The latest university of pennsylvania press. His previous book was published in 2013 by Oxford University press. 2014, it was named a finalist for the silver gavel award. A former staff writer for the washington post, he has written for the new york times, the new york review of books, the nation, the new republic, and the american prospect. He received his doctorate from duke university. Before attending law school, epps also learned that urges his ma in english writing. [applause] dr. Epps thank you for that generous introduction, and i also thank everybody who came out at a time to think about president ial transitions that we may not want to think about. But here we are. I want to thank the sponsors of this event for inviting me. I want particularly thank sandra shea for my excellent tour of the new and library today Truman Library day today. I accepted this invitation with a good deal of humility. It wasnt that i wasnt really sure that i rank with the speakers that you see here, but i was excited to come to truman country and talk about the truman era for a number of reasons, the first being i was born during his administration. I have no contemporary memory of knowing that truman was the president , but i do have political memories shared with me by my parents that all fit into the theme of tonights speech. My fathers first real political adventure was something that he was very proud of. He was head of richmond, virginia, the Young Democratic campaign in 1940. One of his prized possessions was a button that had a crown on it, and it said no ground for franklin. This puzzled me when i was young, but my father and mother had very interesting discussions because her First Political memory was as a College Student in new york. And hearing the president greek the crowd that he had been reelected for the third time. My father in the south was attempting to deny him. And probably my first real memory of politics at all was my parents together laughing uproariously at a sound documentary of the years after the second world war, that included a sound clip of president truman imitating a radio commentator after the 1940 election. 1948 election. It went like this. The president is leading by a million votes. Dewey defeats truman, and it was the funniest thing i have ever heard. I wanted just week on some aspect of the truman years in the constitution, which means a lot of things. Not many president s have been quite as consequential for the modern state of the constitution as harry truman was. His impact on constitutional practice is still something we deal with everyday in cases in front of the Supreme Court or when questions come before congress. His use of executive power and the courts response, to this day, provides a basic Legal Framework for all branches to assess whether or not the use of the president s executive authority is legitimate. Again, it is really a watershed in the history of the american use of power abroad. Although such few president s have chosen not to use that example, it floats over every debate about whether a president may be given authorization to intervene. Because president s revealingly say to congress, and this is what happened in 2000 and two that 2002 2002. President s will go to congress and say i am personally asking you, but i dont have to you. If you deny, i will do it anyway using the truman example. Congress has never called anyones bluff. But i gather you have had some historians address these topics. I am primarily, as a scholar and someone who studies scholar, someone who studies the text of the constitution. Truman is in a small minority of president s less than a quarter, under who the text of the constitution itself was altered. The amendment entered into the constitution while truman was president , the 22nd amendment, is an interesting political story and textual story. To get at that, i will start somewhat close to the end of the story of 22nd amendment. That is may 4, 1959. Former truman returned to washington and the senate, where he spent some happy years, to testify in front of the constitutional amendment of Commission Subcommittee of the Judiciary Committee. On Senate Joint Resolution 11. Reposing on amendment to the constitution to repeal the 22nd article of amendment to the constitution. Senator keefe over, the plate somewhat of a role in persuading truman not to seek a third term, introduced him and it was a friendly, kind of bipartisan occasion. What truman said in his testimony was my position on this question is a very simple one. This is a bad amendment. It ought to be repealed. I have no personal acts to guide in this matter. Out of 175 Million People of this country, i am the only one to whom the amendment does not apply. Im the only one who could be elected as many times as the votes elect me. But the vote had been enhanced by republican haters who tried to take his spikes out on him why after he was dead. And the only point was to keep president s from keeping a second term for all time in the person future. You have taken a man and put him in the hardest job in the world and sent him out to fight your battles. You have sent him out to fight with one hand tied behind his back. This seems like a fairly gracious tester, given that it was the end of present that gesture, given that it was the end of president eisenhowers second term. It might have been seen as a gracious, bipartisan gesture. As you probably know, however, these two distinguished statesman did not enjoy close friendship. The response from the white house was interesting. In october, 1956, eisenhower had made a statement that the 22nd amendment was a bad idea. He said that the country ought to be able to choose for the president anyone that it wants. The day after trumans testimony, eisenhower