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The Twice
and Future President: Constitutional Interstices and
the
Twenty-Second Amendment
February, 1999
83
NAME: Bruce G. Peabody * & Scott E. Gant **
BIO:
* B.A. 1991,
of
** B.A. 1991,
Crowell & Moring LLP,
Kruger, Ileana Kutler, Amy Levine, Stuart Rockoff, Mark Tushnet and Bill
Wallace.
SUMMARY:
...
The Twenty-Second Amendment to the United States Constitution
states
that
"no person shall be elected to the office of the President more than
twice." ...
Whatever the precise contours of the "two-term tradition" of
presidential
service, until 1940 (when its abandonment was implicitly sanctioned
with the
election of FDR to a third term), it seems to have led what Paul and
George
Willis describe as something of a "precarious life." ...
The examples of Grant
and Theodore Roosevelt suggest that at least two already
"twice-elected"
Presidents were prepared to challenge the custom had their political
fortunes
unfolded differently. ... During the early part of March 1947, the
Judiciary
Committee debated this resolution on the Senate floor, rejecting a
proposal to
amend it further to enforce a single six-year presidential term. ... We
believe
that neither conception of the Constitution's spirit provides a basis
for
declaring unconstitutional the scenarios under which an already
twice-elected
President may reassume that Office. ...
For instance, we have suggested that a
President nearing the end of his or her second term and determined to
stay in
office might run as Vice President with the idea that the
President-elect would
step aside, allowing the already twice-elected President (and Vice
President-elect) to serve a third term without running afoul of the
Twenty-Second Amendment's bar on reelection. ...
TEXT:
[*565]
INTRODUCTION
It appears to be a commonly held view
that when Bill Clinton's second term
expires, he will be constitutionally prohibited from serving again as
President
of the United States. n1 This, we
believe, is decidedly incorrect. The
Twenty-Second Amendment to the United States Constitution states that
"no
person
shall be elected to the office of the President more than twice." n2 Although a
twice-elected President may not again be "elected" to that Office,
there are a
number of circumstances in which such a person may still "serve" as
President.
We examine these circumstances
[*566] in this Article. While
distinguishing
between "election" and "service" may seem a matter of
semantic parsing, we
believe this differentiation is constitutionally significant and
consequently,
we contend that the Twenty-Second Amendment proscribes only the
reelection of
an
already twice-elected President. n3
The widespread misunderstanding about what the
Twenty-Second
Amendment
actually prohibits n4 is in large
measure due to the fact that it has been
infrequently examined by courts and academicians. And who can blame
them? Since
the Amendment was ratified in 1951, only three Presidents before Clinton
(Eisenhower, Nixon and Reagan) have been elected to a second term, n5 and none
of them ever expressed any genuine interest in testing its legal
parameters.
Moreover, the relatively straightforward text of the Amendment seemingly
provides little material for scholars to probe. As a result, there [*567]
is a
dearth of legal scholarship about the Amendment, n6
and the infrequent
references to it tend to assume (in our view, incorrectly) that it is
clear and
its interpretation unproblematic. n7
This Article attempts to redress some of the
inattention to
the Twenty-Second
Amendment. We strive to contribute to the understanding of the
Amendment by
exploring its history, its text, and its meaning. More specifically,
the first
major part of this Article (Part II) examines the political and legal
traditions
that gave rise to the Twenty-Second Amendment, helping to place the
Amendment
in
historical context. In Part II we consider, in turn, discussions of the
issue
of
presidential reeligibility at the Constitutional Convention, how the
issue
played out in presidential elections leading up to Franklin Roosevelt's
third
and fourth terms (which spurred the subsequent adoption of the
Twenty-Second
Amendment), and a long line of congressional efforts to limit
presidential
tenure. We then examine in some detail the debates and political
processes that
led to Congress's approval of the Amendment and its eventual
ratification by
the
states. Finally, we conclude our historical analysis by surveying
reactions to,
and assessments of, the Amendment since its enactment.
With this historical background in mind, the second
major
part of this
Article (Part III) focuses on what we consider the central interpretive
issue
presented by the Amendment - identifying what, precisely, it proscribes
and
allows. We examine this issue by exploring and testing the
constitutional-ity
of
six scenarios in which an already twice-elected President
[*568]
might
reassume Office, acting as or again becoming President.
n8 Specifically, we
examine whether the Twenty-Second Amend-ment, or some other
constitutional
provision, precludes a previously twice-elected President from:
(1) serving as Vice President
n9 and then becoming President in the case of
removal, death or resignation of the President;
n10
(2) serving as Vice President and then acting as
President
during a period in
which the President is unable to discharge the powers and duties of the
Office,
as authorized by (a) a written declaration from the President him or
herself,
n11 or (b) other constitutional mechanisms;
n12
(3) becoming Vice President-elect and then President
if
"at the time fixed
for the beginning of the term of the President, the President-elect
shall have
died"; n13
(4) becoming Vice President-elect and then acting as
President if "a
President shall not have been chosen before the time fixed for the
beginning of
[the] term, or if the President-elect shall have failed to qualify"; n14
(5) acting as President under circumstances provided
for by
the Succession
Act of 1947, n15 which comes into play
if (a) the President and the Vice
President both die, resign, or are unable to discharge their duties, n16 or (b)
the President-elect [*569]
and the Vice President-elect are both
constitutionally un-qualified to hold office;
n17
(6) becoming President if so chosen by the House of
Representatives in the
event no person received a majority of the electoral votes in an
election for
President. n18
Part III's assessment of the constitutionality of
these six
basic scenarios
n19 begins with what might be described as a
[*570] conventional legal
analysis of the scenarios, examining the text and legislative history
of the
Twenty-Second Amendment as well as other constitutional provisions to
assess
whether a twice-elected President could again occupy the Office of
President
after the expiration of his or her second term. We then discuss whether
the
"spirit" of the Constitution (or the spirit of the Twenty-Second
Amendment) may
bear on our inquiry and provide a basis for declaring that one or
several of
the
scenarios outlined above would be unconstitutional, regardless of the
results
of
our conventional legal analysis. n20
II. BACKGROUND AND ANTECEDENTS OF THE TWENTY-SECOND
AMENDMENT
While much of the proximate impetus for
adopting the Twenty-Second Amendment
seems to have derived from partisan opposition to the policies and
legacies
associated with Franklin Delano Roosevelt and his unprecedented four
terms of
presidential service, supporters of the Amendment - before and after its
ratification - have argued that it codified a longstanding tradition of
presidential term limits. We begin our examination of the Amendment by
uncovering its historical and legal roots.
n21
A. The Founding and The Convention Debates
When the American colonies declared
independence in 1776, they generally
favored weak executives and strong leg [*571]
islatures. n22 Post-independence
state constitutions reflected this preference; in addition to limiting
the
executive to a short term of office, a number of states prohibited
reelection.
n23 Even before the Articles of Confederation were adopted in 1781, the
disinclination to recognize a strong, independent executive was
manifest at the
national level, where executive powers and officers were controlled by
the
Continental Congress. n24 The presiding
officer in Congress, the president,
exercised a number of executive functions including meeting with state
executive
officers and foreign heads of state. In addition, "a principle of
rotation
was
firmly established for presidents [of the Continental Congress], no
doubt
reflecting once again the fear of executive power as a potential threat
to
liberty." n25 The Articles of
Confederation formally provided that the
president not serve "more than one year in any term of three
years." n26
During the Constitutional Convention the question of
how long
the President
should serve was discussed extensively.
n27 In debates on the question during
the summer of 1787, Edmund Randolph, Governor of Virginia and author of
the
nationalist "Virginia Plan" for the Constitution (much of which was
ultimately
adopted in the final version of the document),
n28 called for an executive
chosen by the national legislature and ineligible for more than one
term of
service. Measures proposed by other Convention delegates left the
question of
reeligibility open-ended and called for some form of pres-idential
election, as
opposed to selection by the legislature.
n29
[*572] By July 26,
the Convention approved a plan in which the executive
was to be chosen by Congress for a term of seven years, with no
reeligibility.
n30 Opponents of this plan, including Alexander Hamilton
n31 and Gouverneur
Morris, argued in favor of reeligibility and the Committee of Eleven
(to which
a
number of unresolved issues had been referred by the Convention
delegates)
suggested that the Convention adopt a four-year presidential term. n32 On
September 15, an acceptable compromise was finally reached, and the
Convention
agreed to a four-year term with election by an electoral college and no
restriction on reeligibility. n33
Morris, author of the
constitution and
most vocal and forceful in arguing against limiting presidential
reeligibility.
He maintained that without the option of reeligibility, Presidents
would lose
their appetite for "public esteem" and their "love of fame ...
the great spring
to noble and illustrious action."
n35 Morris also thought that limiting the
presidential term of service would incline a President to corruption
and to
"accumulate wealth and provide for his friends." n36
And he intimated that
constitutional restrictions on the terms of presidential service might
simply
give way during a crisis: "In moments of pressing danger the tried
abilities and
established [*573] character
of a favorite Magistrate will
prevail over
respect for the forms of the Constitution." n37
After the Convention closed, resistance to open-ended
service
persisted, as
some critics voiced concerns that reeligible Presidents would "endanger
the
public liberty." n38 The Virginia,
conventions called for amendments prohibiting the President from
serving more
than two terms. n39 But the merits of
not limiting presidential reeligibility
were revisited in The Federalist. In Federalist No. 69 Hamilton
elaborated how
the Constitution was premised on a reeligible executive, with
democratic checks
to counter the threat of a tyrannical President (or a servile President
continually installed by a domineering Congress in elections thrown to
the
House). n40 The President,
years; and is to be re-eligible as often as the people of the
shall think him worthy of their confidence." n41
Defense of a (potentially perpetually) reeligible
President
was further
developed in Federalist No. 72, which asserted that a number of evils
flowed
from limiting the number of terms a President could serve. In arguments
reminiscent of those employed by Morris,
term limits would remove "inducements to good behavior" and diminish
the
incentives of ambitious politicians to pursue the public good. n42 Moreover, a
brief or fixed tenure would provide a greater temptation to abuse
power. Term
limits would also needlessly exclude the wisdom and insights of
experienced
Presidents, which would be especially important for overcoming crises
in the
new
republic. In addition, electoral continuity was needed to promote
stable and
consistent [*574] policies.
