Two-Time Presidents and the Vice-Presidency

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1287

TWO-TIME PRESIDENTS AND

THE VICE-PRESIDENCY

DAN T. COENEN

Abstract: Does the Constitution limit the ability of a twice-before-elected

President to serve as Vice-President? This question presents an intricate con-

stitutional puzzle, the solution of which requires working through four sepa-

rate sub-inquiries: Is a two-term President wholly ineligible for the vice-

presidency? Is such a person barred from election to the vice-presidency even

if that person remains appointable to that office? Is a twice-before-elected

President, even if properly placed in the vice-presidency, incapable of suc-

ceeding to the presidency? And if such a succession occurs, must the resulting

term of service as President expire after two years? This Article addresses

each of these questions by exploring the implications of the decisive constitu-

tional texts—Article II’s enumeration of presidential qualifications, the

Twelfth Amendment’s treatment of qualifications for the vice-presidency, and

the post-service limitations placed on two-term Presidents by the Twenty-

Second Amendment. Some analysts have argued that the Constitution fore-

closes the possibility that a twice-before-elected President can hold (or at least

secure election to) the vice-presidential office. However, the text and history

of the relevant constitutional provisions point to the opposite conclusion: A

twice-before-elected President may become Vice-President, either through ap-

pointment or through election, and thereafter succeed from that office to the

presidency for the full remainder of the pending term.

INTRODUCTION

Can a former two-term President seek and serve in the vice-presidency?

Non-lawyers often assume that the answer is no, and prominent constitu-

tional scholars agree.

The analysis of these experts begins with the Twelfth

* University Professor and Harmon W. Caldwell Chair in Constitutional Law, University of

Georgia School of Law. Many thanks to Hillel Levin, Ed Larson, Erica Hashimoto, Michael Coe-

nen, and Usha Rodrigues for comments on earlier drafts and to Maggy Randels, Cameron Roberts,

Chase Ogletree, and Courtney Broussard for helpful research and cite-checking assistance.

E.g., BRUCE ACKERMAN, BEFORE THE NEXT ATTACK 204 n.34 (2006); AKHIL REED AM-

, AMERICA’S CONSTITUTION 436 n.8 (2005); Richard Albert, The Constitutional Politics of

Presidential Succession, 39 H

OFSTRA L. REV. 497, 565 (2011); Peter Baker, VP Bill? Depends on

Meaning of ‘Elected,’ W

ASH. POST (Oct. 20, 2006), http://www.washingtonpost.com/wp-dyn/

content/article/2006/10/19/AR2006101901572.html [http://perma.cc/TUT8-Y9ZV] (citing Eugene

Volokh and Bruce Ackerman as expressing the view that former President Bill Clinton cannot run

for Vice-President); Eugene Volokh, Bill Clinton for Vice-President?, V

OLOKH CONSPIRACY

1288 Boston College Law Review [Vol. 56:1287

Amendment, which provides that “no person constitutionally ineligible to

the office of President shall be eligible to that of Vice-President of the Unit-

ed States.”

In addition, the Twenty-Second Amendment prohibits any

twice-elected President from again securing election to that office.

And

because voters thus cannot put a twice-before-elected President back into

the presidency, such a person is—these analysts conclude—“ineligible to

the office of President” and therefore not “eligible to that of Vice-President”

under the disqualifying terms of the Twelfth Amendment.

This argument has a surface appeal. But it masks subtleties in the law.

The most significant complication arises because the Twelfth Amendment

makes access to the vice-presidency hinge on whether the would-be candi-

date for that position is “ineligible to the office of the President.”

This

choice of words matters because it interlocks the Twelfth Amendment not

with the Twenty-Second Amendment, but with the preexisting terms of Ar-

ticle II, Section 1, Clause 5, which specifically address whether a person is

“eligible to the Office of the President.”

What is more, the Article II clause

imposes no term limit of any sort on presidential service. Instead, it requires

only that a President be (1) a natural-born citizen, (2) at least thirty-five

years of age, and (3) a resident of the United States for at least fourteen

years.

Because twice-before-elected Presidents (such as George W. Bush or

Bill Clinton) continue to meet each of these three (and only three) textually-

specified eligibility requirements, such persons are—according to propo-

nents of the they-can-run position—not “ineligible” to be President for pur-

poses of the Twelfth Amendment. Therefore, they remain “eligible” to seek

and to hold the vice-presidency.

To be sure, the first sentence of the Twenty-Second Amendment speci-

fies that “[n]o person shall be elected to the office of the President more

than twice.”

But that clause, so the argument goes, does not address who is

“ineligible” for the presidency; rather, it addresses only how many times an

eligible person can be “elected” to that office. Therefore, so the argument

continues, the Twenty-Second Amendment casts no light on who is “eligi-

(June 19, 2006, 1:30 PM), http://www.volokh.com/posts/1150738214.shtml [http://perma.cc/YL5F-

BPVM]; see also Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 I

ND. L.J. 559,

570 (2015) (concluding that “[t]he stronger view may be that once a President has met the term

limits of the 22nd Amendment, he is ineligible”).

U.S. CONST. amend. XII.

Id. at amend. XXII.

Id. at amend. XII (emphasis added).

Id. at art. II, § 1, cl. 5 (emphasis added).

Id.

See Bruce G. Peabody & Scott E. Gant, The Twice and Future President: Constitutional

Interstices and the Twenty-Second Amendment, 83 M

INN. L. REV. 565, 613–14 (1999).

U.S. CONST. amend. XXII.

2015] Two-Time Presidents and the Vice Presidency 1289

ble” to be Vice-President under the Twelfth Amendment. And that is all the

more the case because a person can become President either by way of elec-

tion or through other means.

In an article published in 1999, Bruce G. Peabody and Scott E. Gant

navigated their way through this maze of clauses in advancing the claim

that the Constitution permits election to the vice-presidency of a twice-

before-chosen President.

The Peabody and Gant article does much useful

work by mapping out the basic textual route to this conclusion. But its

treatment of the subject leaves a great deal of the key legal ground uncov-

ered. To begin with, the article does not consider new arguments and anal-

yses that have cropped up in recent years, including pronouncements of-

fered by such well-credentialed observers as Judge Richard Posner and even

former two-term President Bill Clinton.

No less important, that treatment

fails to distinguish carefully among four separate legal questions that are in

the picture here—namely (1) whether a twice-before-elected President is

wholly ineligible to become Vice-President; (2) whether a twice-before-

elected President is partly ineligible to be Vice-President in the sense that

such a person may be appointed—but not elected—to that office; (3)

whether a twice-before-elected President, if properly placed in the vice-

presidency, can thereafter succeed to the presidency; and (4) whether a

twice-before-elected President who does succeed to the presidency from the

vice-presidency faces any durational limit on the resulting term of presiden-

tial service.

See infra note 44 and accompanying text.

Peabody & Gant, supra note 7, at 633; see also Michael C. Dorf, The Case for a Gore-

Clinton Ticket, F

INDLAW (July 31, 2000), http://writ.lp.findlaw.com/dorf/20000731.html [http://

perma.cc/27KM-N4FM] (advancing the same text-driven conclusion). Notably, the terms “twice-

before-chosen President” and “twice-before-elected President” do not cover the full range of Pres-

idents covered by the Twenty-Second Amendment. See infra note 33 and accompanying text.

Apart from persons who have been twice-elected to the presidency, the Amendment renders ineli-

gible for that office persons who have been elected President once and also have served as Presi-

dent for more than two years of another term. See infra note 33 and accompanying text.

See supra note 1 and accompanying text (noting works on this topic authored by Professors

Volokh and Akhil Reed Amar); infra notes 120, 167–168 and accompanying text (addressing the

opinions of Bill Clinton and Judge Posner on the constitutionality of a twice-before-elected Presi-

dent serving as Vice-President). For purposes of simplicity and convenience, this Article does not

specifically reference such exceptional cases every time it discusses the basic operation of the

Twenty-Second Amendment. Instead, it focuses attention on “twice-before-elected” Presidents

and therefore typically uses such terms.

This is not to say that Peabody and Gant fail to disaggregate all these issues, particularly

the first two. See Peabody & Gant, supra note 7. But they do not fully develop the difference be-

tween those two issues, give only passing attention to the third issue, and do not identify the fourth

issue at all. No less important, the Peabody and Gant article does not consider the final sentence of

Section 1 of the Twenty-Second Amendment, which deals with transitioning from a rule of poten-

tially unlimited presidential service to the present-day regime in which the Twenty-Second

Amendment operates with full force. This omission is striking because the transition clause envel-

1290 Boston College Law Review [Vol. 56:1287

This Article addresses each of these questions. Part I considers and re-

jects the argument that a twice-before-elected President is wholly ineligible to

become Vice-President,

and Part II rebuts the alternative claim that such a

President could be appointed, but not elected, to the vice-presidency.

Part

III directs attention to whether a twice-before-chosen President can move

from the vice-presidency into the presidency and, if so, for how long such a

successor President can serve.

In particular, it explains why Vice-

Presidents who previously have held the presidency face no special limita-

tions along these lines, but instead enjoy the same rights of succession held

by all other Vice-Presidents.

Part IV turns attention to the special problems raised by negative-

implication arguments founded on the Twenty-Second Amendment’s little-

noticed transition clause.

Of particular importance, Professor Amar has

suggested that the transition clause supports the conclusion that the Twelfth

and Twenty-Second Amendments interact to bar twice-elected Presidents

from securing election to the vice-presidency.

Part IV challenges this view

by suggesting that the transition clause is best seen as dealing with only the

transition period itself and not as creating any broad implications with re-

spect to the post-transition period.

Some observers might dismiss these matters as unworthy of attention.

Why waste the ink on this paper, they might ask, when it is certain that no

twice-before-elected President will ever seek the vice-presidency?

In fact, there are many reasons why these questions merit careful scru-

tiny. To begin with, it is wrong to claim that a twice-elected President will

never seek to become Vice-President. Indeed, the chance that such a run for

ops all four issues raised by the prospect of a vice-presidential run by a twice-before-elected Pres-

ident. As a result, any complete discussion of this subject must give that clause the sort of close

attention it receives in this Article.

See infra notes 31–150 and accompanying text.

See infra notes 151–176 and accompanying text.

See infra notes 177–210 and accompanying text.

See infra notes 211–223 and accompanying text.

See U.S. CONST. amend. XII; id. at amend. XXII; AMAR, supra note 1, at 436 n.8.

See infra notes 211–223 and accompanying text.

Of present day significance in this regard, the often-discussed idea of having Bill Clinton

appear on the same ticket as Hillary Rodham Clinton faces a distinctive problem that exists wholly

apart from the matters considered in this Article. This is the case because the Twelfth Amendment

bars Electoral College members from casting votes for two candidates from their own state. This

limitation would place presidential electors from New York in a major bind unless, for example,

Bill Clinton reestablished residency in Arkansas, perhaps significantly in advance of the election.

See Sanford Levinson & Ernest A. Young, Who’s Afraid of the Twelfth Amendment?, 29 F

LA. ST.

L. REV. 925, 932–36 (2001) (discussing potential unconstitutionality of the casting of votes by

Texas Electoral College members in 2000 for both George W. Bush and Richard (Dick) Cheney

on the theory that both were Texas residents). But such a move might itself turn off voters, espe-

cially in light of the marriage of the two candidates.

2015] Two-Time Presidents and the Vice Presidency 1291

office will occur, and perhaps occur soon, is significant. History teaches that

the sort of leader who successfully runs for the presidency may well aspire

to remain in high-profile national service after that person’s two stints as

chief executive have come and gone.

Indeed, it was just such an occur-

rence that gave rise to the Twenty-Second Amendment, following Franklin

Roosevelt’s pursuit of both a third and a fourth term in the Presidency, in

contravention of an already-well-established tradition.

In 1960, Dwight

Eisenhower seems to have given thought to seeking the vice-presidency

after serving two full terms as President;

there was talk again in 1964

about a possible Goldwater-Eisenhower ticket;

and pundits pushed for a

Bill Clinton run for the vice-presidency in each of the four most recent pres-

idential races.

At least in the modern era, twice-serving Presidents have remained in

the prime of life upon leaving office, while the forward march of medical

science ensures that human lifespans will grow longer and longer.

In addi-

tion, many voters—especially in times of crisis—may well deem it advisa-

ble to install in the nation’s second-highest office someone who already has

on-the-job training as its chief executive. The broader point is that the con-

stitutional questions considered here could well become real-life problems

at some point in the future. If and when those problems arise, they will trig-

See BRIAN C. KALT, CONSTITUTIONAL CLIFFHANGERS 141 (2012) (noting a variety of

federal offices held by former Presidents).

See infra note 114 and accompanying text.

See Peabody & Gant, supra note 7, at 603–06.

See Volokh, supra note 1.

See, e.g., Tony Mauro, Would the Constitution Prevent a Gore-Clinton Ticket?, LEGAL

INTELLIGENCER, July 21, 2000, at 7; Scott E. Gant & Bruce G. Peabody, How to Bring Back Bill,

HRISTIAN SCIENCE MONITOR (June 13, 2006), http://www.csmonitor.com/2006/0613/p09s02-

coop.html [http://perma.cc/YXC4-CM4A]; Stephen Gillers, Opinion, The Next Best Thing to Be-

ing President, N.Y.

TIMES (Mar. 3, 2004), http://www.nytimes.com/2004/03/03/opinion/the-next-

best-thing-to-being-president.html [http://perma.cc/5YQV-SC6L]; Paul Goldman & Mark J.

Rozell, Obama-Bubba Ticket Could Be Winner, P

OLITICO (Oct. 16, 2011, 9:05 PM), http://www.

politico.com/news/stories/1011/66096.html [http://perma.cc/U73H-V7BX]; Andrew Malcolm,

Bradley Says “No” to Obama VP Job. What About Clinton? Not Her. Him!, L.A.

