Monday, October 23, 2006

On Friday, the Washington Post reached into its archives and dusted off a biennial classic: Could Bill Clinton be vice president?

The answer, it seems, depends on who you ask. Most of the judges and law professors interviewed by the Post agreed that a strict reading of the Constitution wouldn't prevent a former two-term president from serving as the nation's Number Two. But the dissenting side has some heavy hitters:

Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit said by e-mail that "read literally, the 22nd Amendment does not apply" and therefore Clinton could be vice president. "But one could argue that since the vice president is elected . . . should he take office he would be in effect elected president. Electing a vice president means electing a vice president and contingently electing him as president. That interpretation, though a little bold, would honor the intention behind the 22nd Amendment."
I know Posner's a hero to a lot of people (or at least, to a lot of law professors, which may or may not be the same thing), but I think he's wrong on this one. The wording of the 22nd Amendment1 seems clear: Clinton can serve as president, he just can't be elected again. And the 12th Amendment's V.P.-limitation2 doesn't contemplate election; only "eligibility." Clinton is ineligible to be elected to the office of president; he's not ineligible to serve.

The drafters of the 22nd Amendment were very smart folks. And even if they weren't, they had very smart attorneys. It's not as though they couldn't have foreseen this issue, and they chose to use the word "elected" anyway. Elected is elected. Posner's interpretation is too bold.

1 - "No person shall be elected to the office of the President more than twice" (emphasis added, obviously) (though wouldn't it be funny if there were actually italics in the Constitution?).
2 - "No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President."

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