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Ginsburg, Melton, & Elkins on Evasion of Executive Term Limits

By Lawrence Solum

Tom Ginsburg , James Melton and Zachary Elkins (University of Chicago Law School, IMT Lucca Institute for Advanced Studies, and University of Texas at Austin) have posted On the Evasion of Executive Term Limits (William and Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. In recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions.

Highly recommended.

Full post as published by Legal Theory Blog on September 30, 2010 (boomark / email).