Executive term limits are precommitments through which the polity restricts its ability to retain a popular executive down the road. But 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 type of default rule executives may overcome if sufficient political support is apparent. It then turns to historical evidence to assess the probability of attempts, both successful and unsuccessful, to evade term limits. It finds that, notwithstanding some high-profile cases, executives observe term limits with remarkable frequency in consolidated democracies. The final Part considers alternative institutional designs that may accomplish some of the goals of term limits, but finds that none are likely to provide a perfect substitute. Term limits have the advantage of clarity, which very likely increases their enforceability, and they should be considered an effective part of the arsenal of democratic institutions.
Repository CitationTom Ginsburg, James Melton, and Zachary Elkins, On the Evasion of Executive Term Limits, 52 Wm. & Mary L. Rev. 1807 (2011), http://scholarship.law.wm.edu/wmlr/vol52/iss6/3
52 William and Mary Law Review 1807-1872 (2011)