Two Years plus One Term

                The topic of discussion for this Constitution Monday comes from Section 1 of the Twenty-second Amendment to the Constitution of the United States of America:  “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.  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.”  Any person who has replaced the President and served for at least two years in that position is limited to one additional term in office.

                W. Cleon Skousen explained, “This provision was necessary to settle the question of whether or not a partial term, filled by a Vice President, for example, constitutes a full term insofar as limiting the office to terms two is concerned.

                “This provision states that if a Vice President or other individual replaces the President for more than twenty-four months, it is counted as a full term.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 756.)

                Bruce Peabody of The Heritage Foundation further explained, “We can safely conclude that those who drafted the amendment sought somehow to prevent the emergence of a President with a tenure as lengthy as Roosevelt’s.  Many proponents of the measure further argued that they sought to codify the two –term tradition associated with Washington.  But although these observations surely point us to the general aspirations of the amendment’s authors, they do not establish a specific picture of how the framers intended their proposal to apply.

                “To begin with, congressional deliberations about the amendment were curtailed.  For example, the House restricted debate to two hours.  Furthermore, the discussions leading up to the proposing of the Twenty-second Amendment did not obviously suggest a consistent, clear legislative purpose.  Lawmakers expressed, at various times, their interest in limiting a President’s `service,’ `terms,’ `tenure,’ and `[eligibility for] reelection,’ without elaborating exactly how they understood these terms.  Moreover, when Congress dropped early proposals to foreclose a person’s eligibility for office if he had served in two prior terms and instead adopted the current text that focuses on limiting individuals twice elected to the presidency, it provided little explanation for this important shift beyond needing `compromise’ as part of the lawmaking process.  One should also note that the framers of the amendment did not obviously intend to create a two-term tradition in any narrow sense, because they specifically discussed allowing someone who became President through an `emergency’ within the first two years of one term to secure election for two additional terms.  We are therefore left with some uncertainty about the precise goals of the Twenty-second Amendment’s creators.

                “The ratification debates over the amendment do not provide much additional insight into the particular wishes of those who supported the proposal in the states.  In general, the amendment does not appear to have prompted a great deal of public or legislative discussion once proposed by Congress.

                “Although numerous court opinions make passing reference to the Twenty-second Amendment, its parameters have not been systematically examined by the judiciary.  No doubt the low profile of the amendment in the courts reflects limited interest in and opportunity for testing the provision….

                “These facts should not lead one to conclude that the Twenty-second Amendment is so straightforward that it requires no further interpretation.  Among other unresolved questions, the amendment seems to leave open the possibility that a twice-elected President could still become President through nonelectoral means.  For example, such a person might still be elevated to the presidency after serving as Vice President, or, if authorized, to act as President through a presidential-succession statute.”  (See The Heritage Guide to the Constitution, p. 425.)