was asked what he thought. Eisenhower said he changed his mind, he liked the Second Amendment 22nd amendment. He said let it see how it works. There is little partisanship lurking there. Partisanship is the standard account of the of option adoption of the 22nd amendment. It seems, as president truman suggested, kind of a posthumous and revenge on franklin roosevelt, who had defeated the republicans four times. Some of you may remember some of one of the most important clinical scientists in the middle the 20th century, and he called it a tainted amendment based on the shark sharp anger of the moment. This is the standard account of the 22nd amendment. There is a lot to support it. If you look at how the amendment was passed through congress, it was the first order of business introduced in the 80th congress, the 80th congress being the First Congress in which both houses were controlled by republicans since the 71st, during the first two years of president hoovers term. It was enacted with almost no opportunity for debate, almost no hearings at all. Amply introduced, brought onto the floor, there was some debate, some amendments were passed, and it was passed by a coalition of solid republicans i dont think a single republican didnt vote for it and a core of southern democrats who were hostile to president trumans civil rights movement. They could be seen as hoping that the democrats did not continue to hold the white house. One of the reasons for the hate was why view and it was rushed through congress, was because a larger among that number of republican legislators were still in recession. A could be rushed to those legislators and ratified in order to get the bill the amendment into the constitution in the next few years before opinion might shift back to the democrats. That in fact is what happened. It was finally entered into into the constitution in 1951, but the back of the ratifications occurred in 1947 and 48. I looked into this and i thought that in context, we might actually you view this story slightly differently. Im not a historian. I have written some history, and one of the lessons you learn from professional historians is what they call the five cs. Be able to look at historically at the events in the past. It is a story, i have just told it to you, the 22nd amendment being hastened through congress by the vindictive Republican Leadership, but you look at events in the past through the lens of these five cs, the context, overall context. Secondly, complexity. There is no simple, Straight Line story of anything that happens in history. Causation, event a causes event be. I track has not been laid down in advance. Contingency, things could have happened differently, and finally, change over time. Institutions and people are not the same from year to year, and you need to interpret everything in terms of the constantly shifting set events. So if we just view the amendment as a vindictive and backward looking master measure, it doesnt look good. It is precisely the way president truman said. Fdrs dead and we are not afraid of him anymore. The likelihood a democrat would become a three term president again seems slight, why do that . I think its possible to see the 22nd amendment in a slightly more complicated context. If we pick it apart from that particular sequence of events, and see it in a larger context, the question of a three term or twoterm tradition prior to the election of 1940, was much more complicated than people tend to think today. Washington only served to terms two terms, but he did not serve two terms because he thought president s should only serve two terms, he was just sick of being president. He wanted to go back to mount vernon. He was tired of being sapped stabbed in the back by the jeffersonians and keeping hamilton and jefferson apart, said, this is enough. Jefferson said there should be an interested a tradition of two terms, but people did not pay that much attention to it. President grant attempted to obtain a third term. He was denied it by his party. Theodore roosevelt did, in fact, run for a third term, having forsworn that in 2008 he came back in 2012, and tragically enough, woodrow wilson, continued in his impaired state to believe and tell his friends that he would be the democratic nominee for a third term in 1924. He would be able to restore the events that he had for the end of world war i as a result. Sooner or later, someone was going to run for a third term and when. Win. The rule is not quite as ironclad as people made it seem. But if you see what happened in the context of a wider spectrum of events concerning franklin roosevelt, the motivations of the people who cast the 22nd of amendment 22nd amendment begin to see a little more defensible, even if their conduct was not. I suspect that the important dates surrounding this amendment are november 8, 19 32, february 15, 1933, march 4, 1933, april 12, 1945 and august 6, 1945. Right . What happened on those dates . On november 8, 1932, president roosevelt was elected to his first term in the time when the country was in the depths of the depression. However, because the 20th amendment had not yet entered the constitution, the country had to wait four months before roosevelt could become president. During those four months, the depression. Radically worse, to the point where it seemed quite possible that the Financial System would collapse entirely before roosevelt could become president. During that time, president hoover made repeated pleas to the president elect to join him in a program to prevent that from happening. Roosevelt, with that amazing indirection that he had, the ability to absolutely deny a request to set without saying anything, refused to get involved at all. Today, historians tend to regard