[Clinton Rossiter, The American Presidency, 2d Ed., 1960]

PRESIDENTIAL TENURE

The other problem of selection and tenure has been acted upon formally in recent years has to do with the number of terms for which any one man can be elected to the Presidency. The framers of the Constitution gave the most serious consideration to limiting each President's tenure to one term or at most to two consecutive terms. In the end, they decided to make him re-eligible for election to any number of terms. Hamilton laid out all the rational arguments for indefinite re-eligibility in The Federalist, but one suspects that the real reason for the absence of any restriction in the Constitution was the strong hope that George Washington would be willing to serve as first President and the even stronger expectation that the people would want to keep him in command until the day he died.

If Washington was only indirectly responsible for the absence of all restrictions on re-eligibility in the Constitution, he was directly responsible for initiating the wholesome custom that made it possible for the American people to live calmly for more than 150 years with this "open door to dictatorship" and to shrug off all attempts (and there have been hundreds) to close it with the aid of a constitutional amendment. I refer, of course, to the two-term tradition, which he and the three other Virginia Presidents of the early days made a compelling if not compulsive precedent of our political system. More than one man in the long line of two-term Presidents between Washington and Franklin D. Roosevelt was tempted by his vanity, his ambition, or his train of friends, or by all three in concert, to ask for a third helping of glory. More than one kept his hand firmly on the great lever of political power by refusing to back off from the possibility of a third term until the last possible moment. But there was never much doubt in the popular mind that this was an almost sacred tradition that could never be suspended except in the most unusual circumstances.

We would still be sailing along calmly under the terms of the casual arrangement in the Constitution had it not been for the circumstances of 1940, the most unusual of which was the emergence of the first President in history who was ready to brave the storms of a violated tradition and seek a third term in office. Franklin D. Roosevelt got his third term, and at least part of a fourth term, too, and we got the Twenty-second Amendment. History may yet judge it a fair bargain, and I mean both the history written by his friends and the history written by his foes.

Congress proposed the Twenty-second Amendment in 1947, with not a single dissenting vote in the Republican majority in either house, and it was ratified by the requisite number of state legislatures in 1951. There can be no mistaking the intention of its key passage:

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.

This amendment is apparently designed, in contrast to comparable restrictions in state constitutions, to impose permanent ineligibility for re-election on any person who has been President of the United States for six years.

The case for the Twenty-second Amendment was stated with eloquence in both the House and Senate in 1947. Senator Revercomb of West Virginia went to "the real heart" of the matter by insisting, in effect, that the longer any one man held on to the Presidency, the closer this country drew to "autocracy," to "the destruction of the real freedom of the people." A clever and ambitious President, Senator Wiley agreed, was in an ideal position to increase and perpetuate his authority: by dispensing the many favors in his possession to men willing to do his bidding, whether in the administration, the armed forces, the judiciary, or even in Congress; by buying the extra votes necessary to secure his repeated reelection; and by posing at all times as "the indispensable man" whom the people should support and Congress never thwart. David Lawrence has recently echoed the key argument of these men by describing the proposal to repeal the Twentysecond Amendment as the "dictatorship amendment." If a "dictatorship" were ever "to arise in America," he writes, it would probably "come out of the tremendous powers derived by a President from the right to continuous office." This fear

of presidential dictatorship was and still remains the surface logic of the Twenty-second Amendment.

The case against the amendment was stated by men like Representatives Sabath and Kefauver and Senators Kilgore, Pepper, and Lucas. Although they fought in a losing cause, their appeal to history was forceful, and their cause has been slowly attracting new converts over the intervening years. President Eisenhower several times described the flat ban on a third term as "not wholly wise," although he reversed himself obliquely in 1959 by permitting Attorney General Rogers to advise Congress to "defer any legislative action in regard to the amendment to permit further experience thereunder”-in other words, to wait and see how it works over a sizable period of time. Former President Truman, with whom Speaker Rayburn agrees, puts the Twenty-second Amendment in a class with the Eighteenth. And such doughty characters as Senator Neuberger and Representatives Celler and Udall have offered resolutions designed to do away with it. The arguments of all these men, and of the political scientists who support them, are summed up in this indictment of the Twenty-second Amendment:

(1) It bespeaks a shocking lack of faith in the common sense and good judgment of the people of the United States, who apparently cannot be trusted to decide for themselves when an extraordinary situation demands an extraordinary break with the customary pattern of politics.