Ultimately, these arguments
prevailed and the
Constitution was adopted with the original Convention language intact -
that
is,
without a limit on presidential service.
B. The Two-Term Limit: A Cherished Tradition?
There seems to be something of a
consensus among scholars that, starting with
George Washington's refusal to run for a third term in 1796, a
presidential
two-term tradition was founded and continued uncontested until
reelection to a third term in 1940. As David Kyvig puts it in his
history of
constitutional amendments, the notion that a President should serve no
longer
than two terms was "established by George Washington, reinforced by
Thomas
Jefferson, and observed for one reason or another by the seven other
once-reelected chief executives" up to FDR. n43
Similarly, FDR historian
Kearns Goodwin offers that "ever since George Washington refused a
third
term,
no man had even tried to achieve the office of the Presidency more than
twice."
n44
But a close inspection of the debates on presidential
term
limits between
1789 and 1939, as well as an examination of political practices during
that
period, casts doubt upon these accounts of presidential reeligibility.
To begin
with (as we discuss below), Washington himself did not appear to favor
limiting
the number of times a President could serve. Furthermore, even
Jefferson, the
President most strongly associated with presidential term limits and the
principle of "rotation in office," suggested that there were
circumstances
[*575] under which a third term would be
appropriate. And even if, prior to the
Twenty-Second Amendment, there was an unwritten rule that Presidents
should not
seek a third term, it was a rule questioned by a number of Presidents
after
Whatever the precise contours of the "two-term tradition" of
presidential
service, until 1940 (when its abandonment was implicitly sanctioned
with the
election of FDR to a third term), it seems to have led what Paul and
George
Willis describe as something of a "precarious life."
n46 If this perspective is
correct, then a better understanding of the mixed historical attitudes
towards
the two-term tradition may help refine scholarly attitudes about its
significance and provide additional insight into the purposes and scope
of the
Twenty-Second Amendment.
In this analysis of presidential history prior to FDR
we seek
to address a
number of questions: Was there a fairly identifiable presidential
"custom"
regarding the appropriate limits of presidential tenure? If so, how was
it
created? What did it proscribe? We engage these questions to clarify the
historical background of the Twenty-Second Amendment and to assess the
arguments
made before and after the Twenty-Second Amendment by those who have
invoked
"history" in defense of limiting presidential service.
1. George Washington: Founder of a Two-Term Tradition?
As already noted, those recognizing a
longstanding historical custom of limited
presidential service usually trace it to President Washington. n47 Some
accounts of the two-term tradition suggest that Washington's refusal to
run for
a third [*576] term
- despite popular and political
enthusiasm for his
continued service n48 - helped steer the
nation clear of monarchy and
established a de facto two-term limit on presidential service.
Adherents to this conception of Washington as the
"father" of a two-term
tradition point to several pieces of supporting evidence, including a
1792
farewell address (drafted by James Madison) that Washington intended to
deliver
upon completing his first term. n49 In
the text,
virtues of setting "an early example of rotation in an office of so
high
and
delicate a nature," and asserted that such a rotation would "accord
with the
republican spirit of our Constitution, and the ideas of liberty and
safety
entertained by the people." n50
(a term also invoked frequently by
opposition to open-ended service and to secure a powerful foundation for
limiting presidential service in the future.
But
conveyed to the public, since he ultimately ran in 1792 and did not
include the
remarks in his 1796 farewell address.
n52 Moreover, the evidence that
insubstantial. While he refused a third term in
[*577] 1796, n53
despite
continued enthusiasm for his leadership, Washington nowhere decried
continued
reelection per se. Washington seems to have retired not out of a sense
of
constitutional propriety but because he wanted to leave politics and
return to
Mount Vernon. n54 As political scientist
Thomas Cronin put it, "
retired, not because he favored a two-term tradition, but because he
was tired
and wanted to return to private life."
n55
Moreover, it is worth recalling that
Constitutional Convention that explicitly considered and rejected
limiting
presidential service and enforcing "rotation in office."
n56 Indeed, less than
a year after the Convention, Washington wrote to the Marquis de
Lafayette,
indicating that while opinions were likely to vary,
on the eligibility of the same person for President,
after he
should have
served a certain course of years... I confess I differ widely myself
from Mr.
Jefferson and you, as to the necessity or expediency of rotation in that
department. The matter was freely discussed in the convention and to my
full
conviction. n57
services of any man who in some great emergency shall be deemed
universally
most
capable of serving the public." n58
To some extent, of course,
may be less important than how his actions have been perceived and
interpreted.
In this way, Washington may have contributed to a "tradition" of two
terms of
service, regardless of whether he thought it a necessary part [*578]
of the
new republic's political practices. n59
We continue with our investigation to
see, then, if
coherent custom of limited presidential service.
2. Thomas Jefferson and the Tradition of Term Limits
Thomas Jefferson, the next President to
be elected twice, spoke unambiguously
and consistently in favor of the "necessity of rotation in office, and
most
particularly in the case of the President." n60
Indeed,
intended to serve only one term, but decided that the "unbounded
calumnies" of
his Federalist political opponents compelled him to run again. n61 Just before
his second inauguration, Jefferson spoke at length about his views
regarding
the
acceptable parameters of presidential service, concluding that he
favored
precedents,"
after a while who shall endeavor to extend his term" beyond this tenure.
Jefferson explained that his attachment to the principle of rotation
and his
distaste for the "perpetual re-eligibility of the same President" was
born out
of a fear that "the indulgence and attachments of the people will keep
a
man in
the chair after he becomes a dotard, that re-election through life
shall become
habitual, and election for life follow that." n63
Moreover,
that a continually elected President would become subject to foreign
influences,
corruption and threats of force. n64
Despite
dangers of an entrenched Chief Executive and trepidation about
presidential
service [*579] beyond
two terms, his objection to open-ended
reeligibility
does not appear to have been entirely inflexible. In 1805
"there is ... one circumstance which could engage my acquiescence in
another
election; to wit, such a division about a successor, as might bring in a
monarchist." n65 Thus, we might
fairly conclude that even the most outspoken
presidential advocate for term limits recognized the necessity of
deviating
from
this general rule under extraordinary conditions.
3. Perceptions of Presidential Term Limits After
Jefferson
Between Presidents Jefferson and Andrew
Jackson, the question of whether there
should be a limit on the number of terms a President could serve
received
little
attention from Presidents - although a number of Congressional measures
during
this period attempted to address the issue.
n66 Jackson, elected to the
presidency in 1828 but still angered by the "corrupt bargain" that
denied him
victory in the election four years earlier,
n67 called for sweeping changes in
how the President was elected and how long he could serve. In his first
message
to Congress in 1829, and in subsequent public statements,
n68
for a direct vote for President and for limiting the President to a
single term
of four or six years. No measure supporting these changes was passed by
Congress, however.
Martin Van Buren was the only President between
Jackson and
Lincoln to be
renominated for a second term, although he lost the second election and
served
only one term. During Van Buren's administration, Congress passed ten
resolutions calling for a one-term limit on presidential service -
perhaps
indicating, as Earl Spangler has argued,
[*580] "some intra-party
disaffection
with him." n69 In 1840,
President-elect William Henry Harrison pledged to serve
only one term, and in 1844, the Whigs included a one-term plank in their
national platform. n70 While he was
still a member of Congress, James Buchanan
(who became President in 1857) expressed his support for "the example of
no President shall be more than once re-elected." n71
While we have found no
discussion about whether
called for a single presidential term in a special message to Congress,
shortly
after assuming office. In addition, during Johnson's administration,
Congress
introduced twelve resolutions recommending single terms for the
President. n72
The relative inattention the two-term issue received
after
with the presidency of Ulysses Grant. Not long after Grant won
reelection in
1872, a serious debate percolated within Republican political circles
about the
possibility of his running again in 1876. Although the President himself
remained reticent in public about the subject,
n73 the prospect of an 1876 run
met with increasing attention and resistance, and in 1875 the Republican
conventions of a number of states passed resolutions declaring their
opposition
to presidential service beyond two terms.
n74 Responding to the Pennsylvania
convention's expression of "unalterable opposition" to a third term
run, Grant
wrote a letter to the convention president indicating that he was not, [*581]
nor had he "ever been, a candidate for a renomination."
n75 Grant further
indicated that he "would not accept a nomination if it were tendered
unless it
should come under such circumstances as to make it an imperative duty -
circumstances not likely to arise."
n76 But in expanding on this last point,
Grant noted that there were no constitutional prohibitions against
serving more
than two terms and that under certain circumstances it might be wise to
extend
a
President's time in office beyond eight years.
n77 On December 15, 1875,
however, the House passed a resolution indicating that retirement from
office
after two terms was a "time-honored custom" and that any departure
from this
tradition was "unwise, unpatriotic, and fraught with peril to our free
institutions," and interest in a third term for Grant temporarily
disappeared.