this is the right decision because it left him free to experiment with the new deal. He did not have to sign on with some hoover that something that hoover would approve. I expect that is the only reason the system did not entirely collapsed, and he only had a matter of days to keep the banks from collapsing when he became president. So for months of waiting for a new president are some of the most frightening circumstances possible at that time. In got worse on february 15, 1930 3, 3 weeks before he was supposed to take office. President roosevelt was almost killed by a wouldbe assassin, who actually shot the mayor of chicago. It lets people to wonder what would have happened if roosevelt had been killed before he would have become president. Roosevelt had been elected by the electoral college, so garter would become president. In his it is safe to say garter would not have become the president most people thought they were voting for a 1932. I do not think he would have been a good president , and we would not have seen anything like that new deal coming out of his white house. On april 12, 1945, as everyone knows, president roosevelt developed a cerebral hemorrhage and died suddenly, leaving the United States in a state of war with germany and japan, and with an extremely inexperienced, relatively unknown Vice President. Harry truman. August 6, 1945, only three months later, harry truman had to make a decision to drop the first atomic bomb on here is hiroshima in an effort to and the war in the pacific and the war in the pacific. That is a fairly scary set of contingencies. About living through them. I learned about it as history. My parents have those stories that told the history of the 20th century through sound clips. We know about pearl harbor and how the country responded, and we defeated hitler and so forth. It was not clear at the time that those things were going to happen. The 80th congress was gathering only about a year after the bomb has been used on hiroshima and nagasaki. They were gathering at a time when the memory of roosevelts disability and death was quite vivid. They were gathering and this fascinates me because people dont talk about it all that much in the record. It used to be too scary to discuss. Seems to be too scary to discuss. They were gathering at a time when people were aware that it might be another Vice President who succeeded to the white house. It might have been Henry Wallace who would not have i cant imagine what he would have done. It might have been jack garner, but it was a surprise, historically, that truman had the quality of character he was able to display and become an effective leader of a country at war on two continents when he became president. So there were a lot of things on peoples minds, and there were a lot of things that had to do with president s and president ial succession. They end up taking the form of the 22nd amendment. That, to me, is not so much the kind of spiteful motivation, if that is a fear, but love a lost opportunity marked by that because as i researched the story of the 22nd amendment, i read a phd dissertation called the adoption of the 22nd amendment. It tells the story in a straightforward fashion. They gather, they rushed the bill through, it is said to the states, sent to the states, the states ratify it and it becomes part of the constitution. But i found it intriguing sentence. I learned, when writing my book about religious freedom, that very often the true story of history is in the story that is in the history. Here is the sentence i came across. House joint resolution 27 what became the 22nd amendment. It was only one of 10 introduced in the house at the opening of the 80th congress, but because it was a leadership role, it was the only one that received serious consideration. The other nine vanished from the record at that point. Later, zucker notes that the Judiciary Committee had already been looking at succession proposal by republicans and democrats. I thought, that is a lot. And i began to randomly rifled through the record, and i came across a number of things. This is called hearings before the committee of the United States senate. 80th congress, first session, and it is a transcript of hearings held march seventh, 11, and 12 of 1947. While the 22nd amendment was literally on the floor. They all addressed the president ial succession question in a much more interesting and comprehensive way than the 22nd amendment. Because the sponsors of these proposals were worried about questions that the 22nd amendment really didnt address. What would happen if the president and Vice President were both killed . Neither was it will serve . Was able to serve . They said in the event there should be another war, which we are all doing our utmost to avoid, at least one of the possibilities would be an immediate attack against the nerve center of the nation. Were most of the highranking officials presumably would be. In other words, the drafters of the 22nd amendment were looking backwards while they were writing into a prohibition that could never happen again. A were looking forward into the atomic age. They were thinking we must have a president president ial transitions must take hours, not minutes or weeks. It could happen very suddenly without warning, because we are living in the atomic age. I read these proposals, and the details are not crucially important, except that people are thinking in a much more broad spectrum. Senator current resolution one Senate Current recurrent resolution one brought up a proposal for an amendment embodying all of these things. Senate bill 139 would have provided that there had to be almost an Immediate National election for any precedent special election for a new president. It would be a