TIMES (July 29,

2008, 2:12 AM), http://latimesblogs.latimes.com/washington/2008/07/obama-vp.html [http://perma.

cc/U8J7-88VF]; Jack Shafer, Vice President Bill Clinton? Take 3, S

LATE (Sept. 7, 2000, 3:18

PM), http://www.slate.com/id/1006013 [http://perma.cc/MAV2-JU6D]; Joshua Spivak, Bill Clin-

ton for Vice President? Forget It, H

IST. NEWS NETWORK (Mar. 22, 2004), http://www.history

newsnetwork.org/article/4165 [http://perma.cc/F6HC-VMMQ]. Not surprisingly, attention recent-

ly has come to focus on the future status of our most recently twice-elected President, Barack

Obama. See Brian Beutler, A Modest Proposal: Barack Obama Should Be Hillary Clinton’s Run-

ning Mate, N

EW REPUBLIC (Apr. 14, 2015), http://www.newrepublic.com/article/121533/hillary-

clinton-barack-obama-vice-president [http://perma.cc/87ZA-96X3].

See The Youngest Presidents in U.S. History, ABOUT.COM, http://history1900s.about.com/

od/worldleaders/a/youngpresidents.htm [http://perma.cc/7FZK-FJ86] (noting that, when they took

office, Presidents Clinton and Bush were forty-six and fifty-four respectively, while President

Obama was forty-seven at the time of his inauguration).

1292 Boston College Law Review [Vol. 56:1287

ger a legal confrontation of singularly high-stakes significance—perhaps

lending added value to a thoroughgoing treatment of the legal issues pre-

pared outside the maelstrom of an ongoing political crisis. It is true that the

trading of ideas on whether a two-time President can become Vice-

President “has become a recurring parlor game among political observ-

ers.”

But this question has far more than a parlor game’s importance. It is

a question of ongoing legal and practical significance, especially under a

constitutional system designed to “endure for ages to come.”

Another reason to look hard at the questions considered here stems from

the post-ratification history of the Twenty-Second Amendment. In fact, efforts

to undo the Amendment have recurred over the past sixty years,

pushed

forward by leaders from both sides of the political aisle, including President

Ronald Reagan.

This history suggests that similar reform efforts could well

take hold again in future years. In that event, any proper rethinking of the

Twenty-Second Amendment will need to take into account all of its flaws,

ambiguities, gaps, and unintended consequences. Critical in this regard is the

mystery that surrounds that Amendment’s treatment of the vice-presidency.

This Article thus sets the stage for an enriched discussion about whether to

retain, repeal, or revise the Twenty-Second Amendment. It does so by laying

bare the full—and troublingly expansive—range of interpretive conundrums

that the Amendment has spawned.

Albert, supra note 1, at 565.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).

See THOMAS H. NEALE, CONG. RESEARCH SERV., R40864, PRESIDENTIAL TERMS AND

TENURE: PERSPECTIVES AND PROPOSALS FOR CHANGE 24, 26 (2009) (noting fifty-four proposals

for repeal of the Twenty-Second Amendment since 1956).

Id. Other patrons of change (at least at some point in their careers) have included Presidents

Truman, Eisenhower, Clinton, and Nixon. See Dwight D. Eisenhower, The President’s News Con-

ference of October 5, 1956, in P

UBLIC PAPERS OF THE PRESIDENTS: DWIGHT D. EISENHOWER 850

(David C. Eberhart ed., 1958); Paul B. Davis, The Results and Implications of the Enactment of

the Twenty-Second Amendment, 9 P

RESIDENTIAL STUD. Q. 289, 290, 301 (1979) (noting President

Truman’s opposition to the Amendment and President Nixon’s encouragement of outside efforts

to repeal it); Peabody & Gant, supra note 7, at 601 (“At a number of points both Eisenhower and

Reagan spoke out against the Amendment, and an effort to repeal it developed following Nixon’s

reelection . . . .”); Baker, supra note 1 (noting Bill Clinton’s endorsement of a more limited ban on

only “two consecutive terms” because “people are living much longer”). Many other prominent

Americans have expressed the same view, including former Senator and presidential candidate

Eugene McCarthy, Judge (and former White House Counsel) Abner Mikva, and former first lady

Nancy Reagan. See Hat Trick, W

ASHINGTONIAN, Mar. 1997, at 34; Eugene J. McCarthy, Give

Bush Another 100 Days, N.Y.

TIMES (Mar. 3, 1989), http://www.nytimes.com/1989/03/03/

opinion/give-bush-another-100-days.html [http://perma.cc/2U4Y-F8PA]; Elizabeth Mehren, Says

She Lost Freedom of Speech as First Lady: Nancy Reagan’s Room at the Top: ‘Attic,’ L.A.

TIMES

(June 4, 1989), http://articles.latimes.com/1989-06-04/news/mn-2659_1_first-lady-nancy-reagan-

mrs-reagan-raisa-gorbachev [http://perma.cc/DXB3-H2VC]. Moreover, a survey by Representa-

tive Stewart Udall, even though conducted within a decade of the Amendment’s ratification, indi-

cated that historians and political scientists also broadly favored repeal. Peabody & Gant, supra

note 7, at 602 n.173 (citing 103 C

ONG. REC. 843 (1957)).

2015] Two-Time Presidents and the Vice Presidency 1293

Finally, the questions considered here are worthy of attention because

of the broader lessons they offer for all who consider with thoughtfulness

the nature of our legal system. The question, “Can a twice-elected President

become Vice-President?” has attracted wide and recurring attention in the

news media.

This attention stems in part from the role of celebrity in

American life. But it also reflects something more—the deep and serious

interest that Americans rightly share in the presidential office and those who

might come to occupy it. Inquisitiveness about such matters flows, as well,

from the fascination that the ever-churning interaction of our law and our

politics inspires in a large segment of the American public. For many of us,

a core question presses for an answer: How can it be that ongoing interpre-

tive disagreements swirl around even the most basic matters of constitution-

al organization? This Article tells the remarkable story of how—in the midst

of a fast-moving and divisive political drama—the drafters of the Twenty-

Second Amendment could and did fail to address in a direct way key ques-

tions about vice-presidential service. The telling of this story not only

shines a light on the limited reach of the Twenty-Second Amendment; it

also offers lessons for future leaders about the risks and complexities of un-

dertaking the hard work of constitutional reform.

THE TOTAL-INELIGIBILITY APPROACH

Assume that it is late August 2016, just hours after the conclusion of

the Democratic National Convention. Over the past three days, the follow-

ing headlines have appeared in the New York Times: (1) “Dems Set to Nom-

inate President Clinton as Vice-President;” (2) “Bill Clinton Pushes Value of

Past Service in Accepting VP Nomination;” and (3) “Lawyers Prepare To

Challenge Democrats’ Choice for Vice-President.” As the final headline

reports, Republicans are about to let loose a flood of litigation in which they

will claim that the Constitution prohibits Bill Clinton’s name from appear-

ing on the ballot. Who has the stronger position in this dispute—would-be

Vice-President Bill Clinton or his political and legal adversaries?

Answering this question requires close examination of three constitu-

tional provisions. Article II, Section 1, Clause 5—a part of the original Con-

stitution, which was ratified in 1788—provides in relevant part:

See, e.g., Richard Albert, The Evolving Vice Presidency, 78 TEMP. L. REV. 811, 857 n.314

(2005) (noting the publication of five separate pieces in such sources as Findlaw, Slate Magazine,

and the Washington Times, over a period of less than ten months, that took conflicting views on

the issue); Baker, supra note 1; Tom Curry, Could Bill Clinton Be Vice President?, MSNBC (Feb.

20, 2008, 2:05 PM), http://www.msnbc.com/id/23254868/ [http://perma.cc/6LWH-FV8K]. See

also N

EALE, supra note 28, at 16 (noting that this “question . . . has been frequently asked over the

years”).

1294 Boston College Law Review [Vol. 56:1287

No person except a natural born Citizen, or a Citizen of the Unit-

ed States, at the time of the adoption of this Constitution, shall be

eligible to the Office of President; neither shall any person be eli-

gible to that Office who shall not have attained to the Age of thir-

ty five Years, and been fourteen Years a Resident within the Unit-

ed States.

The final sentence of the Twelfth Amendment, which was added to the Con-

stitution in 1804, reads as follows:

[N]o person constitutionally ineligible to the office of President

shall be eligible to that of Vice-President of the United States.

And the first sentence of Section 1 of the Twenty-Second Amendment,

which was ratified in 1951, states in its entirety:

No person shall be elected to the office of the President more than

twice, and no person who has held the office of President, or act-

ed as President, for more than two years of a term to which some

other person was elected President shall be elected to the office of

President more than once.

As indicated earlier, these three clauses have given rise to competing

interpretations. On one view—which is defended here—the Twenty-Second

Amendment did not dislodge the preexisting eligibility rules for the vice-

presidency that were established by Article II and the Twelfth Amendment,

so that twice-before-elected Presidents can secure and serve in that office.

But prominent scholars have argued the other side.

The more far-reaching

of their arguments posits that former two-term Presidents are entirely fore-

closed from assuming the vice-presidency either by election or appoint-

ment.

On this view, the Twenty-Second and Twelfth Amendments operate

in tandem to render such persons wholly “ineligible” to hold the presidency,

U.S. CONST. art. II, § 1, cl. 5.

Id. at amend. XII.

Id. at amend. XXII, § 1. The second sentence of Section 1—the so-called transition

clause—provides as follows:

But this Article shall not apply to any person holding the office of President when

this Article was proposed by the Congress, and shall not prevent any person who

may be holding the office of President, or acting as President, during the term within

which this Article becomes operative from holding the office of President or acting

as President during the remainder of such term.

Id.

See supra note 1 and accompanying text.

See infra note 38 and accompanying text.

2015] Two-Time Presidents and the Vice Presidency 1295

and thus similarly ineligible to become Vice-President.

The following

analysis demonstrates, however, that this contention is at odds with both the

text of the relevant clauses and the history and purposes of the Twenty-

Second Amendment.

A. Constitutional Text

Some advocates of the two-time-Presidents-cannot-run-for-VP position

invoke the canon of constitutional interpretation that focuses on the primacy

of ordinary meaning.

According to this argument, a prior-two-term Presi-

dent is “ineligible to the office of President”—and thus not “eligible” to be

Vice-President under the Twelfth Amendment—because common usage indi-

cates that someone who cannot be elected to an office is ineligible for it. Pro-

fessor Amar, for example, emphasizes “the facts that the words ‘eligible’ and

‘electable’ spring from the same Latin root, and that standard dictionaries

have long included ‘electable’ as one of the standard definitions of eligi-

ble.’”

Other commentators agree with this view.

They urge that, because

“eligibility” and “electability” are essentially synonymous terms, it makes no

difference that the Twelfth Amendment speaks of the former, while the Twen-

ty-Second Amendment speaks of the latter. As Professor Amar has put the

point: “[I]t would seem that a two term incumbent is ‘ineligible’ to the Presi-

dency (within the meaning of the Twelfth Amendment) precisely because he

is made unelectable to that office (by the Twenty-second) . . . .”

And so it

follows for Professor Amar that such a person is “barred (by the Twelfth)

from being elected to the vice presidency in the first place.”

The initial problem with this argument is that no dictionary can or does

indicate that “eligible” and “electable” are interchangeable terms. We might

U.S. CONST. amend. XII; id. at amend. XXII, § 1.

See, e.g., District of Columbia v. Heller, 544 U.S. 570, 576 (2008) (“The Constitution was

written to be understood by the voters; its words and phrases were used in their normal and ordi-

nary as distinguished from technical meaning.”) (quoting United States v. Sprague, 282 U.S. 716,

731 (1931)).

AMAR, supra note 1, at 436 n.8. In similar fashion, Professor Volokh notes that a dictionary

published within decades after ratification of the Twelfth Amendment defined the term “eligibil-

ity” to mean “capacity to be elected.” Volokh, supra note 1.

See, e.g., Baker, supra note 1 (collecting earlier assertions of this position); see also Albert,

supra note 1, at 565 (indicating that the vice-presidency “is an office for which a former two-term

President is not eligible”).

AMAR, supra note 1, at 436 n.8.

Id.; accord Mathew J. Franck, Constitutional Sleight of Hand, NAT’L REV. ONLINE (July

31, 2007, 9:02 AM), http://www.nationalreview.com/bench-memos/51444/constitutional-sleight-

hand-matthew-j-franck [http://perma.cc/XQ84-AWDZ] (“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.”).

1296 Boston College Law Review [Vol. 56:1287

say, for example, that healthy, eighteen-year-old males are eligible for the

draft. But we would never say that such persons are electable for the draft.

No less relevant is the basic distinction between the whole (which in this

case might be eligibility) and the part (which in this case might be electabil-

ity).

We can safely conclude, for example, that every sophomore is a stu-

dent; but that hardly means that every student is a sophomore. Likewise, it

might be that every ineligible person is (for that reason) unelectable, but it

would not follow that every unelectable person is ineligible—at least when,

as here, the relevant office is attainable either by way of election or through

other means.

In any event, whatever new or old dictionaries might say, the control-

ling texts of the Constitution itself signal that there is a critical difference

between who is “eligible” to serve as President and who can be “elected” to

that office. The Supreme Court has recognized two closely related princi-

ples of interpretation that powerfully support this conclusion.

First, the

“normal rule” is that “identical words used in different parts of the same act

Professor Amar’s observation that “eligible” and “electable” have a shared Latin root is

particularly unhelpful in this regard. The words “centipede” and “centenarian” have a shared Latin

root. See Cent, Hundred, M

EMBEAN, http://membean.com/wrotds/cent-hundred [http://perma.cc/

AT8Y-9ZLS] (noting that both words come from the latin root “cent,” meaning one hundred). But

that fact hardly means that a bug and an old person are the same thing.

But see infra note 166 and accompanying text (suggesting inaccuracy of this supposition

because of possible electability of a candidate who is ineligible for the presidency).

These “other means” entail succession to the presidency from the vice-presidency or other

offices, including wholly non-electoral offices such as cabinet positions, according to the statutori-

ly established line of succession. See U.S.

