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Monday, January 20, 2020

Securing Constitutional Change

The 22nd Amendment and its provision for presidential term limits has a neat bit of constitutional circumlocution in it to avoid “burdening” that Document with the filthy particulars of a proper noun, specifically, Harry S. Truman.  First, the Amendment articulated a general rule: “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.”

Then, the Amendment carves out an exception: “But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.” The category the exception defines has only one person within it. It never mentions Truman by name, but sure enough it applies only to him as the person who held the office of President when Congress proposed the 22nd Amendment on February 6, 1947.

Beyond this curious attention to form, this Amendment embodies pragmatic wisdom when thinking about securing future amendments. It is clear enough why Republicans would favor the 22nd Amendment after the breach of the two term so-called "tradition" with FDR and Truman's succession after FDR's death. But why would any Democrat support an amendment that term limited an incumbent Democratic President in an apparent partisan sally against FDR? To win the support of enough Democrats in Congress and the state legislatures, Truman was grandfathered. The present addressed, Democrats looked beyond that horizon to consider (i) the uncertainty of a possible future where a Republican president could potentially serve multiple terms and (ii) the wisdom of lengthy presidential tenures generally. The House and the Senate voted to pass the amendment with Democrats crossing over to join Republicans in the bicameral supermajorities.

Constitutional change requires: (1) addressing upstream political constraints of the status quo, through strategies that "buy out” incumbents whose short term political oxen would otherwise be gored, thereby making change unlikely under supermajority regimes; and (2) relying on uncertainty, such as occasionally created by futurity (or distant futurity), in order to place parties in an original position behind a veil of ignorance, at least for those changes that lack any clear substantive political valence beyond the short run. In this way, supermajority rules privilege incumbents and provide them leverage in any political bargaining, but uncertainty resulting from futurity can aid parties in thinking evenhandedly about political principles. That's not to say partisanship disappears, but this kind of strategy can peel away enough moderates on the margins to allow change to occur. As one detailed academic account explains (JSTOR subscription required), several Democrats in the House and in the Senate as well as in the state legislatures crossed over to support the amendment.

In this way, the 22nd Amendment can be seen as embodying pragmatic advice when thinking about how to secure constitutional change for what might otherwise prove political nonstarters, such as limiting and regularizing Supreme Court terms. If an amendment proposes term limiting the currently constituted Supreme Court, it's unclear why Republicans would agree. They would perceive several more 5-4 opportunities in the short run. A proposal, however, that grandfathered all existing court members while applying the limitation prospectively might be more likely to get political traction than one targeting the political status quo.

Posted by T. Samahon on January 20, 2020 at 08:00 AM in Constitutional thoughts, Law and Politics | Permalink

Comments

Sure Samahon......

Posted by: El roam | Jan 20, 2020 12:20:43 PM

@El roam: Yes, "transitional provision" probably better captures it than "exception." Thank you for clarifying my thinking on the drafting.

Posted by: T. Samahon | Jan 20, 2020 11:48:49 AM

Interesting, but the respectable author of the post, uses wrong terminology it seems. It is not " exception " we deal here (the fact that the amendment wouldn't be implied on current holder of the office ) but rather : transitional provision, or issue of "continuity" ( I shall look later, for the precise terminology) . For exception typically, refers to exception to the substantive provision ( no more than twice or two terms ). Not transition until fully enacted or implied.

Thanks

Posted by: El roam | Jan 20, 2020 9:47:53 AM

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