Why might the 22nd amendment be unconstitutional?
Executive summary
The Twenty-Second Amendment, which bars any person from being elected president more than twice, rests on a post‑World War II reaction to Franklin D. Roosevelt’s four terms and was ratified in 1951 after the procedure in Article V was followed [1] [2]. Legal and scholarly critiques argue it could be unconstitutional on textual, structural and democratic grounds—most prominently that it may conflict with other constitutional provisions or improperly restrict voters’ choices—but courts and mainstream commentators generally treat it as settled law [3] [4] [5].
1. How the 22nd came to be — the conventional legal story
Congress proposed the amendment in 1947 in reaction to FDR’s four elections and the political fear of concentrated executive power; it was ratified by the requisite three‑quarters of state legislatures by February 27, 1951, completing the Article V process that makes an amendment part of the Constitution [1] [2] [6]. Contemporary congressional debate explicitly acknowledged the tradeoff: constitutional certainty against future flexibility in emergencies [7].
2. The straightforward counterargument: it isn’t unconstitutional because it is an amendment
By design, the Constitution contemplates changes through Article V; proponents argue that because the 22nd followed that process, it is valid constitutional law and not subject to being struck down on procedural grounds [6] [4]. Major legal fact‑checks and court decisions have treated the amendment as operative and enforceable, citing ratification and subsequent judicial recognition [4] [8].
3. Textual and structural challenges that fuel claims of unconstitutionality
Critics point to textual tensions—most famously between the 22nd and the 12th Amendment’s bar on a person “constitutionally ineligible to the office of President” serving as Vice President—arguing that the 22nd restricts only election to the presidency and therefore might not render a twice‑elected ex‑president “constitutionally ineligible” to be vice president and then succeed to the presidency [9] [10]. Legal scholarship has flagged that the 22nd’s wording focuses on being “elected” and does not explicitly address succession by other constitutional routes, leaving a plausible interpretive seam that could be litigated [9] [3].
4. Democratic and political rights arguments against the amendment
Some opponents, including prominent post‑war voices and later presidents, argued the amendment improperly binds future voters and abridges democratic choice by constitutionally foreclosing re‑election even when the electorate might prefer continuity in a crisis [7] [11]. The Constitution Center and other scholars note the normative cost of freezing a political convention into a rigid rule and question whether two terms is the right, permanently enshrined limit [3].
5. The pragmatic legal view and recent litigation context
While theoretical gaps exist, courts and legal commentators regard the 22nd as “settled” law and have repeatedly applied it to disqualify candidates from further election; appellate decisions and state practices reinforce its current enforceability [8] [4]. At the same time, contemporary debate about “loopholes” (e.g., using the vice presidency as a backdoor) has produced conflicting scholarly opinions and would likely produce litigation if attempted, meaning any assertion of unconstitutionality would require new court rulings rather than rely on existing precedent [10] [9].
6. Conclusion — plausible critiques, but high hurdles
The strongest bases for calling the 22nd “unconstitutional” are textual ambiguities and democratic‑theory objections—not procedural illegality—because Article V authorized the amendment and courts have treated it as valid [6] [4] [3]. To overturn or meaningfully narrow it would require either successful constitutional litigation exploiting the 12th/22nd text tension or a new constitutional amendment; absent those, the amendment remains enforceable despite ongoing scholarly debate and political dissatisfaction [9] [10] [5].