induce some otherwise timid president to propose more courageous and far reach. ing policies. But that was hardly a Johnson deficiency. A 6 year term might make men who are overly concerned, with party patronage and party machinery less so. But this was clearly not a Johnson preoccupation. A 6 year term might permit a certain greater degree of policy follow-through, monitoring, and evaluation. But this apparently was never a Johnson interest. And, let us not forget, Johnson did have 5 years and 2 months in the White House and was a partner in an 8 year term. The six year term proposal as outlined in Senate Joint Resolution 77, in my judgment, would make matters worse rather than better. A president needs to be political, needs political leverage over the executive branch, and it is highly likely that in some future international crisis we will want to continue a president in office beyond a single term. The danger of an authoritarian president refusing to be removed from office seems as unlikely today as it has ever been in our history. The more immediate danger is in letting our presidency, visited as it is with an ever expanding set of expectations and responsibilities, become too dependent on the permanent government of civilian and military services. In sum, the idea of a set single six year presidential term is the last gasp of those who cling to the hope that we can separate national leadership from the crucible of politics, or of those who contend that our presidency is overly beholden to the workings of a patronage or spoils system. But neither is the case; the former remains an impossibility while the latter is clearly a problem whose time has passed. Mr. PETER COOGAN, THE CITY UNIVERSITY OF NEW YORK, Subcommittee on Constitutional Amendments, Committeee on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. COOGAN: Because of a hopelessly crowded calendar, I simply will not be able to appear at the hearings on October 28 and 29. I would like, if possible, to file the attached statement. Please express my regret to Senator Bayh. Enclosure. ARTHUR SCHLESINGER, Jr. SENATE JOINT RESOLUTION 77-SOME REFLECTIONS This resolution proposes a constitutional amendment with two main objectives to extend the term of the President and the Vice President to six years; and to forbid a President or Vice President from running a second time. I am well aware that a number of Presidents have themselves supported the idea that a President should serve a single, somewhat longer term and should not thereafter be eligible for re-election. Andrew Jackson, for example, powerfully stated the case in his Second Annual Message: "In order that [the President] may approach the solemn responsibilities of the highest office in the gift of a free people uncommitted to any other course than the strict line of constitutional duty, and that the securities for this independence may be rendered as strong as the nature of power and the weakness of its possessor will admit, I cannot too earnestly invite your attention to the propriety of promoting such an amendment of the Constitution as will render him ineligible after one term of service." "Such a change," wrote William Howard Taft, "would give to the Executive greater courage and independence in the discharge of his duties." Nor can one be unmindful of the fact that the movers of this present resolution, Senators Mansfield and Aiken, are public servants whose unusual wisdom and patriotism entitle any thoughts they have for improvements in our democratic process to the most attentive consideration. Nevertheless, proposed constitutional changes must always receive vigilant scrutiny. This is especially the case when the existing system has been, on the whole, working well enough. Let us therefore consider the arguments for Senate Joint Resolution 77. The basic contention is that a one-term President, serving six years and denied reeligibility, would be liberated from the pressures of party politics and could therefore concentrate without distraction on the general wel fare. The projected amendment, Senator Aiken says, "would allow a President to devote himself entirely to the problems of the Nation and would free him from the millstone of partisan politics." Senator Bayh observes that "several scholars" 'have told him that "our Presidents too often feel that they have to act like politicians seeking immediate reelection, when they should instead be acting like statesmen, expounding our national interest to the world, without regard to the consequences a necessary course of action might have on the next election." He adds, "Unfortunately, the decision which is best for the long-term interests of the Nation is often quite unpopular when first made." This is, on the face, a plausible argument. But, on reflection, does it not imply a low opinion both of the electorate and of the Presidency, if not of the democratic process itself? It implies that the majority is generally incapable, at least at first, of perceiving what is good for the long-term interests of the nation, and that Presidents. unless insulated against democratic pressures, will yield supinely to popular stupidities. One wonders whether history would sustain either of these propositions. What specific decisions, for example, do scholars or senators have in mind when they suggest that so many actions in the long-term national interest have been "unpopular" when Presidents first undertook them? Has this really been "often" so? Are Presidents so generally right and the people so generally wrong that the President must be protected against popular anxiety or aspiration? Even if this proposition were true, it is not at all clear that the extension of the presidential term or the ban on re-eligibility would significantly affect the situation. One must doubt, for instance, whether the proposed amendment would or could infallibly transform politicians into statesmen. The fact that a President himself cannot stand for re-election will probably not make him materially less solicitous about the choice of his successor, the future of his party or the vindication of his own reputation in history. All these considerations render it exceedingly problematic whether, if a President were forbidden to succeed himself, "people would be more likely to realize that he was not just acting for partisan reasons and treat his proposals accordingly." I quote Senator Bayh; but Senator Bayh himself has also said that a President, even if not re-eligible, "would be likely to be a powerful influence on the course of later events as an ex-President, and as a leader of his party." If this is true, as it incontestably is, then Senator Aiken can hardly be correct when he contends, "A single term would allow a President to wear at all times his 'presidential hat' and forget for a while that he also owns a 'politician's