CONST. art. II, § 1, cl. 6; id. at amend. XX, § 4; id. at

amend. XXV, § 1; 3 U.S.C. §  19 (2012) (creating a line of succession that begins, in order, with

the Speaker of the House, the President pro tempore of the Senate, the Secretary of State, the Sec-

retary of the Treasury, the Secretary of Defense, and the Attorney General). Depending on how

one defines the term “election,” these other means might also include selection for the presidency

by the House (pursuant to a majority vote on a state-by-state basis) in the event of an Electoral

College deadlock. See Peabody & Gant, supra note 7, at 569 n.18, 571 n.29, 590 n.120 (discussing

this scenario). Notably, many Americans may misunderstand the interaction of the Twelfth and

Twenty-Second Amendments because they simply assume that the Twenty-Second wholly bars

any further presidential service after two elections to that office. See id. at 565 (noting what “ap-

pears” to be a “commonly held view” to this effect). Indeed, even persons trained and experienced

in the law sometimes incorrectly suggest that this is the case. See, e.g., Bates v. Jones, 131 F.3d

843, 846 (9th Cir. 1997) (describing the Twenty-Second Amendment as creating a “lifetime ban

on the office of the President”); Halperin v. Kissinger, 434 F. Supp. 1193, 1195 (D.D.C. 1977),

rev’d, 606 F.2d 1192 (D.C. Cir. 1979), aff’d in part, cert. dismissed in part, 452 U.S. 713 (1981)

(claiming that the Amendment creates a “prohibition” on “regaining the Office of President”). The

key point is that pronouncements of this kind are wrong because the Twenty-Second Amendment

inhibits only being “elected” to the presidency, and there are means other than election by which a

person—including a former two-term President—may ascend to that office.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61–67 (2006); Gustafson v. Al-

loyd Co., 513 U.S. 561, 570 (1995).

2015] Two-Time Presidents and the Vice Presidency 1297

are intended to have the same meaning.”

Second, the Court “presumes

that, where words differ, . . . [the drafter] has acted intentionally and pur-

posefully.”

Here, the parallel word choices that appear in Article II and the Twelfth

Amendment, both of which specifically address who is “eligible” for office,

contrast sharply with the different word choice that appears in the Twenty-

Second Amendment (which does not speak of eligibility, but instead speaks

only of who “shall be elected”).

Moreover, when Congress used the term

“elected” in the Twenty-Second Amendment, it had squarely before it the

preexisting language of Article II and the Twelfth Amendment.

With these

passages in plain view, the drafters easily could have written the Twenty-

Second Amendment to say “[n]o person shall be eligible” rather than “[n]o

person shall be elected.”

Indeed, there was no reason for them not to do so

if they wished to impose an ineligibility rule. The framers of the Twenty-

Second Amendment, however, chose not to draft its text that way.

For this

simple reason, the Twenty-Second Amendment should be read to have a dif-

ferent effect than Article II, Section 1, Clause 5 with respect to the Twelfth

Amendment.

Thus, “eligibility” for purposes of the Twelfth Amendment is

rightly seen as being different from—rather than the same as— “electability”

for purposes of the Twenty-Second Amendment.

Proponents of the two-time-Presidents-cannot-run position might chal-

lenge this line of analysis as unduly nitpicky. It is, they could say, “a consti-

tution we are expounding,”

so that less attention should be given to pre-

cise word choices than might be the case with an integrated, and more

readily revisable, statutory code. Any claim that interpreters should look

with a different eye on constitutional and statutory word choices is dubious

to say the least.

But even if this claim might have merit in other contexts,

there is no reason to apply it when the constitutional drafters specifically

considered and then repudiated the ready alternative of parallel word usage.

Here, the finalized text of the Twenty-Second Amendment did not spring

Gustafson, 513 U.S. at 570 (quoting Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332,

342 (1994)). It is worth noting in this regard that “[t]he rules applicable to the construction of a

statute also apply to the construction of a Constitution.” See Edwards v. Carter, 580 F.2d 1055,

1080 n.16 (D.C. Cir. 1978) (citing Badger v. Hoidale, 88 F.2d 208, 211 (8th Cir. 1937)).

Burlington, 548 U.S. at 54.

U.S. CONST. art. II, § 1, cl. 5; id. at amend. XII; id. at amend. XXII, § 1; see supra notes 2–

5 and accompanying text (setting forth relevant constitutional provisions).

See supra notes 2–5 and accompanying text (discussing relevant constitutional provisions)

U.S. CONST. amend. XXII, § 1.

See id.

See id. at art. II, § 1, cl. 5; id. at amend. XII; id. at amend. XXII, § 1.

Id. at amend. XII; id. at amend. XXII, § 1.

McCulloch, 17 U.S. at 407.

See supra note 46 (citing authority on this point).

1298 Boston College Law Review [Vol. 56:1287

out of thin air. It came into being only after a series of prior Twenty-Second

Amendment drafts were put forward. And each of those earlier drafts spe-

cifically and tellingly used the term “eligible” or “ineligible,” in contrast to

the final draft in which the word “elected” was substituted.

The journey that resulted in ratification of the Twenty-Second Amend-

ment began with the submission of proposed House Resolution 27.

This

Resolution specified that:

No person shall be chosen or serve as President of the United

States for any term, or be eligible to hold the office of President

during any term, if such person shall have heretofore served as

President during the whole or any part of each of any two sepa-

rate terms.

The House Judiciary Committee tinkered with this text to come up with an

alternative formulation that provided instead: “Any person who has served

as President of the United States during all or portions of any two terms,

shall thereafter be ineligible to hold the office of President.”

This version

of the Amendment passed the House and was then sent to the upper cham-

ber.

The Senate Judiciary Committee, however, again altered the operative

text, so as to provide that: “A person who has held the office of President, or

acted as President, on 365 calendar days or more in each of two terms shall

not be eligible to hold the Office of President or to act as President for any

part of another term . . . .”

This Senate Judiciary Committee version—

with its “shall not be eligible to hold the Office” language front and cen-

ter—was the focal point of debate on the Senate floor.

As it turned out, the floor debate in the Senate produced much contro-

versy, which in turn triggered a late-stage move by reform advocates to pla-

cate objectors. Of critical importance, that move included substituting for

the thrice-before-used rhetoric of “eligibility” the contrasting and now-

operative “[n]o person shall be elected” language.

In due course, this Arti-

cle will explain why the political give-and-take that led to this new phrasing

undermines the effort to read the Constitution to preclude a twice-before-

elected President from seeking the vice-presidency.

But even on its face,

See infra notes 57–62 and accompanying text (discussing earlier formulations of what be-

came the Twenty-Second Amendment).

See 93 CONG. REC. 841 (1947) (setting forth the initial proposal).

Id. at 849 (emphasis added).

Id. at 863 (emphasis added).

Id. at 872.

Id. at 1680 (emphasis added).

See id. at 1680–81, 1770–81.

See supra notes 57–62 and accompanying text.

See infra notes 71–114 and accompanying text (Part I, section B).

2015] Two-Time Presidents and the Vice Presidency 1299

this shift in wording signaled a shift in meaning. Well-settled principles dic-

tate, after all, that courts “will not assume that Congress intended ‘to enact

statutory language that it has earlier discarded in favor of other lan-

guage.’”

And there is no sound reason for concluding that this same prin-

ciple of contrasting word usage should not apply to the congressional

choice of terms incorporated into constitutional amendments.

Indeed, two specialized considerations strongly bolster the case for ap-

plying this principle here. First, Congress did not merely displace the phrase

“shall not be eligible” with the phrase “shall [not] be elected.” Rather, it

embraced the latter phrasing only after proposals that focused on eligibility

had been put forward not once, not twice, but three separate times, at earlier

critical stages of the drafting process.

Second, this change in word choice

took hold in a context where the previously proposed eligibility-focused

terminology did not simply stand on its own; instead, that language directly

tracked the eligibility-focused terminology already set forth in Article II,

Section 1 and in the Twelfth Amendment.

It bears repeating that the textu-

alist argument for excluding two-time Presidents from the vice-presidency

Chickasaw Nation v. United States, 534 U.S. 84, 93 (2001) (quoting Immigration & Natu-

ralization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987) (quoting Nachman Corp. v. Pen-

sion Benefit Guar. Corp., 446 U.S. 359, 392–93 (1980))); accord, e.g., Russello v. United States,

464 U.S. 16, 23–24 (1983) (“Where Congress includes limiting language in an earlier version of a

bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.”).

The transformation from the initial version of the Twenty-Second Amendment to its finalized and

ratified text is particularly telling in this regard. Taking care to cover all bases, that initial proposal

began with the words “[n]o person shall be chosen or serve as President . . . or be eligible to hold

the office of President.” (emphasis added). In contrast, the finalized Amendment stated only that

“[n]o person shall be elected.” U.S.

CONST. amend. XXII. This contrast in phrasing indicates with

clarity that the ultimately adopted Twenty-Second Amendment addressed only (to use the lan-

guage of the original proposal) who “shall be chosen”––that is, elected––as President. According-

ly, it did not establish a rule about the separate subject of who is “eligible to hold the office of the

President.”

See supra note 46 and accompanying text (discussing rules of construction).

See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1053 (7th Cir. 2013) (noting con-

trasting language in “earlier, un-enacted drafts” of the relevant law). Notably, other proposed

versions of the Amendment identified in the legislative discussions also deployed the language of

eligibility. A substitute Amendment offered by Representative Cellar, for example, began with the

phrase “[n]o person shall be eligible.” 93 C

ONG. REC. 863; see, e.g., id. at H849 (statement of

Rep. Jenkins) (advocating text that provided “[n]o person shall be chosen or serve as President of

the United States for any term, or be eligible to hold the office of President during any term” (em-

phasis added)). In addition, Congressman Howard Robison noted that he and others had previous-

ly put forward proposals “making ineligible any person who has served as President for a whole or

part of two separate terms.” Id. at 849 (statement of Rep. Robison) (emphasis added). The contrast

between the final Amendment and all of these formulations—like the contrast between the final

Amendment and the three earlier versions that were formally submitted to the House and the Sen-

ate—reveals the sharp change in textual direction marked by text of the final, and ultimately rati-

fied, Twenty-Second Amendment.

See supra notes 31–32 and accompanying text (quoting eligibility-centered terms of Article

II, Section 1, Clause 5 and the Twelfth Amendment).

1300 Boston College Law Review [Vol. 56:1287

ultimately rests on the Twelfth Amendment’s declaration that “[n]o person

constitutionally ineligible to the office of President shall be eligible to that

of Vice-President.” Thus, precisely because earlier drafts of the Twenty-

Second Amendment used the language of eligibility, they would have (if

properly ratified) rendered twice-elected Presidents “ineligible to the office

of the President” and thus not “eligible” for the vice-presidency in light of

the Twelfth Amendment’s constitutional command. But in the final version

of the Twenty-Second Amendment, Congress abandoned the very language

of eligibility on which operation of the Twelfth Amendment depends with

regard to its treatment of vice-presidential service. The key point is plain to

see: It is strained in the extreme to say that the Twenty-Second Amendment

established a rule of ineligibility for purposes of the Twelfth Amendment

when Congress, in forging the final version of the Twenty-Second Amend-

ment, chose to jettison the very language on which the argument for ineligi-

bility based on the Twelfth Amendment hinges.

In sum, there are many reasons why the final choice of phrasing of the

Twenty-Second Amendment signals that twice-before-elected Presidents

remain “eligible” to serve as Vice-President. But the key reason appears on

the face of the relevant texts themselves: the Twenty-Second Amendment—

in striking contrast to the Twelfth Amendment and Article II, Section 1,

Clause 5—does not use the language of eligibility, but instead uses the

starkly different language of electability.

B. The Confirmatory Legislative History

Proponents of the position that two-term Presidents are ineligible for

the vice-presidency might try to draw a different inference from Congress’s

textual change of direction. Indeed, they might seek to stand the con-

trasting-usage argument on its head by asserting that the sequence of legis-

lative events supports equating the final version of the Twenty-Second

Amendment with its draft-stage progenitors. On this view, the repeated ref-

erences to eligibility in early incarnations of the Amendment demonstrate

that the phrase “[n]o person shall be elected” was meant to carry forward,

rather than to abandon, a principle of ineligibility. At the least—so the ar-

gument goes—this conclusion should win the day because there is no good

Put another way, the argument that a twice-elected President cannot become a Vice-

President hinges on the last sentence of the Twelfth Amendment, which specifies that “no person

constitutionally ineligible to the office of President shall be eligible to that of Vice-President of

the United States.” U.S.

CONST. amend. XII (emphasis added). Yet, the emphasized language is

the very language that the architects of the Twenty-Second Amendment initially planned to use,

but then specifically abandoned.

Compare id. at amend. XXII, § 1, with id. at art. II, § 1, cl. 5, and id. at amend. XII.

2015] Two-Time Presidents and the Vice Presidency 1301

reason to believe that this eleventh-hour change in phrasing resulted from

anything more than an unthinking slip of the scrivener’s pen.

This argument is unavailing. To begin with, as we already have seen, it

flouts the accepted rule of interpretation that views a shift in word usage as

signifying a change in (rather than a retention of) preexisting textual mean-

ing.

Another problem is that the not-electable-really-means-not-eligible

interpretation would reward and encourage particularly sloppy legislative

draftsmanship.

One more problem is that this claim of unchanged intent

rests on precious little more than pure speculation about Congress’s line of

thinking.

The deepest flaw in this approach, however, lies in the errone-

ousness of its underlying premise—namely, that a mere lapse of attentive-

ness best explains the shift in word choice, from terms of eligibility to terms

of electability, in the final stage of crafting the Twenty-Second Amendment.

In fact, this shift in word choice was not an unintended slip-up or anything

close to it. Instead, the switch in wording was a purposeful drafting move

See supra notes 46–47 and accompanying text.

