Bench Memos

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Re: Constitutional Sleight of Hand


My post this morning on whether Bill Clinton could be elected vice president (and possibly succeed to the presidency) drew some reader comments, some agreeing with me, others disagreeing.

The most interesting disagreement came from a reader who pointed me to an article in National Review itself, on June 16, 1964, in which James Jackson Kilpatrick argued that former President Eisenhower could constitutionally be elected vice president on the Goldwater ticket.  I’d never heard of this, but I’ve read Kilpatrick’s article now–and the support he elicited in later issues of NR from some GOP members of the Congress that wrote the 22nd Amendment–and I think the position is strongly argued but not, in the end, persuasive.

Kilpatrick reviews the peregrinations of constitutional language as the proposed 22nd Amendment made its way through the two houses of Congress in 1947.  For him it is of paramount importance that early drafts of the amendment made a previous two-term president simply ineligible to be president, whereas the final language referred only to his ineligibility to be elected president, from which Kilpatrick (like Brian Gray) infers that non-electoral pathways to the presidency remained open.  But by Kilpatrick’s own account, the debate in Congress never took up this question directly.  As he notes, with the various drafts advanced, the debate was at pivotal moments all about the best language that would prevent a sitting second-term president from continuing in office.  But stressing this proves too much, for the ultimate language barred any previous occupant of the presidency for two full terms (and possibly nearly two years more, if succeeding from the vice presidency), whether he was a current occupant or not.

From Kilpatrick’s no doubt accurate narrative, I would draw the conclusion that the final language’s reference to being “elected president” for a third term rather than simply becoming president was largely accidental.  No one was thinking deliberately of leaving the door open to former two-term presidents to serve again by succession from the vice presidency.  Was the door nonetheless left open?  Kilpatrick hews to a highly literal reading of the letter of the 22nd Amendment and says it was.  As I said this morning, I would revert to the amendment’s purpose and say it was not.

No matter what was said in Congress, what did the ratifying state legislatures–and behind them both, the American people in whose name they acted–think they were doing?  They plainly thought they were telling any president who had served his two terms (or 6 to 10 years if he had succeeded from the No. 2 slot himself) that he was through.  Done.  Finished.  Being.  President.  For keeps.  No encores.

In light of this purpose–and the related language of the 12th Amendment–any member of the electoral college must ask himself, “Could I constitutionally vote for this person for president?”  If the answer is no, he is duty-bound not to vote for him for vice president either.

In a maneuver too clever by half, Kilpatrick, and some of my correspondents today, suggest that their view is strengthened by the eligibility of an Eisenhower in 1964 or a Clinton in 2008 to become Speaker of the House, and to succeed to the presidency from that office should enough dominoes fall (so to speak).  I’ll set to one side the very real doubts that might be raised about the statutory place of the Speaker in the line of succession–just substitute any of the Cabinet officers undoubtedly in line and the argument would be the same.  This is a more difficult question than “could Ike or Clinton be elected vice president and thence succeed?”  It is not touched at all directly by the text of either the 12th or the 22nd Amendment.  Of course a former two-term president could be, say, secretary of state (and Bill Clinton would probably love it).  But if I am right about the purposive meaning of the constitutional provisions on eligibility to the presidency, he would be just as much barred as was the immigrant Henry Kissinger, explicitly ineligible under Article II.

A final word.  Brian Gray’s argument today, and that of J.J. Kilpatrick four decades ago, are exceedingly lawyerly.  And I don’t mean that in a good way.  There is almost no chance that questions like these would ever come before the Supreme Court, and they shouldn’t, even if events move to make such a case possible.  These are questions for the people of the United States.  They know what they meant to do in limiting presidential terms.  And even those of us (like me) who think such term limits a bad idea would not stand for any finagling that puts a former president who has grasped the brass ring twice within reach of another ride on that carousel.


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