(2) As a corollary to the first point, it should be noted that this amendment was not, like the Twenty-first, submitted to ratifying conventions elected by the people. Suspecting that the voters who elected Roosevelt for two extra terms would resent this oblique rebuke, the Republican leaders in Congress went back to the old method of seeking ratification from the state legislatures, which were then worked over one by one while most people were looking the other way.

(3) It puts a new element of rigidity in a Constitution whose flexibility has been one of our most precious possessions, and thus subjects future generations of Americans needlessly to "government from the grave."

(4) Although we may have to wait many years to see this critical weakness reveal itself fully, sooner or later we will find ourselves trapped in a severe national emergency and be anxious to keep the incumbent President in office. Against our own will, and in submission to the will of men who acted hastily and vindictively far back in 1947, we will have to put aside the man to whom we would otherwise choose overwhelmingly to recommit our destiny. Then we will be sorry that we did not pay heed to the advice of Washington, who, in writing to Lafayette about this very matter, professed to see no sense at all "in precluding ourselves from the services of any man who on some emergency shall be deemed universally most capable of serving the public."

(5) We already have evidence before our eyes that the second term of even the most popular President will henceforth be an especially unhappy time for executive leadership. No second-term President except Jackson, not even Jefferson or the two Roosevelts, finished his eighth year as strong a leader as he had been in his seventh or sixth year or especially in his fourth, and his decline began the day when he admitted, or his friends and foes could assume, that he was not a candidate for re-election. As William Plumer, of New Hampshire, put it in 1806:

It seems now to be agreed that Mr. Jefferson is not to be a candidate at the next Presidential election. The disclosure of this fact, thus early, is an unnecessary and imprudent letting down of his importance. Most men seek the rising rather than the setting sun.

Now that every President's sun starts to set forever the day he begins his second term-to be less poetic, now that he is a "lame duck" a full four years before his certain demise-we must expect to see a steady deterioration in his capacity to persuade people "to do what they ought to do without persuasion." This is not a serene prospect for the second half of the twentieth century, years in which we will be in no position to afford the old luxury of having Presidents who have lost their political grip. We have dealt the modern Presidency a grievous blow by depriving the second-term President of that notable political weapon, his "availability," with which men as different as Coolidge and Truman, not to mention Jackson and Grant, kept their troops in line by keeping them guessing.

(6) Finally, the Twenty-second Amendment disfigured the Constitution with words that still express the sharp anger of a moment of reaction rather than the studied wisdom of a generation. It was, indeed, although the fact may no longer

be relevant, an undisguised slap at the memory of Franklin D. Roosevelt. No one can ever question the inalienable right of Americans to be critical of dead Presidents as well as of the living, but the Constitution is not the place to engage in a display of rancor. A concurrent resolution of Congress redirecting our attention to the rectitude of the two-term tradition would have accomplished the purpose just as well.

The fourth and fifth particulars in this bill of indictment are the essence of the case against the Twenty-second Amendment, and I am bound to say that I find them convincing. To the fourth there is no rebuttal except that there may never be so desperate a crisis combined with so badly needed a man, to which I can only reply grimly: Just wait and see. To the fifth there are two rebuttals, which arise out of different theories of the Presidency and are rarely joined together. The first is the argument that the President who cannot hope for reelection is uniquely situated to rise above politics and to act, as no President since Washington has acted, the noble role of "leader of all the people." As one hopeful citizen, Mr. William B. Goodman, of Flushing, New York, framed this argument in a letter to the New York Times just after President Eisenhower's re-election:

"He has nothing to lose. He cannot be re-elected. He may reconsider foreign and domestic policies he could not politically afford to suggest were less than adequate during his first term. He no longer need consider what, for example, the Senatorial opposition in his own party can do to him. He can do more to them if he will organize Congressional support of his policies solely around agreement to them rather than to the membership in a party over which he has steadily decreasing control. His appeal to the people on issues need no longer carry the mark of party.

"Thus to free the President from mere partisanship, while not the intent of the Twenty-second Amendment, may well be its result. Freeing the President for truly national leadership as it does, the amendment also makes him a lonelier figure-but his freedom is worth such isolation for the freedom of action it confers. He can maneuver, wheel, and fight, as no President has ever been able to before."