caretaker government and a special session of congress to maintain continuity. Senate bill 536 said there should be an immediate election of a new president by the electors selected at the lack last election. That could be arranged very quickly. Senate bill 564 said the senate or speaker of the house would become acting president until a president could be picked through election. The testimony on these bills in the hearings is very free ranging. People are talking about the world situation and how this is handled in other countries. It is really, in effect, a miniature version of the debate that the leadership did not allow in the 22nd amendment. They displayed the anxieties and were really seeing into the future. If you consider that the constitutional amendments are drafted by lawyers and adopted by bodies of legislative bodies that are usually dominated by lawyers, you realize how unusual it is to find a group of legislators looking into the future. Virtually all the work that lawyers and constitutions do is to look back and barnes at barns and lock them now the horses are gone. It makes you think back and feel kind of with wistful kind of, and it would have been inspiring. It would have meant that we did not need to amend the constitution 20 years later, with the 25th amendment and what happens in the problems of president ial disability. I found that in the 80th congress, there were 39 constitutional amendment introduced that had to do is president ial succession. People were really worried about this. I compared this to make sure it was something that didnt always happens, and i looked at the last preroosevelt congress. There were 11 constitutional amendments about congressional terms and succession, mostly trying to address the lameduck problem. While there were only 11 executive amendments, there were 68 that were repealed or reduced, and the 18th amendment, which got us out of prohibition. That was the real anxiety in 1931. [laughter] dr. Epps move forward and consider the effects of the 22nd amendment as it was drafted. The first one is kind of a movement that kind of amusing. President eisenhower decided once he had the endorsement of president truman, he wasnt in favor of repealing it after all. But not long after that in an interview with life magazine, he lavishly puckishly suggested he was not going to run for a third term, but would consider running for Vice President. This brought peoples attention to the fact that i think as a byproduct of the drafting process of the 22nd amendment, and that is as follows. If i can find my legislative history. As introduced, no person shall be chosen or serve of president of of the United States for any term or be eligible to hold that office during any term if he has hereto for served as president during the whole or any part of two separate terms. It is unwieldy, but it is clear. You can be president , that is something else. Cant be president , go do something else. The objection was that this would be unwieldy and not only unfair, but in the situation in which a Vice President succeeds the office in the last few months of a president s term, because that would eliminate one full term. The Vice President could only run once. They began to work on new language, and at the suggestion of the senate, it was amended to read as it now reads. No person shall be elected to the office of president more than twice, and no person who has acted as president for more than two years of a term, to which some other person was elected president , shall be elected to the office of the president more than once. Fair enough . Not hard to follow. But eisenhower pointed out as he became Vice President if the first one resigned, he would not be elected. There is a whole industry of legal scholars who concoct scenarios in which former president s become Vice President. I personally thought the best possible ticket that could come out of the Democratic Convention this year would have been Hillary Clinton for president and for Vice President. I was not consulted. I think there is every reason to think that the haste of the Republican Leadership serve the country badly. It was an important constitutional moment. We are still struggling with the problems that were so difficult for them. The great truth about our constitution is that the philadelphia framers did a good job in many ways. They did an extraordinarily poor job in designing the executive department, and in particular in the election and succession of the president. The electoral vote system is a monstrosity. It was put in place to protect the interest of the slave states. Over and over it has contributed to near catastrophe. We can confidently say it was a bad idea, but at least it didnt work. The 27 22nd amendment we still have president ial succession down. Dont have president ial succession down. We have the lameduck. , which make sure we dont have this horrible resolve that happened in 1800 of the defeated, that almost brought the country to the verge of civil war. The 22nd amendment deals with the twoterm issue, and 25th deals with president ial succession a disability. Is it really true that without the 22nd amendment, we would have popular president who might either be elected for a third term or be able to make use of that politically . Interestingly enough, of the four four term president s who have served since the inaction of the 22nd amendment, three of them were indicated by research to be potentially very strong candidates for a third term. That is eisenhower, president reagan, who joked about having to present 22nd amendment repealed. President clinton was shown to be more popular than either challenger of his office, and president obama was more popular than either challenge her this year. It is a lot easier to say