See, e.g., King v. Burwell, 135 S. Ct. 2480, 2506 (2015) (Scalia, J., dissenting) (rejecting

proposition that courts can interpret a text to have a meaning inconsistent with what the words

themselves indicate because doing so, among other things, “encourages congressional lassitude”);

see also Goldman & Rozell, supra note 24 (indicating that if proponents of presidential term limits

wanted to establish a rule of ineligibility, as opposed to a rule of non-electability, they “made a

rookie legal mistake”). Moreover, it would be especially inappropriate to accept a sloppiness-

rewarding result in this context because members of Congress were well aware of the need for

special care in drafting a new provision of the Constitution. As Representative Earl Michener

noted during debate in the House:

[T]he language of a constitutional amendment is most important, more so than in the

case of ordinary legislation. Every comma, every semi-colon, every capital letter,

every word means something in a constitutional amendment, and under these cir-

cumstances we should not lightly adopt language in a constitutional amendment that

has not been thoroughly weighed.

93 C

ONG. REC. 870.

Two facts are of particular salience in this regard. First, throughout the legislative discus-

sions, virtually no attention was given to the effect of the proposed Amendment on the vice-

presidency. Second, to the extent that some treatment of the subject can be squeezed out of the

legislative materials, it provides a basis for concluding that Congress did not mean to inhibit elec-

tion to that office. In particular, Senator Wilbert Lee O’Daniel formally submitted a proposal that

(in contrast to the President-centric versions of the Amendment that consistently occupied legisla-

tors’ attention) specified that “no person who shall have served as President or Vice President

shall be eligible for election to the office of President or the office of Vice President.” 93 C

ONG.

REC. 1794 (statement of Sen. O’Daniel) (emphasis added). Congress, however, never latched onto

this sort of Vice-President-limiting phraseology. See id. at 1963 (noting that Senator O’Daniel’s

proposal was rejected by a vote of one to eighty-two). As to legislative discussions, Senator

O’Daniel indicated that the Twenty-Second Amendment placed a limitation on only the presiden-

cy, as opposed to any other office. See id. (“We are now considering placing a limitation on the

Presidency. Why should we apply a limitation on only one Federal office[?]”). And no one at any

time objected to this description of the Amendment’s effect.

1302 Boston College Law Review [Vol. 56:1287

made in the context of an inter-party showdown that rendered the modifica-

tion rife with significance.

The critical events occurred in the Senate.

On March 5, 1947, mem-

bers of the upper chamber started in on a lengthy discussion of the Senate

Judiciary Committee’s “shall not be eligible” proposal.

The lines of en-

gagement were clearly drawn. Senate Republicans overwhelmingly, if not

unanimously, supported the Committee proposal.

But the two-thirds-vote

requirement for promulgating constitutional amendments forced them to

build a coalition with Democratic colleagues. Doing so proved to be no

easy task. Many Democrats saw this proposal as a slap in the face of their

recently deceased standard-bearer, Franklin Roosevelt.

Also in the air

were claims that the reform would do away with an electoral prerogative

wisely endorsed by the framers themselves.

Picking up on the writings of

Alexander Hamilton, for example, some Democratic Senators argued that

imposing a presidential term limit would tie the hands of voters, in a coun-

See generally Parker v. District of Columbia, 478 F.3d 370, 390 (D.C. Cir. 2007) (noting

that “when interpreting the text of a constitutional amendment it is common for courts to look for

guidance in the proceedings of the Congress that authored the provision”).

93 CONG. REC. 1680.

Indeed, when the final vote in the Senate occurred, all forty-three Republicans present and

voting were joined by sixteen mostly southern and border-state Democratic Senators to achieve

the necessary two-thirds majority. N

EALE, supra note 28, at 15.

See, e.g., 93 CONG. REC. 1947 (statement of Sen. Kilgore) (“Why has this question been

raised again, Mr. President? The people are not crying out for a two-term limitation. Then why has

the issue been raised again? Of course, the reason is that some Members of Congress are anxious

to do everything possible to discredit one of the most progressive Presidents this Nation has ever

known.”); id. at 1866 (statement of Sen. Hatch) (“Nothing could be more evident from the debate

this afternoon than that the Republican Party, the majority party, is still looking backward. It is

still the party of fear. What do they fear? They are afraid, Mr. President, of the voice of a ghost, of

the only man who was ever reelected President 3 times. They are afraid of him, and they are now

endeavoring to legislate against Franklin D. Roosevelt.”); id. at 1776 (statement of Sen. Hill)

(“There are legitimate reasons why one might support this resolution; but surely there are some

who would support it in an effort to repudiate the memory, the work, and the immortal services of

Franklin D. Roosevelt.”); id. at 842 (statement of Rep. Sabath) (“What hurts most, and what I

strongly resent, are statements made by several Republican Members that they ‘must vote for this

anti-Roosevelt resolution.’ . . . It was a God-send . . . to the world that we had Franklin D. Roose-

velt, whom the people freely chose four times to direct our Government and our destinies . . . .”);

see also, e.g., 93 C

ONG. REC. 1865 (statement of Sen. Magnuson).

See supra notes 88–89 and accompanying text (discussing Republican response).

See supra note 92 and accompanying text (discussing Taft-Tydings proposal).

100

Later events in the amendment-framing process confirmed the seriousness of the objec-

tions of Senator Magnuson and other Democrats to the restrictions imposed by the then-draft of

the Twenty-Second Amendment. This is so because after negotiations produced the final version

of the Amendment, Senator Magnuson moved to an even more pro-voter-freedom-driven position,

which would have barred voters only from electing a President “for more than two successive

terms.” 93 C

ONG. REC. 1938. Although this position was rejected, it illustrates the context in

1306 Boston College Law Review [Vol. 56:1287

To be sure, there was no explicit discussion in the legislative proceed-

ings about how the refocusing of the Amendment from presidential eligibility

to presidential electability would affect later runs for the vice-presidency. But

every legislator understood that the baseline norm against which they were

operating—a baseline norm put in place by the framers themselves—was

one of wide-open voter freedom. Moreover, with regard to the future selec-

tion of Vice-Presidents, the final textual revisions of the Twenty-Second

Amendment were highly consequential. Predecessor drafts—precisely be-

cause they spoke of presidential eligibility—had clearly brought the last

sentence of the Twelfth Amendment into play. Unlike these earlier drafts,

however, the final version of the Twenty-Second Amendment did not map

onto the eligibility-focused language of the Twelfth Amendment.

101

Thus, it

did not displace the background norm of free voter choice for Vice-

Presidents as a textual matter—far less displace it with anything approach-

ing the measure of clarity one would expect if Congress were seeking to cut

back on the long-settled and fundamental rule of republican self-

governance.

102

The critical point is this: It was only the Magnuson-inspired final text

of the Twenty-Second Amendment that generated the requisite supermajori-

ty approval in the Senate and the House. No prior proposals generated such

support. And from all appearances, none of them would have.

103

Yet it was

only those prior proposals that purported to create an eligibility rule.

104

Thoughtful scholars have rightly noted that the final phrasing of the

Twenty-Second Amendment was the result of a cross-party compromise.

105

But they have failed to communicate the full importance of this compro-

which final negotiations occurred, which included continuing pressure to loosen the Amendment’s

restrictions on free voter choice.

101

Compare U.S. CONST. amend. XXII, § 1, with id. at amend. XII.

102

See infra notes 131–137 and accompanying text (discussing the longstanding rule of self-

governance).

103

See supra notes 74–89 and accompanying text (discussing debate surrounding prior pro-

posals).

104

Put another way, it is simply impossible to know what would have happened if Senator

Taft had insisted on retaining the Senate Judiciary Committee’s “not eligible” phrasing. And this

is especially true because opposition to the then-pending draft appeared to be mounting at the

time, pushed forward in particular by concerns that the committee draft too greatly inhibited the

rights of voters. If Senator Taft had eschewed the phrasing offered by Senator Magnuson, would

fence-sitting Democrats have seen the change back as a slap in the face? Would detailed discus-

sions have ensued about the difference between the eligibility and the electability of Presidents?

Would follow-up questions about vice-presidential succession rights and durational limits on pres-

idential service have attracted attention and concern? Would resulting discord have triggered a

new wave of Democrat intransigence? And might that discord have resulted in scotching the

amendment project altogether? We cannot know the answers to these questions for one critical

reason: Senator Taft and his fellow Republicans chose to go along with Senator Magnuson’s oper-

ative “[n]o person shall be elected” language.

105

Peabody & Gant, supra note 7, at 598–99.

2015] Two-Time Presidents and the Vice Presidency 1307

mise because they have not highlighted its most noteworthy features. In

effect, Democrats were given the last word on whether the Amendment

should include the term “eligible” or the term “elected.” In addition, they

were given this choice in a setting where the difference mattered precisely

because the latter phrasing was tied to a narrowing of the Amendment’s ef-

fect and thus to expanding the range of voter autonomy in keeping with the

wishes of a large number of federal lawmakers.

106

In these circumstances, to

dismiss the change in phrasing as inconsequential is to blink reality. And

that is all the more the case because the change concerned the provision’s

basic operative effect,

107

was caught up with preexisting terms of the Con-

stitution itself,

108

was put forward at the decisive moment in the legislative

process,

109

was part of carefully planned Republican effort to mollify doubt-

ing Democrats,

110

and was endorsed in a setting where those Republicans

had far “bigger fish to fry.”

111

Looking at the events of 1947 from a broader angle helps to bring the

key point into focus. It was the presidency of Franklin Roosevelt that

framed the thinking of every political representative who was called on to

consider the Twenty-Second Amendment.

112

Moreover, the case of FDR

involved the seeking of reelection as President by an already long-serving

President. Building on this idea, Senator Taft and others expressed worries

about reelecting for a third stint of presidential service someone who (due to

succession) had already served more, and perhaps significantly more, than

six years as President.

113

Neither Senator Taft nor any other House or Sen-

ate member, however, expressed any concern about electing a former Presi-

dent as Vice-President, and the reason why is apparent: This possibility was

far removed from the sort of overreaching that reformers perceived in the

106

See supra notes 79–86 and accompanying text (noting discussions of voter autonomy).

107

This is so because the inhibition-imposing language of the ultimately adopted Amendment

was “[n]o person shall be elected.” It was, in other words, this phrase that specifically focused on

and defined the operative legal impact of being twice before elected President—in contrast to the

prior (and rejected) inhibition-imposing language that “[n]o person shall be eligible.”

108

See supra notes 46–54 and accompanying text (discussing rules of constitutional construc-

tion).

109

See supra notes 83–100 and accompanying text (discussing the Taft-Tydings proposal).

110

See supra notes 88–92 and accompanying text (discussing Taft’s strategy).

111

See infra notes 112–114 and accompanying text (discussing concerns about an individual

holding the presidency for more than two terms).

112

The best evidence of this point is that, time after time, legislators referenced the departure

by President Roosevelt from the longstanding two-term tradition initiated by President George

Washington. See 93 C

ONG. REC. 1956 (noting that Roosevelt’s decision to break the two-term

precedent served as the impetus for constitutional reform).

113

See infra notes 115–116, 122 and accompanying text (discussing congressional concern

about an individual holding the presidency for too long).

1308 Boston College Law Review [Vol. 56:1287

actions of Franklin Roosevelt.

114

Put simply, when the Magnuson revision

cropped up, Senator Taft and his Republican colleagues kept their eyes on

the prize. They recognized that the phrasing of either the Senate Judiciary

Committee draft or the Magnuson proposal would block self-perpetuating

reelections by a single person to the presidency itself. That was the crux of

the reformers’ agenda. That was what they sought. That is what they got.

But they got nothing more. They got nothing more because the language

they accepted from the Magnuson revision took them only that far.

C. The Argument from Constitutional Purpose and Spirit

Critics of this text-and-history-driven analysis may claim that it misses

the forest for the trees. It is wrong, they might say, to give attention to the

details of how the text of the Twenty-Second Amendment took shape in the

churning vortex of legislative politics. More important in their view are the

broad, thematic objectives of the Amendment. These analysts might assert

that the Twenty-Second Amendment was designed to fend off any presiden-

tial tenure that is “too long”

115

or of “undue length.”

116

In particular, there

are passages in the legislative record indicative of a design to keep future

114

See, e.g., 93 CONG. REC. 1956 (statement of Sen. Lucas) (“No matter how any Member of

the Senate may vote . . . truthful men know that the breaking of the two-term precedent by Franklin

D. Roosevelt in 1940 and the further shattering of the precedent by his reelection in 1944 are the

basic reasons for seeking this constitutional amendment.”); id. at 869 (statement of Rep. Smith) (“We

ought to face the facts behind the resolution. As Republicans . . . we do not want to impose upon our

country again one-man government such as we have had for the past 14 years, be he a Republican or

a Democrat, be it Roosevelt or somebody else.”); id. at 848–49 (statement of Rep. Jenkins) (“The

two-term rule for the position of President is an American tradition which was established by Wash-

ington, ratified by Jefferson in forceful and unambiguous language and likewise ratified expressly or

impliedly by every other President until the day of Franklin D. Roosevelt. The tenure of Franklin D.

Roosevelt proved that Washington and Jefferson were wise.”); see also Peabody & Gant, supra note

7, at 570 (noting that “much of the proximate impetus for adopting the Twenty-Second Amendment

seems to have derived from partisan opposition to the policies and legacies associated with Franklin

Delano Roosevelt and his unprecedented four terms of presidential service”).

115

93 CONG. REC. 1865 (statement of Sen. Taft); accord id. at 1945 (statement of Sen. Rever-

comb) (“The real heart of the amendment is to prevent any individual from holding too long the

office of Chief Executive.”); see also id. at 1680 (statement of Sen. Wiley) (“Too-long occupancy

of the Presidential office and too-long continuance of the same administration always make for

danger of dictatorship.”).