I confess that my own spirit rouses to the note of antique patriotism in this message, but I do not see how we can escape the blunt lesson of history that a President "free" from "mere partisanship" is a roi fainéant, a man commanded to "maneuver, wheel, and fight" with a blunted sword in hand. Any second-term President who tried seriously to abdicate his role as leader of his party would be worse than a lame duck: he would be a dead one. And as if that were not a cruel enough fate, some men might also consider him an ingrate or even a renegade. The party that elected him twice to the Presidency would have every right to expect him to "go all out" for the party's candidate in the next election. While the vision of the nonpartisan President will always beckon us, it is fated to remain no more than a vision.

The second rebuttal is simply that, if the hard choice must be made, it is more important to guard against the pretensions of a third-term President than to strengthen the hand of a second-term President. In point of fact, most of those who support the Twenty-second Amendment do not consider this a hard choice at all. If this amendment has served to weaken the Presidency, they argue, so much the better for the health of our democracy. The real logic of the Twenty-second Amendment is, then, that it helps to shift the balance of power in our government away from the executive and back toward the legis lature, thus reversing a trend that had appeared irreversible by any ordinary exertion of the will of Congress. Senator Revercomb came near to expressing this inarticulate major premise when he said:

It may be argued that the Congress, the membership of which is elected from term to term, might well be sufficient assurance of safety against individual power in the Executive. I submit that the Congress cannot stop the growth of Executive powers which may be gained by an individual through long tenure in so powerful an office as that of President of the United States. There are immense innate powers in that office. They can be mushroomed fast or gradually grown until the strength of thorough despotism may be in the hands of one man, or a group of individuals, for that matter, to rule the people by his will and not by laws. If such a situation should be brought about it would be, in summary, the very destruction of government by free and independent people and a move toward the creation of dictatorship in fact.

And I submit that it was not the possibility of dictatorship but the reality of the strong Presidency, not the shadow of a third-term President but the substance of any President, that gave force to the successful drive for the Twentysecond Amendment. When all the arguments and rebuttals and prophesies of doom have been mustered by each side, the fact remains that those who take pride and comfort in the amendment are Whigs, men who fear the Presidency and put their final trust in Congress, and that those who propose to repeal it are Jacksonians, men who respect Congress but look for leadership to the Presidency. Since this whole book is a salute to the modern Presidency, I doubt that I need to explain any further why the Twenty-second Amendment should be stricken from the Constitution. (I doubt that it will be, but that is no reason to think it should not be.) I would be sorry to see it stricken, however, without a dramatic reaffirmation, by Congress and the President then in office, of the essential wisdom of the two-term tradition. Let it thereafter be left to the American people to decide whether, in the event of another 1940, this tradition should be honored in the observance or in the breach.

THE CHIEF EXECUTIVE

(By Louis William Koenig)

CHAPTER 4.-TENURE

TENURE is power. Whether the Presidency is a center of energy and direction or of weakness and futility will depend in part on whether the President has long to serve and whether he is eligible for re-election. The Founding Fathers, aware of the importance of tenure to the strong executive, debated the President's term and his re-eligibility long and anxiously. The most formidable attacks upon the office since then have concentrated upon the same question. The worst assault-the impeachment trial of Andrew Johnson-was at bottom a question of tenure. In 1951 those who coud not abide the Presidency's swift enlargement of power and function during the thirties and forties also struck at the conditions of tenure, inserting into the Constitution the Twenty-Second Amendment, limiting the Presidential incumbent to two terms.

The Founding Fathers' anxiety about the President's term of office was reflected in their adoption at successive junctures of a term first of seven, then of six, and finally of four years. If Congress chose the President, as many favored, a long term without eligibility for re-election seemed best, because a President otherwise might become a Congressional yes-man in courting re-election. But once the electoral college system had been adopted, a shorter term with unlimited eligibility was agreed upon.

The Founding Fathers expected that George Washington would become the first President and would willingly serve the rest of his days. Their acceptance of the principle deeply ingrained since Revolutionary times, when George III was regarded as the symbol of monarchical tyranny: that rotation in executive office is essential to liberty.

The principle of unlimited eligibility for re-election was innocently but irreparably undermined in practice by the man in whose behalf it had been established, George Washington himself. Washington announced upon completing his second Presidential term that it was his personal wish not to serve another. Thomas Jefferson brought the weakened principle crashing to the ground when, after admiring state legislatures earnestly asked him to continue for a third term, he declared he would not. If there were no limitation on office, understood if not required, he said, the office would be held "for life" and would degenerate "into an inheritance." "Truth also requires me to add," Jefferson continued, "that I am sensible of that decline which advancing years bring on, and feeling their physical I ought not to doubt their mental effect." By the Civil War, Presidential observance had established the two-term principle in the core of American political doctrine.

