TheContemporaryPresidancy.pdf

FEATURES

The Contemporary Presidency

“An Excess of Refinement”: Lame Duck
Presidents in Constitutional and

Historical Context

DAVID A. CROCKETT
Trinity University

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 .

There is an excess of refinement in the idea of disabling the people to continue in office 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

David A. Crockett is an associate professor of political science at Trinity University and author of The
Opposition Presidency: Leadership and the Constraints of History (2002), Running against the Grain: How
Opposition Presidents Win the White House (2008), and numerous journal articles.

Presidential Studies Quarterly 38, no. 4 (December) 707
© 2008 Center for the Study of the Presidency

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 demon-
strates 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
, 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 Hamil-
ton’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 demon-
strate 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 presi-
dents 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.

Presidential Functions in the Constitutional Order

As Jeffrey Tulis outlines in his book The Rhetorical Presidency, the separation of
powers system created by the American Constitution helps provide for several different
objectives of republican government. By separating various functions of government into
distinct groups of officials, the framers hoped to provide for more effective governance,
and the three branches of government are structured to make more likely the provision
of these functions. Congress is a plural institution designed to represent the people and
enact policies in response to the popular will through a complex deliberative process. The
federal court system is composed of small bodies of learned experts who have job security
that enables them to interpret the law and protect the rights and liberties of the people.
Most important for this analysis, the presidency is a unitary institution designed to
ensure the security and stability of the nation by acting energetically to set goals, respond
to crises, and provide for the steady administration of the law (Tulis 1987, 41-45). Tulis

708 | PRESIDENTIAL STUDIES QUARTERLY / December 2008

points out that the separation of powers system is designed to regulate the natural tension
that exists among these various functions. The three branches of government are struc-
tured differently to make more likely the fulfillment of these objectives, and their priority
of concerns differs.

Any analysis of presidential effectiveness, then, must begin with a clear understand-
ing of the functions the office performs in the constitutional . “Success” on the
president’s own terms may be an understandable goal for the individual inhabiting the
office, but individual success may or may not be desirable for the polity as a whole. Far
more important is the question of what the presidency as a constitutional office provides
to the nation. Inspired by the poor performance of the national government under the
Articles of Confederation, Publius clarifies the place of the presidency in the political
system, stating that energy in the executive is “essential to the protection of the com-
munity against foreign attacks; it is not less essential to the steady administration of the
laws; to the protection of property . . . to the security of liberty against the enterprises
and assaults of ambition, of faction, and of anarchy.” It is in part the unitary nature of the
office that makes possible this energy, which brings with it such qualities as “decision,
activity, secrecy, and dispatch,” constituting “the bulwark of the national security”
(Hamilton et al. 1999, 391-95). According to Publius, the function of the executive
consists of “the execution of the laws and the employment of the common strength, either
for this purpose or for the common defense” (418).

Scholars have noted that in the performance of his duties the president wears
the dual hats of leader and clerk (Neustadt 1990, 3-9). In his leadership capacity
the president sets and clarifies goals and reacts to crises. In his clerkship capacity the
president pursues steady administration of the law. Richard Neustadt emphasizes the
president’s leadership role at the expense of his clerkship role, for leadership tends to
be the arena in which the president demonstrates greater strength, however that word
is defined. It is important, though, not to ignore either aspect of presidential duty.
Herbert Storing argues that the leadership and clerkship roles embodied by the presi-
dent coexist uneasily with each other, in inevitable and unavoidable tension. Energy
is essential for both functions, but the leadership hat worn by the president implies a
level of independence and equality with respect to Congress, while the clerkship hat
implies a more subordinate role as the president serves the nation by effectively admin-
istering laws passed by Congress (Storing 1995a, 370-72; Storing 1995b, 393-94).
These dual hats of leader and clerk clarify the various constitutional tasks facing the
president. As a leader the president sets the national agenda, principally by giving
information to Congress on the state of the union and recommending legislation for its
consideration. As a leader the president also responds to crises, particularly in his
capacity as commander-in-chief. Linked to this crisis manager role is the larger concern
with security and stability, and here the president has the power to make treaties with
foreign countries and receive ambassadors. His oath of office also gives him the explicit
duty to “preserve, protect and defend the Constitution of the United States.” By con-
trast, the president as clerk pursues the steady administration of the law, fulfilling
this function by staffing and managing the executive branch, and taking care that
the laws are faithfully executed. The constitutional power to veto legislation resides

Crockett / “AN EXCESS OF REFINEMENT” | 709

under both hats. Both the leader responsible for stability and the clerk responsible
to execute the laws are interested in preventing what Publius calls “the enaction of
improper laws” motivated by “some common passion or interest” (Hamilton et al.
1999, 411). The president as leader can also use the veto power to influence the
national agenda.