n78
Although the prospect of a third term was a dead
issue for
Grant at the end
of 1875, n79 by 1880 his candidacy was
alive again (with some convinced that
the lapse of four years between Grant's last service as President made
him
reeligible for office). n80 Indeed, as
early as the summer of 1878, the
Illinois State Republican Convention endorsed Grant as its candidate
for an
1880
run. n81 At the 1880 national Republican
convention, Grant led all other
candidates through thirty-five ballots, but on the thirty-sixth ballot
anti-Grant forces combined to nominate James A. Garfield.
n82 Despite this
outcome, and notwithstanding the examples of
the prospect of a President serving for at least three terms was
clearly very
much alive in 1880. n83
The issue continued to garner attention during the
presidency
of Grover
Cleveland, the only President to serve two nonconsecutive terms. In 1884
nomination.
he lost his reelection bid four years later.
n84 But in 1892, Cleveland was
elected for a second time, and following his victory, thirteen proposed
constitutional amendments were introduced in Congress seeking to limit
the
presidential term in a variety of ways.
n85
At the beginning of the Progressive era, in an
atmosphere of
political and
democratic reform, the issue of whether there were any limits on the
duration
of
presidential service reemerged. n86 The
Democratic platform of 1896 declared
it to be the unwritten law of this Republic,
established by
custom and usage
of a hundred years, and sanctioned by the example of the greatest and
wisest of
those who founded and maintained our Government, that no man should be
eligible
for a third term of the Presidential office.
n87
Shortly after his second inauguration in
1901, President William McKinley was
the subject of third term speculation - speculation diminished after
McKinley
insisted he would not [*583]
seek a third term and ultimately rendered
moot by
his assassination on September 14, 1901.
n88
McKinley's successor, Vice President Theodore
Roosevelt,
eventually raised
serious questions about how long (and under what conditions) a person
might
occupy the Office of President. After serving as
President-through-succession
for three and a half years,
after his victory,
McKinley's assassination as his first term, and, in support of "the
wise
custom
which limits the President to two terms," he would refuse any further
nominations. "Under no circumstances will I be a candidate for or
accept
another
nomination,"
But eight years later
William Taft, had drifted from (and even betrayed) his foreign affairs
and
domestic policies n90 - challenged the
incumbent for the Republican nomination.
Explaining his run for the presidency and reversal of his earlier
position
(insisting that he would refuse further nominations), Roosevelt argued
that
since 1904 was his first "election" his reelection in 1912 would not
betray
publicly indicated that he would accept a presidential nomination, and
June of
the same year, when the Republican Convention assembled, the third term
issue
became a prominent part of the campaign. Critics warned of
"inordinate ambition" and the threat of dictatorship should he
continue to
serve, and the Democratic platform of 1912 called for a single six-year
term.
n92
Despite Roosevelt's challenge, Taft was renominated
on the
first ballot,
prompting
election, but concern over the third term issue had already been fading
since
his defeat at the Republican Convention. Nevertheless, a few [*584]
weeks
after the election Taft called for a six-year term presidential limit
with no
possibility for reelection. n94 And in
February 1913, the Senate passed a
resolution n95 providing for an
amendment that also would have limited
Presidents to a single six-year term. The House did not act on the
measure. n96
The only other President before FDR to be elected to
a second
term was
Woodrow Wilson. Before
September 25, 1920) there is some evidence that he aspired to a third
term. The
1912 Democratic platform on which Wilson ran included a plank calling
for a
constitutional amendment "making the President of the United States
ineligible
for reelection" and pledging their candidate to this commitment, n97 but Wilson
distanced himself from this pledge. n98
After Wilson's second election in 1916,
there was speculation that a 1920 Wilson-Roosevelt presidential battle
would
render the third term issue unavoidable.
n99 While Wilson was not nominated at
the 1920 Democratic convention, he at no time declared himself
unwilling to
serve or unfit for reelection.
Prior to FDR, Calvin Coolidge in 1927 made the last
presidential statement
related to the question of how long a President could serve. Coolidge,
after
serving part of Harding's term and being elected once on his own,
indicated
that
he did not "choose" to run for President in 1928 (implying that he
had the
option to do so). n100
[*585]
C. Turning from Tradition?: FDR and the Third-Term
Question
As we have already seen, despite
statements by scholars to the contrary, the
custom of a two-term limit on presidential service appears to have been
upheld
somewhat contingently. The examples of Grant and Theodore Roosevelt
suggest
that
at least two already "twice-elected" Presidents were prepared to
challenge the
custom had their political fortunes unfolded differently.
n101
We turn now to FDR, the only President who has served
for
more than two full
terms. We do this to understand the immediate background of the debates
and
ratification processes that led to the Twenty-Second Amendment, and to
see how
the themes that surrounded the two-term issue in the 150 years prior to
Roosevelt's third election played out in 1940 and thereafter. n102
The third-term question was salient during the 1940
election. n103 Although
FDR stated in 1937 that his "great ambition... [was to] turn over this
desk and
chair in the White House" on Inauguration Day, interest in (and concern
over)
extending the Roosevelt presidency persisted, and over time the
President's
interest in running apparently grew stronger, particularly as Germany
extended
the Second World War into Western Europe and Scandinavia.
n104 In September
[*586] and October of 1940, a special
subcommittee of the Senate Judiciary
Committee conducted sixteen days of hearings on "the propriety of a
third
term."
n105 Campaign literature and political pamphlets railed against the
dangers of
allowing a President to serve as a would-be dictator and made thinly
veiled
comparisons between Roosevelt and the Axis powers leaders.
n106 Republican
presidential candidate Wendell Wilkie, responding to concerns about the
issue
of
open-ended presidential tenure, announced that if elected he would ask
Congress
to make passage of a presidential term limit amendment his first order
of
business. n107 As the Democratic
National Convention opened in July 1940, FDR's
continuing reluctance to run openly made it unclear who would be the
Democratic
nominee. Although
were free to choose whatever candidate they desired, his message was
interpreted
to mean he was willing to be drafted, and he subsequently was
renominated on
the
Convention's first ballot. n108
In response to the nomination, between 1940 and 1943,
eight
state
legislatures passed resolutions calling for presidential term limits. n109 The
Republican National Convention of 1940 sought a constitutional
amendment to
enforce a two-term limit "to insure against the overthrow of our
American
system
of [*587] government." n110 Seven Gallup polls taken in 1943 and
1944
reported that between 45% and 62% of those surveyed favored a
constitutional
amendment that would prohibit Presidents from being elected more than
twice,
with support for such an amendment increasing during that period. n111
Nevertheless, Congress took no action on the question during
presidency. FDR's victories in 1940 and 1944 were decisive (although
not as
decisive as his previous elections), and in any event interest in
establishing
a
presidential term limit faded after the attack on Pearl Harbor and the
subsequent involvement of the United States in the war.
FDR's elections to third and fourth terms both
illuminate and
obfuscate our
understanding of where the nation stood on the question of presidential
term
limits at the time. On the one hand, the elections of 1940 (with
majorities in thirty-eight states) and 1944 (majorities in thirty-six
states)
might be understood as representing a national plebiscite on the
question of
whether a President could serve more than two terms.
n112 At the same time,
to his continued service, and, as noted, polls indicate that the
percentage of
those favoring a two-term limit on presidential service
[*588]
increased
steadily between 1940 and 1945. n113 In
addition,
cautious in confronting the third-term issue in the 1940 election.
According to
Kyvig, he engaged in "an elaborate charade of not running and only
accepting a
Democratic draft" for President.
n114 When Roosevelt did address the issue of
his continuing service, he remained circumspect and stressed the
extraordinary
nature of the times. In his last speech of the 1940 campaign,
obliquely justified a third term by explaining that:
there is a great storm raging now, a storm that makes
things
harder for the
world. And that storm, which did not start in this land of ours, is the
true
reason that I would like to stick by these people of ours until we
reach the
clear, sure footing ahead. n115
Whether or not there was a presidential
custom limiting service to two terms,
Roosevelt's reelections in 1940 and 1944 demonstrated that it was not a
custom
deemed binding by either him or the electorate. And when political
interest in
limiting presidential tenure resurfaced following FDR's death and the
conclusion
of the war, Roosevelt and his unprecedented four terms of service
became the
common referent for those arguing for (as well as against) setting a
constitutional limit. In the eyes of some, the case for limiting
presidential
tenure was made vivid by perceived excesses of the New Deal, FDR's
aggressive
attempts at power accretion (like the Court-packing plan of 1937 n116 and his
dramatic reorganization of the executive branch
n117 ) and the overall [*589]
growth of a powerful "modern" presidency. n118
For those who saw
symbol of economic recovery, national unity, and victory in the war
against the
Axis powers, FDR served as the perfect argument for retaining open-ended
presidential service.
D. Congressional Efforts to Codify the Two-Term
"Tradition"
Continuing partisan opposition to the
policies and politics of FDR, coupled
with the strong showing of Republicans in the 1946 Congressional
elections, set
the stage for legislative action on presidential term limits. In the
1946
mid-term election, Republicans achieved majorities in the House and
Senate for
the first time since 1929, and they pushed forward a presidential term
limits
amendment as one of their first orders of business, as promised during
the
campaign.
As already indicated, this was hardly Congress's
first
attempt to promote an
amendment to limit presidential eligibility. There is a lengthy history
of
efforts by both houses of Congress to pass measures that would fix the
terms of
service of Presidents, although, until the Twenty-Second Amendment, not
a
single
proposed amendment on the subject was ever adopted by Congress and
passed on to
the states for ratification.