The two-term practice has occasionally been under siege, however, one assault is the proposal that a President be limited to a single term. Such a doctrine was preached, for example-though certainly not practiced-by Andrew Jackson. And as late as 1912 the Democratic platform endorsed a single Presidential term, a pledge that its nominee, Woodrow Wilson, quickly repudiated. This was by no means the last to be heard of the subject. Dwight D. Eisenhower, both before and after assuming office, found the notion intriguing. Convinced that he could estab

lish in a span of four years his cherished concepts of moderate government, a free economy, and a balanced budget and mindful of his own advanced years, he proposed to hand over the reins after a single term to a younger man. Eisenhower came within an eyelash of incorporating this proposal into his first inaugural address. At the last minute he was talked out of it, but as his term wore on he often reverted to it in private conversation.

A second major assault upon the two-term principle has been leveled by the President who seeks a third or even a fourth term. Although Franklin Roosevelt alone triumphed over the two-term limitation by exceeding it, he was far from the first to try. In the decades between Lincoln and Franklin D. Roosevelt, there was seldom a period when the third-term fever did not seize the chief executive. So menacing in fact did the third-term boom of Ulysses S. Grant become in 1875 that the House of Representativves felt duty-driven to resolve, by a vote of 234 to 18, that departure from the two-term tradition would be "unwise, unpatriotic and fraught with peril to our free institutions.” Theodore Roosevelt, like Grant before him and Calvin Coolidge at a later day, took the pragmatic view that the two-term limitation applied only to a third consecutive term. He had sworn fealty to the two-term custom in the exuberance of his electoral victory of 1904, a pledge his foes gleefully recalled when he entered the Presidential race of 1912. But Roosevelt was a supreme rationalizer and saw no controdiction between his words in 1904 and his actions in 1912. If he were to decline "a third cup of coffee," he explained, no one would suppose he meant never to take another cup. By his 1904 pledge, he said, "I meant, of course, a third consecutive term."

Franklin D. Roosevelt's distinction in achieving re-election to a third and a fourth term was prevented by the Twenty-Second Amendment from becoming more than a personal triumph. The amendment inscribes in the nation's fundamental law the prohibition, "No person shall be elected to the office of the President more than twice." For anyone like Ulysses S. Grant, who after two terms and an interlude of retirement strains to possess the office a third time, the amendment would provide a clear and unequivocal negative. It imposes permanent ineligibility upon anyone who has occupied the Presidency for the allotted two terms. For Presidents like Theodore Roosevelt and Calvin Coolidge, whose incumbencies stretched across a full and a partial term, the amendment is too clear to be misinterpreted: "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." Admirers of former President Eisenhower, the first casualty of the amendment, concluded after reading its text that he could well be restored as chief executive by the route of succession after first being elected as Vice President.

The Twenty-Second Amendment demonstrates how vulnerable the Presidency is to stealthy emasculation by amendment. For all of its controversial character, the amendment emerged from the House of Representatives with but a single day's debate. Its four-year journey through the state legislatures stirred a minimum of public discussion. Only by untiring alertness could the diligent citizen keep up with the amendment's progress, disclosed in microscopic news items in the back pages of the New York Times. And if he read another paper even diligence would have been unrewarded.

The Constitution provides that amendments be ratified either by state legislatures or by special state conventions. Backers of the Twenty-Second Amendment skillfully avoided action by state conventions-conventions would be more closely attuned to popular opinion than the legislatures. From the voters' repudiation of the two-term tradition by electing Roosevelt to third and fourth terms it was clear that popular opinion could not be trusted. In sending the amendment to the state legislatures, moreover, Congress was relying upon bodies endowed with impressive experience in trammeling executive authority. Curbing the terms of chief executives is old hat to state legislatures. In fourteen states governors can serve only one term, and in six states not more than two. Of the thirty that remain, all but five that permitted their own governors to serve without limitation recoiled from according the same privilege to the President. New York and California, for example, voted for limitation of the tenure of the Presidency at a time when they had as their governors Thomas E. Dewey and Earl Warren (the Republican national ticket in 1948), both of whom were to be re-elected for third consecutive four-year gubernatorial terms in 1950.