The question of term limits and presidential effectiveness in second terms is
important not because of the president’s desire to be successful by winning specific policy
battles or getting his way, but because the various functions described above are impor-
tant for the effectiveness of republican government in general. The qualities provided by
energetic leadership and clerkship—the broader goals of security and stability—ideally
would not be contingent upon election cycles and duration in office. That is, perhaps, too
ideal a vision, but the framers of the Constitution wrestled with these questions at the
constitutional convention, recognizing the connection between the selection process,
tenure of office, and the ability of the president to fulfill these functions. Multiple terms
would make a president selected by Congress too dependent on that body, defeating the
theory behind separation of powers and doing great harm to the function of leadership.
If being eligible for reelection, for whatever reason, is desirable, selection would have to
be done by some other mechanism (Milkis and Nelson 2003, 33-34). While the original
debate was over whether the president should be limited to one term only, the existence
of any term limit has the potential to impact these important and essential functions. It
is to the question of term limits that we now turn.

Term Limits: The Core Debate

Although the Twenty-second Amendment to the Constitution was ratified in a
largely partisan effort with surprisingly little substantive deliberation in Congress (Kyvig
1996, 327-31), the argument for term limits has a solid and respectable pedigree.
Contrary to popular belief, however, that pedigree does not begin with George
Washington. The first president did not intentionally establish the so-called two-term
tradition; his departure was motivated by a desire to demonstrate that the country could
function without him and to retire to Mount Vernon. He made no principled argument
for limiting presidents to two terms, and in fact disagreed with Thomas Jefferson on this
point (Peabody 2001; Milkis and Nelson 2003, 84; Corwin 1957, 333). While Jefferson
made use of Washington’s voluntary retirement, calling it “the sound precedent set by an
illustrious predecessor,” it was Jefferson himself who gave philosophical justification to
the two-term limit ( Jefferson 2004, 64). In his 1807 letter to the Vermont Legislature,
Jefferson outlined two major concerns behind his belief in some sort of fixed limit of
terms. First, Jefferson articulates the common American fear of excessive executive power,
arguing that unlimited reeligibility would cause the presidency to become monarchical
and degenerate “into an inheritance.” Second, Jefferson mentions his concern for the effect
of age on the body and the mind, fearing the “decline which advancing years bring on.”
To summarize, Jefferson’s twin concerns are with the potential for tyranny and the health
and vitality of the chief executive. The concern about tyranny can be interpreted as a fear

710 | PRESIDENTIAL STUDIES QUARTERLY / December 2008

that the leadership function of the presidency would be corrupted in monarchical
directions. The concern about health relates to the weakness any institution would
experience when it is composed of one person who is not operating at full strength and
capacity.

Jefferson’s heirs followed his lead, particularly James Madison, James Monroe,
and Andrew Jackson, but it can hardly be said that a two-term tradition was clearly
settled in the 19th century. In fact, the philosophy of the Whig Party was even stricter,
calling for a one-term limit, something the two elected Whig generals complied
with by dying in office. Other presidents from both major parties pledged at various
times to serve only one term, including James K. Polk and Rutherford B. Hayes. There
were also presidents from both parties—Ulysses Grant, Theodore Roosevelt, and
Woodrow Wilson—who attempted to gain the nomination for a third term, though all
failed. In spite of these exceptions, however, the two-term tradition was established
enough to prompt significant comment when Franklin D. Roosevelt chose to run for
a third term in 1940.

