Term limits in the United States

Term limits can date back to the American Revolution, and prior to that to the democracies and republics of antiquity. The council of 500 in ancient Athens rotated its entire membership annually, as did the ephorate in ancient Sparta. The ancient Roman Republic featured a system of elected magistrates—tribunes of the plebs, aediles, quaestors, praetors, and consuls —who served a single term of one year, with re-election to the same magistracy forbidden for ten years (see cursus honorum). According to historian Garrett Fagan, office holding in the Roman Republic was based on "limited tenure of office" which ensured that "authority circulated frequently", helping to prevent corruption. An additional benefit of the cursus honorum or Run of Offices was to bring the "most experienced" politicians to the upper echelons of power-holding in the ancient republic.[13] Many of the founders of the United States were educated in the classics, and quite familiar with rotation in the office during antiquity. The debates of that day reveal a desire to study and profit from the object lessons offered by ancient democracy.

Prior to independence, several colonies had already experimented with term limits. The Fundamental Orders of Connecticut of 1639, for example, prohibited the colonial governor from serving consecutive terms by setting terms at one year's length and holding "that no person be chosen Governor above once in two years."[14] Shortly after independence, the Pennsylvania Constitution of 1776 set maximum service in the Pennsylvania General Assembly at "four years in seven".[15] Benjamin Franklin's influence is seen not only in that he chaired the constitutional convention which drafted the Pennsylvania constitution, but also because it included, virtually unchanged, Franklin's earlier proposals on executive rotation. Pennsylvania's plural executive was composed of twelve citizens elected for the term of three years, followed by a mandatory vacation of four years.[16]

The Articles of Confederation, adopted in 1781, established term limits for the delegates to the Continental Congress, mandating in Article V that "no person shall be capable of being a delegate for more than three years in any term of six years."[17]

On October 2, 1789, the Continental Congress appointed a committee of thirteen to examine forms of government for the impending union of the states. Among the proposals was that from the State of Virginia, written by Thomas Jefferson, urging a limitation of tenure, "to prevent every danger which might arise to American freedom by continuing too long in office the members of the Continental Congress".[18] The committee made recommendations, which as regards congressional term limits were incorporated unchanged into the Articles of Confederation (1781–89). The fifth Article stated that "no person shall be capable of being a delegate [to the continental congress] for more than three years in any term of six years".[lower-alpha 1]

In contrast to the Articles of Confederation, the federal constitution convention at Philadelphia omitted mandatory term limits from the U.S. Constitution of 1789. At the convention, some delegates spoke passionately against term limits such as Rufus King, who said "that he who has proved himself to be most fit for an Office, ought not to be excluded by the constitution from holding it."[19] The Electoral College, it was believed by some delegates at the convention, could have a role to play in limiting unfit officers from continuing.

When the states ratified the Constitution (1787–88), several leading statesmen regarded the lack of mandatory limits to tenure as a dangerous defect, especially, they thought, as regards the presidency and the Senate. Richard Henry Lee viewed the absence of legal limits to tenure, together with certain other features of the Constitution, as "most highly and dangerously oligarchic".[20] Both Jefferson[21] and George Mason[22] advised limits on reelection to the Senate and to the Presidency, because said Mason, "nothing is so essential to the preservation of a Republican government as a periodic rotation". The historian Mercy Otis Warren, warned that "there is no provision for a rotation, nor anything to prevent the perpetuity of office in the same hands for life; which by a little well-timed bribery, will probably be done".[23]

Korzi (2013) says George Washington did not set the informal precedent for a two-term limit for the Presidency. He only meant he was too worn out to personally continue in office.[24] It was Thomas Jefferson who made it a principle in 1808. He made many statements calling for term limits in one form or another.[lower-alpha 2]

The tradition was challenged by Ulysses Grant in 1880,[25] and by Theodore Roosevelt in 1912.[26] Otherwise no major effort to avoid it took place until 1940 when Franklin Roosevelt explicitly broke it.[27] The 22nd Amendment to the U.S. Constitution was ratified in 1951 formally establishing in law the two-term limit—although it did not apply to the incumbent Harry Truman.

The fact that "perpetuity in office" was not approached until the 20th century is due in part to the influence of rotation in office as a popular 19th-century concept. "Ideas are, in truth, forces", and rotation in office enjoyed such normative support, especially at the local level, that it altered political reality.[28][lower-alpha 3]

During the Civil War, the Constitution of the Confederate States limited its president to a single six-year term.