116

93 CONG. REC. 1946 (statement of Sen. Revercomb); see also id. at 1939 (“It seems to me

that the principal purpose is to preserve government and protect it against extended tenure of of-

fice.”); id. at 865

(statement of Rep. Keating) (asserting that “some restraint upon the tenure of the

President is desirable”). More relevant than isolated comments by individual legislators might be

the official Senate Report, which spoke of establishing “a reasonable restriction on the possibility

of an executive dynasty.” S.

REP. NO. 80-34, at 2 (1947). But what constitutes a “reasonable re-

striction” and an “executive dynasty” are inherently open questions. And the argument seems

particularly strong that an opportunity to serve as Vice President—as opposed to President—

presents little risk of creating a “dynasty” in the executive branch.

2015] Two-Time Presidents and the Vice Presidency 1309

Presidents from serving more than a total of ten years.

117

Permitting an al-

ready-eight-year President to become Vice-President, so the argument goes,

would clash with these objectives because it could produce a period of total

presidential service in excess of what the Amendment’s framers had in

mind—for example, if an elected Vice-President was called on to assume a

third term as President either on or shortly after inauguration day.

This argument merits a close look because it builds on the uncontro-

versial notion that interpreters should consider a text’s underlying purpose

in resolving any ambiguities that it presents.

118

Moreover, this line of argu-

ment has found favor with well-credentialed observers.

119

Indeed, its most

prominent proponent may be former two-term President Bill Clinton him-

self, who expressed the view in early 2014 that a run by him for the vice-

presidency “would undermine the spirit of the Constitution.”

120

What is one

to make of President Clinton’s purposive analysis? Would it in fact offend

the “spirit of the Constitution” in general—and the underlying aim of the

Twenty-Second Amendment in particular—to permit a vice-presidential run

by a twice-before-elected President? The far better answer is no.

117

93 CONG. REC. 2389–90 (statement of Rep. Michener) (noting “[i]t would be conceivable

that a President might serve 10 years,” and adding that “[t]he important thing is a definite limita-

tion of terms”); id. at 1956 (statement of Sen. Taft) (asserting that “if he [a successor President]

has held office less than 2 years, he may be reelected twice and may serve a total of 10 years mi-

nus 1 day”); id. at 1945 (statement of Sen. Revercomb) (noting that the Amendment provides “a

minimum limitation of 6 years and a maximum of 10”); id. at 1940 (statement of Sen. Taft)

(“They will know that if the President lives for 2 years and then dies, they may possibly be Presi-

dent for 10 years if they are reelected twice.”); id. at 1938 (statement of Sen. Wiley) (“The sug-

gested amendment . . . proposes that if the person occupying the office had not held it for more

than 2 years of the term of his predecessor he would be eligible to two elective terms and thus in

effect could remain in the office for practically 10 years.”).

118

See Richard H. Fallon, Jr., Three Symmetries Between Textualist and Purposivist Theories

of Statutory Interpretation—and the Irreducible Roles of Values and Judgments Within Both, 99

Cornell L. Rev. 685, 718 (2014). See generally Victoria F. Nourse, Elementary Statutory Interpre-

tation: Rethinking Legislative Intent and History, 55 B.C. L. Rev. 1613 (2014) (discussing textual-

ist and purposivist theories of statutory interpretation).

119

See, e.g., KALT, supra note 20, at 144 (noting argument that “[t]he point of the Twenty–

Second Amendment is clearly to limit presidential service, and it should be interpreted that way”

lest it “allow a president who is barred from a straightforward reelection to become president

through ponderous constitutional convolutions”); Albert, supra note 30, at 857–59 (arguing

against adherence to “myopic” and “narrow clause-bound textualist analysis” because it is more

“constitutionally faithful” to embrace a “proper, holistic reading” of the Constitution under which

“a two-term President may not again become President by serving as Vice President” and “fears of

an imperial Vice Presidency” are negated).

120

In particular, in an interview with talk show host Jimmy Kimmel in April of 2014, when

asked whether he would run for Vice-President, President Clinton replied, “I don’t believe I could

do that. It would undermine the spirit of the Constitution.” Emily Heil, Bill Clinton on Jimmy

Kimmel: ‘Most Days, I Don’t Miss’ White House, W

ASH. POST (Apr. 3, 2014), http://www.

washingtonpost.com/blogs/reliable-source/wp/2014/04/03/bill-clinton-on-jimmy-kimmel-most-

days-i-dont-miss-white-house/ [http://perma.cc/3AZT-Y3Q8].

1310 Boston College Law Review [Vol. 56:1287

Consider, for example, the argument of Professor Bruce Ackerman,

who agrees with Professors Amar and Volokh that a twice-before-elected

President cannot run for Vice-President. In defending this position, Profes-

sor Ackerman has written: “[T]he principle announced by the Twenty-

Second Amendment, limiting the president to two elected terms, represents

a considered judgment by the American people, after Franklin Roosevelt’s

lengthy stay in the White House, which deserves continuing respect.”

121

This purpose-based analysis, however, is laced with difficulties. Concern

about “Franklin Roosevelt’s lengthy stay in the White House,” for example,

does not carry over easily to a two-term President’s run for the vice-

presidency because the case of Franklin Roosevelt involved neither election

to nor service in the vice-presidency, as opposed to the presidency itself.

122

Professor Ackerman suggests that electing a twice-before-elected President

as Vice-President would subvert the Twenty-Second Amendment’s goal of

“limiting the president to two elected terms.”

123

A future run for the vice-

presidency, however, would not give a twice-before-elected President more

than “two elected terms” to the presidency itself.

124

And even on its face,

the Twenty-Second Amendment does not “limit[] the President to two elect-

ed terms”; rather, it envisions that a President can serve for two elected

terms following one or more part-terms of service, so long as each of those

part-terms does not last “more than two years.”

125

121

BRUCE ACKERMAN, BEFORE THE NEXT ATTACK 204 n.34 (2006).

122

See supra notes 90–95 and accompanying text (discussing the Taft-Tydings proposal). To

be sure, Senator Taft stated that: “I think it is a great mistake to say that a man may serve for 11

years. I think that is too long.” 93 C

ONG. REC. 1865. But, in context, that assertion simply did not

deal with whether a two-term President could run for Vice-President, especially in the absence of

any effort to perpetuate one’s self in the presidency. In any event, even if Senator Taft would have

preferred to install an under-any-circumstances ten-year limit on total presidential service, he

simply did not write that limit into the Twenty-Second Amendment. And his choice in this regard

was entirely sensible in light of his broader goal of getting his compromise redraft approved in the

face of rising Democratic support for the Magnuson substitute amendment. See supra notes 75–90

and accompanying text (discussing debate in the Senate following the initial proposal).

123

ACKERMAN, supra note 121, at 204 n.34.

124

See infra notes 151–170 and accompanying text (Part II, section B, explaining in detail

why election as Vice-President is not fairly characterized as election as President).

125

See U.S. CONST. amend. XXII. This is the case, as we have seen, because the Amend-

ment’s limit on electability, based on past service as a successor President, comes into play only if

the successor President has so served “for more than two years of a term.” Id. Indeed, the “two

years of a term” language blows away any purpose-based argument based on loose discussions in

the legislative debates about a supposed limit of ten years on presidential service. This is so be-

cause this language on its face created the possibility that someone could occupy the presidency

for more than ten years—that is, when a person is elected to and serves as President for two full

terms after previously succeeding to the presidency more than once (say, for one and a half years

on two separate occasions). To be sure, such a result is unlikely. But so is a scenario under which

a person would serve two full terms as President; would later be elected as Vice President; would

still be in that position when a vacancy in the presidency occurs; would then be able to succeed to

the presidency in a situation where the vacancy in that office arose less than halfway through the

2015] Two-Time Presidents and the Vice Presidency 1311

The broader point is that Professor Ackerman’s purpose-based argu-

ment hinges, as is often true in law, on the level of generality at which one

characterizes the purpose of the relevant legal text. To be sure, some Sena-

tors expressed the view that Presidents should not serve for “too long.”

126

But what does “too long” mean? Does it mean eight years? Does it mean

ten years? And if it is ten years, why should it bar a vice-presidential run by

someone who so far has served only eight years as President? Should the

purpose of preventing presidential service that is “too long” reach so far as

to impose a prophylactic ban on the election of a Vice-President who prob-

ably will not succeed to the presidency at all and only rarely could succeed

to that office for more than two years? And why in particular should anyone

answer this question “yes” when the focal point of concern of the Amend-

ment’s drafters was an FDR-like third-term run for the presidency itself?

127

None of these questions answers itself.

No less important, Professor Ackerman’s analysis does not take ade-

quate account of the full purpose of the framers of the Twenty-Second

Amendment. That purpose, as the legislative history makes clear, was to

strike a balance. On one side of the balance rested concerns about creating

quasi-monarchy-like conditions through the repeated seeking and securing of

multiple presidential terms.

128

On the other side lay worries about stripping

away the longstanding prerogatives of the American electorate to too great an

extent.

129

To focus on only the first side of this balance is to misapprehend the

four-year term; and thereafter would serve the full remainder of the term in uninterrupted fashion.

Yet that is the scenario that is said to necessitate adoption, on purpose-based grounds, of the total-

ineligibility interpretation.

126

See supra notes 115, 122 and accompanying text (quoting Congressmen who expressed

concern about Presidents serving for too long).

127

See supra notes 112–114 and accompanying text (discussing congressional concerns about

another Roosevelt-like situation).

128

See, e.g., 93 CONG. REC. 1945 (statement of Sen. Revercomb) (urging that extending

“power to any one man would be a definite step in the direction of autocracy, regardless of the

name given the office, whether it be president, king, dictator, emperor, or whatever title the office

may carry”); id. at 1780 (statement of Sen. O’Connor) (worrying that “some self-seeking leader

may gain the Presidency and make use of the powers and privileges of that office to entrench

himself therein”); id. at 1775 (statement of Sen. Overton) (expressing concern about repeated

reelection of the President because of the “tremendous power which he has” and about the result-

ing risk that “we might drift into a dynasty”); id. at 860 (statement of Rep. Dolliver) (agreeing that

the Amendment would counter “this tendency toward dictatorial government”); id. at 856 (state-

ment of Rep. McCowen) (viewing the Amendment as “a great step toward preventing a dictator-

ship or some totalitarian form of government from arising”); id. at 852 (statement of Rep. Jen-

nings) (favoring the Amendment because “[o]nly by its adoption can the people be assured that we

shall never have a dictator in this land”); id. at 841 (statement of Rep. Allen) (attributing to

George Washington a warning to citizens that they “might again be subject to the tyranny of mon-

archy if they permitted any individual to become too firmly entrenched as Chief Executive”).

129

See supra notes 78–86 and accompanying text (discussing concerns about voter autono-

my).

1312 Boston College Law Review [Vol. 56:1287

underlying forces that brought the Twenty-Second Amendment into being.

Indeed, this is especially true because (as we have seen) the concerns of pro-

voter-choice advocates were accommodated, rather than thwarted, at the key

last stage of the drafting process.

130

An enriched understanding of the aim of the Twenty-Second Amend-

ment invites the conclusion that its spirit—particularly when viewed in light

of the spirit of the Constitution as a whole—supports, rather than under-

mines, the case for permitting two-time Presidents to seek the vice-

presidency. A centerpiece of the republican theory that drove the entire con-

stitutional project was identified by Alexander Hamilton at the New York

Ratifying Convention: “[T]he true principle of a republic is, that the people

should choose whom they please to govern them. . . . This great source of

free government, popular election, should be perfectly pure and the most

unbounded liberty allowed.”

131

The Supreme Court has noted that James

Madison shared the view that self-rule “is undermined as much by limiting

whom the people can select as by limiting the franchise itself.”

132

It is true

that the Twenty-Second Amendment moved away from this basic structural

choice to some degree. But it did so only by establishing a new limit with

regard to being “elected” to “the office of President,”

133

while not otherwise

purporting to negate the overarching background postulate of uninhibited

voter freedom.

134

To the extent that the Twenty-Second Amendment dis-

130

See supra notes 83–100 and accompanying text (explaining how the Taft-Tydings pro-

posal assuaged concerns about voter autonomy).

131

2 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 257 (1876). At the same state ratifying convention, Robert Livingston agreed that

“[t]he people are the best judges [of] who ought to represent them”; indeed, he went so far as to

declare that “to tell them whom they shall not elect, is to abridge their natural rights.” Id. at 292–

93.

132

Powell v. McCormack, 395 U.S. 486, 547 (1969) (characterizing Madison’s statements at

the Constitutional Convention). This overarching principle of republican-based electoral autono-

my was a deep-seated one in part because it grew out of the “bitter struggle for the right to freely

choose representatives which had recently concluded in England” at the time the Constitution was

framed. Id. at 542.

133

U.S. CONST. amend. XXII.

134

The Supreme Court has vindicated this basic norm in many cases, including by declaring

that any “ambiguity” in the constitutional text, with regard to the analogous subject of congres-

sional elections, should be resolved in keeping with “this fundamental principle of our representa-

tive democracy.” Powell, 395 U.S. at 543. It is true that our founding charter established important

differences between the methods of electing House and Senate members and the method of elect-

ing executive branch officials. See U.S. C

ONST. art. II, § 1, cl. 2 (setting forth the Electoral Col-

lege system); id. at amend. XXII (refining that system). But cf. Bush v. Gore, 531 U.S. 98, 104

(2000) (noting that, with regard to actual operation of the Electoral College, “[h]istory has now

favored the voter, and in each of the several States the citizens themselves vote for Presidential

electors”). The Court has never suggested, however, that different principles of republicanism

govern the core rights of voters in these two contexts. See Bush, 531 U.S. at 103–05 (citing prece-

dents with regard to legislator elections in the context of vindicating the rights of voters to secure

equal treatment in voting for President and Vice-President). Indeed, the Court has found the need

2015] Two-Time Presidents and the Vice Presidency 1313

placed this norm, it is controlling. But the “precious”

135

and “fundamen-

tal”

136

principle of free electoral choice—particularly with regard to the

second highest office in the land—is not rightly brushed aside by way of a

process of shadowy extrapolation, far less plain-text-defeating construction

based on the supposed “spirit” of the Constitution.

