By: Professor Rob Natelson. Professor Natelson is the Independence Institute’s Senior Fellow in Constitutional Jurisprudence and heads the Institute’s Article V Information Center.
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dvocates for term limits want to amend the Constitution to add them. Their most common argument is that restricting how long an elected official may serve will curb special interest influence and other federal abuse.
The Articles of Confederation, the document governing the United States between 1781 and 1789, restricted members of Congress to three years of service out of every six. But when drafting the Constitution, the framers consciously decided not to include term limits.
Were the framers correct to omit them? Or are modern advocates correct to seek them?
The answer may be that both were or are correct: the framers were right for their times and modern advocates are right for ours.
One reason the framers included an amendment process was to enable Americans to keep the Constitution abreast of changing conditions. We have amended the Constitution several times for precisely this reason.
For example, the founding generation provided for a lengthy gap between Election Day and the inauguration of the newly-chosen Congress and president. Eighteenth-century transportation technology rendered the time period necessary, because a move to the national capital might consume weeks. The disadvantage of this delay was that it gave lame-duck officials over four months to act in ways contrary to the popular will.
By 1933, the successive inventions of the steamship, train, automobile, and airplane enabled people from anywhere else in the country to travel to Washington, D.C. within a day or two. Hence, the 20th amendmentaccelerated presidential and congressional inauguration from March to January.
Of course, not every alteration in political or social conditions justifies an amendment. The change must be a relevant one. The mere fact that we now drive automobiles instead of buggies does not justify repealing the congressional power to coin money or the First Amendment’s protection for freedom of religion.
One helpful way of thinking about whether a change is relevant is to ask, “If the framers had known about it, might they have written the Constitution differently?”
In fact, there have been several developments that may well have induced the framers to include term limits:
* The federal government is far larger, and does many more things, than anyone imagined when the Constitution was written. The founding generation was very skeptical about giving anyone so much power, especially over an extended period of time.
* Relatively few members of Congress retire voluntarily after a few years, as the framers thought they would—and as they frequently did for many years after the Constitution was written. The growth of federal influence has discouraged retirement by augmenting the charms and perks of office.
* The framers believed that a member of Congress who lost contact with his or her district would be vulnerable to challengers from back home. But today large congressional staffs and modern transportation and communication methods enable members of Congress to maintain well-oiled local machines to promote their own re-election even while quietly betraying most of their constituents.
As a result of such factors, the average tenure of members of Congress has increased enormously. A Congressional Research Service study documented the trend: Two hundred years ago, members served on average about 2-3 years. One hundred years ago, they served 4-6 years. The corresponding figure today is more than ten years.
Change has affected more than Congress. The justices of the Supreme Court, who are appointed for life terms, are deciding far more social questions than anyone expected in 1787. Their average tenure was about 8-9 years in the decade after the Constitution was adopted, but it now exceeds 21 years.
In 1951 Americans adopted the 22nd amendment, which successfully limited all subsequent presidents to two terms. That amendment also arose from altered conditions: At a time of growing life expectancy and increasing federal power, President Franklin D. Roosevelt had discarded the two-term custom established in the founding-era.
Federal abuse may be one reason for term limits, but it is not the only reason. Even if no abuses had crept into the system, they might well be a necessary response to dramatic political and social change.