Federalist Paper No.72

The subject of this paper concerns the number of times an individual should be able to hold the office of chief magistrate, or President. The 22^nd Amendment fixed the number of terms an individual could serve as President at two, but for over one hundred and fifty years there was no legal limit to the number of times an individual could serve, prior to the Amendment. During that time, however, only Franklin Roosevelt served more than twice.

Hamilton’s discussion continues a point he makes in Federalist 70, that there are ingredients which constitute the energy of the executive, meaning the motivation, commitment and zeal to which an individual dedicates themselves to the position of President. One of those ingredients – which Hamilton begins discussing in Federalist 71 – is that of duration. In that paper he puts forward reasons why the President’s term should be as long as four years. In this paper, he defends the decision to allow the President to serve for as many terms as he might be elected by the people.

Hamilton prefaces this argument with a brief consideration as to the roles of government – foreign negotiations, plans of finance, disbursement of public moneys, arrangement of the army and navy and directions of war – and the need of the President to nominate deputies for the various offices of government to achieve its ends. From this Hamilton infers the connection between the duration of the executive magistrate in office and the stability of the system of administration, since he reasons that it is natural for a new leader to differentiate themselves from their predecessor. If that predecessor was unpopular or introduced unpopular legislation, then the likelihood that their policies will be overturned by the new President is greater.

Hamilton’s main target in this paper is the very outcome that was achieved by the 22^nd Amendment: the limitation of an individual to a fixed number of terms as President, after which time they would be excluded from the office.

In response to the issue of exclusion, Hamilton first turns to the motivations that affect human behaviour: the desire for reward; the love of fame; the desire to leave a legacy. Furthermore, the likelihood that an individual will act with fidelity in their Presidency and be committed to the program and outcomes of their role are of concern. Hamilton argues that these human motivations and the outcomes which derive from good leadership are most likely to be achieved when an individual has the inducement to continue their work in the long term – that they might continue to be re-elected if they serve the people well – rather than to be excluded from the role after a set period of time. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good.

Hamilton also raises the issue of corruption. He suggests that an individual aware of their limited tenure may approach the role cynically, preparing to enrich themselves rather than serve the people. Hamilton does not refer to the following example, but his argument reminds me of a case Cicero tried against Verres, a Roman governor who planned the systematic exploitation of Sicily, including his plan to set money aside to bribe Roman Senators who he knew would be brought to try him when his governorship ended. Hamilton reasons that an individual who might lean toward corruption in a system that limited tenure, might, in a system wherein the tenure was indeterminate – potentially over many years depending on good governance and the will of the people – be more likely to govern well in order to prolong his honours and receive the benefits of his position.

Hamilton also questions the wastefulness of excluding an individual from further service. They will have gained wisdom and experience from their role, which could no longer be applied for the good of the public. Also, if the transfer of power was required simply because the President had served the maximum number of terms, thereby requiring they step down, especially during a crisis such as war, this could be detrimental to the country.

Added to this, there is the potential that a change of Presidents, especially if the current President was deemed to be a good President, could lead to a lack of direction in policy: By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. This is against the principle of stability in government.

Hamilton concludes by questioning some of the supposed benefits of exclusion after a fixed number of terms: 1st, greater independence in the magistrate; 2nd greater security to the people. Hamilton points out that independence would be difficult since the President would always be beholden to others who knew the limits of the duration of his power. As for the second point, Hamilton speculates that there might actually be dangers involved in forcing a popular President from office due to a law fixing the numbers of terms. Hamilton is considering the possibility of a popular uprising here, against the very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving fresh proof of their attachments to a favorite. This, therefore, is another possible threat to stability.

Nevertheless, the Roosevelt presidency raised certain fears about the possibility of a tyrannous executive after Roosevelt was elected to a fourth term and then died in office. Roosevelt's four terms broke the unwritten convention that presidents only served two terms. This had been the norm since Washington stood aside at the end of his second term, even though there was nothing in the Constitution limiting the number of terms a president could serve. Republicans introduced the 22^nd Amendment after Roosevelt’s death, which occurred only months into his fourth term. The Amendment limited a president to two terms, or a total of ten years. This second circumstance might happen if a Vice-President was elevated to the position of President for not more than two years due to unforseen circumstances, like the death of the former President in office. However, serving any longer than two years of that term would count as a term in office, and would therefore limit the new President to only one more possible term in office.

5 December 2019

Revised and updated 7 July 2022