you like someone if they are going away. I will end on this note and help people want to talk, because when you talk about the text the constitution, people have questions and theories. My quarrel with the 22nd amendment today is that on february 13, Justice Antonin Scalia died. As you know, we have a vacancy on the Supreme Court. The Senate Leadership used refused to even consider president obamas nomination. Even though garland was the name that the leadership itself had suggested before scalia died. But the grounds for their refusal was that the president was a lameduck, and therefore the next president ought to pick a new justice. If you go back to roosevelts third term come by february of 1940 he still hadnt been clear on whether he was willing to serve a third term or not. Repealing the 22nd amendment might make Political Campaign shorter. You couldnt know if you are running against the incumbent. Today, january 21 of the president s second term, making the campaign shorter would be an awfully pleasant thing. I dont know whether that would have made a difference or not. In my opinion, it was always just a cynical move on the part of the Republican Leadership to keep the court seat vacant. They might have come up with a different excuse. But it did have, i thought, the way the argument was made was that the new justice, in essence, should be a lack of elected. He should be on the ballot. The Supreme Court is a partisan institution, and its members are to be selected by the same criteria as the other two political offices. I think that has really diminished the utility and prestige of the Supreme Court, and i wish it hadnt happened. Whether the 22nd amendment would have made any difference, i dont know. Maybe we can just talk about this issue a president ial succession and what the constitution provides. Thank you for your attention, and if there are questions i will be glad to fail to answer them. [applause] i will start us off. I have a question. As you may know, there have been over 11,000 amendments proposed for the constitution. As we look to the 45th president about to come into office in january, it is hard for to the future, but does your professional opinion think that our next president will make proposals and suggest amendment changes, particularly around term limits and things like the court and the supremes . Dr. Epps i think it is clear that the president elect has already said and we should Pay Attention to things he has said since the election, that he will propose a constitutional amendment imposing term limits on members of congress. Ok, thats great. He can propose something. I am picturing the reception that is going to get. When it is sent over to congress, mcconnells office, and somebody says senator, President Trump sent this over. He wants us to vote ourselves out of office. It could happen. It did happen once. The 17th amendment, in essence, involved recording requiring the senate to vote itself out of existence and adopting a new approach where the members would have to seek popular election, which they were not used to. That happens at the end of more than 20 years of Popular Mobilization around the idea of direct election of senators. Whether President Trump can mobilize that level of engagement by the people first, whether he could do that, and secondly, one key way to find out is that president s can only do a few things. You cant ask the people to be engaged in 16 different crusades all at once. They wont do it. My best guess would be that the term limits amendment is going to be 11000 and one 11,001. But whats going to happen in washington is really we are really in a situation where no one the maps dont show what is going to happen. My guess is the congress is going to say thank you for that, at we will get to it soon. We will never see it again. If we are interested in constitutional change over the next four years, it will be more important to focus on problems, just the way president trumans contributions and the way he conducted the office. I think that will be much more important in what shape the constitution is in in four years than any formal, textural amendment. Can you tell us about the amendments that have made it out of washington dc to the state legislatures to conciliation consideration and died there . Dr. Epps that is a good question. There was an amendment that said you it had to do with titles of nobility that made it out of Congress Early in the republic, and 1800. There is constantly a dispute about whether that was never adopted or not. The interesting story is the 27th amendment, which is now in the constitution. The 27th amendment was the result of a proposal made by madison and self himself in march of 1979 in the First Congress, when he 1779 when he proposed what became the bill of rights. Theres a thing called speech proposing amendments. This one said that i can read it to you i had it my pocket constitution. He would pull it out and say you can learn a lot just by reading this. I dont have it with me. But it says no law varying the compensation of senators or representatives shall become law until after the next election for representative. So congress will dissolve a pay raise, the pay raise cannot take effect until after the next election. They have to go to the people and say hey, i voted for a pay raise. They cant do it secretly. That floated around from 1790 on through various legislatures, and when people got irritated with congress one or two legislatures would pass it. And i dont know how to people are involved in political trivia, but we had what was called the houseboat scandal in 1990. House vote scandal in 1990. It turned out that the house was running a bank for its members, and the members were writing checks that exceeded how much money