The practice of nomination rotation for the House of Representatives began to decline after the Civil War. It took a generation or so before the direct primary system, civil service reforms, and the ethic of professionalism worked to eliminate rotation in office as a common political practice. By the turn of the 20th century the era of incumbency was coming into full swing.

A total of 8 presidents served two full terms and declined a third and three presidents served one full term and refused a second. After World War II, however, an officeholder class had developed to the point that congressional tenure rivaled that of the U.S. Supreme Court, where tenure is for life.

A movement in favor of term limits took hold in the early 1990s, and reached its apex in 1992-94, a period when 17 states enacted term limits through state legislation or state constitutional amendments.[29]

Many of the laws enacted limited terms for both the state legislature and in the state's delegation to Congress; as they pertain to Congress, these laws were struck down as unconstitutional by U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton (1995), in which the court ruled, on a 5–4 vote, that state governments cannot limit the terms of members of the national government.[29][30]

Where rotation in the legislative branch has withstood court challenges, term limits continue to garner popular support. As of 2002, the advocacy group "U.S. Term Limits" found that in the 17 states where state legislators served in rotation, public support for term limits ranged from 60 to 78 percent.[31]

The third president, Thomas Jefferson, started the tradition of presidential term limits by refusing to run for a third term in 1808.[lower-alpha 4] Everything Washington did obviously set a precedent, but did not necessarily set a new policy. However, George Washington's decision in 1796 not to run for a third term has sometimes been given credit as the start of a "tradition" of the strong policy that no president should ever run for a third term.[34] Washington wanted to retire when his first term ended in 1792 but all his advisors begged him to stand for reelection. By 1796 he insisted on retiring, for he felt worn out, and was disgusted with the virulent personal attacks on his integrity. His Farewell Address very briefly mentioned why he would not run for a third term, and goes on to give a great deal of political advice, but it does not mention term limits. After his death, his refusal to run was explained in terms of a "no-third-tradition". Crockett (2008) argues, "The argument for term limits has a solid and respectable pedigree. Contrary to popular belief, however, that pedigree does not begin with George Washington."[35] Jefferson himself attributed the precedent to Washington.[36]

Washington did not feel bound by a two-term limit, but he felt the stability of the republic required a contested presidential election with a choice of candidates. This would not happen if he ran again. If he won and then died, his Vice President would assume the office without having been elected, contrary to the goals of a democratic republic. (In fact, Washington did die in 1799, two years into the new term). The election went forward and he was absolutely neutral between John Adams and Thomas Jefferson.

In the 1780s, about half the states provided term limits for governors.[37] The Constitutional convention of 1787 discussed the issue and decided not to institute presidential term limits. "The matter was fairly discussed in the Convention," Washington wrote in 1788, "and to my full convictions ... I can see no propriety in precluding ourselves from the services of any man, who on some great emergency shall be deemed universally, most capable of serving the Public", even after serving two terms. The Constitution, Washington explained, retained sufficient checks against political corruption and stagnant leadership without a presidential term limits provision.[38] Jefferson, however, strongly endorsed a policy of term limits. He rejected calls from supporters that he run for a third term in 1808, telling several state legislatures in 1807-1808 that he needed to support "the sound precedent set by [his] illustrious predecessor."[36]

Thomas Jefferson mentioned that Washington retired after serving only two terms, without mentioning that Washington opposed the policy Jefferson was proposing. Crockett argues that Washington "did not intentionally establish the so-called two-term tradition; his departure was motivated by a desire to demonstrate that the country could function without him and to retire to Mount Vernon. He made no principled argument for limiting presidents to two terms, and in fact disagreed with Thomas Jefferson on this point."[35] The "two-term tradition" was created in 1807-1808 and it is often mistakenly suggested Washington had launched the policy.[39]

A political cartoon showing Washington rejecting Theodore Roosevelt's highly controversial run for a third term in 1912

In 1861, the Confederate States of America adopted a six-year term for their president and vice-president and barred the president from seeking re-election. That innovation was endorsed by many American politicians after the Civil War, most notably by Rutherford B. Hayes in his inaugural address. Ulysses Grant was urged to run for a third term in 1876, but he refused. He did try to win the 1880 nomination, but was defeated in part because of popular anti-third-term sentiment.[40] Theodore Roosevelt had already served over 7 years and in 1912, after a four-year hiatus, ran for a third term. He was violently criticized and was almost killed by John Flammang Schrank for doing so.[41] The 1912 election was ultimately won by Woodrow Wilson.

