July 25, the final action not having been taken in the meantime, the question of the selection of the Executive to be chosen by the legislature with the proviso that no person be eligible for more than six years in any twelve years was defeated by a 6 to 5 vote.

On July 26 it was moved that the report of the Committee of the Whole on the selection of the Executive be reinstated. viz., "That the Executive be appointed for seven years and be ineligible a second time."