137

This last point about the centrality of the constitutional text is the most

salient of all. The preceding discussion shows that no strong argument

based on the purpose of the Twenty-Second Amendment, far less the pur-

poses of the Constitution as a whole, supports rendering a twice-before-

elected President constitutionally ineligible for the vice-presidency. Indeed,

as we have seen, the spirit of the Constitution points the other way.

138

But

to protect voter rights so important in the context of elections for President and Vice-President that

it has indicated that Congress has an implied power to safeguard the “purity of presidential and

vice presidential elections,” Burroughs v. United States, 290 U.S. 534, 544–45 (1934), and the

“the free and uncorrupted choice of those who have the right to take part in that choice,” Ex parte

Yarbrough, 110 U.S. 651, 662 (1884). See also Dan T. Coenen & Edward J. Larson, Congression-

al Power Over Presidential Elections: Lessons from the Past and Reforms for the Future, 43 W

& MARY L. REV. 851, 887–90 (2002) (developing these points in detail). All of this powerfully

indicates that there is no basis for identifying any “Vice-President exception” to the general prin-

ciples of popular self-rule that lie at the heart of our constitutional system.

135

Williams v. Rhodes, 393 U.S. 23, 30 (1968).

136

Powell, 395 U.S. at 540–41.

137

See supra note 73 and accompanying text (noting indications in the legislative history that

no limit on pursuit of the vice-presidency was intended).

138

There is a second purpose-based argument for excluding two-prior-term Presidents from

the vice-presidency. According to this argument, if a former two-term President can run for Vice-

President, the danger exists that a conspiracy between a sham presidential candidate and former-

President vice-presidential candidate could take hold. Under this feared scenario, the election of

such a ticket would trigger the prompt post-election resignation of the sham President and the

immediate replacement of that person with the otherwise unelectable former-President Vice-

President. And because such a power grab—whether pulled off with or without the previous

knowledge of the national electorate—would violate the no-more-FDRs core aim of the Twenty-

Second Amendment, this argument posits that it is right to read the Twelfth and Twenty-Second

Amendments as barring the election of former two-term Presidents as Vice-President. See Pea-

body & Gant, supra note 7, at 622–24 (identifying this argument). One major problem with this

contention is that it would throw out the baby with the bathwater by installing a textually unsup-

ported, across-the-board prohibition to deal with an exceptionally extraordinary case. Assume, for

example, a world in which Hillary Clinton is nominated for the presidency and chooses Bill Clin-

ton as her running mate. Obviously, she would not make this choice because she was pursuing the

presidency as a sham candidate. Nor has any presidential candidate in American history contem-

plated anything of the sort. Another difficulty with the argument is that it ignores the good judg-

ment of the American people. It is farfetched to think that the nation’s voters would fail to detect a

self-serving effort to pull a Twenty-Second-Amendment trick on them or to embrace with enthusi-

asm a presidential ticket openly designed to circumvent the Constitution’s strictures. (Moreover, if

voters somehow chose to embrace such a ticket, it would almost surely be only because the most

compelling circumstances confronted them—thus placing the value of voter autonomy at its very

highest ebb.) For this reason, this argument runs up against the common-sense proposition that

constitutional interpreters can and should consider the extent to which ordinary political processes

will operate to fend off the worst-case scenarios that prophets of legal doom might concoct. See,

e.g., Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 447 (1978) (declining to apply dormant

1314 Boston College Law Review [Vol. 56:1287

even if a plausible purpose-based argument for the total-ineligibility inter-

pretation did exist, it could not trump the Constitution’s governing text.

That text indicates that who cannot “be elected to the office of President”

139

and who is “ineligible to the office of President”

140

are two different things.

Thus, the Twelfth Amendment’s vice-presidential ineligibility rule—which

hinges specifically on presidential ineligibility, rather than presidential non-

electability—does not disqualify twice-before-elected Presidents from seek-

ing, securing, or holding the vice-presidential office.

D. The Beside-the-Point Transition Clause

Advocates of the view that prior two-time Presidents are ineligible for

the vice-presidency have one last argument. They might say that the transi-

tion clause of the Twenty-Second Amendment—which appears in the sec-

ond sentence of the Amendment’s Section 1—lends support to their posi-

tion. The transition clause set forth two separate rules. The first, which was

injected into the Amendment as part of the late-stage Taft-Tydings compro-

mise, in effect gave then-sitting President Truman a lifetime pass from the

Amendment’s constraining effects.

141

The second part of the transition

clause goes on to state that “this Article . . . shall not prevent any person

who may be holding the office of President, or acting as President, during

the term within which this article becomes operative from holding the office

of President or acting as President during the remainder of such term.”

142

Professor Amar has argued that the phrase “acting as President” in this

clause supports the view that twice-elected Presidents cannot become Vice-

President. Noting that Vice-Presidents are the persons who ordinarily would

serve as acting Presidents,

143

he suggests that the Amendment’s framers

would have had no reason to give a Vice-President-turned-President any

special protection during the term of ratification (that is, “the term within

which this article becomes operative”) unless such a person had been ren-

dered ineligible to serve as Vice-President (and thus foreclosed from suc-

Commerce Clause where a “[s]tate’s own political processes will act as a check on local regula-

tions that unduly burden interstate commerce”). In any event, this end-run-avoiding, purpose-

based argument rests on speculative premises, and it cannot be squared with the text of the Consti-

tution, the value of free voter choice, and the evidenced intention of the Senate to protect that

value at the final drafting stage.

139

U.S. CONST. amend. XXII (emphasis added).

140

Id. at amend. XII (emphasis added).

141

93 CONG. REC. 1938 (statement of Sen. Taft) (discussing the transition clause and noting

that “it would except President Truman, in order that there may be no in personam legislation

under the circumstances”).

142

U.S. CONST. amend. XXII, § 1.

143

AMAR, supra note 1, at 436 n.8.

2015] Two-Time Presidents and the Vice Presidency 1315

ceeding to the presidency) by the new Amendment’s interaction with the

Twelfth Amendment. Professor Amar puts the point this way:

The Twenty-Second’s retroactivity rules would seem to confirm

this reading of the Twelfth. These rules applied not only to a past

incumbent who might in the future be ‘elected’ president but also to

one who might thenceforth ‘act[] as President’—paradigmatically,

by being elected Vice-President and then moving back into the

Oval Office via death, disability, or resignation.

144

The underlying thought is that there would be no reason to give a Vice-

President-turned-President, who had twice before been elected President,

special dispensation to serve “the remainder” of the ratification term unless

the operative terms of the Twelfth and Twenty-Second Amendments other-

wise foreclosed such a person from becoming Vice-President and thereby

assuming the rights and duties of that office, as a general rule.

145

Part IV returns to this argument and demonstrates its failings. In par-

ticular, the analysis offered there shows that the most plausible interpreta-

tion of the transition clause (1) gives its reference to persons “acting as

President” significant independent meaning and (2) achieves this result

while focusing its effects solely on the transition period itself, thus preclud-

ing the extrapolation from it of any post-transition-period implications, in-

cluding as to future ineligibility for the vice-presidency.

146

But the deeper problem with the transition-clause-based extrapolation

suggested by Professor Amar is that it clashes with the operative text, the

history, and the purposes of the governing Amendments. Under his posited

reading, after all, the Twenty-Second Amendment would operate to create a

rule of presidential (and thus vice-presidential) ineligibility even though the

text of that Amendment—in striking contrast to the preexisting and readily

observable phrasings of the Twelfth Amendment and Article II, Section 1,

Clause 5—embodied a purposeful congressional choice not to use the words

144

Id.

145

See id.

146

See infra notes 211–224 and accompanying text (Part IV) (discussing alternative interpre-

tations of the transition clause that focus solely on its effect during the transition period). In addi-

tion, Parts II and III of this Article present modes of reading the Twelfth and Twenty-Second

Amendments together in ways that do not go so far as to render former two-term Presidents whol-

ly ineligible for the vice-presidency even while according significant effects to the Twenty-Second

Amendment’s transition clause. Even putting to one side the discussion in Part IV, there is much

to be said for the view that these alternative reconciliations of the various constitutional clauses

(and particularly the two-years-only-succession-right interpretation discussed in Part III, section

B) embody better syntheses than the total-ineligibility interpretation considered and rejected in

Part I.

1316 Boston College Law Review [Vol. 56:1287

“eligible” or “ineligible.”

147

Moreover, Professor Amar’s extrapolation would

seem to dictate the bizarre, unfair, and antidemocratic result of forcibly de-

frocking an otherwise properly elected Vice-President during the term of

ratification if that person (1) had previously been elected President twice

and (2) had not yet succeeded to the presidency during the transition term

before ratification occurred.

148

In any event, the simplest logic must give

primacy to the Twenty-Second Amendment’s operative provision, rather

than a short-fused, housekeeping transition clause even if some conflict be-

tween the two of them exists. And that is especially true when, as here, the

transition-clause-based negative-implication-interpretation said to support

the rule of total ineligibility was never touched on, even obliquely, at any

time in the legislative proceedings.

149

In short, the transition clause fails to

push forward the text-defeating proposition that the Twelfth and Twenty-

Second Amendments operate together to render twice-before-elected Presi-

dents wholly ineligible to serve as Vice-President.

150

147

See supra notes 37–114 and accompanying text (discussing the constitutional text and

legislative history).

148

This result would logically follow because the total-ineligibility interpretation posits that

no twice-before elected President can serve as Vice-President, and the transition clause on its face

supplies no grandfathering protection to Vice-Presidents; rather, it provides “remainder of such

term” protection only to “any person who may be holding the office of President, or acting as

President” during the ratification term. U.S.

CONST. amend. XXII, § 1 (emphasis added). Could it

really be that the framers of the Twenty-Second Amendment meant to provide that an already-

sitting Vice-President (unlike a Vice-President-turned-President) would have had to abandon that

office during the ratification term? The more plausible view is that the drafters targeted the grand-

fathering protections supplied by the transition clause only at actual and acting Presidents because

they understood the Twelfth and Twenty-Second Amendments not to say anything about Vice-

Presidents qua Vice-Presidents at all—and, in particular, not to render someone ineligible for the

vice-presidency based on that person’s prior service as President.

149

See generally infra notes 211–224 and accompanying text (Part IV) (discussing two alter-

native interpretations of the transition clause that do not requiring drawing negative implications).

150

One might also argue that the negative-implication approach suggested by Professor Amar

is untenable because it would ascribe to the relevant portion of the transition clause no purpose

except to address an entirely nonexistent problem—namely, the potential election of Herbert Hoo-

ver as Vice-President for the 1953–57 term following his earlier return to the presidency for at

least two years during the 1949–53 term. This is the case because Section 2 of the Amendment

specified a ratification period of seven years; because no persons other than Harry Truman and

Herbert Hoover could possibly have ended up securing a third term (either as President or Vice-

President) during that seven-year period; and because Harry Truman was dealt with in the first

part of the transition clause, thus rendering the second part inapplicable to him. In 1947, however,

it would have been difficult to imagine a later application of the Twenty-Second Amendment to

the President who had presided over the stock market collapse of 1929, the onset of the Great

Depression, and the erection of “Hooverville” shantytowns across the United States. (Additional-

ly, if President Hoover had been elected Vice-President in 1952, he would have ended his service

(as President or Vice-President) in 1957 at the age of eight-four—more than fifteen years beyond

the last-term age of any prior President and eight years beyond the last-term age of any prior Vice-

President.) As later discussion will show, this nuanced Herbert-Hoover-only critique of Professor

Amar’s position does not provide a trump card argument against his claim that a prior-two-term

President is foreclosed from running for Vice-President. See infra note 221 (developing this point

2015] Two-Time Presidents and the Vice Presidency 1317

II. THE ELECTORAL-INELIGIBILITY APPROACH

The foregoing discussion shows that the Twenty-Second Amendment

does not render twice-before-elected Presidents wholly ineligible to become

Vice-President under the Twelfth Amendment. Some proponents of the two-

time-Presidents-cannot-run position, however, might be left unimpressed.

The problem, they will say, is that Part I of this Article asks and answers the

wrong question. On this view, the right rule is one under which a twice-

before-elected President is not foreclosed altogether from serving as Vice-

President. Such a person could, in particular, be appointed to that office

pursuant to the Twenty-Fifth Amendment.

151

But the Constitution would

still limit the twice-elected President’s options—in particular, by prohibiting

that person’s election to the vice-presidency.

In fact, there are two separate analytical pathways that could lead to this

conclusion. The first involves (as does the broader total-ineligibility interpre-

tation) reading the Twelfth and Twenty-Second Amendments in pari materia.

The second, in contrast, looks to the Twenty-Second Amendment standing

alone. Neither of these routes, however, takes the proponent of the no-

electoral-eligibility interpretation to that analytical traveler’s desired destina-

tion.

A. The Argument from the Twelfth and Twenty-Second Amendments

The first defense of the no-electoral-eligibility position rests on the joint

operation of the Twelfth and Twenty-Second Amendments. The argument

goes as follows: Under the express terms of the Twenty-Second Amendment,

a twice-before-elected President cannot again be “elected” to the presiden-

cy.

152

Thus it is proper to say that such a person is “ineligible” to become

President by way of election. And so, because the Twelfth Amendment applies

the same eligibility rules to Presidents and Vice-Presidents,

153

it should fol-

low that twice-before-elected Presidents are likewise not eligible to become

Vice-President by way of election.

in detail). Even so, this critique is yet another of many strikes against the total-ineligibility inter-

pretation—thus pushing forward the need to look for an alternative interpretation that does not

suffer from similar text-based and other difficulties. The best interpretations of the transition

clause are set forth and defended in Part IV of this Article.

151

Section 2 of that Amendment provides that: “Whenever there is a vacancy in the office of

the Vice President, the President shall nominate a Vice President who shall take office upon con-

firmation by a majority vote of both Houses of Congress.”

U.S. CONST. amend. XXV, § 2.

