Term Limits

A term limit is a legal ceiling on how long one person can hold a particular office. The device is old, republican, and blunt: it removes an officeholder on a schedule regardless of his record, his popularity, or the wishes of the voters who would return him. Conservatives are divided on it, and the division runs along a real fault line in conservative thought rather than along party lines.

One camp treats limits as a structural defence against a permanent political class, on the ground that power held long enough stops answering to anyone. The other camp treats them as a rationalist device that disenfranchises voters, destroys accumulated legislative competence, and hands the resulting vacuum to unelected staff and lobbyists. Both arguments are conservative. Neither has won.

Key Takeaways

• The Twenty-Second Amendment, capping the United States presidency at two terms, was ratified on 27 February 1951.
• George Washington’s refusal of a third term in 1796 held as an unwritten convention for 144 years until Franklin Roosevelt won a third in 1940.
• In U.S. Term Limits, Inc. v. Thornton (1995) the Supreme Court struck down state-imposed limits on members of Congress by five votes to four.
• Thirty-seven American states limit their governors; sixteen limit their state legislators.
• The strongest conservative objection is that limits transfer power from elected members to permanent staff, agencies, and lobbyists.

History And Context

The Roman republic supplied the founding image. Lucius Quinctius Cincinnatus was named dictator in 458 BC, defeated the Aequi, and resigned the office and returned to his farm rather than hold it for the six months the law allowed. Whether the details are historical or moralised by Livy, the figure fixed the idea that the honourable magistrate surrenders power before he is required to. Athens went further, filling most offices by lot and forbidding repeat tenure, and Aristotle defended the practice in the Politics on the ground that citizenship consists in ruling and being ruled in turn.¹

The Articles of Confederation of 1781 limited delegates to three years in any six. The Philadelphia Convention of 1787 dropped the restriction for the presidency after extended argument, Alexander Hamilton arguing in Federalist No. 72 that excluding a capable executive deprives the public of experience and removes the incentive of good behaviour.² Washington’s two terms then did the work that no clause did. Ulysses Grant sought a third in 1880 and failed; Theodore Roosevelt ran as a third-party candidate in 1912 and lost.

Roosevelt broke the convention in 1940 and again in 1944, and died in office in April 1945. A Republican Congress passed the amendment in March 1947, and the states completed ratification in February 1951. The 1994 Contract with America put congressional limits back on the agenda; the constitutional amendment failed to reach a two-thirds majority in the House in March 1995, and the Supreme Court closed the state route later that year in Thornton. Elsewhere the pattern varies. Mexico entrenched no-reelection for the presidency in its 1917 constitution after the Porfirio Diaz dictatorship. China removed the two-term limit on its presidency in March 2018.

The Conservative Position

The case for limits starts with a claim about human nature that conservatives hold on independent grounds: men are not improved by long possession of power. Careerism produces members whose first loyalty is to reelection and whose second is to the institution that funds it. Limits break the cycle mechanically, without requiring anyone to identify a specific offender.

The second argument concerns the difference between a legislature and a profession. The republican ideal, held by the American founders and by the country party in eighteenth-century England, was of a citizen who serves and then goes home to live under the laws he made. A legislator who has never held another job for thirty years does not share the position of the governed.

The third argument is about incumbency. Reelection rates in the United States House have run above ninety per cent in most recent cycles, sustained by name recognition, franked communication, casework operations, and fundraising advantages that no challenger can match. Where competition is that weak, an election is a poor instrument of accountability, and a limit restores turnover that the ballot no longer delivers.

Against all of this stands the older conservative objection, and it is the stronger of the two positions on the evidence. A term limit is a prior restraint on the electorate. It tells a constituency it may not return a man it judges good, which is a strange position for a tradition that distrusts abstract rules imposed over particular judgement. Burke’s argument to the electors of Bristol in 1774 assumed a representative exercising mature judgement, which is a capacity acquired over years.³ Michael Oakeshott’s charge against rationalism applies directly: the limit is a technical fix that substitutes a rule for the practical knowledge of a working institution.

The empirical record supports the objection. Studies of the American states that adopted legislative limits find that expertise migrates out of the chamber and into the places conservatives least want it: executive agencies, career staff, and lobbyists, who are the only actors left in the room who remember how the last bill was drafted.⁴

Differing Positions

Progressive critics arrive at a similar destination by a different road. Limits, on their account, weaken the branch closest to voters and strengthen the administrative state and moneyed interests, while doing nothing about the campaign finance system that produces the careerism in the first place. Term limits treat a symptom.

A second criticism is that limits reward short horizons. A member serving a final term has no electoral reason to weigh long-run consequences and every reason to court the industries that will employ him next.

A third position accepts the diagnosis and rejects the remedy: if the problem is uncompetitive districts, then independent boundary commissions, open primaries, and ballot access reform attack the cause directly, leaving voters free to keep a member they want.

References

1. Aristotle, Politics, Book III.
2. Alexander Hamilton, The Federalist, No. 72 (1788).
3. Edmund Burke, “Speech to the Electors of Bristol” (1774).
4. Bruce E. Cain and Thad Kousser, Adapting to Term Limits: Recent Experiences and New Directions (Public Policy Institute of California, 2004).