Yesterday, I more or less concluded that a NYT op-ed by Stephen Gillers about Bill Clinton’s eligibility for the vice presidency was mistaken because of the 12th Amendment. Eugene Oregon (whose work at Demagogue I highly recommend), however, got me re-thinking some of the details.
I still stand behind my original position, but I can appreciate that there are more nuances to this than I mentioned 24 hours ago.
Let’s review for just a minute for those just joining us. The 22nd Amendment says, “No person shall be elected to the office of the president more than twice.” Gillers argued that Clinton could be a VP, however, because he wouldn’t be running for president. I argued, in response, that the 12th Amendment says, “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
If Clinton is ineligible for the presidency under the 22nd, then he’s ineligible for the vice presidency under the 12th. Or so the argument goes.
On further review, however, the language is not entirely clear and may, in fact, leave the door ajar to the scenario Gillers outlined.
The 12th Amendment, in context, is directed at the criterion for a president’s eligibility laid out in Article II — natural born citizen, 35-years-old, and a 14-year resident with the United States. When the amendment says no one who’s “ineligible” for the presidency can be the vice president, it was speaking specifically to these qualifications.
The 22nd Amendment, meanwhile, enshrined the notion of a “two-term tradition” into the Constitution, following FDR’s success in winning four times. It does not address, or at a minimum, was not intended to address, presidential eligibility.
I would argue that it nevertheless added a fourth condition to a prospective president’s qualifications. Who’s eligible to be president? 35-year-old, natural-born citizens, who has lived here at least 14 years and hasn’t already served two terms in the White House. That may not have been the point, but I believe that was the unintended result.
Of course, not everyone sees it that way. Clinton is ineligible to be elected president, because he was already elected twice, but he is still eligible to serve as president? I still don’t think so. I realize that these semantics debates appreciate literal readings, but given the context and the general understanding of the relevant words, I think Clinton is now “ineligible” for the presidency, which it turn makes him “ineligible” for the vice presidency.
Eugene Volokh contacted Gillers directly to ask him to respond to the 12th Amendment concerns. Gillers explained:
Under the later 22nd Am., Clinton is only constitutionally unable to be “elected” president. He is not ineligible to be president for these Article 2 reasons. If the drafters of the amendment wanted to block succession as a path to the presidency, they could have added the words “or vice-president” to the 22nd Am. or used some other exclusionary language.
Like Volokh, I’m unconvinced. To accept Gillers’ take, one has to see a greater difference between “eligible” and “electable” than I do. In fact, one of Volokh’s readers discovered that, under a 1913 Webster’s dictionary definition, “eligible” means being “legally qualified to be elected and to hold office.”
Granted, Webster’s isn’t an authoritative source in a legal context, but still, it does suggest a stronger tie between the two words than Gillers seems prepared to accept.
Maybe Kerry should tap Clinton for his ticket so we can take this to the Supreme Court. After all, it has a great track record of deciding complex issues in presidential elections in a fair and even-handed way. Oh wait…
To be sure, none of this matters in a practical sense. John Kerry has plenty of reasons not to pick Clinton as his running mate, especially the fact that the top of the ticket never wants to be outshined by the bottom of the ticket.
Nevertheless, this is exactly the kind of fun political debate that I enjoy mulling over. I really need to get out more.