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Constitutional Sleight of Hand



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Kathryn links over at The Corner to an L.A. Times op-ed by California law professor Brian Gray that asks whether Bill Clinton, after two terms as president, is nevertheless eligible to be elected vice president–and then to serve again as president should a vacancy arise.  His answer is yes.  Mine is no.

We academic interpreters of the Constitution are prone to these parlor games to while away five minutes with a student in the office.  Converted into a pseudo-serious article such as Gray’s, the exercise falls squarely in the genre that asks, “can we fiddle around with the text of the Constitution until we make readers believe it means the opposite of what it says?”

Gray pads out the article with some early history of how vice presidents were originally chosen (as runner-up in the presidential election), but the burden of his argument rests on how to read the 12th and 22nd Amendments (he mistakenly refers to the 24th at one point when he means the 22nd).  Here are the relevant portions of constitutional texts:

12th:  “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

22nd:  “No person shall be elected to the office of the President more than twice . . .”

Gray’s take on the latter is that “the [22nd] amendment does not preclude a former two-term president (such as Clinton) from serving as vice president.  Nor does it preclude a former two-term president’s succession to the presidency for all or part of a third term.”

Of the former, he writes that Clinton is “ineligible for election to a third term [as president],” thanks to the 22nd Amendment, “but he is constitutionally eligible to succeed to the presidency after election to the vice presidency,” and therefore the 12th Amendment is no barrier to such election.

Riiiigght.  Start with the question of what the 12th Amendment is about.  It’s about how presidents are elected, namely by the votes of the electors in what’s popularly called the “electoral college” (a phrase not appearing in the Constitution).  For whom could those electors cast their ballots, for either president or vice president, when the amendment was added in 1804?  Any native-born citizen of at least 35 years of age who has “been fourteen Years a Resident within the United States” (Article, II, section 1, clause 5).

The 22nd amendment, by stating that no person may be elected president more than twice, changed the rules for determining the validity of those ballots that electors cast.  Now they may cast their ballots for any native-born citizen, 35 or older and resident in the U.S. for 14 years, who has not been elected twice to the presidency.  Since the ordinary path to the presidency contemplated by the Constitution is via the ballots of these electors, then by any ordinary mode of legal reasoning, the 22nd Amendment changed the answer to the question–who is “constitutionally ineligible to the office of President”?–which ballot-casting electors must ask themselves.  Now the class includes aliens, immigrants, citizens under 35, others failing the residency requirement, and persons previously elected twice (or having served one term elected and more than half of another’s term after succeeding from the vice presidency–another requirement of the 22nd Amendment).

It follows from the 22nd Amendment that Bill Clinton, being “constitutionally ineligible” to be elected president, is ineligible to become president by another route.  He is, in short, ineligible to be president, and therefore ineligible to become vice president under the 12th amendment.

A famous legal scholar once condemned “clause-bound interpretivism” that treats the words of the text in isolation from one another, rather than as parts of a whole that has an integrated meaning and purpose.  Sometimes this criticism is turned against a straw-man originalism that isn’t the real thing.  I don’t know whether Gray would call himself an originalist or not, but his article treats the Constitution as a Tinker Toy set to be disassembled and its pieces examined separately, with no attention to the organic structure of the whole that those pieces make.

Sorry, Bill.



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