Sunday, September 07, 2008

Repeal the 22nd Amendment

The near-invisibility of President Bush at last week's Republican National Convention prompts in me the question whether we are better or worse off having the 22nd Amendment, which limits Presidents to two elected terms. In the narrowest sense, the roughly2/3 of Americans who are unhappy with President Bush can thank the 22nd Amendment for guaranteeing that he won't get a third term. But of course a very unpopular President would be unlikely to win a third term, and might therefore not even run for one, even absent the 22nd Amendment. That was essentially what Lyndon Johnson decided in 1968, even though he could have run again. Moreover, if Bush were eligible for a third term, and decided to seek one, then the Republican Party would have had to have had a public debate about whether to run on or away from his record. To my mind, that would have been much preferable to what the McCain-Palin ticket is actually doing: running to perpetuate most of the Bush policies but pretending that they are running to reform all that has gone wrong.

Of course, if there were no 22nd Amendment, so much else would be different (think of the "butterfly effect") that we wouldn't be talking about Bush at all. We might well be nearing the end of the third term of the Bill Clinton Administration (its first term having been delayed until 1997 by the fact that in this counter-history, Reagan would have gotten a third term too). Putting aside such case-specific speculation, systemically the 22nd Amendment contributes to the lame-duck effect, which, depending on how much you believe in accountability, is either a good thing (freeing up Presidents to do the right thing, political consequences be damned), or a bad thing (freeing up Presidents to do whatever the hell they want).

What can be said in favor of the 22nd Amendment? The tradition, started by George Washington and honored by every President until FDR, of not seeking a third term, was deeply democratic (in the small d sense). It prevented Presidents from succumbing to the corrupting effects of power over the long run. Once that tradition was broken (and some historians note that Presidents before Roosevelt would have broken it if their electoral prospects were better), giving the limit the force of law was arguably a wise precaution against tyranny.

Arguably, but not very persuasively. American political culture, more than the Constitution as such, prevents Presidents from becoming dictators. In many other countries in which Presidents face term limits, after all, they either change the Constitution when the limit approaches or engineer an end run, or both. Just ask Prime Minister Putin.

The other argument for the 22nd Amendment is the general argument for term limits: It's good to get fresh blood into politics and incumbency carries with it so many advantages that we must artificially cap terms in order to ensure regular turnover. This strikes me as a decent argument for term limits for members of Congress, who do benefit from incumbency, but a President will tend to get blamed for bad stuff generally in ways that Senators and Reps will not, and bad stuff happens often enough that we'll get changeover naturally at the Presidential level. Just ask Jimmy Carter and George H.W. Bush.

Posted by Mike Dorf


Craig J. Albert said...

The 22nd amendment is an extreme version of term limits, because it prohibits consecutive greater than two elected terms, and also prohibits a non-consecutive third term. It the latter case, it differs from the term limits imposed by most state constitutions on their governors. Obviously, as a practical matter, in most instances there's a very long political route to the presidency, so that by the time someone was actually eligble to run for a third term, he or she would be so old and worn out that he wouldn't be good for the job.
But if the concern is one of putting old wine into new bottles (on second thought, make that stale beer in new cans, so that people don't label me some kind of Eastern liberal elitist) by taking old policies and wrapping them in new faces and new names, then maybe the real question is whether to switch to a parliamentary system instead. That way, the representatives and senators could decide for themselves (based on what they hear from their constituents) whether to ditch their leaders while preserving their policies.

heathu said...

There was a time when I also would have thought that American political culture, rather than the Constitution, prevents Presidents from becoming dictators. But the ease in which Americans have accepted the hallmarks of the world's worst regimes, including torture, prison without trial, and domestic wiretapping has made me rethink that assumption. We need to reconstitute some of the Framer’s generation’s preoccupation with ascendant tyranny; otherwise, we might get an American dictator far more easily than anyone might think.

egarber said...

In a way, I sort of see the 22nd as roughly parallel to a flag burning amendment.

I often argue that amending the constitution to ban flag burning would be an effort to coerce nationalism. That smacks of being anti-American in my view, because what makes our brand of loyalty unique is its voluntary nature. As soon as you try to enforce that loyatly via law, it's not sincere anymore among the people; it no longer emanates from the heart.

It seems to me that a similar dynamic exists on the term limit front. I like to say that we already have term limits: it's called an ELECTION. Elections are pure and sincere, whereas term limits can be seen as a form of coercion. So to me, just like with amendments to ban flag desecration, term limits sort of defeat the purpose.

Obviously, the constitution is anti-majoritarian in a lot of ways, so my point only goes so far -- but here, I think it's valid.

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