1. Early Congressional Debates on Presidential Term
Limits
Adoption of the Constitution did not put
an end to the debates over
presidential term limits. Instead, for over a
[*590] century and a half after
the Constitutional Convention, members of Congress periodically
attempted to
limit the number of terms a President could serve, suggesting that this
was a
longstanding and persistent concern of the nation's lawmakers. Indeed,
between
1789 and 1947, 270 proposals to limit the terms of office of the
President were
introduced in Congress. n119
In 1803, following the contested election of 1800
(which was
thrown to the
House of Representatives), Congress first considered a proposal to limit
presidential tenure to two successive terms, and three terms overall. n120 The
measure was soundly rejected. After that, there appears to have been
little
congressional interest in the question until President Monroe was
nearing the
end of his seventh year in office in 1823. Although there is no
evidence
was considering another run, political supporters of the various
candidates
hoping to succeed the President pressed for a measure to codify the
"principle"
limiting a President to two terms of service.
n121 In 1824, the Senate passed a
joint resolution providing that no person should be chosen President
for more
than two terms. n122
Following another highly contested election in 1824
(when
Jackson lost even
after receiving a plurality of popular and electoral college votes), a
number
of
proposals to reform the way in which Presidents were elected and the
length of
their tenure in office were again considered. Among these was a measure
passed
by the Senate in 1826 calling once again for a two-term limit. n123 During
a single term, Congress considered twenty-one proposals seeking to
alter the
Constitution's provisions regarding presidential service. However, none
of
these
measures were passed by both houses.
n124
The absence of a serious prospect for a third-term
challenge
seems to have
resulted in limited congressional activity on the presidential term
limit issue
for the next forty years. n125 But in
December 1875, responding to the
possibility of a third-term run by President Grant,
n126 the House passed, by a
234 to 18 vote, the "Springer resolution" stating that:
the precedent established by Washington and other
Presidents
of the United
States in retiring from the Presidential office after their second term
has
become, by universal concurrence, a part of our republican system of
government,
and that any departure from this time-honored custom would be unwise,
unpatriotic and fraught with peril to our free institutions. n127
As indicated in our previous discussion,
at the time the Springer resolution
was passed, Grant presented a credible threat to the two-term
tradition. But
after encountering political resistance to the idea of his running for
a third
term, he ultimately refused to be a candidate in 1876, although he was
an
unsuccessful candidate for the Republican nomination in 1880.
The longstanding political movement to limit
presidential
terms appears to
have gained some strength after 1900, when the number of relevant
legislative
proposals increased. n128 In 1912 alone,
twenty-one amendments were introduced
in [*592] Congress
"proposing a limitation on the
Presidential term." n129
Prior to Wilson's first inauguration in 1913, the Senate passed a
resolution
limiting the President to a single six-year term by a two-thirds
margin, but
the
House did not act on the measure. n130
In the 1920s, Congress once again introduced numerous
resolutions that sought
to limit presidential service, with early 1927 a particularly active
period.
During this time, Representative Fairchild called for an amendment to
the
Constitution specifying that:
no person shall be eligible to the office of
President who
has previously
served two terms, whether by election or by succession due to the
removal,
death, resignation, or inability of the President where the term by
succession
shall have continued for a period of 2 years or more.
n131
Representative Beck introduced a measure
almost identical to the House
resolution of 1875 (recognizing the "time-honored" tradition of
retiring after
two terms of service). n132 A few weeks
later, Senator Robert La Follette, Jr.,
son of the Progressive presidential candidate, introduced a resolution
in the
Senate limiting the President to two terms. In January 1928, Senator La
Follette's resolution was reintroduced, amended and passed by the
Senate in a
form that was again nearly identical to the 1875 House measure. n133 This was
the last time Congress considered legislation on presidential
eligibility
before
FDR became a candidate for a third term in 1940. With FDR's candidacy
the
movement for term limitations was briefly renewed, but it flagged after
FDR's
death, gaining sufficient political energy only after Republicans
subsequently
took over the 80th Congress.
On the whole, a review of congressional efforts to
enact
presidential term
limits suggests that while concerns about the question of reeligibility
were
expressed quite steadily, these concerns were not addressed through any
systematic campaign to limit presidential reeligibility. Although
members of
Congress had frequently fretted about the threat of Presidents [*593]
entrenching their power through indefinite tenure in office, n134 the
legislative responses to this perceived threat were substantively
varied,
somewhat fitfully pursued, and, until 1947, unsuccessful.
2. Proposal and Ratification of the Twenty-Second
Amendment
Despite some loss of interest in the
question of presidential term limits after
Roosevelt's 1940 election and the eventual involvement of the United
States in
World War II, the issue resurfaced not long after the death of FDR and
the end
of the war. The strong showing of Republicans in the 1946 elections -
and their
resulting possession of majorities in the House and Senate for the
first time
in
eighteen years - enabled them to advance a term limit amendment.
On January 3, 1947, the first day of the first
session of the
80th Congress,
House Judiciary Chairman Earl C. Michener and Speaker of the House
Joseph
Martin
introduced a presidential term limit amendment, House Joint Resolution
27 (H.J.
Res. 27), n135 which was referred to the
House Judiciary Committee. n136 H.J.
Res. 27, as originally written, specified that:
no person shall be chosen or serve as President of
the United
States for any
term, or be eligible to hold the office of President during any term,
if such
person shall have heretofore served as President during the whole or
any part
of
each of any two separate terms. n137
The proposal was modified by the House
Judiciary Committee, which reported H.J.
Res. 27 to the full House on February 5 with the following revision
(replacing
the language above):
[*594]
Any person who has served as President of the United States during all,
or
portions, of any two terms, shall thereafter be ineligible to hold the
office
of
President. n138
The House Judiciary Committee's language
does not appear to have altered the
original measure's substance: under each proposal, regardless of
whether a
President was elected or assumed the Office through some other means,
his or
her
service was limited to a maximum of two terms.
n139
On February 6, H.J. Res. 27 was brought to the floor
under a
rule allowing
two hours of debate, which Democratic opponents of the measure decried
as
inappropriately restrictive for a proposed amendment to the
Constitution. n140
Along with forty-seven Democrats (thirty-seven of whom were from the
South)
voting for the proposal, all 238 Republicans present supported the
measure,
leading some commentators to argue that the Amendment was propelled by
partisan
concerns and regional interests. n141
The Senate received H.J. Res. 27, as revised and
approved by
the House, on
February 7 and referred the measure to its Judiciary Committee. The
Senate
Judiciary Committee modified the language still further to provide that:
A person who has held the office of President, or
acted as
President, on
three hundred and sixty-five calendar days or more in each of two terms
shall
not be eligible to hold the office of President, or to act as
President, for
any
part of another term. n142
Like the original House resolution, the
Senate Judiciary Committee's language
addressed presidential service generally, rather than limiting itself,
as the
Twenty-Second Amendment ultimately would, to presidential reelection.
During the early part of March 1947, the Judiciary
Committee
debated this
resolution on the Senate floor,
[*595] rejecting a proposal to
amend it
further to enforce a single six-year presidential term.
n143 Then, on March 10,
the Senate considered an amendment offered by Democratic Senator Warren
Magnuson
that would have replaced the Judiciary Committee's language with the
seemingly
more straight-forward provision that "no person shall be elected to the
office
of President more than twice." n144
Magnuson explained that the language in his
proposal, unlike the "complicated legal language" n145
of the Committee
version, "could be easily understood by everyone, and ... would not
involve
complicated legal questions," such as "When is a man Acting
President? When does
he assume the office" and, "to what period he should be limited"
when "elevated
to the office of President through circumstances beyond his control"? n146
Magnuson argued that his proposal would bypass these questions by
focusing on
what was "really intended to be reached" - preventing a President
from
"perpetuating himself in office."
n147 Finally, Magnuson suggested that the
Judiciary Committee version of the resolution would unduly restrict a
person
elevated to the Office of President "through circumstances beyond his
control,
and with no deliberation on his part ... but because of an emergency or
an
unfortunate circumstance," from subsequently running for office. n148 Although
Magnuson acknowledged that his proposal did not account for the
possibility
that
someone might serve or act as President without being elected, he
discounted
these contingencies as beyond the immediate focus of the 80th Congress
and its
concern with limiting the number of times a person could be elected.
A number of Magnuson's colleagues echoed his position
on H.J.
Res. 27.
Senator Joseph Tydings, one of the authors of the [*596]
version of the
resolution that would eventually become the Twenty-Second Amendment,
spoke in
favor of Magnuson's Amendment:
What we are trying to do is to stop any man from
being
elected President more
than twice ... But under the committee amendment a man could be
prohibited from
being elected President more than once, provided that he had served
more than 1
year prior to the time he was elected President ... I think that
provision is a
little stringent. n149
Like Magnuson, Tydings emphasized the
restrictive nature of the Senate
Judiciary Committee's language, especially in limiting persons elevated
to the
presidency without seeking election to that Office. As Tydings
explained:
If it is right to have a limitation of 8 years for a
twice-elected President,
then why in heaven's name is it not right to give a Vice President the
3 years
which he may serve in the term of his predecessor plus one full term,
rather
than limit him to 5 years [which the committee amendment would do]? n150
A number of Senators were unswayed by
the arguments of Tydings and Magnuson and
thought it important to consider the very issues Magnuson's proposal
did not
directly address, including, for example, questions about how the
amendment
affected persons elevated to the office through non-electoral means. n151
Senator Bourke Hickenlooper spoke out against the Magnuson amendment,
explaining
that it would create a "peculiar situation" whereby "an
individual who becomes
President by accident, an act of divine providence, or otherwise, and
who was
not originally elected to the position, is the only person who can hold
protracted office in the Presidency" (by still being eligible for
election
and
reelection). n152 Magnuson conceded that
this was a fair reading of his
proposal but did not think the amendment should be so
[*597]
detailed that it
would "deal with contingencies whereby a man because of circumstances
beyond his
control is elevated to a high office."
n153 Other Senators expressed concerns
about how long an individual could serve as President under Magnuson's
proposal.