152

See supra note 8 and accompanying text (setting forth the Twenty-Second Amendment’s

“[n]o person shall be elected” language).

153

See supra note 2 and accompanying text (setting forth the language of the Twelfth

Amendment’s final sentence).

1318 Boston College Law Review [Vol. 56:1287

In contrast to the proposed rule of total ineligibility for the vice-

presidency, this alternative rule does not impede in any way the appoint-

ment of a twice-before-elected President to the vice-presidency.

154

Indeed,

that is the critical point. According to the no-electoral-eligibility interpreta-

tion, twice-before-elected Presidents are ineligible for the vice-presidency

only in the sense that they cannot be elected to the vice-presidency, even

though they remain eligible to be appointed to that office.

This line of reasoning at least gives a grain of significance to the word

“elected” as it is used in the Twenty-Second Amendment. Even so, the ar-

gument fails. To begin with, the electoral-ineligibility interpretation suffers

from many of the same difficulties that mark the total-ineligibility interpre-

tation. For example, there is no hint of such a plan in the legislative materi-

als,

155

and this approach offends the background norm of free electoral

choice.

156

Indeed, this interpretation clashes with that norm in the most pal-

pable way—that is, by favoring with access to the highest office in the land

those who are only appointed to the vice-presidency over those who would

otherwise take on that office through a nationwide decision made at the

polls. In addition, the purpose-based prevention-of-unduly-long-service ar-

gument for the total-ineligibility position

157

—which, as previously dis-

cussed, provides at best only a vanishing measure of support for that inter-

pretive approach

158

—applies with equal force to the alternative electoral-

ineligibility synthesis.

The main difficulty with this argument, however, is more fundamental.

Once again, it stretches the text of the Twelfth Amendment beyond the

breaking point. As we have seen, that Amendment states that “no person

constitutionally ineligible to the office of President shall be eligible to that

of Vice-President.”

159

There is simply no hint here of a shifting, contextual,

two-track, mode-of-selection-based conception of eligibility. The text indi-

cates that would-be office-seekers are either “ineligible to the office of the

President” or they are not; there is no indication that persons are half-

eligible for the office—that is, eligible by way of appointment, but not by

way of election. What is more, this either-you-are-eligible-or-you-are-not

154

In particular, this is a straightforward negative implication of the Twenty-Second Amend-

ment precisely because its operative clause states only that twice-before-elected Presidents (or

their legal equivalent) shall not be “elected.” See U.S.

CONST. amend. XXII, § 1.

155

See supra note 73 and accompanying text (discussing speculation about congressional

intent).

156

See supra notes 129–136 and accompanying text (discussing legislative concern about

voter freedom). In addition, any Herbert-Hoover-only attack on the total-ineligibility interpreta-

tion, see supra note 150, would apply in equal measure to the electoral-ineligibility interpretation.

157

See supra note 126 and accompanying text.

158

See supra notes 127–130 and accompanying text.

159

U.S. CONST. amend. XII.

2015] Two-Time Presidents and the Vice Presidency 1319

approach was surely on the minds of the Twelfth Amendment’s drafters and

ratifiers. This is the case because that Amendment made obvious reference

to the either-you-are-eligible-or-you-are-not set of qualifications (based on

native-born citizenship, age, and residence) already set forth in Article II,

Section 1, Clause 5.

160

The electoral-ineligibility interpretation also puts the constitutional

text on a collision course with itself. In effect, this interpretation posits that

the drafters of the Twenty-Second Amendment meant to add to the list of

eligibility requirements set forth in Article II, Section 1, Clause 5. It is

worth thinking about how, when viewed in this way, the rule of exclusion

posited by the electoral-ineligibility approach might be phrased. The most

logical choice would involve adding to the rules regarding citizenship, age,

and residency an additional restriction along these lines: “and no person

shall be eligible for the office of President if that person, having twice be-

fore been elected President, is elected to a third term.”

161

Once one thinks of

the supposedly new eligibility rule this way, however, major problems come

into view. After all, the textually-declared point of the Twenty-Second

Amendment is that a twice-before-elected President cannot “be elected”

President.

162

And it would be passing strange to say that someone is ineligi-

ble only “if . . . elected to a third term” when that person cannot be elected

to a third term in the first place. All of this suggests that the electoral-

ineligibility interpretation reflects at bottom the same confusion between

electability and eligibility that renders the broader total-ineligibility inter-

pretation a constitutional non-starter.

The text of the Twelfth Amendment creates yet another problem for the

electoral-ineligibility approach. This is the case because the Amendment’s

treatment of Vice-Presidents hinges specifically, and only, on whether

someone is “eligible to the office of President.”

163

On its face, this language

160

See supra text accompanying note 6 (quoting this provision). Notably, the electoral-

ineligibility interpretation both (1) purports to be based on the Twelfth and Twenty-Second

Amendments and (2) simultaneously rests on a sharp distinction between the election and the

appointment of Vice-Presidents. However, no constitutional text that provided for the appointment

of Vice-Presidents existed at the time the Twelfth Amendment was adopted or, indeed, until a

decade and a half after the Twenty-Second Amendment came into being. See U.S.

CONST. amend.

XXV (providing, in the first instance, for presidential appointments of Vice-Presidents to fill va-

cancies in that office).

161

The reference to being “elected to a third term” is a critical element of this posited provi-

sion because it would be inconsistent with the electoral-ineligibility theory itself to say, without

more, that a person is ineligible for the presidency simply because of being “twice before . . .

elected President.” After all, the whole point of the electoral-ineligibility theory is that, regardless

of two earlier elections to the presidency, a person remains eligible to be President (that is, via

succession) so long as that person is not “elected to a third term.”

162

See U.S. CONST. amend. XII.

163

See id. (emphasis added).

1320 Boston College Law Review [Vol. 56:1287

cuts against drawing any distinction between the purportedly separate sub-

jects of eligibility for election and eligibility for appointment. Rather, it

straightforwardly indicates that the clause envisions a single set of qualifi-

cations that address eligibility “to the office” itself, regardless of how “the

office” might be obtained. In this regard, the Twenty-Second Amendment

joins other constitutional provisions in making clear that, even though a

twice-before-elected President cannot again “be elected” to that office, such

a person is fully able to succeed to that office from (for example) that per-

son’s position as Speaker of the House or Secretary of State.

164

Given these

circumstances, there is no easy linguistic way to conclude that a twice-

before-elected President is not “eligible to the office of the President.” Such

a person is eligible to that office, but simply cannot come to hold it by way

of election. Put another way, being “eligible to the office” (which language

does appear in the Twelfth Amendment) is not at all the same thing as being

“eligible for election” (which language does not appear in the Twelfth

Amendment).

165

Indeed, Section 3 of the Twentieth Amendment seems to

drive this point home because it suggests there are instances in which a per-

son might be elected to the presidency (so that the person is “eligible for

election”), even though that person does not “qualify” to serve in that office

(and thus is not “eligible to the office” until more time passes).

166

The bottom line is that being “ineligible to the office of the Presi-

dent”—and thus to “that of Vice-President”—is not a quality that depends

on how one assumes the office. To be sure, the drafters of the relevant pro-

visions of the Constitution could have opted for such a rule. But in neither

the Twelfth nor the Twenty-Second Amendment did they make this choice.

164

See supra note 44 and accompanying text (discussing the line of succession to the presi-

dency); see also Peabody & Gant, supra note 7, at 612–13.

165

See U.S. CONST. amend. XII.

166

See id. at amend. XX, § 3 (providing that “if the President elect shall have failed to qualify

then the Vice President elect shall act as President until a President shall have qualified”). Reflect-

ing on this provision, Chief Judge Kozinski of the Ninth Circuit recently noted in Lindsay v. Bow-

en that an elected President’s “ineligibility may be discerned after the election,” thus requiring a

“temporary succession to the Presidency by the Vice President” for the period—to use the

Amendment’s terms—“until a President shall have qualified.” 750 F.3d 1061, 1065 (9th Cir.

2014). One point seems to be that a President who is not yet thirty-five years old or not yet a U.S.

resident for fourteen years can be legally elected President, even though he or she is not yet eligi-

ble to serve in that office. That conclusion cuts sharply against the idea that whether one is “eligi-

ble to the office of the President” depends on whether one is electable to that office. See also J

O-

SEPH

STORY, 3 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 1472–73

(1833) (calling the requirement that the President be thirty-five years old a “qualification of age”

and discussing when being abroad for too long could “amount to a disqualification” under Article

II’s residency requirements).

2015] Two-Time Presidents and the Vice Presidency 1321

B. The Single-Clause Alternative

The preceding discussion shows why the Twelfth and Twenty-Second

Amendments do not operate together to render twice-chosen Presidents

unelectable, but still appointable, to the vice-presidency. There might, how-

ever, be an alternative analytical route to that same result, and Judge Rich-

ard Posner has made the effort to map one. He contends that the Twenty-

Second Amendment, wholly apart from the Twelfth, might well block the

selection by election, but only by election, of would-be Vice-Presidents

whom the electorate twice before has chosen to serve as President. His ar-

gument relies entirely on the opening words of the Twenty-Second

Amendment: “No person shall be elected to the office of the President more

than twice.”

167

According to Judge Posner: “[O]ne could argue that since

the Vice-President is elected, . . . should he take office [as President,] he

would be in effect elected president. Electing a Vice-President means elect-

ing a Vice-President and contingently electing him as president.”

168

In other

words, if Americans were to elect a twice-before-elected President as Vice-

President, that person would also be “elected to the office of the President”

within the meaning of the Twenty-Second Amendment, even if only on a

conditional basis; thus, the Twenty-Second Amendment standing alone bars

a two-term President’s election as Vice-President because its core directive

is that “no person” may be “elected to the office of the President more than

twice.”

This argument, although imaginative, is not persuasive for several rea-

sons.

169

The first reason is that it departs from normal usage of the English

language to say that someone is “elected to the office of the President”

when that person is elected only to the office of Vice-President at the time

that voters actually cast their ballots. In addition, if election to the vice-

presidency in and of itself qualifies as being “elected to the office of the

President” (even if only conditionally), then the Twenty-Second Amend-

ment would seem to bar a twice-before-elected Vice-President from running

for the presidency. But no one has ever seriously suggested that persons

such as Richard Nixon, George H. W. Bush, or Al Gore—each of whom had

twice before served in the vice-presidency—acted illegally when they ran

for President.

Judge Posner recognizes this complication and seeks to sidestep it by

making clear that one is “elected to the office of President” by being elected

Vice-President only if that person later succeeds to the presidency; other-

wise, he suggests, an “election to the office of the President,” even of a

167

U.S. CONST. amend. XXII.

168

Baker, supra note 1 (quoting an email from Judge Posner).

169

Indeed, Judge Posner himself acknowledged that the contention is “a little bold.” Id.

1322 Boston College Law Review [Vol. 56:1287

conditional nature, has not yet occurred.

170

But this argument creates anoth-

er serious difficulty. After all, if a two-term President were elected Vice-

President, that person might refuse to succeed to the presidential office and

thus—on Judge Posner’s own reasoning—not be conditionally elected as

President. Indeed, even a present-day or previous President, such as George

W. Bush or Bill Clinton, might establish well before election day that his

selection as Vice-President would not be a conditional election to the presi-

dency by solemnly pledging that he would never succeed to the presidency

if the chance to do so arose. Put another way, Judge Posner’s conditional-

election view of the Twenty-Second Amendment might be seen as logically

dictating only that a twice-before-elected President cannot again assume the

nation’s highest office from the vice-presidency. But the question of wheth-

er someone can succeed to the presidency is different from the question of

whether someone can be elected to and serve in the office of Vice-

President.

171

Clever analysts might come up with plausible responses to these cri-

tiques.

172

But even if these critiques were to fall by the wayside, there re-

mains a problem with Judge Posner’s interpretive approach that seems in-

superable: His interpretation of the Twenty-Second Amendment contra-

venes its own controlling text. That Amendment, after all, states that “no

person who has held the office of President, or acted as President, for more

than two years of a term to which some other person was elected President

shall be elected to the office of the President more than once.”

173

Indeed, this

language appears in the very same sentence of the Twenty-Second Amend-

ment that alone gives rise to Judge Posner’s contention. On its face, however,

this language indicates that “some other person was elected President” in

those instances when the Vice-President takes over as President. And so this

language pushes hard against the claim that a Vice-President-turned-President

is “elected to the office of President”—whether conditionally or uncondition-

ally—for purposes of the Twenty-Second Amendment.

The other textual difficulty raised by Judge Posner’s interpretation is

equally serious. The essential step of his argument is to assert that a person

is “elected to the office of the President” for purposes of the Twenty-Second

Amendment—conditionally elected, to be sure, but elected nonetheless—if

that person is initially elected as Vice-President and thereafter succeeds to the

170

Id.

171

See infra notes 177–190 and accompanying text (Part III, section A).

172

One might argue, for example, that a Vice-President cannot opt out of succeeding to the

presidency under Article II, Section 1. (For the text of the provision, see infra note 183 and ac-

companying text.) On this view, a sitting Vice-President automatically succeeds to the presidential

office, even if that Vice-President refuses to serve or to take the presidential oath.

173

U.S. CONST. amend. XXII (emphasis added).

2015] Two-Time Presidents and the Vice Presidency 1323

presidency. That assertion, however, cannot be reconciled with the Amend-

ment’s express treatment of persons who previously served part of a presiden-

tial term. Assume, for example, that Vice-President Samuel Smurfoid must

take over the presidency for the final ninety days of the 2021–25 term. It

would follow, according to Judge Posner’s extrapolation, that Smurfoid was

conditionally elected President for that term because he was elected Vice-

President and then moved from that office to the presidency. And so, ac-

cording to the logic of Judge Posner, Smurfoid could thereafter be elected

President for only one additional term because the Twenty-Second Amend-

ment commands that “[n]o person shall be elected to the office of the Presi-

dent more than twice.”

