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Constitutional Limitations on Reëligibility of National and State Chief Executives

  • Joseph E. Kallenbach (a1)


On March 1, 1951, the Administrator of General Services certified that the proposed presidential tenure amendment submitted to the states by Congress in 1947 had been ratified by thirty-six states, thus making it a part of the United States Constitution. Adoption of this proposal, which becomes the Twenty-second Amendment to the United States Constitution, disposes of an issue that has agitated American politics periodically since the establishment of the Presidency. Hereafter no person will be eligible for a third term as President if he has served two full elective terms or one full elective term plus more than one-half of another term through succession to the office. President Truman, who would otherwise be rendered ineligible for reëlection following completion of his current term, is exempted from the ban by a qualifying clause which excludes from coverage “any person holding the office of President when this Article was proposed by the Congress.”

Hostility to long continuance in office, particularly for executive officers, has been a prominent feature of American political thinking since Revolutionary times. Seven of the original state constitutions, all of which were formulated prior to adoption of the federal Constitution, carried clauses limiting reeligibility of the state chief executive.



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1 16 Fed. Reg. 2019 (1951). Favorable action by the legislatures of Nevada and Utah on February 26 had brought the total of ratifying states to the constitutional three-fourths majority.

2 The Amendment reads: “No person shall be elected to the office of President more than twice, and no person who has held the office of President, or acted as President for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

“But this Article shall not apply to any person holding the office of President when this Article was proposed by the 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.”

3 Article 31 of the Declaration of Rights in the Maryland constitution of 1776 endorsed the principle of rotation in the following language: “That a long continuance, in the first executive departments of power or trust, is dangerous to liberty; a rotation, therefore, in those departments, is one of the best securities of permanent freedom” (Thorpe, Francis Newton, The Federal and State Constitutions, Colonial Charters and Other Organic Laws of the States, Territories and Colonies, Washington, 1909, Vol. 3, p. 1689).

In a similar vein Section 5 of the Bill of Rights of the Virginia constitution of 1776 declared: “that the [members of the legislative and executive branches of government] may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct” (ibid., Vol. 7, p. 3813).

4 Georgia's constitution of 1777 was the most restrictive in providing that no one should be eligible for the office of governor more than one year in any three-year period. As a further precaution the governor was obliged by his oath to relinquish his office “peaceably and quietly” at the end of his term. South Carolina's constitution of 1778 gave the governor a two-year term, but made him ineligible for more than one term in any six-year period. Delaware, with a three-year term for its “president,” forbade an immediate reëlection. Virginia, Maryland, and Pennsylvania permitted no more than three oneyear terms in any seven-year period; while North Carolina set a limit of three annual terms in any six-year period.

5 New Jersey's first governor, William Livingston, was elected for fourteen consecutive annual terms, running from 1776 to 1790. George Clinton, the first governor of New York, was elected for six consecutive three-year terms running from 1777 to 1795. Jonathan Trumbull served as colonial and state governor in Connecticut by annual election from 1769 to 1786. John Hancock, the first governor of Massachusetts, served five consecutive annual terms from 1780 to 1785 and was returned to office in 1787 for six additional terms. William Greene, second governor of Rhode Island, served eight consecutive annual terms running from 1778 to 1786. Meshech Weare, “president” of New Hampshire under its temporary constitution, served nine consecutive annual terms extending from 1776 to 1785; while John T. Gilman, the sixth governor, was elected for eleven consecutive annual terms from 1794 to 1805.

6 “Debates in the Federal Convention of 1787 as Reported by James Madison,” in Tansill, Charles C. (ed.), Documents Illustrative of the Formation of the Union of the American States (1927), p. 135.

7 For example, Gouverneur Morris and James Wilson, who were the leading advocates of the idea of direct popular election, favored a two-year and a three-year term, respectively, provided there was no limitation on reëligibility (ibid., pp. 134, 410–411).

8 For criticisms of this nature see the remarks of George Mason in the Virginia convention in Elliot, Jonathan (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2nd ed., 18361859), Vol. 3, pp. 484485; and of James Lincoln in the South Carolina convention, ibid., Vol. 4, p. 314.