By contrast, the argument for unlimited reeligibility was made most powerfully by
Alexander Hamilton, writing as Publius in Federalist No. 72. Where Jefferson is most
concerned with tyranny and health, Hamilton is focused primarily on the desire for
stability in the administration of government. He sees term limits as a device that would
require change both in leadership and the administration of the laws. All presidents have
an incentive, in Hamilton’s view, to reverse the policies and change the personnel of their
predecessors. Their need to establish their own legacies and reputations results in “a
disgraceful and ruinous mutability in the administration of the government” (Hamilton
et al. 1999, 404). At the same time, the impossibility of reelection would reduce the
incentives for presidents to pursue worthy projects, since they would not be able to take
credit for them. This second argument links the discussion of term limits to the larger
one of accountability in the executive branch. Publius makes the case in Federalist No.
70 that it is easier to hold a unitary official accountable for the conduct of the office,
whether through impeachment or simply “the restraints of public opinion” (397). Such
“restraints” work in two directions—to prevent presidents from engaging in misconduct
that would damage their reputation and to provide incentives to pursue laudatory
measures for the public good. These restraints are most powerfully manifested in the
electoral process, where “inducements to good behavior” encourage presidents to perform
their job well. Hamilton’s argument against term limits rests in part on this incentive,
counting on popular judgment to influence presidential behavior in a positive way, and
assuming that such a restraint would be absent if the president cannot stand for reelec-
tion. In fact, the presence of a term limit might prompt a president lacking the necessary
civic virtue to use his time in office for selfish gain (405-6). Finally, Hamilton argues that
term limits might rob the nation of the service of the most experienced individuals,
especially in an emergency (406-7). To summarize, barring a compelling reason it is
better to maintain stability and avoid rapid and constant change in the administration of
laws. It is good to keep experienced people in power and give them an incentive to pursue
good works. Such a provision should foster strong leadership and sound clerkship on the
part of the president.

Crockett / “AN EXCESS OF REFINEMENT” | 711

Evaluating Jefferson’s Argument

Having laid out these core arguments, it is a simple matter to evaluate them in
light of the central functions of the executive branch established by the framers. What
little deliberation took place about the Twenty-second Amendment centered on the first
of Jefferson’s concerns. Republicans and conservative Democrats, agitated by the “dicta-
torship” set up by Franklin D. Roosevelt and Harry Truman, made reference to Jefferson’s
precedent and the fear of executive tyranny (Kyvig 1996, 327-34). It is difficult to take
Jefferson’s argument seriously, however, in light of the constitutional structure. The
foundation for his argument against tyranny is his belief that “a representative govern-
ment, responsible at short periods of election, is that which produces the greatest sum of
happiness to mankind” ( Jefferson 2004, 64). The framers of the Constitution may have
agreed with him, but they chose to focus the greatest amount of accountability in the
House of Representatives. Publius recognizes that republican government in general
needs to have “an immediate dependence on, and an intimate sympathy with, the
people,” and that link can only be accomplished by “frequent elections” (Hamilton et al.
1999, 295). That is why members of the House serve for only two years—it is the most
democratic and responsive of the federal institutions.

The structure of tenure in the other branches of government demonstrates that
there are other goals in addition to responsiveness. Tenure during good behavior in the
judicial branch allows justices to protect the integrity of a limited constitution against
encroachments by the other two branches (Hamilton et al. 1999, 434). Lengthy terms in
the Senate allow that body to serve as “an anchor against popular fluctuations,” resisting
populist impulses in an attempt to “blend stability with liberty” (353). Similarly,
four-year terms for the president allow the chief executive to protect “the interests of the
people” when their inclinations endanger them (400). A strong concern for security and
liberty lies at the heart of the structure of tenure, with the goal of simple democracy
secondary in the branches that have lengthier terms of office. Jefferson’s argument ignores
the fact that the presidency is not designed to be a purely representative institution, and
forced rotation in office is not a top concern for a branch focused on security and stability.
Conversely, while the unitary nature of the presidency allows for greater accountability to
the people as the chief executive performs his function, term limits reduce that sense of
accountability as the president realizes he no longer has to face the proverbial music. This
incentive is not completely eliminated, for presidents desire to establish a legacy and
reputation, and one way of doing that is to ensure the election of a successor from their
party. However, the very attempt to secure a legacy can run counter to the interests of the
heir apparent, who may have his own vision of what the incumbent should be doing to
help secure his election.

