ACTUALLY…
In plain english, the 22nd doesn’t disqualify him from being president again, it just says he can’t be ELECTED president again, meaning that not only does the 12th not apply, but in theory, a person could be president over and over again, as long as he keeps getting himself elected VP and then has the president die.

Posted by: eric at March 4, 2004 10:10 AM

… or resign - maybe with the expressed intention all through the campaign to do so. Allowing this seems to get around the spirit of the 22nd Amendment, and also the 12th, but arguably the clear language of the Amendments allow the loophole.

As a political/practical matter, though, it’s unlikely that Clinton would try it.

Posted by: samuelv at March 4, 2004 10:43 AM

So, you’re saying that the wording of our laws would prevent Bill Clinton from doing something? There’s a first time for everything, I guess…

Posted by: xtoon at March 4, 2004 11:00 AM

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

Clinton is not constitutionally ineligible from being president. He is inelegible from being elected president. A fine distinction, but a distinction none the less. Clinton is only prohibited from being elected, not being president, therefore he is technically allowed to become vice president and hence president. Hence he is not ineligable to be president. Rather circular logic, but it works. Looking at it another way, if Clinton was speaker of the house, or anywhere in the line of succession, he would be eligable to become president. So clearly the 22nd amendment doesnt apply to him.

Now, if the 22nd amendment read ‘No person constitutionally ineligable to be elected president can become vice-president’ it would be a different matter.

Posted by: mark buehner at March 4, 2004 11:14 AM

Volokh makes a semantic argument that ‘eligible’ was synonimous with ‘electable’ when the amendment passed. I disagree with this line of thought, i think linguistic arguments suck mainly because a law should mean what it says. Otherwise the law means nothing. In this particular case the word ‘electable’ was certainly in common usage, and i assume the drafters would have been familiar with the term. Had they meant electable I have no doubt they would have said electable and removed any doubt.

Posted by: mark buehner at March 4, 2004 11:29 AM

The problem with insisting that a law “means what it says” is that the meanings of words are somewhat subjective and often change over time. This is particularly a problem for the Constitution which was written over 200 years ago and assumptions and meanings have chagned over that time.

Bolie IV

Posted by: Bolie Williams IV at March 4, 2004 01:11 PM

I think that premise is overblown. Usually by people who want the law to mean what they want it to mean. You never find a linguistic argument being made as weight against someone’s own point, even though a good argument should include counterpoints in it. Our language hasnt changed radically in 250 years, usage has to some degree but rarely meaning. Ackwardly worded laws cause problems, the second amendment being the prime example. Yet people still twist the words into something it clearly and demonstrably was not meant to say. Intention is certainly important in interpretting law, and I definately believe in studying the outside works of the writers for clarification. But I find that linguistic arguments rarely do this (the second amendment, again being a prime example).

Posted by: mark buehner at March 4, 2004 01:19 PM

I often hear some people complain that GW Bush was “selected” not “elected.” Does this mean that GW could serve two more terms in office?

Posted by: Gary Backlund at March 4, 2004 01:50 PM

Because of the “Resign and let the VP take it” loophole, I’m reasonably sure that the “shall be elected” loophole would be struck down by the Supreme Court as being totally in violation of the spirit of the 22nd amendment. And yes, the spirit of the law counts for something. But it would probably take a Supreme Court decision to settle it.

Posted by: TBox at March 4, 2004 02:33 PM

Mark B wrote: Looking at it another way, if Clinton was speaker of the house, or anywhere in the line of succession, he would be eligable to become president. Not automatically. According to the “line of succession” entry in the Wikipedia:

Of the above candidates, Secretary Elaine Chao is constitutionally ineligible to assume the Presidency, as she is not a natural born citizen. Since Article Two establishes only eligibility requirements for the “office of President”, and since these officials, according to the Constitution, “act as President”, it had been a subject of controversy whether they would be eligible (the same Constitutional question also exists for the residency and age requirements). To avoid a needless Constitutional dispute at what would be a time of great crisis, the statute, at 3 USC 19(e), specifies that even the acting President must meet the Constitutional requirements for the office of President.

It seems that just because someone holds an office in the line of succession doesn’t mean they can assume the office of the Presidency, that “loophole” is closed. So does Constitutional eligibility include the 22nd amendment criteria? So does statute 3 USC 19(e) specify this? This could be handled via a simple legislative process, not a SCOTUS ruling.

Posted by: lewy14 at March 4, 2004 05:01 PM

Bolie - It’s a nice fantasy to believe a word’s meaning will “change over time”, but the Founding Fathers were as explicit as their command of the English language would allow them. A command that one does not see in this day and age.

‘Enumerated’ still means ‘to specify one after the other’. Our Constitution is one of Enumerated Powers. That means everything the federal government is allowed to do HAS TO BE spelled out. Why would our FFs go to all that fuss, if the Commerce Clause was going to allow the feds to regulate anything that ‘affects’ commerce (i.e. EVERYTHING)? It wasn’t until FDR ‘saw’ this loophole in the Constitution that all hell broke loose on government regulation.

