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President Obama leaves office this week because, among other things, the Constitution says he has to. A few weeks ago, he suggested that if he’d been allowed to be on the ticket, he would have beaten Trump. But because of the 22nd Amendment to the Constitution, we’ll never know. As of Friday, only five presidents will have left office because of formal term limits — but only one, FDR, has ever served more than two terms.
Why did our system of informal limits get replaced with a formal one? Why was there an informal one in the first place? What can we learn from this about what happens when presidents break longstanding norms?
The politics of term limits leading up to FDR’s unprecedented third, and then fourth, presidential run help to illustrate why he became the last president to do it. When the presidency was under discussion at the Constitutional Convention, term length and reeligibility were a big deal. How long should presidents be in office? There were almost as many opinions about this as there were people in the room — views ranged from just a year or two to a lifetime appointment. The length of the term was also tied up in whether the president would be eligible for reelection, and how presidents would be chosen. In other words, it was a complex issue without an obvious solution. And all the ideas about how long the president should ideally serve boiled down to conjecture — no one really knew what this office would look like, or where the worst pitfalls would be.
George Washington left office after his second term, but it was Thomas Jefferson who noted Washington’s precedent and made it an informal rule. Scholars disagree somewhat about why no one violated this rule before FDR’s unprecedented victories in 1940 and 1944. Theodore Roosevelt tried in 1912, after serving most of William McKinley’s second term and a full term of his own in from 1905 to 1909. Ulysses S. Grant was technically in contention for the nomination in 1880, which would have meant seeking a third term.
Bruce Peabody and Scott Gant argue that the reason this was so rare was mostly idiosyncratic — death, party dynamics, and national political conditions meant that a third term eluded presidents, but there was no clear unifying reason. In a fantastic 2011 book on the subject, Michael Korzi points out that the topic came up in party platforms periodically, usually in response to specific presidents. Some of these, like the 1912 Democratic platform, advocated for single-term limits, while others, like the Republican platforms in — surprise! — 1944 and 1948, called for two terms.
In our paper on informal institutions, Jenny Smith and I identify Jefferson’s two-term precedent as an informal rule. The fact that its violation led to a fairly swift amendment of the Constitution (FDR was elected to his fourth term in 1944; the 22nd Amendment was ratified in 1951) lends support to our main argument in the paper, that norm violation is an underappreciated source of institutional change.
Importantly, parties played a key role in enforcing the two-term norm. As Daniel Klinghard points out, 19th-century presidents often didn’t get nominated for a second term — much less nominated or elected for a third. Parties in this era recruited and bolstered ambitious politicians who checked presidential power in a very Madisonian way — with their own desire to move up the political ladder and try for executive office. Formal term limits have removed this incentive for parties to check their own presidents.
There are a couple of lessons here that are relevant for contemporary politics. First, the presidency is powerful and guided by many more informal guidelines than formal constitutional restrictions. You’ve probably heard a thing or two about norms lately. Term limits are an area in which the norm violation was clear and allowed for an alignment between, as Korzi points out in his book, politicians who just didn’t like Roosevelt and those who had a more principled belief in limiting how long presidents could serve. One of the changes we might expect from a Trump presidency is the formal codification of informal expectations, perhaps involving conflicts of interest, how presidents communicate with the public, or, depending on things go, something even bigger, like requiring some experience public office.
But the other thing we learn by looking at the term limits story is that these institutional changes have unintended consequences. It’s not just that we’re not watching Obama get sworn in for a third time this week — or George W. Bush. The 22nd Amendment has affected the incentives that parties have to recruit presidential-caliber candidates, and it seems to have contributed to a decline in the influence of second-term presidents. The kinds of fixes required to curb presidential power are just as likely to undermine institutions as to build them up.
At a time when our basic institutions — government, media, parties — seem compromised and unpopular, this is especially important. Our next president is likely to violate norms. How we respond to that may last well beyond his presidency.