hat.'" Is not, indeed, the implied incompatibility between the roles of "politician" and "statesman" itself false to the genius of democracy? A democratic statesman is surely not one who ignores or rejects the political process but one who uses that process for noble ends. Moreover, would not the Presidents who make these wise but unpopular decisions still have the task of persuading Congress to accept and support them? Would this task not plunge a President back into the political caldron from which the amendment is designed to extract him? Or does the logic of the amendment require that members of Congress too must be confined to a single term so that they too may be shielded from the baneful influence of public pressure? And would a President who undertook, in the face of adverse or unpersuaded public opinion, an action that did not require congressional concurrence-if an earlier President, for example, had decided to pay a visit to Peking-would not the consequent outburst of popular protest have defeated the purposes of the action? I do not see in what way the amendment would enable a President to carry out successfully policies strongly opposed by Congress and the electorate. And, to pursue the question a little more deeply, is public opinion really as baneful as Senate Joint Resolution 77 assumes? Indeed, is not that what democracy is all about? The discipline of consent-i.e., the need to persuade Congress and the electorate of the soundness of a proposed policy-is surely essential to democracy. More than that, the very debate generated by this need to persuade constitutes a vital part of the education in public affairs that produces an informed citizenry. To free Presidents from the discipline of consent would be, I fear, to weaken our democratic process at a time when that process requires most of all to be made stronger and more responsive. I can not see, therefore, either that the present system of two four-year terms is (with the exception noted in the last paragraph below) so disastrous as to require constitutional remedy; or that the single six-year term will successfully insulate the President against political pressures; or, if it did produce such insulation, that this would be a healthy thing for our democracy. Moreover, the six-year term, I believe, offers marked disadvantages of its own. Conceivably in the time of Andrew Jackson, when the pace of social change was relatively slow, a six-year term might not have fatally reduced either popular control over the Presidency or the capacity of the executive branch to respond to fresh challenges. Still Jefferson wrote, "I am for responsibilities at short periods, seeing neither reason nor safety in making public functionaries independent of the nation for life, or even for long terms of years. On this principle I prefer the Presidential term of four years, to that of seven years, which I myself had at first suggested." Nor, indeed, did Jackson unconditionally endorse the six-year idea. In the 19th century, as President Kennedy used to point out, a politician had to know only three or four issues, and these same issues would dominate political life for a generation. But today, with the enormous acceleration in the velocity of history and in the rate of social change, new problems pile upon government in a variety and with a rapidity unprecedented in our national experience. Six years in the second half of the 20th century is equivalent, in terms of change, to at least a generation in the first half of the 19th century; and, given the onward rush of our contemporary life, the nation can hardly afford to place in power for so long a time an administration that lacks the capacity or the will to meet fresh problems with fresh solutions. A four-year term surely gives the electorate a fair test of a President's abilities and policies. If they approve his course, they can then reelect him for four years more. The proposed amendment seems to me not only anti-democratic in its premises but also anti-democratic in its effects; for the provision banning re-eligibility would deny the electorate the right to choose the President it thinks would best serve the nation. Indeed, all amendments to the Constitution, save for the Eighteenth and the Twenty-second, have enlarged rather than narrowed the power of the people. The Eighteenth Amendment has been repealed; and, in spite of my belief that the practical arguments against a President serving more than two terms have, in normal circumstances, undeniable force, I think that the Twenty-second Amendment should be repealed too. Surely the object of the amending process must be to expand and not to reduce the role of democratic choice in our national polity. (Additional materials submitted for the record :) DRAFTING THE FEDERAL CONSTITUTION A Rearrangement of Madison's Notes Giving Consecutive Developments of Provisions in the Constitution of the United States, Supplemented by Documents Pertaining to the Philadelphia Convention and to Ratification Processes, and Including Insertions by the Compiler. (By Arthur Taylor Prescott, D.C.L., Professor Emeritus of Government, Louisiana State University; Professor of Government, University of the South 19341938.) PART FOUR-EXECUTIVE AND JUDICIAL ORGANS OF THE FEDERAL GOVERNMENT CHAPTER 15-THE FEDERAL EXECUTIVE: DEVELOPMENT OF FUNDAMENTALS ELECTION AND TERM OF THE FEDERAL EXECUTIVE May 29: Preliminaries in Committee of the Whole. Resolved, that a national executive. be chosen by the national legislature for the term of ; to be ineligible a second time. Proposition in Virginia Plan. June 1: Wilson: Said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say, however, at least, that in theory he was for an election by the people. Experience, particularly in New York and Massachusetts, showed that an election of the first magistrate by the people at large was both a convenient and successful mode. The objects of choice in such cases must be persons whose merits have general notoriety. Sherman: Was for the appointment by the legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. An independence of the executive on the supreme legislature was, in his opinion, the very essence of tyranny, if there was any such thing. Wilson: Moved that the blank for the term of duration should be filled with "three years," observing, at the same time, that he preferred this short period on the supposition that a reeligibility would be provided for. C. Pinckney: Moved for "seven years." Sherman: Was for three years, and against the doctrine of rotation, as throwing out of office the men best qualified to execute its duties. Mason: Was for seven years at least, and for prohibiting a reeligibility, as the best expedient, both for preventing the effect of a false complaisance on the side of the legislature towards unfit characters, and a temptation on the side of