Senator Robert Taft objected to Magnuson's amendment, pointing out that
a
person
who was elevated to the Office of President through non-electoral means
might
still be elected twice and serve "as long as 11 1/2 years ... [which]
is
too
long." n154 Perhaps sensing that he
did not have sufficient support for his
amendment, Senator Magnuson modified his version of H.J. Res. 27 to
prohibit
successive elections, but still found his amendment soundly rejected on
the
Senate floor. n155
On March 12, Senator Taft sought a compromise between
supporters of
Magnuson's amendment and those still troubled by its inattention to
those who
might assume the presidency without being elected to that Office. Taft's
amendment drew on the "election" language of Magnuson's amendment and
avoided
the controversy of the Committee amendment, which was seen as unduly
restricting
the reeligibility of those called on to act as or become President
through no
doing of their own. n156 Specifically,
Taft's amendment provided that:
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 2 years of a term to which some other person was elected
President,
shall be elected to the office of the President more than once. n157
[*598]
The Taft amendment was intended to balance the concerns of those
(like
Senator Tydings) who thought that the "five-year" limit provided by
the
Committee Amendment was too short and those who thought the "11 1/2
year
limit"
of Magnuson's amendment was too lengthy. Taft believed his amendment was
"clearer" than the Committee's amendment, although he did not explain
how this
was so (and there are good reasons to believe Magnuson's and Taft's
language
left many issues unclear). n158
The compromise Taft worked out with Tydings and
others would
eventually rule
the day, becoming the language of what we now know as the Twenty-Second
Amendment. No Senate Republican voted against the Taft proposal (just
as no
House Republican had voted against H.J. Res. 27), and a substantial
bloc of
southern Democrats also voted for the measure, ensuring relatively
comfortable
passage by a fifty-nine to twenty-three vote.
n159 The next day, March 13, the
Senate returned the measure to the House. After several days of debate,
on
March
21 the House adopted the Taft version of the proposed amendment by the
constitutionally required two-thirds margin and sent it to the states
for
ratification. n160
Within two months of its introduction in the House,
the
Twenty-Second
Amendment had been presented to the states. Between the filing of the
amendment
with the Secretary of State on March 24, and the end of the year,
eighteen
state
legislatures ratified the measure. "Republican-dominated" and [*599]
southern
legislatures tended to pass the measure in relatively short order, but
ratification proceeded very slowly after this first wave of support,
and it was
not until 1951 that the required two-thirds of the states approved the
proposed
amendment. n161
During the ratification process only twenty-five
Republican
state senators
and fifty-eight Republican state representatives, out of 3,272
Republican
legislators whose votes were recorded, opposed the Twenty-Second
Amendment.
n162 As James Davis explains, the Twenty-Second Amendment was ratified
because
of the determination of Republicans (and southerners) "not to see a
repeat
performance of four successive presidential victories by another
FDR-type
candidate." n163
3. Assessing the Congressional Debates
Having examined the immediate context in
which the Twenty-Second Amendment was
proposed, considered and ratified, we move on to a preliminary
assessment of
the
congressional debates on the Amendment. Specifically, we seek to answer
two
questions. First, do the debates reveal the purpose of the Amendment as
it was
perceived at the time? Second, how is one to explain the shift from the
language
approved by the House, and even that supported by the Senate Judiciary
Committee, to what was eventually endorsed by both houses of Congress
and
ratified by the states?
The congressional debates on the Twenty-Second
Amendment
revolved around
three broad concerns relevant to our analysis: (1) the sorts of
contingencies
the Amendment should address; (2) the effect on presidential
(re)eligibility of
having previously acted as or become President without being elected;
and (3)
particular sensibilities about absolute limits on the number of years
someone
could serve as President under the Amendment.
[*600] Although these
issues received considerable attention on the floors
of the House and Senate, our review of the congressional debates
suggests that
the text of the Amendment was probably shaped most decisively by the
impulse
for
compromise. The shift from the House's references to presidential
"service" and
"tenure" to the Senate's eventual reliance on simply limiting
presidential
"election" appears largely to have been a function of political
give-and-take.
Taft, in fact, acknowledged that his amendment was intended to balance
the
concerns of proponents and critics of Magnuson's proposal. Similarly,
when the
House considered the Senate-endorsed version of the eventual
Twenty-Second
Amendment, although some House members found the measure "pregnant with
questions" and indicated that they preferred the original House
language,
they
recognized the need for "compromise" as part of the legislative
process. n164
This willingness to compromise may have contributed
to the
imprecision that
characterized the language used by members of Congress as they
considered H.J.
Res. 27 and its various formulations. Members of both the House and
Senate, for
example, often vaguely suggested that they were attempting to limit
presidential
"tenure" without elaborating exactly what they had in mind or using
the term
consistently. And, as we have seen, those debating the Amendment at
times
appeared to conflate the notion of "election" with the other ways in
which a
President might come to serve, but at other moments they clearly
distinguished
elections from non-electoral means of assuming the Office of President.
Furthermore, congressional interest in not
"penalizing" those unelected but
nonetheless called upon to serve or act as President led Congress to
focus on
"elections" as the cornerstone of the Amendment's proscriptions - a
focus that
prohibited only reelection of an already twice-elected President. In
prohibiting
"reelection" only, Congress seemingly glossed over the significance
of limiting
subsequent election rather than subsequent "service," and unwittingly
(we
presume) left open the possibility of a previously twice-elected
President
reassuming Office to again serve (or act) as President.
In view of these observations, it is difficult to
divine
precisely what those
adopting the Amendment meant for it to foreclose and permit. Neither
the
general
content of Congress's [*601]
deliberations nor the precise words they
selected
for the various amendments they considered provide clear guidance on
this
question. The evidence does suggest, however, that most members of
Congress -
or
at least most of those who discussed the Amendment - thought that it was
designed to prevent an individual from becoming entrenched in the
presidency,
even if supported by the electorate.
n165 Yet it remains difficult to say much
more about Congress's intentions, and this general sentiment alone may
not
provide adequate guidance when evaluating the constitutionality of the
six
scenarios, an assessment we take up in Part III.
E. The Twenty-Second Amendment Since Enactment
Before proceeding to Part III, we
conclude our historical evaluation of the
Twenty-Second Amendment by examining how the Amendment has been
assessed and
interpreted in the years following ratification. This review is
organized
around
four periods: the first three are marked by the presidencies of
Eisenhower,
Nixon, and Reagan, and the last extends from the end of Reagan's
presidency to
the present. n166 We organize our
analysis in this way because the first three
individuals reelected to the presidency following ratification of the
Twenty-Second Amendment have drawn attention to (and prompted criticism
of) the
Amendment. n167 At a number of points
both Eisenhower and Reagan spoke out
against the Amendment, and an effort to repeal it developed following
Nixon's
reelection - and died rapidly after the revelations of Watergate. We
review the
period after Reagan to illustrate contemporary evaluations of the
Twenty-Second
Amendment, and to suggest [*602] that concern with the Amendment remains very
much alive as we near the turn of the century.
1. The Eisenhower Years
Only five years after ratification of
the Twenty-Second Amendment, President
Eisenhower, on the verge of an overwhelming reelection, publicly
questioned the
Amendment's wisdom. One month before the 1956 election he told
reporters that
the electorate "ought to be able to choose for its President anybody
that
it
wants, regardless of the number of terms he has served," and explained
that the
Amendment may not be "wholly wise."
n168
In 1956 two resolutions were introduced in the House
to
repeal the
Twenty-Second Amendment. n169 And after
the new Congress convened in January
1957, five resolutions were introduced to repeal the Amendment. n170 Senator
Richard Neuberger indicated that the intent of at least one of the
proposals
was
to give "to the American people the right to continue Dwight Eisenhower
in
office." n171 Eisenhower responded
to these initiatives by indicating that he
would not seek a third term even if the Amendment was repealed, n172 but the
issue of presidential reeligibility continued to receive political
attention.
n173
In 1959, the House and Senate held hearings on the
Twenty-Second Amendment,
and former President Truman n174 [*603]
appeared before the Senate Judiciary
Subcommittee on Constitutional Amendments to criticize the Amendment
and urge
its repeal. n175 The Amendment,
according to Truman, was unwisely passed by
"
for all time in the future." n176
The Twenty-Second Amendment, Truman added,
put a President "in the hardest job in the world ... with one hand tied
behind
his back." n177 Some members of the
Subcommittee expressed sympathy with the
repeal position, and the Subcommittee approved a repeal resolution in
September
of 1959. But after Eisenhower backed away from his earlier criticism of
the
Amendment (calling for "careful thought" on the question of repeal,
and
continued experimentation to see how it functioned),
n178 the repeal movement
lost momentum. n179
As the election of 1960 neared, however, attention
again
turned to the
Twenty-Second Amendment. In a press conference on January 13,
Eisenhower
invited
reporters to look into the question of whether he would be eligible to
run as a
vice presidential candidate under the terms of the Twenty-Second
Amendment.
n180 As Eisenhower put it, "the only thing I know about the Presidency
the
next
time is this: I can't run. [*604] [Laughter] But someone has raised the
question that were I invited, could I constitutionally run for Vice
President,
and you might find out about that one. I don't know. [Laughter]" n181
The question appears to have been raised somewhat in
jest, n182 particularly
since, according to the New York Times, when the issue "had arisen in
White
House inner circles" it was quickly rejected based on the belief that if
Eisenhower were serving as Vice President and events called for
presidential
succession, he would be bypassed as a successor (because of the terms
of the
Twenty-Second Amendment), and the presidency would automatically go to
the
Speaker of the House n183 under the
terms of the 1947 Succession Act. n184
Since the Speaker might very well be a Democrat, this chain of events
was
deemed
undesirable.
