Apropos my post last week, I looked a little more into what “eligible” meant in 1804, when the Twelfth Amendment was enacted. I realize that this is far from perfect evidence — it’s 40 years later than the usage — but the earliest law dictionary the library could find for me, Bouvier’s (1843), defines “eligibility” as “capacity to be elected.” (I take it that, by extension, for appointed offices it would mean “capacity to be appointed.”) If that’s how the term was understood in 1804, then Clinton would not be eligible to the office of President, and thus under the 12th Amendment not eligible to the office of Vice-President.
Some mid- to late 1800s cases also define eligible as referring to “capacity of holding, as well as capacity of being elected to an office” (see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that’s in the context of saying that someone who isn’t eligible to an office isn’t capable either of holding the office or being elected to it. I’ve seen no evidence that, contrary to the Bouvier’s definition, a person would have been seen in the early 1800s as being “eligible” to an office when he was legally barred from being elected or appointed to it, and the only question related to whether he could automatically assume it under some succession statute.
I repeat the original post:
Readers Barry Jacobs and Charlie Martin point to this op-ed by Prof. Stephens Gillers (NYU) that argues that Bill Clinton can be elected Vice President:
The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Mr. Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: “No person shall be elected to the office of the president more than twice.”
No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.
True, if Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers “shall devolve on the vice president.” The 22nd Amendment would not prevent this succession.
So much for the constitutional obstacles. . . .
I’m pretty skeptical, though: The 12th Amendment, after all, says (among other things) that
[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The 22nd Amendment prevents Clinton from being President, so therefore under the 12th he can’t be Vice-President.
Not so, says Jacobs: The 22nd Amendment says that “No person shall be elected to the office of the President more than twice,” so it means Clinton isn’t ineligible to the office of President, only to be elected President. (Article II, which sets forth the other qualifications for President, uses the phrase “eligible to the office of,” not “eligible to be elected,” so those qualifications would apply to the Vice President under the 12th Amendment.) But I don’t think that defense of Gillers’ point is quite right: I think that as a matter of common usage, “eligible” in the 12th Amendment should be interpreted as meaning “eligible in the ordinary course of things,” not “eligible in a small subset of cases, though ineligible in the ordinary course of things.”
On the other hand, Gillers is a very smart and well-regarded professor — perhaps he is correct on this, though at this point my tentative judgment (tentative largely because of my regard for him) is the contrary.
UPDATE: I e-mailed Prof. Gillers on this, and he was kind enough to promptly respond (even though he’s just swamped, being a Vice Dean as well as a professor, and likely doesn’t have time to deal with much such e-mail):
I admit that I should have addressed the 12th Am. point but I do not think it changes the argument.
The 12th Am. says: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”
Its mention of eligibility is a reference to Article 2, which say a person is “eligible” to be president only if he or she is 35, a natural born citizen, and living 14 years in the U.S. Clinton is eligible under this test.
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.
I confess that I’d still come to the opposite conclusion, but obviously reasonable minds can and do differ on this.
FURTHER UPDATE: Reader Mark Eckenwiler writes:
Re “eligible,” note that it is in fact synonymous with “electable”: the two terms are derived from the same Latin verb. Lexicography confirms this sense, as in the 1913 Webster’s definition: “1. That may be selected; proper or qualified to be chosen; legally qualified to be elected and to hold office.”
So [in my humble opinion], Stephen Gillers . . . is incorrect when he asserts that Clinton is “eligible” to the office of VP.
This isn’t an open-and-shut argument: The real original meaning question is how the word was actually used in legal sources around 1804, when the amendment was enacted, and dictionary definitions, especially from 1913, are only a first cut at this. Still, I do think that this evidence supports the Clinton-isn’t-eligible view; and I suspect that in 1804 legal parlance, “eligible” really did mean pretty much what it does in that definition. But I leave it to others to do more exhaustive research.
ANOTHER UPDATE: Everything old is new again! Reader David Tenner quotes a similar debate in 1964, when there was talk of a Goldwater-Eisenhower ticket.
YET ONE MORE UPDATE: Marty Lederman reports that there’s a whole law review article that deals with this, Peabody & Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), and that concludes that a two-term President may indeed then become Vice-President. If fully understanding this question requires me to read yet another law review article, I’ll opt for not fully understanding it — but people who are really interested should look it up.
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