Jefferson’s second argument, concerning the physical and mental debilitations of
age, is more interesting, especially in light of history. Franklin D. Roosevelt, whose four
straight electoral victories prompted the move toward term limits, died very early in his
fourth term, and it was known at the time he ran for office in 1944 that he would not
survive another term. Dwight Eisenhower suffered three serious health scares during his
presidency, including a heart attack and a stroke, and Ronald Reagan’s gunshot wound,

712 | PRESIDENTIAL STUDIES QUARTERLY / December 2008

coupled with his age, raised questions about his vitality. Even the much younger Bill
Clinton suffered a severe health crisis less than four years after leaving office. The
experience of the Democratic Party under Woodrow Wilson demonstrates that the party
organization can resist a president’s efforts to secure a third term, especially one as ill as
Wilson after his major stroke, and one would expect that the rigors of the modern
candidate-centered nomination system would screen out exceptionally unhealthy incum-
bents. Both Eisenhower and Reagan spoke up in favor of rescinding the Twenty-second
Amendment at various times, but one has to wonder whether their health would have
held up in a hypothetical third term. Once Roosevelt broke with precedent, it is logical
to assume that later presidents would be more willing to do so, making health an
increasingly important factor in nomination decisions, and a topic that would be covered
extensively by the news media. From a functional perspective, then, Jefferson’s argument
of health is far more compelling than his concern with monarchy.

Evaluating Hamilton’s Arguments

Term limits, in Hamilton’s view, work against all the major objectives of the
presidency. First, they require a change in agenda-setting where one may not be necessary.
Hamilton fears that term limits will prompt presidents to ignore worthy projects, since
the president will not be able to take credit for them. Whether that fear is true, the
conventional wisdom is that term limits prevent presidents from pursuing bold projects,
even if they want to. Indeed, perhaps the most common criticism of the two-term limit
is that it makes the president an instant lame duck, thus reducing the power and
influence of the president as a policy leader. Because they cannot run for office again,
presidents have a diminished ability to shape the policy agenda. We know with certainty
that George W. Bush will no longer be president at noon, January 20, 2009. There is no
mystery about that fact. As that time approaches, political actors both at the national and
international level may opt to wait for the next administration for action. While this type
of reasoning could take place during any contested election, the absolute certainty of
departure that comes with term limits encourages such gamesmanship far more than a
first term contest where reelection is a real possibility. This seems especially true after the
sixth year, when the political class begins to look forward to the next presidential
election—a process that begins earlier and lasts longer with each passing election cycle.
The election drama occupies more and more news media space, and the result is that the
president has little power to start new projects, whether social security reform, immi-
gration reform, or comprehensive health care reform. Perversely enough, a president is
most powerful in agenda-setting as he starts his first term, when he is least experienced
and knowledgeable. When his knowledge and experience are at their highest, starting a
second term, his political capital—contra George W. Bush—only gets lower (Light
1991, 36-39). The president does not lack incentives to pursue bold projects—his desire
to establish a legacy and reputation overrides the dampening effect of term limits—but
the structure of the system works against that desire. Accounts of Roosevelt’s decision to
run for a third term—something he did not declare definitively until the 1940 Demo-
cratic National Convention—demonstrate his ability to retain political influence through

Crockett / “AN EXCESS OF REFINEMENT” | 713

most of his second term simply because of doubts about the succession (Parmet and
Hecht 1968). Of course, the veto remains a powerful agenda-influencing tool, even if it
is a negative one, throughout a president’s administration, and recent research demon-
strates that a president’s ability to pursue unilateral policy-making through executive
s gives presidents additional leadership tools (Mayer 2001, 96-97). Successful efforts
to secure balanced budgets by Eisenhower and Clinton and the 1986 tax reform act
signed by Reagan demonstrate that significant things can be accomplished after first
terms have ended. Nevertheless, term limits mark a weakening of this aspect of leader-
ship, one that often appears to begin the day following reelection.

Second, Hamilton believes term limits could require a change in leadership during
a national emergency, thus threatening the security of the nation. This is precisely the
argument Roosevelt used to justify running for a third term (Parmet and Hecht 1968,
174-77). Of course, the nation has changed hands before in the middle of a war, and
the experience of George W. Bush after the terrorist strikes on 9/11—his rapid rise in
popular approval—demonstrates the tremendous power even a constrained president can
wield when performing his leadership function in the service of national security. In fact,
the constraints term limits presumably place on a president’s agenda-setting abilities in
the domestic arena may prompt him to take more vigorous action in the foreign policy
realm, where his power to lead is naturally less constrained. A short list of significant
activities proving that energy does not have to dissipate with term limits would include
Eisenhower’s second-term efforts to “wage peace,” Reagan’s Berlin Wall speech and
successful intermediate nuclear force (INF) treaty with the Soviet Union, and Clinton’s
military action in Kosovo and Middle East peace efforts. The issue for Hamilton has less
to do with the ability of presidents to act in times of crisis than with forcing change in
the middle of a crisis, whether the country desires that change or not. Roosevelt’s own
experience testifies to the ambiguity Americans feel about this question, for his reelec-
tions to third and fourth terms came by smaller and smaller margins, but he was,
nevertheless, strongly elected all four times, demonstrating the public’s relative satisfac-
tion with his leadership. Presidents may suffer the conceit of thinking they are indis-
pensable, as Roosevelt reportedly did prior to 1940, but that vice may prove a relatively
minor one if the benefit is continued leadership by an experienced hand. Of course,
popular disapproval of crisis management will lead to a change in leadership.