9 No. 72 of the Papers contains an excellent theoretical analysis of the problem. In later debates in Congress and elsewhere on the issue, little has been added to the analysis of the principle of tenure limitation there presented.

10 The New York convention recommended an amendment prohibiting the election of a President for a third term; while the conventions in Virginia and North Carolina advocated an amendment that would limit service to eight years in any sixteen-year period. Documents Illustrative of the Formation of the Union, pp. 1032, 1042, 1049.

11 In line with the practice of the other New England states, Vermont provided for popular election, with the legislature making the choice in case no candidate received a popular majority. Kentucky provided for a system of election by specially chosen electors, the system of choice being somewhat similar to the national plan for choosing the President. In 1799 the Kentucky constitution was revised to provide for direct popular election, and at the same time a provision prohibiting an immediate reëlection was adopted. Thorpe, op. cit. (above, n. 3), Vol. 6, p. 3755; Vol. 3, pp. 1268, 1281. The analysis which follows of state constitutional practices on the matter of reëligibility up to 1908 is based on documentary materials in this source.

11 Ames, Herman V., The Proposed Amendments to the Constitution of the United States During the First Century of its History, 54th Cong., 2nd sess., H. Doc. No. 353, pt. 2 (Ser. 3550, 1897), pp. 124125. On the first occasion the proposal was passed by a vote of 36 to 3 in the Senate; the second time it was favored by a 32 to 7 majority.

13 Ibid., p. 127.

14 The system in effect in Maryland from 1837 to 1864 was unique in that it required a rotation of the office of governor among different areas of the state. The constitution divided the state into three districts and required that the office be rotated in order among them; consequently no individual was eligible for the office for more than three years in any nine-year period.

15 Ames, p. 127. It should be noted also that the constitution of the Confederate states adopted in 1861 limited the President to one six-year term.

17 Porter, Kirk H. (comp.), National Party Platforms (New York, 1924), p. 15.

18 The Georgia constitution of 1865, drawn up under the terms of President Johnson's milder reconstruction policies, ran contrary to the trend in that it adopted a restriction on reëligibility of the governor, although that state had not had such a provision since 1789; but this constitution was replaced by another one in 1868 in which the reëligibility clause was omitted. Louisiana's revised constitution of 1864 omitted the restrictive clause of its original constitution. It was restored in the revised constitution of 1868 only to be omitted again in the constitution of 1879.

19 Ames, p. 125.

20 Grant, who led the balloting on 33 roll calls, secured at one point a total of 314 votes, with 378 being necessary to win nomination. Rodell, Fred, Democracy and the Third Term (New York, 1939), p. 73.

21 The dates of restoration were Florida, 1885; Mississippi, 1890; Louisiana, 1899; Alabama, 1901; and South Carolina, 1926. Texas and Arkansas are the only ex-Confederate states which have failed to reinstate their reëligibility limitations.

22 In 1941 the Georgia provision was changed from a prohibition of more than two successive two-year terms to a prohibition of a successive four-year term. New Jersey in 1947 liberalized its prohibition of an immediate reëlection under a three-year-term plan by permitting two successive four-year terms.

23 Pennsylvania, West Virginia, Virginia, Kentucky, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Indiana, Missouri, Oklahoma and Idaho.

24 New Jersey, Maryland and Oregon.

25 States with two-year terms in which a two-term limit has been observed for more than half a century are Kansas, Maine, South Dakota, and Texas. No governor has been elected for a third successive two-year term in Arkansas since 1905.

26 Thus Governor Albert C. Ritchie, of Maryland, in winning reëlection three successive times beginning in 1924, broke a one-term tradition of long standing in that state. Governor John G. Winant, by winning a second, but nonsuccessive term in New Hampshire in 1930, defied a tradition against a second election; and in 1932 he set a new precedent by obtaining another, successive term. In 1926 Governor John E. Weeks, of Vermont, by his reelection to a second successive term, broke a one-term tradition which had persisted in that state for over fifty years.

