Term Limits on Original Intent? An Essay on Legal Debate and Historical Understanding

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A national constitution or other statute typically specifies restrictions on executive power, often including a limit to the number of terms the chief executive may hold office. In recent decades, however, some presidents of newly established democracies have extended their tenure by various semilegal means, thereby raising the specter-and in some cases creating the reality-of dictatorship. Alexander Baturo tracks adherence to and defiance of presidential term limits in all types of regimes (not only democratic regimes) around the world since 1960. Drawing on original data collection and fieldwork to investigate the factors that encourage playing by or manipulating the rules, he asks what is at stake for the chief executive if he relinquishes office. Baturo finds that the income-generating capacity of political office in states where rent-seeking is prevalent, as well as concerns over future immunity and status, determines whether or not an executive attempts to retain power beyond the mandated period. Democracy, Dictatorship, and Term Limits will appeal to scholars of democratization and executive power and also to political theorists.
The paper first defines plain language textualism and demonstrates that the Supreme Court and its individual justices as well as many commentators regularly call upon plain language textualism. Next, the paper seeks to determine why these people seek plain language textualism as a constitutional interpretive methodology, attempting to explain what others see as the benefit of that methodology. In other words, the paper presumes that those who use plain language textualism believe that such a method is a better method of interpretation. The paper next reviews the justification for using plain language textualism. The final question concerns how a person ‘plainly‘ interprets the Constitution and whether the application of plain language textualism furthers the justification for using that interpretive methodology. More specifically, this article seeks to demonstrate that plain language textualism, an interpretive method that purports to eliminate the personal predilections of individual justices when interpreting the Constitution, instead ensconces personal predilections and requires inconsistent interpretive methodologies. In order to do so, this paper will review the use of plain meaning or plain language textualism as applied to the Takings Clause. After showing that commentators have asserted at least two very different and inconsistent textualist meanings to the Takings Clause, the paper will demonstrate that even accepting a single meaning of the Takings Clause requires a number of separate non-textual conclusions as to the assumptions to be made as to the application of textualism. On the surface, this paper seeks to demonstrate that plain meaning textualism incorporates the personal predilections of the interpreter. In the end, this paper seeks to be a voice of reason. By demonstrating the inconsistencies in the use of plain meaning textualism, this paper seeks to eliminate interpretive stridency and superiority. This paper seeks to show that even plain meaning textualism, perhaps the simplest (and most simplistic) interpretive methodology, requires non-textual, individual choices by justices. If all justices must resort to individual choices, then such individual choices (often labeled as ‘personal predilections‘) cannot, or at least should not, be labeled as inappropriate (or worse) simply or merely because they are individual choices. The question should be whether the choices that are made make sense, and whether they resonate within the society known as the Supreme Court, the society of the rest of the bench, the bar, and society as a whole.
This article examines whether the principles of full faith and credit require states to enforce other states' coercive equitable decrees to the same extent as judgments for money damages. In a recent decision, the Supreme Court held that a state court injunction barring a witness's testimony nationwide is not subject to full faith and credit elsewhere. Baker v. General Motors, 118 S. Ct. 657 (1998). This article suggests that both the Court's opinion and the two concurrences were unsatisfactory because the Court failed to address the key underlying issue of whether or to what extent courts may rely on state law to enjoin extraterritorial conduct. Much of this Article considers historical issues related to the extraterritorial jurisdiction of equity courts. It concludes that the issue will remain difficult to resolve unless some limitation is placed upon the longstanding view that state courts, under the guise of inherent equity power, may impose coercive orders that affect activity outside of that state. The concluding sections of the Article suggest three different approaches to resolution of the equity conflict, highlighting functional views of what the policy of preclusion should mean for the scope and effect of full faith and credit to equity decrees.
A followup to "Penumbral Reasoning on the Right", 140 U. Pa. L. Rev. 1333 (1992), this paper notes the increased use, and acceptance, of penumbral reasoning by federal courts in recent years. It suggests that this trend is a positive one, and likely to lead to more, rather than less, fidelity to constitutional text and structure.
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This paper consults multiple literatures to specify and evaluate the economic rationales for term limitation, particularly on Congress. I first consider theories that arose to explain, among related issues, why individual states might unilaterally self-impose term limits on their own delegations to Congress. Next I consider two main lines of argument for universal limits, both of which begin with the empirical phenomenon of high and rising congressional tenure. First, supporters of term limits argue that higher tenure biases legislatures toward inefficiency big government (high spending). Second, higher tenure creates inefficient (anti-competitive) conditions in the legislative election market. Term limitation would remedy these inefficiencies by virtue of decreasing average tenure. These claims are then evaluated in light of the evidence amassed in the literature. Based on the literature reviewed, this paper finds that, while term limits will reduce average tenure, there is no evidence to suggest that term limits will affect the underlying causes of these inefficiencies. Further research on a more general reform, which would strike deeper at these underlying causes, is implied. Copyright 2003 by Kluwer Academic Publishers
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