the executive to intrigue with the legislature for a reappointment. Bedford: Was strongly opposed to so long a term as seven years. He begged the Committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period, and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment, he said, would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years. On the question, "for seven years": Yeas 5 (New York, New Jersey, Pennsylvania, Delaware, Virginia); nays 4 (Connecticut, North Carolina, South Carolina, Georgia); divided 1 (Massachusetts). There being five yeas, four noes, and one divided, a question was asked whether a majority had voted in the affirmative vote. June 19: Fundamentals in Convention. Resolved, that a national executive . . . be chosen by the national legislature, for the term of seven years; . . . to be ineligible a second time.... Ninth resolution, Committee of the Whole. * On the question for electing the executive by the national legislature for the term of seven years, it was agreed to: Yeas 8 (Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia); nays 2 (Pennsylvania, Maryland). The question for making the executive "ineligible after seven years" was next taken and agreed to: Yeas 7 (Massachusetts, New York, Delaware, Maryland, Virginia, North Carolina, South Carolina); nays 2 (Connecticut, Georgia); divided 1 (Pennsylvania). On the question on an election by the people instead of the legislature, it passed in the negative: Yeas 1 (Pennsylvania); nays 9 (Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia). L. Martin: Moved that the executive be chosen by electors appointed by the several legislatures of the individual states. Broom: Seconds. On the question, it passed in the negative: Yeas 2 (Delaware, Maryland); nays 8 (Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia). On the question on the words "to be chosen by the national legislature," it passed unanimously in the affirmative. "For the term of seven years"-postponed, nem. con., on motion of Houston and G. Morris. "To be ineligible a second time," Houston: Moved to strike out this clause. Sherman: Seconds the motion. G. Morris: Espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a reappointment. It was saying to him, make hay while the sun shines. On the question for striking out, as moved by Houston, it passed in the affirmative: Yeas 6 (Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Georgia); nays 4 (Delaware, Virginia, North Carolina, South Carolina). The clause "for the term of seven years" being resumed: Broom: Was for a shorter term, since the executive magistrate was now to be re-eligible. Had he remained ineligible a second time, he should have preferred a longer term. McClurg Moved to strike out seven years, and insert “during good behavior.” By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the legislature; and he conceived the independence of the executive to be equally essential with that of the judiciary department. G. Morris: Seconded the motion. He expressed great pleasure in hearing it. This was the way to get a good government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the executive should be chosen, provided he held his place by this tenure. Broom. Highly approved the motion. It obviated all his difficulties. Sherman: Considered such a tenure as by no means safe or admissible. As the executive magistrate is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well, he will be continued; if otherwise, displaced on a succeeding election. 2 Madison: If it be essential to the preservation of liberty that the legislative, executive, and judiciary powers be separate, it is essential to a maintenance of the separation that they should be independent of each other. The executive could not be independent of the legislature if dependent on the pleasure of that branch for a reappointment. Why was it determined that the judges should not hold their places by such a tenure? Because they might be tempted to cultivate the legislature, by an undue complaisance, and thus render the legislature the virtual expositor as well as the maker of the laws. In like manner, a dependence of the executive on the legislature would render it the executor as well as the maker of laws; and then, according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the executive and judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded and applied them for certain purposes as the latter did for others. The difference between them seemed to consist chiefly in two circumstances-first, the collective interest and security were much more in the power belonging to the executive than to the judiciary department; second, in the administration of the former, much greater latitude is left to opinion and discretion than in the administration of the latter. But if the second consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the executive than the judges, and forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a union between the executive and legislative powers than between the judiciary and legislative powers. He conceived it to be absolutely necessary to a well constituted republic that the two first should be kept distinct and independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachments as certain and as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing and discussion, until a less objectionable expedient should be applied for guarding against a dangerous union of the legislative and executive departments. Mason: This motion was made some time ago, and negatived by a very large majority. He trusted that it would be again negatived. It would be impossible to define the misbehavior in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender, holding his office by such a tenure, to submit to a trial. He considered an executive during good behavior as a softer name only for an executive for life. And that the next would be an easy step to hereditary monarchy. If the motion should finally succeed, he might himself live to see such a revolution. If he did not, it was probable his children or grandchildren would. He trusted there were few men in that house who wished for it. No state, he was sure, had so far revolted from republican principles as to have the least bias in its favor. Madison: Was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience 1 The probable object of this motion was merely to enforce the argument against the re-eligibility of the executive magistrate by holding out a tenure during good behavior as the alternative for keeping him independent of the legislature. 2 The view here taken of the subject was meant to aid in parrying the animad versions likely to fall on the motion of McClurg, for whom J.M. had a particular regard. McClurg, though possessing talents of the highest order, was modest and unaccustomed to exert them in public debate. |