27 Constitution of Delaware, Art. 3, Sec. 9.

28 Constitution of North Carolina, Art. 3, See. 2.

29 Constitution of New Jersey, Art. 5, Sec. 1, par. 5.

30 Governor Fielding L. Wright, of Mississippi, served out the last fourteen months of the term of Governor Thomas Bailey, who died in office. Wright was then elected for a full four-year term in 1947. Governor Herman Talmadge of Georgia, now serving a regular four-year term to which he was elected in 1950, was elected in 1948 to complete the last two years of the 1947–1951 term. To clear the way for his reelection to a full term immediately after serving an elective partial term, the Georgia Legislature passed two statutes in 1949. One provided that the state executive committee of a party should determine all questions relating to the qualifications of a candidate for nomination for state office at its primary, including the question of his eligibility for the office sought. The other made the General Assembly the sole judge of the constitutional qualifications and eligibility of the person elected as governor. See Georgia Laws (1949), pp. 967, 1948. The Georgia constitution provides that a governor “shall not be eligible to succeed himself and shall not be eligible to hold the office until after the expiration of four years from conclusion of his term of office” (Art. 5, Sec. 1, par. 1).

In October, 1939, Lieutenant-Governor Keen Johnson, of Kentucky, who was subsequently chosen for a full term as governor in the November, 1939, election, succeeded briefly to the governorship upon the resignation of incumbent Governor Chandler, who had resigned to accept appointment to the United States Senate. Johnson thus served some two months more than the normal period of four years.

31 Fitzpatrick v. McAlister, 121 Okla. 83, 248 Pac. 569 (1926).

32 The Springer Resolution of 1875, noted above, was passed by a Democratic-controlled House of Representatives. On February 1, 1913, shortly before the inauguration of President Wilson, the Senate passed, by a vote of 47 to 23, an amendment resolution which would have limited a President to a single six-year term. It was favored by 28 Democrats and 19 Republicans and Progressives, and opposed by one Democrat and 22 Republicans and Progressives. Congressional Record, 62nd Cong., 3rd sess., Vol. 49, p. 2419 (1913). On February 10, 1928, the Senate passed the La Follette Resolution, which was essentially a restatement of the sentiment expressed in the Springer Resolution of 1875 opposing the third-term idea. The 56 votes in its favor were cast by 37 Democrats, 18 Republicans, and one Farmer-Laborite, and the opposing votes were cast by four Democrats and 22 Republicans. Congressional Record, 70th Cong., 1st sess., Vol. 69, p. 2842 (1928). For reviews of efforts in the past to limit presidential tenure see Rodell, op. cit. (above, n. 20); The Congressional Digest, Vol. 26, pp. 1423 (Jan., 1947).

33 Cf. Key, V. O. Jr., Southern Politics in State and Nation (New York, 1949), especially Part I.

34 In the Senate debate on the presidential tenure proposal, Senator O'Conor, of Maryland, stated the point as follows: “Certainly nothing could act more definitely to halt or impede development of potential leadership in the city, State, or Nation than to permit any one man or any one party to persuade the people that he or they alone are competent and therefore must be perpetuated in office” (Cong. Rec., 80th Cong., 1st sess., Vol. 93, p. 1780 [1947]).

35 When in the course of deliberations upon the presidential tenure proposal Senator O'Daniel, of Texas, offered an amendment to apply a six-year limitation to the Presidency and to legislative officers as well, it received only his own vote. Senator Kilgore, of West Virginia, also questioned the logic of limiting executive tenure without likewise limiting the tenure of legislators, but his query stirred no debate (ibid., pp. 1963, 1947).

36 South Carolina Acts and Joint Resolutions (1924), p. 1492; South Carolina Acts and Joint Resolutions (1926), p. 960. For a considerable time prior to adoption of this amendment, a “two-term tradition” under which a governor was limited to two consecutive two-year terms had been observed in this state.

37 In Keenan v. Price, 68 Idaho 423, 195 Pac. (2nd) 662 (1948), the Supreme Court of Idaho overruled a contention that the amendment was invalidly submitted in that the electorate was not permitted to vote separately on the different propositions contained in it. In 1928 a similar amendment, but lacking the ineligibility clause for the governor, was ratified by the state electorate. It was declared by the Idaho Supreme Court to have been invalidly submitted on the ground that the question as presented on the referendum ballot was stated as whether the terms of the state officers involved should be “limited” to four years. Lane v. Lukens, 48 Idaho 517, 283 Pac. 532 (1929).

