“Equal and Exact Justice”: The Politics of Giving Up Power

President James K. Polk

This morning the story broke that Joe Biden is considering running for president – but only for one term. Meanwhile Lawrence Lessig promises to resign the presidency after his “Citizen Equality Act” is signed into law. Neither of these promises is likely to come to fruition; it’s not clear Biden is actually running at all, and Lessig’s candidacy, focused on a single issue, is hardly mainstream. The recurring trope of giving up power, on the other hand, is one that resonates with the way people often talk about what’s wrong with American politics. And in contrast with a lot of ill-conceived ideas about dysfunction in politics that are floating around, questions about how long presidents spend in office touch on some real issues: appropriate limits on executive power, and the difficulty of mixing an office like the presidency with deep political divisions.

Presidential tenure in office has been a tricky proposition from the beginning. At the Constitutional convention, there were a wide range of proposals about how long presidential terms should be. There were a bunch of issues tied into this, like reeligibility and who would choose the president. But one of the considerations was placing reasonable limits on the power of any single individual. Thinking just about this question, short terms would seem to be the best option. A different stream of opinion placed the emphasis instead on stability. Alexander Hamilton (whose ideas about a lifetime term for presidents pending “good behavior” didn’t get much traction at the Convention) made the case for “energy in the executive” in Federalist #71 and 72:

To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert; and in addition to this propensity, where the alteration has been the result of public choice, the person substituted is warranted in supposing that the dismission of his predecessor has proceeded from a dislike to his measures; and that the less he resembles him, the more he will recommend himself to the favor of his constituents. (From Federalist #72)

(Evidently Hamilton felt the same way about sentences as he did about presidential tenure.)

The basic issue here is that while it’s good to have alternation in power, there are real costs to having new personnel or to reversing policy directions. The resulting four year terms with reeligibility represents a compromise between these two conflicting considerations.

Only a handful presidents have run for more than two terms and only one, FDR, has actually served more than two terms.* Scholars actually identify the origin of the two-term norm as Thomas Jefferson’s voluntary departure in 1809, at which point he cited Washington’s example. Voluntary abdications and peaceful alternations of power are, cynicism aside, quite remarkable. They are especially important when we consider the unilateral, hierarchical power of the executive branch.

Although giving up power after two terms has been standard, pledging only a single term has been more rare. Only two presidents, James K. Polk and Rutherford B. Hayes, have declined to seek a second nomination.** (Phillip Bump points out that William Henry Harrison did this too but he died in office before he could fulfill this promise.) Polk’s reasons for making a one-term pledge, which he did during the 1844 campaign, had to do with two things: the ongoing debate about the proper and legitimate role of the presidency, and the increasingly tense divisions within his own party. The one-term pledge allowed Polk to co-opt a Whig plank – one of the central founding ideas for the Whig Party was a limited executive, and the single term idea had become a concrete manifestation of that, as we see with WHH’s promise. (See Walter Borneman’s account of the 1844 election)

But the other issue for Polk was the dynamics within his own party. In 1844, the slavery issue hadn’t flared up the way it would in the 1850s. It was nevertheless contentious, and it divided Democrats (mostly, but not entirely, along predictable geographic lines). The party was also split over the annexation of Texas. Polk’s promise to his party was to distribute patronage with “equal and exact justice” toward each faction. His one-term pledge was part of this; because he was not seeking renomination, he didn’t need to worry about gaining favored status with any particular group within the party. (See Skowronek 1997, 161).

Although the specifics of the context were different, Rutherford B. Hayes used the one-term pledge to deal with the same two basic challenges. His legitimacy problem came from the troubled election of 1876, in which the Electoral College failed to produce a clear winner, accusations of fraud and disenfranchisement in Southern states abounded, and a probably-unconstitutional commission came together to decide the contested states. The deals that brought this near-crisis to an end also included the removal of Northern troops from the South, and the end of Reconstruction. The subsequent Hayes presidency was shaped in part by an interest in healing sectional divisions. While Polk contended with divisions in his own party, Hayes led the Republicans in a situation in which the two parties were basically divided from each other along sectional lines. For strategic reasons, the Republicans started to think about cultivating support in the South in order to avoid being a “sectional party” rather than a national one (see Edward O. Frantz, The Door of Hope, p. 61). The Republican Party was also pretty divided internally, and Hayes’ efforts to build support in the South were controversial and disruptive.

What does all of this have to do with contemporary pledges to voluntarily leave office? First, returning to the Founding questions, the governing stakes of stability are that much higher now. Alternations of power are healthy and welcome, but one feature of recent transitions that stands out is that there’s usually more continuity, especially in foreign policy, than many people expect or seek. Note, for example, that Robert Gates stayed on as Secretary of Defense for several years into the Obama administration.

The scenario Lessig describes, while likely not involving much Cabinet change, would be highly destabilizing. While the presidency is an institution, the president as an individual is a pretty important figure in terms of both symbolism and actual decision-making.

Some accounts of Biden’s claim of single-term plans also suggest some rhetoric about “uniting the nation.” Pretty much all presidents suggest they want to do this at some point. And pretty much all of them fail at it. The last two presidencies have been especially rough in this regard (both the promising and the failing). One thing that serious candidates for the presidency – and their political handlers – should think about is what to do once you’ve won the election and half the country hates everything you do. Each president has faced major political divisions – some more serious than others. But the office offers its occupants limited tools for addressing this. It’s worth noting, however, that neither Polk nor Hayes was able to use the one-term pledge to resolve the legitimacy and division challenges they faced.

Neither these pledges nor the candidacies they’re attached to are likely to make much of a difference in 2016. They do, however, speak to long-standing tensions in the presidency. Democracy calls for alternations of power, while governance demands stability. The presidency was designed with statesmanship and neutral administration in mind, but political reality has never conformed to that vision. In light of current debates about presidential power and about the country’s political divisions, it’s not terribly surprising that voluntary abdication would be part of the conversation. At the same time, it would be a mistake to see these kinds of promises as real solutions to the problems of governance.

*This category actually gets sort of complicated. There’s FDR, of course, and Theodore Roosevelt who broke his own promise not to run after stepping down in 1909. Grover Cleveland lost reelection in 1888 and ran again in 1892. Other presidents ran for reelection having already run once and lost – Jefferson, Jackson, Nixon. It’s not clear if this counts under the conceptual category I’m trying to establish. Many thanks to Matt Glassman for geeking out with me over this question in the preparation of this post. Anything inaccurate or stupid is my fault solely, though.

**A number of sitting presidents sought and were denied renomination- see Klinghard 2005.

[Cross-posted at Mischiefs of Faction]

Julia Azari

Julia Azari is an Assistant Professor at Marquette University.