Third, Hamilton believes term limits require a change in administration where
stability is the preferred quality. He feared term limits would force change in policies and
personnel simply for the sake of change. It is difficult to credit Hamilton’s concern here,
due to the remarkable consistency of change and stability in the presidency throughout
American history. It is his weakest argument. To quantify this issue, I calculated the
average term length for pre–Twenty-second Amendment presidents and post–Twenty-
second Amendment presidents. I controlled for premature death and resignation by
counting a vice presidential succession as the same term as his predecessor. For example,
the Harrison-Tyler administration is counted as one four-year term, not one one-month
term and one nearly-four-year term. The average term length for pre-amendment
presidents—twenty-nine presidents over 164 years—is 5.66 years. The average term
length for post-amendment presidents—nine presidents over 56 years through 2008—is

714 | PRESIDENTIAL STUDIES QUARTERLY / December 2008

6.22 years. The post-amendment presidents, thus, show a 10% rise in average term
length over their predecessors. Of course, this simply testifies both to the influence of the
unofficial two-term tradition prior to Roosevelt and to the power of political parties to
control the nomination process in the pre-candidate-centered era. A better indication of
the consistency in administrative change over time is to examine the average number of
presidents in a given period. For example, in the one hundred years between 1789 and
1889 the country witnessed 18 presidential administrations. In the next hundred years,
the number is 17. On average since 1789, the nation has seen 3.45 presidents every 20
years. The only 20-year period that saw a smaller number was the period between
1929-1949; counting Truman’s first stint as finishing Roosevelt’s fourth term, the nation
saw only two presidencies.

One common suggestion to reform the presidency has been to move toward a
system of six-year terms with no reeligibility. Had that system been put in place from the
beginning, the nation would have seen an average of 3.33 presidents every 20 years—
very close to the historical reality. Given …

Place your order
(550 words)

Approximate price: $22

Calculate the price of your order

550 words
We'll send you the first draft for approval by September 11, 2018 at 10:52 AM
Total price:
$26
The price is based on these factors:
Academic level
Number of pages
Urgency
Basic features
  • Free title page and bibliography
  • Unlimited revisions
  • Plagiarism-free guarantee
  • Money-back guarantee
  • 24/7 support
On-demand options
  • Writer’s samples
  • Part-by-part delivery
  • Overnight delivery
  • Copies of used sources
  • Expert Proofreading
Paper format
  • 275 words per page
  • 12 pt Arial/Times New Roman
  • Double line spacing
  • Any citation style (APA, MLA, Chicago/Turabian, Harvard)

Our guarantees

Delivering a high-quality product at a reasonable price is not enough anymore.
That’s why we have developed 5 beneficial guarantees that will make your experience with our service enjoyable, easy, and safe.

Money-back guarantee

You have to be 100% sure of the quality of your product to give a money-back guarantee. This describes us perfectly. Make sure that this guarantee is totally transparent.

Read more

Zero-plagiarism guarantee

Each paper is composed from scratch, according to your instructions. It is then checked by our plagiarism-detection software. There is no gap where plagiarism could squeeze in.

Read more

Free-revision policy

Thanks to our free revisions, there is no way for you to be unsatisfied. We will work on your paper until you are completely happy with the result.

Read more

Privacy policy

Your email is safe, as we store it according to international data protection rules. Your bank details are secure, as we use only reliable payment systems.

Read more

Fair-cooperation guarantee

By sending us your money, you buy the service we provide. Check out our terms and conditions if you prefer business talks to be laid out in official language.

Read more

Order your paper today and save 30% with the discount code HAPPY

X
Open chat
1
You can contact our live agent via WhatsApp! Via + 1 323 412 5597

Feel free to ask questions, clarifications, or discounts available when placing an order.

Order your essay today and save 30% with the discount code HAPPY