38 New Mexico Laws (1937), p. 693. The provision which the voters refused to eliminate was one which forbids a third consecutive two-year term. In November, 1948, a proposed constitutional amendment extending the term of office of the governor and other state administrative officials from two to four years, and making such officers ineligible to succeed themselves after one term, was defeated by an affirmative vote of 28,914 and a negative vote of 30,364 (New Mexico Statutes Anno., 1949 Supp., Vol. 1, p. 13).

39 Laws of Maryland (1949), p. 1968. The popular vote in favor of the anti-third term proposal was 162,043 to 106,255. Senator O'Conor of Maryland asserted on the Senate floor that the two-term limit proposal had the unanimous support of the 123 members of the House of Delegates when it was voted on by the legislature in 1947 (Cong. Rec., 80th Cong., 1st sess., Vol. 93, p. 1780 [1947]). In 1940 the voters of Maryland rejected a constitutional amendment which would have prohibited an immediate reëlection of the governor to a second four-year term (Laws of Maryland, 1939, p. 828).

40 States in which governors have been elected for three consecutive two-year terms in the period since 1900 include Arizona, Arkansas, Colorado, Connecticut, Idaho, Iowa, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Dakota, Ohio, Rhode Island, Tennessee, Wisconsin and Wyoming. States in which governors have been elected for three consecutive four-year terms include California, Maryland, Montana and New York. The “record” for number of terms elected in recent times is held by the first governor of Arizona, George W. P. Hunt, Democrat, who was elected for seven two-year terms in the period from 1912 to 1932. Governor Albert C. Ritchie, Democrat, of Maryland, had the longest period of continuous service, which extended over four four-year terms running from 1920 to 1935.

41 An attempt to make the convention method of ratification applicable to the proposal failed in the House by a vote of 134 to 74. The Senate Judiciary Committee report on the resolution recommended use of the convention device, but this recommendation was rejected 63 to 20 (Cong. Rec., 80th Cong., 1st sess., Vol. 93, pp. 871, 1862 [1947]). Discussion of the alternative modes of ratification revealed a startling lack of understanding by members of Congress of this aspect of the amending process. Cf. Brown, Everett S., “The Term of Office of the President,” American Political Science Review, Vol. 41, pp. 447452 (June, 1947).

42 In the congressional debate no backer of the proposal frankly stated this as a reason for opposing the use of the convention device. Reasons advanced in support of the legislative method of ratification were that it was more expeditious, less complicated, and less expensive than the convention method; that the public was not greatly concerned and interested in so “technical” a question; and that conventions might be “manipulated.” Perhaps the most astounding statement was that of Senator McClellan, of Arkansas, who in opposing the convention system declared: “I know that the process of ratification through action of the State Legislatures affords the best opportunity for getting the correct sentiment of the people, because legislators are elected, whereas in many States delegates to conventions are appointed and the question is not made an issue and debated before the citizenship and the electorate, before the votes are cast” (Cong. Rec., 80th Cong., 1st sess., Vol. 93, p. 1800 [1947]).

43 American Institute of Public Opinion polls, as reported in the Detroit News for June 14, 1936, and the Public Opinion Quarterly, Vol. 2, pp. 304305 (19471948), show the following results:

44 It may be contended, of course, that the fact that the amendment proposal received a two-thirds majority vote in each House of Congress and majority approval in the legislative bodies of 36 states is prima facie evidence that it had overwhelming popular support. However, eighteen of the state ratifications were given by state legislatures within less than three months of its submission. Obviously few, if any, of them could be said to have acted in accordance with a popular mandate on this question, since it was not formally before the voters as an issue when the members of these legislative bodies were elected. It may also be questioned whether the issue of ratification of the pending amendment played any significant part in the election of members of the remaining state legislatures which ratified at later dates.