At a press conference two weeks after Eisenhower
first raised
the possibility
of his serving as Vice President, he was
[*605] asked whether he had
received
an "official opinion" on the question. Eisenhower was somewhat
circumspect but
he did say that
the afternoon of that [first] press conference, there
was a
note on my desk
saying a report from the Justice Department - I don't know whether the
Attorney
General himself signed this, n185 but
the report was, it was absolutely legal
for me to do so. That stopped it right there, as far as I'm concerned. n186
The prospect of a Vice President
Eisenhower was raised again briefly when the
Republican National Convention convened in July. On July 21, 1960, at
the
Convention, Representative James Fulton announced that he would nominate
Eisenhower to be Vice President alongside Richard Nixon,
n187 but Fulton's
proposal seems to have generated little attention or political support.
While Eisenhower ultimately backed away from the idea
that he
might run as
Vice President, there is some evidence that, despite the constraints of
the
Twenty-Second Amendment, he did not completely relinquish his
presidential
ambitions at the end of his second term. Only four months after
Kennedy's
inauguration in May 1961, Eisenhower indicated that he would [*606]
have
considered running for a third term if he had not been constitutionally
barred
from doing so and he had been able to foresee Nixon's defeat in the 1960
election. n188 Eisenhower's son, John,
also indicated that he and White House
officials believed that had Eisenhower not been barred from running for
reelection, he probably would have done so in 1960.
n189 And some political
commentators have speculated that if Eisenhower had run, he would have
been
renominated and reelected. n190
2. The Nixon Years
Between Eisenhower and Nixon the
Twenty-Second Amendment generated little
political interest. Despite this relative inattention to the Amendment,
some
members of Congress called for its repeal. Joint resolutions to do away
with
the
Amendment were introduced in the Eighty-Seventh, Eighty-Eighth and
Eighty-Ninth
Congresses (between 1961-1966), although none of these measures
received a
great
deal of political support. n191
Moreover, the two Presidents between Eisenhower
and Nixon each offered views on the Amendment. John F. Kennedy
supported the
Amendment. Having voted for it as a member of Congress in 1947, he was
asked
during an interview at the end of 1962 whether he still supported the
Amendment.
Kennedy responded by explaining: "[eight] years is enough, and I am not
sure
that a President, in my case if I
[*607] were reelected ... [is
placed] at
such a disadvantage" in his second term because of the limits of the
Amendment.
n192
As for Kennedy's successor, in his memoirs published
during
Nixon's first
term, Lyndon Johnson endorsed a single six-year term for Presidents. n193 In
fact, proposals for a single presidential term garnered some political
attention
during Nixon's first term, and congressional hearings on the issue were
held in
1971 and 1973. n194 Nixon himself
indicated that the six-year term should be
further studied, n195 although he had
voted for H.J. Res. 27 while a member of
the House of Representatives. n196
In fact, his congressional vote notwithstanding,
Nixon may
have been
interested in repealing the Amendment.
n197 This idea had some popular currency
after Nixon's reelection in 1972. In March 1973, Projects for Peace,
Inc., a
York
"76," seeking repeal of the Twenty-Second Amendment.
n198 But as revelations
about the President's involvement in the Watergate scandal became
public the
repeal movement quickly ebbed. n199
[*608]
3. The Reagan Years
After 1972, the most recent serious
repeal effort occurred after Ronald
Reagan's reelection in 1984. n200 In
September 1985, Reagan told a group of
conservative state legislators that it was "ridiculous" to prevent
voters from
sending Presidents to office for more than two terms.
n201 During an interview
the following February, Reagan indicated that while no President should
advocate
repeal of the Twenty-Second Amendment "with himself in mind," in the
future "we
ought to take a serious look and see if we haven't interfered with the
democratic rights of the people" by limiting their ability to choose a
President. n202
In 1986, Congressman Guy Vander Jagt (then Chairman
of the
National
Republican Congressional Committee) provided an outlet for Republican
interest
in repeal that, the President's protests notwithstanding, remained
importantly
linked to the prospect of a third Reagan term. In July, Vander Jagt
introduced
a
joint resolution calling for a repeal of the Twenty-Second Amendment. n203
Although this measure eventually obtained sixty-five co-sponsors,
support for a
third Reagan term waned after revelations about the Iran-Contra affair. n204
[*609] There seems to
be mixed evidence about how seriously Republican
political forces considered the repeal effort in the 1980s, with some
simply
identifying it as an effective fundraising effort or "gimmick." n205 While
political and popular support for a repeal effort gained little headway
after
Reagan, the 1986 movement contributed to an ongoing colloquy on the
issue, which
carried over into the 1990s.
4. Opposition to the Twenty-Second Amendment After
Reagan
Although Ronald Reagan was the last
President to serve as a kind of figurehead
for the repeal effort, interest in abolishing the Twenty-Second
Amendment has
persisted, even after he left office in 1989. Resolutions to repeal the
Twenty-Second Amendment have been introduced in every Congress since
1991. n206
In addition, a number of public officials - from both major parties,
and from
all branches of government - have
[*610] publicly criticized the
Amendment and
called for its repeal. n207 Moreover, in
recent years, a number of scholars
have also spoken out against the Amendment.
n208 And popular enthusiasm for
repeal has been sufficient to generate at least one internet site
committed to
undoing the Twenty-Second Amendment.
n209
Generally, critics have charged that the Amendment
was
ill-conceived and
needlessly restricts the democratic choices of the electorate. It is
also
unpopular among some who believe it hampers presidential effectiveness.
But a
number of commentators have suggested that the Amendment is unlikely to
be
repealed, at least "in the foreseeable future." n210
Thus, the question whether
there are constitutional means to circumvent the Amendment is not only
an
intriguing theoretical problem but potentially an issue of future
political
significance.
[*611]
III. INTERPRETING AND APPLYING THE TWENTY-SECOND
AMENDMENT:
ASSESSING THE SIX
SCENARIOS
While the Twenty-Second Amendment has
been referenced in a number of litigation
settings, neither the Amendment's precise limits concerning its central
subject
(the reelection of a President) nor the specific scenarios set out in
this
Article have been tested in the courts.
n211 We proceed now to analyze the
application of the Twenty-Second Amendment and other constitutional
provisions
to the "six scenarios" outlined at the beginning of this Article,
which
represent the non-electoral processes through which a twice-elected
President
might again serve as President.
We divide Part III into two sections. First, we
undertake
what can be
described as a conventional legal and interpretive analysis. Second, we
consider
the nature of legal arguments
[*612] rooted in the
"spirit" of the
Constitution in general and the spirit of the Twenty-Second Amendment in
particular, and how these arguments might apply to our scenarios.
A. Legal Analysis of the Twenty-Second Amendment
Before proceeding with our
constitutional analysis, it may be helpful to recap
the six ways in which a twice-elected President might reassume Office
despite
the Twenty-Second Amendment's prohibition against that person again
being
"elected to the office of President." Scenarios 1 and 2 involve
situations in
which a Vice President becomes President in the event of the chief
executive's
death, resignation, or removal, or acts as President during a period in
which
the chief executive is unable to discharge the powers and duties of the
Office.
Scenarios 3 and 4 also involve the vice presidency,
but
unlike Scenarios 1
and 2, these provide for the Vice President-elect to become President
if
"at the
time fixed for the beginning of the term of the President, the
President elect
shall have died," n212 or act as
President if "a President shall not have been
chosen before the time fixed for the beginning of his term, or if the
President
elect shall have failed to qualify."
n213
Scenario 5 encompasses the circumstances provided for
in the
Succession Act
of 1947, n214 which comes into play if
the President and the Vice President
both die, resign, or are unable to discharge their duties, or the
President-elect and the Vice President-elect are both constitutionally
unqualified to hold office. And Scenario 6 addresses the situation in
which the
House of Representatives would "choose" a President in the event that
no person
received a majority of the electoral votes in an election for that
Office.
We begin our evaluation of the constitutionality of
these
scenarios by
examining the text of the Twenty-Second Amendment. We then consider the
legislative history of the Amendment and what insight it may provide in
assessing the scenarios. Next, we turn to constitutional provisions
other than
the Twenty-Second Amendment that might assist us in determining its
application
and scope. And we complete our conventional interpretive analysis by
considering
the constitutional principle of separation of powers. In each of [*613]
these
subsections our focus is on the applicability of particular
constitutional
provisions or principles to the scenarios in general, although specific
scenarios are discussed where one or more of them warrant particular
attention.