Franklin D. Roosevelt (president, 1933–1945) was the only president to be elected more than twice, having won a third term in 1940 and a fourth term in 1944 (though he died in office three months into his fourth term). This gave rise to a successful move to formalize the traditional two-term limit by amending the U.S. Constitution. As ratified in 1951, the Twenty-Second Amendment provides that "no person shall be elected to the office of President more than twice". The new Amendment explicitly did not apply to the incumbent president, Harry S. Truman. However, Truman declined to seek re-election to a third term in 1952.[42]

Letter from Senator Orrin Hatch, first elected in 1976, expressing reservations regarding term limits (dated February 10, 2011)

Reformers during the early 1990s used the initiative and referendum to put congressional term limits on the ballot in 24 states. Voters in eight of these states approved the congressional term limits by an average electoral margin of two to one.[43] It was an open question whether states had the constitutional authority to enact these limits. In May 1995, the U.S. Supreme Court ruled 5–4 in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), that states cannot impose term limits upon their federal Representatives or Senators.

In the 1994 elections, part of the Republican platform included legislation for term limits in Congress. After winning the majority, a Republican congressman brought a constitutional amendment to the House floor that proposed limiting members of the Senate to two six-year terms and members of the House to six two-year terms.[44] However, this rate of rotation was so slow (the life-tenured Supreme Court averages in the vicinity of twelve years) that the congressional version of term-limits garnered little support among the populist backers of term limits, including U.S. Term Limits, the largest private organization pushing for congressional term limits.[lower-alpha 5] The bill got only a bare majority (227–204), falling short of the two-thirds majority (290) needed for constitutional amendments.[45] Three other term limit amendment bills failed to get more than 200 votes.[lower-alpha 6]

Defeated in Congress and overridden by the Supreme Court, the federal term limit movement was brought to a halt. The term limits intended simultaneously to reform state legislatures (as distinguished from the federal congressional delegations) remain in force, however, in fifteen states.[46][47]

In 2007 Larry J. Sabato revived the debate over term limits by arguing in A More Perfect Constitution that the success and popularity of term limits at the state level suggests that they should be adopted at the federal level as well. He specifically put forth the idea of congressional term limits and suggested a national constitutional convention be used to accomplish the amendment, since the Congress would be unlikely to propose and adopt any amendment that limits its own power.

Some state legislators have also expressed their opinions on term limits. It is confirmed that in the following five states—and there may be others—state lawmakers approved resolutions asking Congress to propose a federal constitutional amendment to limit the number of terms which members of Congress may serve:

1. South Dakota Legislature (designated as POM-42 in the U.S. Senate) approved in 1989, South Dakota House Joint Resolution No. 1001 (see Congressional Record of April 4, 1989, at pages 5395 and 5396, with verbatim text provided);
2. Hawaii Senate (designated as Memorial 400 in the U.S. House of Representatives) approved in 1990, Hawaii Senate Resolution No. 41—unicameral only (see Congressional Record of September 28, 1998, at page 22655) it took 8 years for this resolution to find its way into the Congressional Record and to be correctly referred to the Committee on the Judiciary—and even then, its text was not provided in the Congressional Record); back in 1990, Hawaii's S.R. No. 41 was indeed received by the U.S. House of Representatives, and was designated as Memorial 416, (Congressional Record of June 6, 1990, at pages 13262 and 13263) but the resolution was erroneously referred to the Committee on Energy and Commerce—and its text is NOT provided in the Congressional Record;
3. Utah Legislature (designated as POM-644 in the U.S. Senate) approved in 1990, Utah Senate Joint Resolution No. 24 (see Congressional Record of September 27, 1994, at page 26033, with verbatim text provided) it took four years for this resolution to find its way into the U.S. Senate's portion of the Congressional Record;
4. Idaho Legislature (designated as Memorial 401 in the U.S. House of Representatives) approved in 1992, Idaho Senate Joint Memorial No. 116 (see Congressional Record of April 29, 1992, at page 9804—text NOT provided in the Congressional Record); and
5. Florida Legislature (designated as POM-122 in the U.S. Senate) approved in 2012, Florida House Memorial No. 83 (see Congressional Record of July 25, 2012, at page S5378, with verbatim text provided). Taking matters a bit further, on February 10, 2016, Florida lawmakers approved House Memorial No. 417 calling upon Congress, pursuant to Article V of the Federal Constitution, to assemble a Convention to prepare a constitutional amendment that would establish term limits upon members of Congress.

