- The Washington Times - Saturday, June 2, 2007

A very Hamiltonian president, Franklin Delano Roosevelt, prompted the country to do a very un-Hamiltonian thing in 1951. Against the backdrop of World War II and the evolving “Cold War,” Congress and the states added the 22nd Amendment to the Constitution.

In straightforward language that leaves little opening for judicial reconstruction, this amendment declares that “no person shall be elected to the office of president more than twice,” and that persons who serve more than two years of another president’s unexpired term may be elected no more than once.

The symbolic significance of the 22nd Amendment following World War II, when the democracies of the world defeated several dictators and an empire, cannot be overemphasized. This symbolism aside, however, the ratification of the 22nd Amendment amounted to a declaration of distrust in ourselves. The election of Roosevelt to third and fourth terms, something that had not occurred even in the case of George Washington, was equated with an abandonment of the counsel of historical reason. The 22nd Amendment represented an effort to constitutionalize this country’s historical suspicion of political ambition.

Admittedly, there is no way to predict with certainty how the country would have reacted if Franklin and Eleanor Roosevelt had shared four terms. Considering the concerns that led to the passage of the Amendment, however, it is not farfetched to assume a division of the four terms between them would have been no less troubling than what did occur.

While such an assumption might not pass the Supreme Court’s strict scrutiny test, it might well pass the “feeling in the gut” or “stick to the wall” (spaghetti) tests important to many American voters.

If it does not stretch credulity to believe that the concerns that informed the ratification of the 22nd Amendment cover a Franklin and Eleanor pairing, and that these concerns capture the “spirit” of the amendment, then how should Americans react to Hillary Clinton’s candidacy? At the very least, the Clintons are pushing at the boundaries of what the political culture has tolerated since the ratification of the 22nd Amendment.

It is worth noting that the United States Supreme Court itself has not shied away from using “spirit of the Constitution” arguments. In a rather matter-of-fact declaration for the Court in Church of the Holy Trinity v. Unites States, a late 19th century case, Justice David Brewer appealed for support to the “familiar rule … that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”

In all fairness, the wisdom of limiting presidents to two terms is open to debate. Ronald Reagan, among a group that has included Bill Clinton, believed there was much practical wisdom in Alexander Hamilton’s assertion in the Federalist Papers that unlimited terms advance the cause of both effective and accountable government. But the important fact as we look ahead to 2008 is that the Hamiltonian side lost the debate on the 22nd Amendment. What won out was the argument that the benefits of institutionalizing change and curbing excessive ambition in the executive department outweigh whatever undesirable consequences Hamilton might have conjured up.

The 22nd Amendment of course fits with the decision of George Washington, arguably our greatest hero-president, to close out his public life in 1797. There is little doubt that a third term was Washington’s for the asking, or the taking, but for various reasons he passed on the opportunity. His decision was the product of an abiding concern for the long-term health of the American republic. He understood it is possible to have monarchical or aristocratic government in spirit and practice, even if not in name.

Beyond this, Washington recognized the importance of rotating access to great offices in order to keep ambitious persons “on the reservation.”

The ratification of the 22nd Amendment amounted to a symbolic reaffirmation of the wisdom of Washington’s reasoning and of his nobility. If the generation that ratified the amendment would have been troubled by a four-term pairing of Franklin and Eleanor Roosevelt, it follows Sen. Hillary Clinton’s pursuit of the presidency represents an obvious challenge to the amendment’s democratic and cautionary spirit, that is, to the political and moral convictions that it reflects.

There is no denying that Mrs. Clinton was an important part of Bill Clinton’s presidency (witness her role in developing the first-term health initiative), even if not an official co-president. And while Bill Clinton might try to stay in the shadows if Hillary Clinton occupies the Oval Office, it is hard to imagine he would not be an important part of her presidency (indeed, she recently floated the idea of making him “a roaming ambassador to the world”). In short, their linkage has a substantive as well as an outwardly formal dimension.

Some persons might object that it is unfair to subject Hillary Clinton’s bid for the presidency to 22nd Amendment scrutiny merely because her husband beat her to the office. To be clear, the problem is not one of gender discrimination, since the same objection would apply if Mrs. Clinton had beat her husband to the White House, but something on the order of benign spousal discrimination.

Of course nothing precludes Mrs. Clinton from arguing for a literalist interpretation of the amendment or from making a “personal dignity” defense of her candidacy. She also may argue that any violation of the “spirit” of the amendment is justified by the importance of her candidacy to America.

If appeals to individual rights trump all other considerations, and if we are guided by the contemporary claim that the Constitution affirms the right of all persons to pursue their preferred lifestyle, Mrs. Clinton’s pursuit of the presidency is unproblematic.

It is important to remember, however, that the country was not affirming the right of all Americans to pursue their preferred lifestyles when it added the 22nd Amendment to the Constitution. We were preoccupied with preserving the country’s political health. Significantly, Washington’s decision not to overreach has been cited as an example of the good judgment that James Madison understood must guide personal ambition in order for the system of checks and balances to produce beneficial results.

Mrs. Clinton’s candidacy invites the American people to reassess their commitment not only to the apparent “spirit” of the 22nd Amendment, but to the amendment itself. They must decide whether her actions reflect unbridled ambition, the kind of ambition the amendment sought to confine, or an example of the kind of healthy ambition Madison looked for in candidates for public office. And if she is principally a vehicle for returning Bill Clinton to the White House, the country should reconsider the wisdom of presidential term limits.

We can only speculate about the counsel that Mrs. Clinton might receive from the American people who endorsed and ratified the 22nd Amendment, or from George Washington. Based on the care he took to be above reproach in all his public actions, his refusal to believe the country’s welfare depended on prolonging his presidency, and the weight he assigned to preserving public trust in the constitutional order, it is not unlikely he would counsel the Clintons to follow his example, and quite possibly the “spirit” of the Constitution as revised by the 22nd Amendment.

David E. Marion is Elliott Professor of Political Science and Director of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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