1. Text
Recall that the Twenty-Second Amendment
specifies:
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 President more than once. n215
Notably, the text of the Amendment
restricts only reelection of an already
twice-elected President. n216 The words
themselves do not (1) limit the amount
of time, consecutively or cumulatively, a person may serve, or (2)
proscribe
such a person from reassuming the Office of President by means other
than
election. In this respect, the text of the ratified Twenty-Second
Amendment
contrasts with the provisions of other versions of the Amendment
considered by
Congress, including, for example, the Senate Judiciary Committee's
original
language, which categorically declared that a person serving or acting
as
President "on three hundred and sixty-five calendar days or more in
each
of two
terms shall not be eligible to hold the office of President, or to act
as
President, for any part of another term."
n217
It is also worth noting the Amendment's limit on
reeligibility (to a single
reelection) of a person who has "served as President for more than two
years of
a term to which some other person was elected President."
n218 Although the
Amendment does not detail the ways in which someone might assume the
presidency
without being elected, this provision suggests those adopting it were
aware
that
the Constitution provides for such a possibility.
These observations alone do not dispose of the
question
whether any of our
scenarios can withstand constitutional
[*614] scrutiny. Nevertheless,
they
provide evidence that, on its own, the text of the Twenty-Second
Amendment does
not preclude a former president from assuming the presidency through
any of the
six non-electoral paths to the presidency we have identified.
2. Legislative History and Intent
Because the text of the Twenty-Second
Amendment fails to foreclose our six
scenarios, we next consider the legislative history of the Amendment to
help
assess their legality. We acknowledge the difficulties of such an
approach.
There are well-developed arguments outlining the perils of divining and
applying
legislative intent when interpreting statutes.
n219 These arguments seem no
less telling when interpreting a measure ultimately adopted as a
constitutional
amendment. Indeed, in the context of the amendment process, the problem
of
ascertaining legislative "intent" may be magnified by the abundance
of
interpreters who have an opportunity to assess, debate, and support (or
reject)
the proposed measure. Whose intent counts in construing the legislative
intent
of an amendment? The views of the Congress proposing the amendment? n220 The
views of the states ratifying the amendment?
n221 What if these diverge? Should
we consider the views of those states voting after an amendment has
already
secured the constitutionally required ratification by three-quarters of
the
states? All of the difficulties suggested by these questions are
compounded by
observing that many of those who ultimately support an amendment never
give
voice to their reasons for doing so.
[*615] Interpreting
the legislative intent behind the Twenty-Second
Amendment comes with its own special set of problems. First, the
debates were
typically marked by a failure on the part of members of Congress to
identify
clearly either the purposes of their amendment proposals or the ways in
which
they hoped to effectuate the changes they sought. Second - and no doubt
related
to the first problem - the debates featured a remarkable lack of
precision in
choosing critical words. At various times the objectives of limiting a
President's "service," "terms," "tenure" and
"[eligibility for] reelection" were
seemingly referenced interchangeably, as were a number of phrases
describing
the
procedures through which members of Congress hoped to attain these
ends. These
different phrases were employed without substantial attention to the
implications of these word choices, or to the several ways in which the
Constitution already provided terms and procedures for election,
succession,
and
other ways in which a person might assume the Office of President
without being
elected. n222 Third, it is significant
that the congressional deliberations
about the Amendment generally have been considered curtailed. The House
debates
took place under a restrictive rule limiting debate to two hours (not a
particularly long time for an amendment to the Constitution), and a
number of
commentators have suggested that neither the discussions in Congress
nor those
in the state legislatures were particularly extensive or informed. n223
These observations about the difficulty of
determining the
intent behind the
Twenty-Second Amendment might suggest that no conclusions can be
reached with
respect to the six [*616]
scenarios under which one may serve as
President
without being elected to that Office. There are, however, aspects of the
congressional debates that affirmatively suggest at least some of these
scenarios were contemplated (and not foreclosed) by those adopting the
Twenty-Second Amendment. Like its text, the legislative record of the
Amendment
reflects some awareness that individuals can assume the Office of
President
without being elected. n224 Missing from
the legislative record, however, is
evidence that anyone debating the Twenty-Second Amendment anticipated an
individual being elected President and subsequently acting as President
or
becoming President through non-electoral means. Nevertheless - and
notwith-standing the Senate's gradual narrowing of its focus to
reelection -
members remained conscious of the difference between being elected
President on
the one hand and assuming that Office (temporarily or for the duration
of the
term of another) on the other.
In the end, we do not mean to suggest that it is
impossible
to uncover any
legislative purpose from the debates on the Twenty-Second Amendment.
The
problem
is that the one evident purpose - to prevent another President from
serving
four
consecutive terms, as FDR had - is so specific and lacking in nuance
that it is
of little service in evaluating the constitutionality of our six
scenarios.
Indeed, identifying this legislative purpose tells us nothing about the
permissibility of our scenarios under the Twenty-Second Amendment. n225 And yet
the imprecision and relative brevity of the debates make it difficult
to
discern
another (more illuminating) objective genuinely shared by those
supporting the
Amendment. On the whole then, we conclude that the congressional
debates on the
[*617] Twenty-Second Amendment do not
provide a basis for declaring any of our
scenarios unconstitutional. n226
3. Other Constitutional Provisions
We turn now to provisions of the
Constitution other than the Twenty-Second
Amendment and other than the provisions directly related to the six
scenarios
n227 relevant to analysis of the constitutionality of our scenarios:
the
Twelfth
Amendment and the "Guarantee Clause" of Article IV, Section 4. n228 We consider
these provisions in light of their historical purposes and meaning, as
well as
their relationship to the Twenty-Second Amendment and the Constitution
as a
whole.
a. The Twelfth Amendment
The Twelfth Amendment provides, in part,
that "no person constitutionally
ineligible to the office of President shall be eligible to that of Vice
President of the
system for presidential election outlined in Article II, Section 2 of
the
Constitution failed to differentiate between votes for presidential and
vice
presidential candidates. Instead, electors simply voted for two
individuals and
the person receiving the most votes was made President while the next
highest
vote-getter became Vice President.
[*618] The Twelfth
Amendment was ratified in response to political turmoil
surrounding the election of 1800. When Republican candidates Thomas
Jefferson
and Aaron Burr each received seventy-three electoral votes, the
election of
1800
was thrown to the House of Representatives.
n230 The House eventually selected
uncertain through thirty-six ballots," resulting in soured relations
between
Jefferson and Burr, his Vice President.
n231 Dissatisfied with these
developments, and drawing on a suggestion made by Alexander Hamilton,
Congress
endorsed, and by 1804 the states ratified, the Twelfth Amendment. n232 The
Amendment requires that electoral votes be cast separately for
President and
for
Vice President.
Presumably, because presidential and vice
presidential
candidates were not
formally distinguished prior to the Twelfth Amendment, anyone elected
as Vice
President was also qualified to be President.
n233 However, once the Twelfth
Amendment bifurcated the selection process for President and Vice
President it
apparently seemed necessary to stipulate that a person ineligible to be
President was also ineligible to be Vice President.
What is the relationship between the Twelfth and
Twenty-Second Amendments?
Does the Twelfth Amendment's eligibility provision prevent someone
twice
elected
President from serving as Vice President, thereby foreclosing Scenarios
1-4
(those in which a Vice President or Vice President-elect can ascend to
the
presidency without being elected to that Office)?
We believe the Twelfth Amendment does not bar any of
these
four scenarios.
First, it is by no means clear that the term "eligibility" as used in
the
Twelfth Amendment refers to or incorporates a person's reeligibility
under the
Twenty-Second Amendment. At the time the Twelfth Amendment was written
there
was, of course, no Twenty-Second Amendment;
[*619] therefore, the Twelfth
Amendment could not have originally meant to preclude someone from
being Vice
President who had been elected President twice. Rather, the Twelfth
Amendment's
reference to "eligibility" likely pointed only to the
"eligibility" provision of
Article II, Section 1, clause 4, which states that
No Person except a natural born Citizen, or a Citizen
of the
United States
... shall be eligible to the Office of President; neither shall any
Person be
eligible to that Office who shall not have attained to the Age of
thirty five
Years, and been fourteen Years a Resident within the United States. n234
Second, even if the Twelfth Amendment's
eligibility provision is to be read in
light of the proscriptions of the Twenty-Second Amendment, it could be
read as
affecting only persons who would become President. If this
understanding is
correct, the Twelfth Amendment's provision that "no person
constitutionally
ineligible to the office of President shall be eligible to that of Vice
President of the
simply act as President. In other words, a Vice President
"constitutionally
ineligible to the office of President" might occupy the vice presidency
and
eventually act as President, while being ineligible to assume that
Office by
becoming President through succession. This interpretation would
seemingly rule
out Scenarios 1 and 3, while still allowing for Scenarios 2 and 4.
Third, and most importantly, even under the most
expansive
reading of what
constitutional "eligibility" might include - a reading that
superimposes the
Twenty-Second Amendment on the Twelfth - there are good reasons for
thinking
that the constitutionality of the scenarios would remain unaffected. As
we have
been suggesting throughout this Article, we do not believe an already
twice-elected President is "constitutionally ineligible to the office of
President." Even if one leaves aside Scenarios 1-4,
n236 there are [*620]
other non-electoral means of reassuming Office available to a
twice-elected
President (viz., Scenarios 5 and 6). Thus, if the meaning of
"eligibility" under
the Twelfth Amendment was transformed with the adoption of the
Twenty-Second
Amendment, the Twenty-Second Amendment still does not render
twice-elected
Presidents "constitutionally ineligible to the office of President,"
and it
therefore cannot be said that the Twelfth Amendment prohibits a
twice-elected
President from serving as Vice President.
n237
b. The Guarantee Clause
Another constitutional provision
warranting attention is the so-called
"Guarantee Clause," which provides: "The
State in this
dating back to ancient
with a variety of different political principles and institutional
arrangements,
n239 and consistently contrasted with monarchic rule.
n240
In the American context, the republicanism of the
Constitution has been
associated with a commitment to popular rule.
n241 The Guarantee Clause was
designed to ensure [*621]
that this principle was protected in the
individual
states. n242 Thus, the Clause pledges
that the "United States shall guarantee
to every State ... a Republican Form of Government."
n243
Although there is little judge-made law about the
meaning of
the Guarantee
Clause, n244 we believe the commitments
it embodies arguably are challenged or
undermined by a variant of our scenarios.
n245 We therefore turn to that
situation.