Legal scholars have discussed whether or not to impose term limits on the Supreme Court of the United States. Currently, Supreme Court Justices are appointed for life "during good behavior". A sentiment has developed, among certain scholars, that the Supreme Court may not be accountable in a way that is most in line with the spirit of checks and balances.[48] Equally, scholars have argued that life tenure has taken on a new meaning in a modern context.[49] Changes in medical care have markedly raised life expectancy and therefore has allowed Justices to serve for longer than ever before.[48][49] Steven G. Calebresi and James Lindgren, professors of law at Northwestern University, argued that because vacancies in the court are occurring with less frequency and justices served on average 26.1 years between 1971 and 2006, the "efficacy of the democratic check that the appointment process provides on the Court's membership" is reduced.[48] There have been several similar proposals to implement term limits for the nation's highest court, including Professor of Law at Duke University Paul Carrington's "Supreme Court Renewal Act of 2005".[50]

Many of the proposals center around a term limit for Justices that would be 18 years to 25 years in length. (Larry Sabato, Professor of Political Science at University of Virginia, suggested between 15 and 18 years).[48][49][50][51] The staggered term limits of 18 years proposed by Calebresi & Lindgren (2006) and Carrington & Cramton (2005) harvtxt error: no target: CITEREFCarringtonCramton2005 (help) would allow for a new appointment to the Court every two years, which in effect would allow every president at least two appointments.[49] Carrington has argued that such a measure would not require a constitutional amendment as the "Constitution doesn’t even mention life tenure; it merely requires that justices serve during ‘good behaviour’ ".[49] The idea was endorsed among Judges, as John Roberts supported term limits before he was appointed to the Supreme Court as Chief Justice. Calebresi, Lingren, and Carrington have also proposed that when justices have served out their proposed 18-year term they should be able to sit on other Federal Courts until retirement, death, or removal.[48][49]

Fairleigh Dickinson University's PublicMind Poll measured American voters’ attitudes towards various proposed Supreme Court reforms, including implementing term limits. The 2010 poll found that a majority of Americans were largely unaware of a proposal to impose a term limit of 18 years, as 82% reported they had heard little or nothing at all.[52] Notwithstanding a lack of awareness, 52% of Americans approved of limiting terms to 18 years, while 35% disapproved.[52] When asked how old is too old for a Supreme Court judge to serve if he seems healthy, 48% said "no limit as long as he is healthy", while 31% agreed that anyone over the age of 70 is too old.[52]

Some state lawmakers have officially expressed to Congress a desire for a federal constitutional amendment to limit terms of Supreme Court justices as well as of judges of federal courts below the Supreme Court level. While there might be others, below are three known examples:

1. In 1957, the Alabama Legislature adopted Senate Joint Resolution No. 47 on the subject (appearing in the U.S. Senate's portion of the Congressional Record on July 3, 1957, at page 10863, with full text provided);
2. In 1978, the Tennessee General Assembly adopted House Joint Resolution No. 21 on the subject (designated as POM-612 by the U.S. Senate and quoted in full in the Congressional Record of April 25, 1978, at page 11437); and
3. In 1998, the Louisiana House of Representatives adopted House Resolution No. 120 on the subject (designated as POM-511 by the U.S. Senate and quoted in full in the Congressional Record of July 17, 1998, at page 16076).

U.S. gubernatorial term limits as of 2014

No limit; four-year terms   No limit; two-year terms   One; reeligible after four years

Two; reeligible after four years   Two; eligible 8 out of any 12 years   Two; eligible 8 out of any 16 years   Two; lifetime

Governors of 38 states[54] and four territories are subject to various term limits, while the governors of 14 states, Puerto Rico, and the Mayor of Washington, D.C., may serve an unlimited number of terms. Each state's gubernatorial term limits are prescribed by its state constitution, with the exception of Wyoming, whose limits are found in its statutes. Territorial term limits are prescribed by its constitution in the Northern Mariana Islands, the Organic Acts in Guam and the U.S. Virgin Islands, and by statute in American Samoa.

