The Contemporary Presidency: “An Excess of Refinement”: Lame Duck Presidents in Constitutional and Historical Context

Well into President George W. Bush's second term, history appears to be repeating itself--second terms are far more problematic than first terms. Are problematic second terms inevitable, and if so are they caused by the Twenty-second Amendment? In this article I explore the constitutional and historical dynamics of presidential term limits, focusing on the leadership and clerkship roles the president performs in the constitutional system, constrained by the dynamics of political time. The article examines the classic arguments for and against term limits, comparing Hamilton's focus on stability to Jefferson's concern for tyranny. It then surveys the scholarship on second term problems to tease out the effects of term limits from the more general problem of second terms. I conclude with an analysis of second term and term limit problems from a political time perspective, suggesting that presidents are more constrained in the pursuit of their constitutional functions by the dynamics of regime cycles than they are by term limits. It appears that term limits add little to the functions of the presidency in the constitutional order. There is an excess of refinement in the idea of disabling the people to continue in off we men who had entitled themselves, in their opinion, to approbation and confidence, the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive. Federalist No. 72 As this article is being written, the nation is well into the final quartile of President George W. Bush's presidency, and it would appear that history is repeating itself. Despite a reelection win that was clearly stronger than his first victory, and despite claiming political capital he was willing to spend, Bush's second term has witnessed plunging public approval, a troubled policy agenda, and significant midterm election losses. The administration entered its second term having undertaken a study of previous second terms to stave off the inevitable, to no apparent avail (Balz 2007, 25). History demonstrates that second terms are far more problematic than first terms, afflicted with "sixth year itches," "sixth year curses," and the more generic "second term blues" (Sabato 2008; Shogan 2006; Fortier and Ornstein 2007). One explanation for this phenomenon is the president's status as a lame duck due to the term limits imposed by the Twenty-second Amendment. This article examines the impact of the two-term limit on the president's ability to do his job, exploring this question from a constitutional and historical perspective, focusing on the leadership and clerkship roles the president performs in the constitutional system, constrained by the dynamics of political time, concluding that term limits are, in Hamilton's evocative phrase, "an excess of refinement." That is, while not the harbinger of doom some portray, they in fact add little to the functions of the presidency. The argument is in four parts. The article begins with a brief review of the president's function in the constitutional order, moving away from a presidency-centered approach in favor of a systemic one, arguing that this is the best way to evaluate presidential effectiveness. Second, it outlines the classic concerns about term limits, both pro and con, comparing Alexander Hamilton's focus on energy and stability to Thomas Jefferson's concern for tyranny and health, arguing that each makes strong and weak arguments, but that Hamilton wins the day. Third, it surveys the scholarship on second term problems, highlighting arguments concerning reelection hubris, administration fatigue, and leadership failure to demonstrate that some problems are due more to the existence of successive terms than to term limits. The article concludes with an examination of term limits in a broader historical context, comparing second term problems to the constraints and opportunities all presidents face at various points in political time, arguing that presidents are limited far more by larger historical forces than they are by a lame duck status. …