[*622] Reconsider our
preceding discussion in which we posited that a
twice-elected President might be elected Vice President and then
reassume the
Office of President. Specifically, suppose that an elected President
immediately
resigns (or otherwise steps aside) with the understanding that the Vice
President (former President) will reassume his or her "rightful"
office. This
variant of our scenarios n246 could
occur either with the ex ante awareness of
the electorate (and complicity of enough of the electorate to ensure
election
of
the presidential "proxy"), or as a covert activity, of which the
public is
informed only after-the-fact. Can either version of this purposeful
effort to
avoid the strictures of the Twenty-Second Amendment be condemned under
the
Guarantee Clause?
As noted, the Guarantee Clause provides that the
"United
States shall
guarantee to every State ... a Republican Form of Government," n247 which
suggests that this guarantee primarily "runs from the
individual states." n248 Given the
Clause's reference to the states, it would
be understandable to conclude that a challenge to even the purposeful
substitution of a duly elected President in the federal electoral
process does
not implicate the Guarantee Clause. Yet, insofar as the states
indirectly,
through the electoral college, elect the President of the
one [*623] might
conclude that a purposeful effort to
substitute another
person for the President-elect undermines the Clause's guarantee of a
republican
form of government. Understood in this way, the Clause may be read not
only to
provide a "guarantee" to the individual states n250
but also to forbid
constituting the federal government in a manner that conflicts with the
principles of republican government.
n251
Nevertheless, we are skeptical that such
substitutions would
encroach upon
republican principles in a manner (or to an extent) that violates the
Clause.
For instance, where the substitution plan is carried out with the ex
ante
knowledge of the electorate, allowing the former President to reassume
Office
would seem to facilitate rather than frustrate the democratic will (and
serve
as
a way of circumventing an amendment that may not allow the public to
elect the
person they most want to serve as President). Therefore, this
substitution
would
be at odds with republican principles only if those principles valued
the
formalities of democratic procedure above the genuine fulfillment of
popular
sentiment.
In contrast, the covert version of the substitution
plan is
plainly in
tension with the republican commitment to majority rule.
n252 Yet even in this
situation, although the public would not have known of the former
President's
intention to reassume the presidency, the electorate would have
implicitly
sanctioned that person's return to Office through succession by
electing him or
her as Vice President. In addition, the reassumption of Office by the
former
President would not [*624]
forestall the end of the presidential term
and the
opportunity for the electorate to exercise its will again.
n253
In view of this, our account of the Guarantee Clause
does not
suggest a basis
for concluding that any other variant of our six scenarios would pose a
constitutional problem. Having an already twice-elected President serve
again
in
that Office by virtue of being Vice President or Vice President-elect in
Scenarios 1-4 would not, in itself, subvert popular rule. Similarly, on
their
own, Scenarios 5 and 6 would not offend republican principles; under
these
scenarios only the reassumption of Office by a twice-elected President
in a
manner avoiding or overturning popular will would potentially implicate
the
Guarantee Clause.
4. The Separation of Powers
Having examined specific constitutional
provisions we turn now to consider
whether the principles associated with the "separation of powers"
doctrine
inform an assessment of the constitutionality of our six scenarios. But
identifying the appropriate separation of powers principles to apply is
no
simple task. To begin with, although ensuring a separation of powers
was
clearly
an objective of the Founders they did not include specific separation
of powers
provisions in the Constitution. n254 The
ultimate source of the doctrine of
[*625] separation of powers has been
identified as discrete portions of the
Constitution by some, and as the entire document (as well as additional
sources)
n255 by others. Thus, when constructing and applying separation of
powers
principles one cannot rely on the Constitution's text in the same way
one can
in
many other interpretive endeavors.
An additional challenge is presented by the fact that
the
relevant
jurisprudence addressing separation of powers arguments is somewhat
conceptually
untidy and difficult to categorize. Throughout its history, the Supreme
Court
has applied the doctrine in diverse and sometimes seemingly
inconsistent ways.
Legal commentators attempting to make sense of the Court's decisions
have
suggested that contemporary separation of powers doctrine is marked by a
struggle between functional and formalist approaches.
n256 Under the functional
view, "the Court emphasizes checks and balances" and eschews strict
divisions
between various departments and their powers.
n257 The Court embraces a
"functional" approach by recognizing that the separation of powers is
necessary
to preserve "the essential functions of each branch" but that rigid
boundaries
between the branches are neither desirable nor possible.
n258 Alternatively,
under the formalist view, the Court acknowledges "the fundamental
necessity of
maintaining each of the three general departments of government
entirely free
from the control or coercive influence, direct or indirect, of either
of the
others." n259
[*626] Under either
approach, is there reason to believe any of the
scenarios we have presented run afoul of separation of powers
principles? For
instance, recalling our now-familiar example, what if upon nearing the
end of
her second term a previously twice-elected President desired to avoid
the
strictures of the Twenty-Second Amendment and continue in office for a
third
term - or perhaps longer? Might the extension of that President's
tenure
collide
with separation of powers tenets by, for example, augmenting the
President's
power at the expense of Congress?
Irrespective of how improbable this and similar
scenarios
might seem, we are
unconvinced that separation of powers concerns alone could render them
unconstitutional. After all, there was no limit on presidential service
prior
to
ratification of the Twenty-Second Amendment in 1951, and no one, to the
best of
our knowledge, seriously suggested before then that serving more than
two terms
was unconstitutional. Should separation of powers principles be applied
differently today (or in the future) than they were before 1951? Did the
enactment of the Twenty-Second Amendment transform the relationship of
the
federal departments in a way that constitutionally forbids what was
previously
permitted?
We concede that the meaning of a constitutional
provision may
be altered by a
subsequent amendment (and even that separation of powers principles may
be
altered by amendments to the Constitution and other changes).
Nevertheless, we
find no authority in the text of the Twenty-Second Amendment itself, in
the
congressional debates surrounding its proposal and ratification, or
among any
other evidence, to suggest that the Amendment was designed to, or did,
alter
the
allocation of federal powers so profoundly that separation of powers
concerns
preclude a twice-elected President from reassuming the Office of
President even
though not prevented from doing so by the terms of the Amendment itself. n260
[*627]
B. The Twenty-Second Amendment and the "Spirit" of
the Constitution
Having engaged in a conventional
analysis of the Twenty-Second Amendment's text
and the relevant legislative record, and having examined other
constitutional
provisions as well as separation of powers principles, we have not yet
found a
compelling basis for concluding that a twice-elected President could
not serve
again through the non-electoral means we have identified. One might
contend,
however, that we have failed to consider an obvious basis for arguing
against
at
least some variants of the scenarios we have outlined - namely, that
allowing
an
already twice-elected President to reassume Office could amount to an
end-run
around the Twenty-Second Amendment, thereby undermining the "spirit"
of the
Amendment, the entire Constitution, or both. Although we have doubts
that the
scenarios discussed here can be found unconstitutional under a
conventional
interpretive analysis, can some of them be declared unconstitutional if
judged
contrary to the Constitution's spirit?
Consider again a situation in which a previously
twice-elected President ran
as Vice President with the understanding that if elected, the
President-elect
would step aside and allow the twice-elected President to serve another
term.
Would this contravene the spirit of the Twenty-Second Amendment or the
Constitution generally? n261 Might
the [*628] answer
to this question depend
on whether the American public is aware the President-elect plans to
resign? Or
would it matter if the twice-elected President intended to be Vice
President
and
reassumed the presidency only upon the unforeseen death, resignation,
removal
or
disability of the President-elect? The answer to these questions, we
believe,
may be gleaned by investigating the nature of "spirit" arguments
generally and
applying them to the topic at hand.
There have long been suggestions that one might
separate the
spirit of the
law from its letter. Both The Federalist
n262 and the Supreme Court n263
provided numerous early (if ambiguous) reflections on how analysis of
the
Constitution's "spirit" might apply to interpretation of the
document. In
assessing the power of Congress to charter the second Bank of the
United
States,
Chief Justice John Marshall offered his famous test of
constitutionality which
drew on the letter-spirit dichotomy:
[*629]
Let the end be legitimate, let it be within the scope of the
constitution, and
all means which are appropriate, which are plainly adapted to that end,
which
are not prohibited, but consist with the letter and spirit of the
constitution,
are constitutional. n264
That same year, the Court also asserted
that "the spirit of an instrument,
especially of a constitution, is to be respected not less than its
letter."
n265 And nearly a half century later the Court, invoking the
Constitution's
spirit, condemned an act of Congress as interfering with the right to
contract
notwithstanding that the Constitution forbade only states from such
interference. As Chief Justice Chase explained:
It is true that this prohibition [of the Contracts
Clause] n266 is not
applied in terms to the government of the United States ...
But we think it clear that those who framed and those who adopted the
Constitution, intended that the spirit of this prohibition should
pervade the
entire body of legislation, and that the justice which the Constitution
was
ordained to establish was not thought by them to be compatible with
legislation
of an opposite tendency. In other words, we cannot doubt that a law not
made in
pursuance of an express power, which necessarily and in its direct
operation
impairs the oblig