Uniquely, Virginia prohibits its governors from serving consecutive terms, although former governors are eligible to serve again as governor after a specified period (currently, four years) out of office. Several other states formerly had this "no succession" rule (which was part of Virginia's original constitution in 1776), but all have eliminated the prohibition except Virginia (including Mississippi, which repealed it in 1986, and Kentucky, which repealed it in 1992).[55]

The governors of the following states and territories are limited to two consecutive terms, but are eligible to run again after four years out of office: Alabama,[56] Alaska,[57] Arizona,[58] Colorado,[59] Florida,[60] Georgia,[61] Hawaii,[62] Kansas,[63] Kentucky,[64] Louisiana,[65] Maine,[66] Maryland,[67] Nebraska,[68] New Jersey,[69] New Mexico,[70] North Carolina,[71] Ohio,[72] Pennsylvania,[73] Rhode Island,[74] South Carolina,[75] South Dakota,[76] Tennessee,[77] West Virginia,[78] American Samoa,[79] Guam,[80] and the U.S. Virgin Islands.[81]

Equivalently, the Governors of Indiana[82] and Oregon[83] are limited to serving 8 out of any 12 years. Conversely, the Governors of Montana[84] and Wyoming[85] are limited to two terms, serving 8 out of any 16 years.

Finally, the governors of the following states and territory are limited to two terms for life: Arkansas,[86] California,[87] Delaware,[88] Michigan,[89] Mississippi,[90] Missouri,[91] Nevada,[92] the Northern Mariana Islands,[93] and Oklahoma.[94] Former Governor of California Jerry Brown, however, served four non-consecutive terms because his first two terms were before limits were passed in California, and the limits did not apply to individuals' prior terms.

The governors of New Hampshire and Vermont may serve unlimited two-year terms. The governors (or equivalent) in the following states, district, and territory may serve unlimited four-year terms: Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, New York, North Dakota, Texas, Utah, Washington, Wisconsin, District of Columbia, and Puerto Rico. The Governor of Utah was previously limited to serving three terms, but all term limit laws have since been repealed by the legislature.

Fifteen state legislatures currently have term limits.[95] The earliest state legislative term limit was enacted in 1990, and the most recent was enacted in 2000; term limits only went into effect years after they were enacted.[95]

• Arizona Legislature: four consecutive two-year terms for both houses (eight years). No limit on total number of terms.
• Arkansas General Assembly: 12 consecutive years with the option to return after a four year break. The lifetime limit of sixteen years total in either the House or the Senate was repealed by referendum in 2020. (Prior to the 2014 election, the previous limits of three two-year terms for House members (six years) and two four-year terms for Senate members (eight years) applied).
• California State Legislature: twelve years total in either Assembly or Senate. (For legislators first elected on or before June 5, 2012, the previous limits (enacted in 1990) of either three two-year terms for Assembly members (six years) and two four-year terms for Senate members (eight years) apply).
• Colorado General Assembly: four consecutive two-year terms in the House (eight years) and two consecutive four-year terms in the Senate (eight years). Former members can run again after a four year break.
• Florida Legislature: may serve no more than eight consecutive years in either house. No limit on total number of terms.
• Illinois Senate: Senate Presidents and Minority Leaders may not serve for more than 10 years.[96]
• Louisiana State Legislature: three consecutive four-year terms for both houses (twelve years). Members may run for the opposite body without having to sit out an election.
• Maine Legislature: four two-year terms for both houses (eight years). No limit on total number of terms
• Michigan Legislature: three two-year terms for House members (six years) and two four-year terms for Senate members (eight years).
• Missouri General Assembly: four two-year terms for House members (eight years) and two four-year terms for Senate members (eight years). Members may be elected again to the other house, but not serve more than 16 years.
• Montana State Legislature: four two-year terms for House members (eight years) in any sixteen-year period and two four-year terms for Senate members (eight years) in any sixteen-year period.
• Nebraska Legislature: unicameral legislature; members limited to two consecutive four-year terms (eight years), after which they must wait four years before running again.[97]
• Nevada Legislature: six two-year terms for Assembly members (twelve years) and three four-year terms for Senate members (twelve years).
• Ohio General Assembly: four consecutive two-year terms for House members (eight years) and two consecutive four-year terms for Senate members (eight years).
• Oklahoma Legislature: Twelve years of total combined service in either the House or the Senate. If a legislator's first term is the result of a special election, that service does not count toward the limit.[98]
• South Dakota Legislature: four consecutive two-year terms for both houses (eight years).

Legislative term limits have been repealed or overturned in six states. Term limits for state legislatures were adopted by Idaho and Utah in 1994, but repealed by their respective legislatures in 2002 (Idaho) and 2003 (Utah).[95] Term limits adopted in four states were struck down as unconstitutional by the state supreme courts in those states: in Massachusetts, Washington and Wyoming, the court ruled that term limits could not be enacted by statute, and could only be enacted by an amendment to the state constitution; the Oregon Supreme Court ruled that the Oregon initiative establishing term limits violated the single-subject rule.[95]

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