45 Washington, Jefferson, Jackson, Theodore Roosevelt, Wilson and Franklin D. Roosevelt. The other outstanding President, Lincoln, would not have been affected since he was assassinated before the end of his second term. Some might include Grover Cleveland, who would also have been disqualified, among the “outstanding and able” Presidents.

46 Dealing with this point in the Senate debate on the presidential tenure, Senator Kilgore of West Virginia asserted: “I have had the opportunity during the past 8 years to study the record of governors in States in which there are limitations as to terms, and I have discovered that the last half of the term was a record of failure” (Cong. Rec., 80th Cong., 1st sess., Vol. 93, p. 1949 [1947]).

Another observer states: “One state official felt very strongly that the inability of the governor to succeed himself placed him in a position where ‘he has no incentive for good administration other than his own desire to perform efficiently.’ Others interviewed were skeptical about the effect of this provision on the administration of the governor's program, pointing out that the people, even if they had an opportunity to express themselves, ‘weren't interested in good administration,’ but judged a governor by his ability to get his promised program through the legislature. It was generally conceded, however, that this provision did have a deleterious effect on the governor's relation with the legislature. This is particularly true of the second half of his term when the legislators were more concerned with the programs of potential candidates for the governorship and with potential patronage from those candidates than with the incumbent who had distributed most of the lucrative state positions and contracts and who could not be looked upon as a candidate for at least another four years, if at all” (Ransone, Coleman B. Jr., The Office of Governor in the South, University, Alabama, 1951, pp. 5960).

Key, op. cit. (above, n. 33), p. 102, summarizes the observations of an official in the state house in Florida, where a single four-year term rule obtains: “A governor usually goes out of office with many enemies. He can control his first legislature with patronage and favors, but the second is often beyond his control. As his term wears on even his own appointees become independent …. Among the enemies of the administration, those seeking to organize a group powerful enough to take over the governorship find their most willing recruits.”

47 Every one of the ten Presidents since Grover Cleveland who has lived to complete a first full term or partial term has been renominated by his party. Six were returned to office and a seventh, Cleveland, was reëlected after an intervening term.

48 “In their haste to register disapproval of the late President for seeking a third and then a fourth term, these gentlemen [who sponsored the Twenty-second Amendment] neglected or ignored the really critical issue, which is whether a President should be permitted to succeed himself at all. Inasmuch as the Presidency is a ‘killing job,’ to which few men come until they have passed the peak of their physical vigor, few Presidents will be likely to seek a third term, and certainly not a fourth, remembering the penalty which Mr. Roosevelt paid for doing so.

“The chief objection to presidential reëligibility, to my mind, is just as valid against a second successive term as it would be against a third one. It consists in the fact that a President who is looking forward to reëlection will evaluate all programs and policies primarily for their probable effect on his political fortunes and will, in fact, be expected and required by his party to do so” (Corwin, Edward S., The President: Office and Powers, 3rd ed. rev., New York, 1948, pp. 4849).

49 Among state governors of recent years who have been returned to office after periods of ineligibility are Gifford Pinchot, of Pennsylvania; A. Harry Moore, of New Jersey; Olin Johnston, of South Carolina; David Bibb Graves, of Alabama; Eugene Talmadge, of Georgia; Theodore Bilbo and Hugh White, of Mississippi; and Henry Schricker, of Indiana. The number of governors who have been returned to office after a period of ineligibility would undoubtedly be larger were it not for the fact that many of them in the meantime successfully sought federal offices, especially seats in the Senate, which they have preferred to retain rather than to seek the governorship a second time.

50 Cf. Alexander Hamilton in Number 72 of the Federalist Papers. During senate consideration of the presidential tenure proposal Senators Holland, of Florida, and Magnusen, of Washington, strongly urged an amendment which would have made possible the later reëlection of a President who had served the permissible two consecutive elective terms. The proposed amendment was rejected 50–34 (Cong, Rec., 80th Cong., 1st sess., Vol. 93, pp. 1941, 1955 [1947]).

Constitutional Limitations on Reëligibility of National and State Chief Executives

  • Joseph E. Kallenbach (a1)


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