If the Welfare Clause in Art.1 Sec.8 authorized Congress to tax and spend for the General Welfare, to what use would enumerated powers be? That interpretation would justify ANY TAX for ANY PURPOSE. Instead, the clause should be read to apply to those enumerated powers already explicity spelled out in the document - not whatever Congress’ heart desires or ‘what the people need’ or ‘for the good of the country’ or whatever the current excuse might be.

Why is it, do you suppose, that every right delineated in the Bill of Rights is an INDIVIDUAL right, but the 2nd Amendent only applies to GROUPS? Could it have something to do with the current misunderstanding of the terms ‘militia’ and ‘army’? Definitely. At the time of writing, an army was any group of warriors for hire. They were professionals, mercenaries like the Hessians in employ of the Crown. Militia, OTOH, were specifically ARMED CITIZENS. At the time - it would have meant white male landowners, but still - INDIVIDUALS. The FF’s writings say as much.

I would posit to you that these words have NOT changed their meaning. But they have been transmogrified by people who wish to deconstruct the Constitution, stand it on its ear and do their bidding.

Unfortunately, due to their cunning and the general ignorance of the population, they have been largely successful. The Constitution is not a dated document - what is says applies to the 21st as well as the 18th century. What is says does not ‘change over time’. But it has been abused to the extent that otherwise principled people have stood idly by and watched it happen. It is this document, not the nation, that the President and Congress swear to uphold and defend. They have done a tremendously bad job of this. Which is why the country is in the state it is now.

“Any people which expects to live, ignorant and free, in a state of civilization, expects what never was and what will never be.” - Thomas Jefferson

Posted by: torpedo_eight at March 4, 2004 05:42 PM

Please, please, please, let Clinton run for VP. He could be Kerry’s Geraldine Ferraro.

(i.e. The Sinker)

Posted by: torpedo_eight at March 4, 2004 05:45 PM

Quite apart from anything else, Clinton doesn’t seem the type to play second fiddle to Kerry, or anyone else. I could easily be wrong, of course, but his tremendous ego probably wouldn’t withstand the blow, especially since he’s been at the top.

Posted by: Oddly Normal at March 4, 2004 06:38 PM

A non-semantic argument against Gillers would be that the Constitutional effect of the 25th Amendment was to add another qualification to the short list in Article II that define “eligibility” for the Presidency. The 12th Amendment would then incorporate the same restriction into the Vice Presidency.

This is a practical argument of legal and Constitutional construction, but its conclusion is not inevitable.

Posted by: Sam Barnes at March 4, 2004 06:39 PM

torpedo_eight:

Have you read Restoring the Lost Constitution : The Presumption of Liberty by Randy E. Barnett? If not, from what I hear, I think you’d like it, and I’d be interested to know what you think.

Off topic (somewhat; relates to the concept of “original intent of the founding fathers”): the episode of South Park that aired last night (“I’m a Little Bit Country”) did more to advance civil dialog about the war than the previous year of CNN or the NYT (or FOX for NRO for that matter). Made me proud to be a South Park Republican.

Posted by: lewy14 at March 4, 2004 09:35 PM

Well if he is eligible to be Vice President then he would probably wait until 2008 when Hilary runs.

Posted by: John at March 4, 2004 10:10 PM

Whether he can or can’t, I don’t think he’d ever settle for VP. He couldn’t keep up his legacy by taking lesser political positions. I think he’d rather go out as a god than hang on as a has-been.

Posted by: PaintballJosh at March 5, 2004 11:26 AM

But we run into the same issue. The 22nd amendment speaks to “no person shall be elected” while Article II reads “shall be eligible to the office”. It is clear that no individual not born a natural citizen is eligble to be vice president via Article II. If the drafters had wished the same prohibition to apply to post 2nd term presidents they should have used the same language. Personally it is rather compelling ot me that the writers of the 22nd amendment chose to stray from the ‘shall be eligible’ wording of the 2nd amendment to the ‘shall be elected’ language they used. Surely they were familiar with Article II.

Posted by: mark buehner at March 5, 2004 03:24 PM

2nd amendment should read Article II.

Posted by: mark buehner at March 5, 2004 03:25 PM

Hahahahaha, hohohohohoho, hehehehehehe,
ROTFLMFAO,

I’ll file this one under democrat stupidity.

Posted by: Fat Guy at March 6, 2004 03:32 AM

lewy14 - The Jan/Feb issue of Cato Policy Report has a page one article by R.E. Barnett on his new book and it looks great. Essentially, our 9th and 10th Amendments were eliminated by such beauties as United Public Workers v. Mitchell (1947). Fascinating.

Of course most Americans are only exposed to civic history for a short semester or 2 in HS and only then in texts approved by the NEA, so how could they ever guess St. Franklin gutted the sacred texted he swore to uphold and defend?

I was saving my money for Liberty and Order: The First American Party Stuggle, but I may have to find the coins for both.

Posted by: torpedo_eight at March 6, 2004 06:34 PM