The Presidential Term Clause

[The President] shall hold his Office during the Term of four Years. . . .

—Judge Chad A. Readler & Andy Nolan

Introduction

The Presidential Term Clause limits the President’s term to four years before needing to face reelection. There is no real dispute about the meaning of this provision. Most scholarship about the clause centers on the debate, both at the Framing and during the ratification period, over how great a time limit (if any) should be placed on the President’s service. Some argued that instead of a set term of years, the President’s tenure should be subject to the approval of the legislature or some other body. Others, more suspicious of centralized power, argued that there should be a term of years and that it should be less than four.

History Before 1787

From the early days of representative government, states have imposed some form of term limitation on their executive and legislative leaders. In Athens, individuals could hold various leadership roles for only one year.¹ In the Roman Republic, various limits were placed on the ability of executive officers to stay in power, again limiting their service to a single year.² The political heritage to which the Founders more immediately belonged—the English tradition—utilized term limitation less pervasively. Kings and queens served for life. Prime Ministers faced no limit on consecutive terms but were statutorily compelled to face reelection after a certain number of years. During most of the eighteenth century, the longest time a Parliament could go without facing new elections was seven years.³

Early American practice was mixed. Specific limitations on term length and limitations on multiple terms became more common, although the practice was rare, utilized in only two states and at the federal level under the Articles of Confederation. In addition, term limits in early America tended to take the form of compulsory rotation of office rather than prohibitions on holding office again after a particular number of terms. The Articles of Confederation, for example, prohibited any one person from serving as President for more than one year out of three and any one person from serving as a delegate more than three years out of six.⁴ In the state constitutions, this rotational method was used in the minority of jurisdictions that imposed term limits at all. In Connecticut, no person could serve as governor more than one year out of two,⁵ and in Pennsylvania, delegates to the General Assembly could not serve more than four years out of seven.⁶ It was against this backdrop of rare limitations on terms that the Framers worked in the summer of 1787.

The Constitutional Convention

Among the more impassioned debates at the Constitutional Convention were those involving the contours of the contemplated executive branch. After consolidating around a single head of the branch and setting up the Electoral College, the Framers turned their focus to tenure. Some preferred to allow the President to hold office during good behavior—an idea that gained even more support when paired with a low bar for impeachment.⁷ Others preferred fixed terms and themselves split over whether the President should serve a longer single term or shorter renewable terms.⁸

Lengthy terms with no prospect of reelection were thought to incentivize independent exercises of executive authority,⁹ but there was a perceived cost. Allowing Presidents to serve only one term, some suggested, would discourage qualified candidates from running for President while at the same time removing the best motivator for the faithful exercise of power—reelection.¹⁰ Based on the assumption that former Presidents would seek to join Congress after their terms expired, there was also fear that incumbent Presidents would be encouraged to delegate more and more of the Executive’s power to the legislature.¹¹

Shorter terms (with the ability to be reelected) had their own apparent shortcomings. The ability to be elected to numerous terms might become a gateway to “hereditary tenure.”¹² Popular leaders, it was believed, would be elected and reelected in perpetuity, and upon their retirement or death, their children would be likely to take their place. Basing tenure on good behavior was thought to have the same flaw.¹³

Lacking a consensus on presidential tenure, the Framers deferred the matter. The Committee on Postponed Parts eventually settled on four-year terms.¹⁴ Four years was seen to strike a balance—not “so long, as to create danger to the people”¹⁵ but long enough to give a President time “to make the community sensible of the propriety of the measures he might incline to pursue.”¹⁶ The Committee’s proposal was adopted and incorporated into the Constitution, but with constitutional ratification looming, the debate over the issue would soon resurface.

The Ratification Debates

The Anti-Federalist Cato argued that terms exceeding one year were dangerous to liberty. Invoking Montesquieu, Cato reasoned that “if the president is possessed of ambition, he has power and time sufficient to ruin his country.”¹⁷ Alexander Hamilton, in Federalist No. 72, saw ambition as more virtue than vice. Ambition, he wrote, “would prompt [the President] to plan and undertake extensive and arduous enterprises for the public benefit,” and limiting the President’s time to accomplish great tasks would make the President focus on “not doing harm” instead of on “doing good.” Doing good, after all, takes time.

