Glenn Harlan Reynolds

Opinion columnist

The ill-considered impeachment efforts against President Donald Trump have seriously interfered with his first term as president. Thus, argues constitutional scholar William Mattox in The Wall Street Journal, if acquitted, Trump should be eligible for a third term, notwithstanding the two-term limit in the 22nd Amendment.

Mattox deploys a sports analogy: “In the National Football League, teams can challenge a call on the field — but there’s a risk. If instant replay doesn’t merit overturning the call, the challenging team loses one of its three timeouts. That discourages frivolous challenges and keeps the game flowing, while also providing a way to reverse egregious errors.”

Hence, a third term for the president: “That would allow him to make up for the time lost advancing the agenda that voters elected him to enact. It would preserve impeachment for genuine offenses but discourage its use for disputed ones and for mere politics. Absent such an amendment, and in an era when government is divided more often than not, impeachment seems likely to become an increasingly common means of opposition.”

Third terms, no amendment needed?

Mattox’s proposal sounds radical, but actually, he’s a piker: He wants to accomplish this shift via a constitutional amendment. How old-fashioned. Doesn’t he know that the Constitution is a living thing, made to grow and change with the times? Over the past century, we have made dramatic changes in the extent of federal power, the redistricting of state legislatures, the constitutionalization of abortion and contraception and gay marriage, and much, much more, all without the tedious necessity of an actual amendment to the Constitution.

But wait, you might ask — if a “living, breathing Constitution” would allow a third term after acquittal on impeachment, why didn’t President Bill Clinton, who was impeached but not removed over lying in a deposition, get a third term? Simple enough: He didn’t try. And perhaps the Constitution hadn’t lived and breathed quite enough yet, in those primitive days of the 1990s.

However, had Clinton done so, he probably could have found some left-leaning legal scholars to argue in his favor. (A few names come to mind right away.) But, of course, if Trump were eligible for a third term in 2024, then I suppose Bill would perforce be as well, setting up — as Mattox notes — the possibility of another Trump/Clinton contest in 2024, just with a different Clinton. (Hey, it’s not crazy: Bill Clinton is a bit younger than Trump, and both are younger than Joe Biden and Bernie Sanders).

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And by 2024, when the issue becomes ripe, Trump stands a good chance of having nominated a supermajority of the Supreme Court. As former Justice William Brennan famously said, ”Five votes can do anything around here.”

Punish political frivolity at the polls

OK, actually, a third term is an awful idea, with or without impeachment, and my suggestion that we get there without an amendment is even more tongue-in-cheek than Mattox’s suggestion that we get there with one.

Such a system would encourage all sorts of gaming, beginning with pro-forma impeachments and acquittals to set up a third term and going on from there. And luckily for Trump haters, he has appointed standard originalist justices, not the “living Constitution” jurists favored by the left. (Something for which, as I’ve suggested before, the left should be grateful.) I doubt there would be a single vote on the court in support of a third term, even if Trump fills seven seats.

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But Mattox does have a larger point. One reason our politics — and most especially our congressional politics — are so frivolous is that there are few consequences for frivolity. There should be a price. I’d support a constitutional amendment to fix that, but there’s zero chance that an amendment to make Congress more accountable would pass Congress these days.

What’s left? As a seasoned lobbyist once told me a long time ago, the way you punish a politician is “you beat 'em.” What little accountability exists for Congress now takes place at the polls. Voters need to make sure it happens.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of "The New School: How the Information Age Will Save American Education from Itself," is a member of USA TODAY's Board of Contributors.