"An important reason Justice Scalia's dissent appears so persuasive today lies not in its formalist command of constitutional text or original understanding, which have been well-criticized, but rather in a functionalist argument which my student John Vecchione, former President of Georgetown Law Center's Federalist Society, once called the "Terminator argument." That is, the independent counsel is set up like Arnold Schwarzenegger's character in The Terminator, a movie set in a future where machines are conquering Earth and have developed cyborg assassins like Arnold to take out designated humans. Like the Terminator, the independent counsel is programmed to investigate, prosecute, and ultimately take out a designated human being. Like the Terminator, the independent counsel shuts down once she or he has done so. Like the Terminator, the independent counsel is frightening even if a possibly defensible creation. 27 What is frightening is the creation of a prosecutorial apparatus unfettered by normal fiscal, political, and fairness limits."
-- William Eskridge, PANEL I: RELATIONSHIPS BETWEEN FORMALISM AND FUNCTIONALISM IN SEPARATION OF POWERS CASE, 22 Harv. J.L. & Pub. Pol'y 21, 27 (Fall 1998).
A footnote adds, "In Terminator II, Arnold plays a "good" Terminator sent back in time to protect humans from assassination by a "bad" Terminator. Draw your own constitutional or political parallels."
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