they had on deposit, and they would hold the checks until the paychecks came in, which banks wont do for you or me, and people were outraged about that. I think three or four legislators, quickly, ratified this and it became part of the constitution. What is interesting about that is that there was general agreement for at least 100 years before that that the constitutional amendments needed to be ratified within what the Supreme Court called a reasonable time after their proposal. You didnt just put an amendment out there and have it like a damocles sort of damocles, hanging over the republic for the rest of history. Starting with the 18th or 17th amendment, amendments themselves began to include time limits. If this is not approved within an number of years, it will expire. The equal rights and member amendment was put out and ratified by all but about five and needed legislators. At the time ran out, and congress extended the time. It still failed by three so it is no longer pending. What is also interesting in that congress is the question context is the question of the article five convention. Article five provides two ways of amending the constitution. One is the way we are familiar with, and that is that the legislature proposes that. Congress proposes it and sends it to the state. The other way is that the states apply to congress, and when a certain number have applied congress is then supposedly obligated to call a convention for proposing amendments. Nobody knows what that means. It has never happened. But one of the things that goes on is that legislatures make applications to congress to call an amendment, and that application is still out there. One of the nightmares that constitutional contingent thinkers have is that all of a sudden, because congress is in charge of counting these applications, one of these Days Congress will say we counted the applications that there is enough and there is enough, and we are calling a convention in three weeks to them right rewrite the entire constitution. It could happen. Governor abbott is very active in trying to get Something Like that to happen. I, frankly, think that is something to worry about. The last time we did that was in philadelphia, and that was to propose amendments to the articles of confederation. That was stating that those cannot be changed that unanimous vote of the 13 states. They called the Philadelphia Convention was to propose amendments to the articles of confederation. They scrapped it and came up with a new document that would only need the approval of nine state. Scholars would call it a bloodless coup detat. Something like that could happen. Another piece of trivia that is less worrisome is that there are actually two ways of approving a constitutional amendment that is proposed by congress. If you read article five, you can see that the constitutional amendments can be ratified by the legislators or by conventions of the people. There is only one amendment that has never been ratified by conventions of the people. Ever been ratified by conventions of the people. That was the 21st. That is the amendment repealing prohibition. My father celebrated the day repeal every year for as long as he lived. Because it was felt very keenly that the 18th amendment had been adopted at a time when Many Americans were off at war, and they came home and found out that the legislature had taken away their right to have a drink. So they decided that this time, we will just show them that the people are in charge. We will let this be done by conventions. The conventions were funny affairs, because basically anybody could run, but you run on the platform that you wanted to appeal the amendment or you didnt. Thats how you one. Won. One of them in new mexico met for 10 minutes. Are we all here . Yes. Do want to repeal it . Yes. Cool, lets get a drink. One of the democrats tried to slow it down, and said the commission thing work pretty good worked pretty good convention thing worked pretty good, why do we do that. The Republican Leadership was having none of that. But that is something that could still be tried, and i was told by a person in the room that during the struggle over the e. R. A. And when you came to reauthorization and extending the deadline, the leadership was meeting and someone said we could get this thing ratified if we changed it to conventions. It would pass and conventions. In conventions. Someone else said there was a problem with that, and that is that some amendments that we do not like might get ratified the same way. The person who was in charge said what amendments are you talking about . Someone said what about antiabortion amendment . Or what about School Prayer . But there is a lot of interesting ways the constitution can get changed. Is that it . Well, i talked you into submission. Thank you all for coming. [laughter] [applause] i did have it. It is right here. Thank you so much, professor epps, for being here this evening. Thank you for being with us, and come back and see us again next time. Youre watching American History tv, all weekend, every weekend, on cspan3. Like us on facebook at cspan history to join the conversation. Cspan is in san diego learning more about the citys rich history. This is the uss midway. I decommissioned Navy Aircraft carrier. Up next, we will take you on board to learn more about its naval history. We are standing on the flight deck. This has been a tourist attraction since 2004. Midway was built during world war ii. Despite efforts to move for construction along, she just missed the end of the war by four weeks. She was always intended to be a large ship. She was a break from previous carrier designs because she was not impacted by naval arms
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