Old Whig, another Anti-Federalist, favored a “perpetual and hereditary” presidency as long as the office conveyed the powers described in the Constitution. His reasoning is somewhat unexpected. Old Whig worried that regular presidential elections would subject the country to “horror and confusion” and surmised that it would be better to have a king than, “under pretence of a republic, to lay the foundation for a military government, which is the worst of all tyrannies.”¹⁸

Thomas Jefferson expressed a similar concern in a letter to James Madison. He predicted that the President “will always be re-elected if the Constitution permits it” and that once it was observed that the President would serve “for life,” foreign nations, both “friend” and “foe,” would “interfere” in the elections “with money & with arms.” Jefferson noted that kings would invite global interference.¹⁹ For example, England might support a President with ties to England and oppose a President with ties to France, just as France might support a President with ties to France and oppose one with ties to England. Like Old Whig, Jefferson believed that “if elections are to be attended with these disorders, the seldomer they are renewed the better.” But unlike Old Whig, Jefferson favored term limits that, to his mind, would prevent a President from getting too close to our global counterparts.

Presidential Practice

President George Washington rejected the idea of serving a third term, but he did so more out of an interest in retiring than because of an active rejection of the concept of a third term. Washington observed in his Farewell Address of 1796 that “I have the consolation to believe that, while choice and prudence invite me to quit the political scene, patriotism does not forbid it.”²⁰ Washington’s actions are perhaps most closely linked to Jefferson’s view.²¹ Jefferson was the first President who actively espoused a considered opposition to a third term. In 1805, Jefferson wrote to Virginia politician John Taylor that “service for eight years, with a power to remove at the end of the first four, comes nearly to my principle as corrected by experience.”²² Jefferson added that he was “determined to withdraw at the end of [his] second term.”²³ And so he did.

The Presidents that immediately followed Jefferson in the nineteenth century espoused support for presidential term limits, and none attempted reelection more than once.²⁴ That practice came to an end in 1880. Ulysses Grant attempted to break the no-third-term precedent,²⁵ but his efforts stalled as he lost the Republican nomination for President.26 (See Essay No. 209.)

1. John Thorley, Athenian Democracy 29 (2d ed. 2005). ↩︎
2. Mary T. Boatwright et al., The Romans: From Village to Empire 60–62 (2004). ↩︎
3. Septennial Act 1715, 1 Geo. 1 St. 2 c. 38 (Gr. Brit.). ↩︎
4. Articles of Confederation, art. V, §§ 2, 5. ↩︎
5. Conn. Fundamental Orders of 1639, § 4. ↩︎
6. Pa. Const. of 1776, § 8. ↩︎
7. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), https://perma.cc/CK7D-3JRR. ↩︎
8. Id.; 1 Farrand’s 64, 68. ↩︎
9. 1 Farrand’s 71–72; Madison to Jefferson (Oct. 24, 1787), supra. ↩︎
10. 2 Farrand’s 33; Madison to Jefferson (Oct. 24, 1787), supra. ↩︎
11. 2 Farrand’s 52; Madison to Jefferson (Oct. 24, 1787), supra. ↩︎
12. Madison to Jefferson (Oct. 24, 1787), supra. ↩︎
13. 2 Farrand’s 33. ↩︎
14. Id. at 493. ↩︎
15. 3 Story’s Commentaries § 1435. ↩︎
16. Federalist No. 71 (Hamilton). ↩︎
17. Storing 2.6.25. ↩︎
18. Storing 3.3.31. ↩︎
19. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), https://perma.cc/8MCP-9DPC; Letter from Thomas Jefferson to John Adams (Nov. 13, 1787), https://perma.cc/JK6P-DVXH. ↩︎
20. Washington’s Farewell Address to the People of the United States, S. Pub. 115-5 (Dec. 2017), https://perma.cc/G4J5-HJ45. ↩︎
21. Bruce G. Peabody & Scott E. Gant, The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 83 Minn. L. Rev. 565, 578 (1999). ↩︎
22. Letter from Thomas Jefferson to John Taylor (Jan. 6, 1805), https://perma.cc/QPJ6-32ZB. ↩︎
23. Id. ↩︎
24. Peabody & Gant, supra at 579–80; 8 Writings of James Monroe 81 (Stanislaus Hamilton ed., 1898). ↩︎
25. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or Partisan Maneuver, 7 Const. Comment. 61, 63–64 (1990). ↩︎