174

The Twenty-Second Amendment itself, however,

precludes this outcome. This is so because the ensuing language of the

Amendment states that Smurfoid can be elected President two more times

because his initial stint in the Oval Office was not “for more than two years

of a term.”

175

The bottom line is that Judge Posner’s proposed reading of the Twenty-

Second Amendment contravenes the text of the very Amendment on which he

exclusively relies. Nothing in the Amendment indicates that someone who

succeeds from the vice-presidency to the presidency is “elected to the office

of the President.”

176

To the contrary, the Amendment itself makes it clear that

such a person is not elected to the office of the President, but instead is elect-

ed to the office of the Vice-President, just as common usage would suggest.

III.

POTENTIAL LIMITS ON VICE-PRESIDENTIAL SUCCESSION RIGHTS

Parts I and II of this Article show that the Twelfth and Twenty-Second

Amendments do not exclude twice-elected Presidents from either appoint-

ment or election to the vice-presidential office. But perhaps ratification of

the Twenty-Second Amendment had some other limiting effect on how the

vice-presidency works. This Part considers that subject. Section A explores

the possibility that the Twenty-Second Amendment blocks longtime Presi-

dents who become Vice-President from moving into the presidency from the

vice-presidential office. Section B addresses another possibility—namely,

that such a Vice-President might be able to succeed to the presidency but

not thereafter serve in that office for more than two years. These interpre-

tive options—especially the second one—have more going for them than a

first glance might suggest. In the end, however, neither stands up to close

scrutiny.

174

Id.

175

Id.

176

Id.

1324 Boston College Law Review [Vol. 56:1287

A. The No-Succession Interpretation

At the outset of this Article, an important conceptual distinction was

introduced—namely, the distinction between whether a twice-elected Presi-

dent can be chosen to serve as Vice-President and whether a twice-elected

President who is chosen for the vice-presidency can succeed from that of-

fice to the presidency. This distinction had received little attention in the

post-Twenty-Second-Amendment world. In 1960, however, it bubbled up to

the surface. There was talk at the time that President Eisenhower—who was

then winding up his second full term—might sign on as the running mate

for the Republican Party’s soon-to-be-named presidential nominee, Richard

Nixon.

177

Exactly what President Eisenhower’s close advisors had to say on

this subject has been lost in the mists of time. But one report indicates that

then-Attorney General William Rogers counseled Eisenhower that, although

the Twenty-Second Amendment would not block his election as Vice-

President, it would preclude him from moving into the presidency from that

office.

178

Does this succession-right-limiting interpretation of the relevant con-

stitutional provisions make sense? The argument that it does would seem to

stem from the second portion of the Twenty-Second Amendment’s transi-

tion clause. That text, as we have seen, does not focus on whether someone

can be elected (or otherwise selected) to be Vice-President.

179

Rather, it ad-

dresses whether someone who has been placed in that office can continue to

“hold[] the office of President or act[] as President” for “the remainder” of

the transition period term.

180

Perhaps this language signals a background

assumption that has nothing to do with eligibility for the vice-presidency.

181

Rather, the assumption might be one that centers on presidential service—

that is, one that addresses, as does the transition clause itself, the subject of

177

See supra note 22 and accompanying text (discussing Eisenhower rumors); see also Vote

for Eisenhower: Delegate Says He’ll Propose Him for Vice-Presidency, N.Y.

TIMES, July 22,

1960, at 8 (reporting on Representative James Fulton’s expressed intention to nominate Eisen-

hower as Vice-President at the Republication National Convention). Peabody and Gant speculate

that, even though Eisenhower may have raised the possibility in jest, reported discussions within

an “inner circle” suggest that he may have considered this option at some point in a serious way.

Peabody & Gant, supra note 7, at 604 n.183.

178

Nixon and Eisenhower? Well, G.O.P. Can Hope, N.Y. TIMES, Jan. 17, 1960, at 26. Not-

withstanding the report to this effect in 1960, the former Attorney General indicated that he in fact

never offered any such advice to President Eisenhower at the time. Peabody & Gant, supra note 7,

at 604–05 n.185 (quoting Letter from William P. Rogers, Former U.S. Attorney Gen., to Theresa

Ferrero (Nov. 12, 1997) (on file with Scott Gant)).

179

See supra note 33 and accompanying text (quoting text of the Twenty-Second Amend-

ment).

180

U.S. CONT. amend. XXII.

181

See supra notes 141–150 and accompanying text (discussing rationale for Professor Am-

ar’s view that a prior two-time President is ineligible for the vice-presidency).

2015] Two-Time Presidents and the Vice Presidency 1325

“holding,” or “acting” in, the presidential office for “the remainder of such

term.” Moving from this starting point, a defender of the position attributed

to Attorney General Rogers might say that the most logical conclusion is

this: By specifying that a Vice-President, who twice before had been elected

President, could serve as President during “the remainder” of the term in

which ratification occurred, the transition clause indicates by negative im-

plication that such a Vice-President cannot thus serve as President during

“the remainder” of any later, post-ratification term. In other words, putting

to one side the specialized one-shot rules that govern the transition term

itself, a twice-before-elected President can become Vice-President but can-

not succeed from that office to the presidency.

182

One difficulty with this interpretation is that it creates significant ten-

sion with Article II, Section 1, Clause 6, which specifies that “[i]n Case of

the Removal of the President from Office, or of his Death, Resignation, or

Inability to discharge the Powers and Duties of the said Office, the Same

shall devolve on the Vice-President.”

183

This clause, however, does not say

that an elected Vice-President will always take over the presidential office

in the event that it becomes vacant. Indeed, Clause 6 goes on to vest Congress

with authority to establish a line of succession in “the case of Removal,

Death, Resignation or Inability, both of the President and Vice-President.”

184

And even if the framers envisioned the automatic ascension to the presidency

by any Vice-President who did not possess an “inability” in the limited

sense of a service-precluding physical or mental impairment, a later-

adopted constitutional provision—here, the Twenty-Second Amendment—

could go further in precluding succession by the Vice-President in addition-

al cases.

185

Thus the question is squarely posed: Does the Twenty-Second

Amendment signal that a twice-before-elected President could be elected to

the vice-presidency but then not be able to succeed from that office to the

presidency? There are reasons of policy to conclude that it does not. To

begin with, the idea of a Vice-President who cannot take over the presiden-

cy in the event of a vacancy in that office departs from conventional under-

182

It might also be said that this interpretation jibes with the root purpose of the Twenty-

Second Amendment. Under this interpretation, so the argument goes, no one can get the sort of

FDR-like long run in the presidency that lay at the heart of the Eightieth Congress’s concerns. At

the same time, claimed rights of free voter choice in filling the vice-presidency remain fully pro-

tected. See supra notes 60–86, 112–114, 131–137 and accompanying text (discussing principles

underlying the Twenty-Second Amendment).

183

U.S. CONST. art. II, § 1, cl. 6 (emphasis added).

184

Id. (emphasis added).

185

See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 454–55 (1976) (finding that later-ratified

Fourteenth Amendment effectuated a “carv[ing] out” of state sovereign immunity protections put

in place by the earlier-ratified Eleventh Amendment).

1326 Boston College Law Review [Vol. 56:1287

standing of the role of the Vice-President. Such a result, after all, would cre-

ate the peculiar outcome that a person who was never elected to a national

office (for example, the Secretary of State) could leapfrog a Vice-President,

chosen by the national electorate, from lower in the line of succession to fill

the presidential office.

186

Such a regime could also breed practical prob-

lems, in part because the prospect of this result could bring about destabiliz-

ing uncertainty and political gamesmanship as to what person might come

to occupy the highest office in the land.

187

All of this, many observers will

say, is not what the drafters of the Twenty-Second Amendment, or any other

sensible persons, could have had in mind. And that is especially true be-

cause there exist contrary signals in the Amendment’s legislative history.

188

All of these critiques of the no-succession-right interpretation carry

weight. But the biggest problem of all lies, once again, in the constitutional

text. The difficulty is that even the most nimble interpreter of the Twenty-

Second Amendment will struggle in vain to find any language in that provi-

sion’s operative terms to which to hitch the wagon of this argument. There

are simply no words in the Amendment’s first, limitation-creating sentence

that offer a basis for claiming that a properly selected Vice-President cannot

succeed from that office to the presidency,

189

and there certainly are no

words that purport to identify a new form of “inability” to succeed to the

presidential office within the meaning of Article II, Section 1, Clause 6.

190

The critical point is that the first sentence of Section 1 of the Twenty-

Second Amendment—which sets forth in full the operative rule of that

Amendment—contains no text from which this limitation can be derived.

191

And the transition clause—precisely because it is only a transition clause—

cannot on its own create freestanding substantive rules. That, however, is

exactly the way in which the argument for the no-succession-right interpre-

tation works. In effect, it seeks to extract from the transition clause, and

186

See supra note 44 and accompanying text (discussing line of succession to the presidency).

187

Peabody and Gant offer the added observation that, in such circumstances, the succession

of a Vice-President who was twice-elected President might well have a salutary stabilizing effect

during what could be a period of crisis. See Peabody & Gant, supra note 7, at 634.

188

Notably, the Senate Judiciary Committee’s draft of the Amendment specified that “[a]

person who has held the office of President, or acted as President, on 365 calendar days or more in

each of two terms shall not be eligible to hold the Office of President or to act as President for

any part of another term.” 93 C

ONG REC. 1680 (emphasis added). Notably, the final eleven words

of this version of the Amendment directly limited the ability of persons (wherever they might

stand in the chain of succession) to succeed to the duties of the presidency. All such language

about the possibility of succession, however, was removed from the final version of the Amend-

ment that was approved by Congress. And precisely because the substantive terms of the final

Amendment—in contrast to its immediate predecessor draft—did not purport to limit succession

rights, there is reason to conclude that no such limit on succession rights was imposed.

189

See supra text accompanying note 33 (providing the relevant text),

190

Compare U.S. CONST. art. II, § 1, cl. 6, with id. at amend. XXII.

191

Id. at art. II, § 1, cl. 6.

2015] Two-Time Presidents and the Vice Presidency 1327

from nothing else, a new exception to the generally stated rule of vice-

presidential succession rights established in Article II.

In sum, the no-succession-right argument has no basis in the constitu-

tional text unless one draws a negative implication from the “remainder of

such term” language that appears in the transition clause of the Twenty-

Second Amendment. But transition clauses themselves do not establish opera-

tive rules. Rather, they merely clarify the effect of otherwise-established op-

erative rules during the transition period. For this reason, the no-succession-

right argument does not carry water. There is simply no support for it in any

operative provision of the Constitution.

B. The Two-Years-Only-Succession-Right Interpretation

Take a trip into the future to consider this hypothetical case. Priscilla

Populopolous was elected President in both 2020 and 2024. Then, in 2028,

she was elected Vice-President, but shortly thereafter the President-elect

with whom she had run tragically passed away. As Parts I and II of this Ar-

ticle show, a vigorous debate exists about whether someone like Popu-

lopolous is eligible to serve as Vice-President.

192

And this uncertainty surely

would have complicated any effort to nominate Populopolous for the vice-

presidency and then to elect her to that office.

So how could it be that Populopolous was elected Vice-President in

2028? She secured that office because, in the run-up to the election, the Su-

preme Court issued a ruling—relying heavily on this Article—that rejected

the idea that twice-before-elected Presidents are ineligible for the vice-

presidency, either in general or by way of election.

193

In addition, the Court

rejected the idea that Populopolous could not succeed from that office to the

presidency, reasoning that there was no support in the operative terms of the

Constitution for any such limitation.

194

The Court, however, embraced an

alternative succession-limiting interpretation of the Twenty-Second

Amendment that startled many constitutional scholars. It declared that, if

Populopolous did succeed to the presidency, she could serve in that office

for no more than two years.

195

192

See supra notes 31–150 and accompanying text (Part I), 151–176 and accompanying text

(Part II).

193

Not surprisingly, the Court’s core reasoning was that Populopolous remained “eligible” to

the office of Vice-President under the Twelfth Amendment despite her two earlier stints as Presi-

dent, even though she could not again be “elected to the office of President,” as opposed to Vice-

President, under the Twenty-Second Amendment. See supra notes 31–33 and accompanying text

(laying out eligibility and electability language).

194

See supra notes 177–190 and accompanying text (discussing this issue).

195

See Albert, supra note 1, at 564–65 (noting the possibility of this interpretation).

1328 Boston College Law Review [Vol. 56:1287

This approach, according to the Court, best captured the meaning of all

the relevant constitutional clauses. To begin with, the Court explained, this

interpretation jibed with the operative first sentence of the Twenty-Second

Amendment on the theory that it indicates that “[n]o person” can serve “for

more than two years” if “elected to the office of the President more than

once.”

196

The Court also emphasized that this reading of the Amendment fit

together well with those portions of the legislative history that suggested a

congressional design to ensure that no person—at least within three terms—

would serve as President for more than ten years.

197

Finally, the Court relied on the transition clause. It reasoned that the

no-eligibility, the no-electoral-eligibility, and the no-succession-right inter-

pretive approaches all embodied unjustifiably strained efforts to derive a

negative implication from that provision. The Court, however, viewed the

two-years-only-succession-right interpretation as both linguistically plausi-

ble and uninfected by the maladies that afflicted each of those three alterna-

tive approaches. It reasoned that if Populopolous, after twice before having

been elected President, had become a successor President during the term in

which the Twenty-Second Amendment was ratified, the language of the

transition clause would have ensured that she could have served out the full

“remainder of such term.”

198

But Populopolous was elected Vice-President

in 2028, so the transition clause afforded her no similar “remainder of such

term” protection. Thus, the Court concluded that Populopolous could not

serve out the “remainder of [the] term” that began in 2029; instead, during

that post-ratification term, she could serve for only two years.

This interpretation took many legal scholars by surprise. Indeed, re-

cently appointed Justice Donovan Disputer penned a stinging dissent that

accused the majority of “rearranging the words of the Twenty-Second

Amendment in a self-servingly wild and free-style way.”

199

Justice Disputer

196

The relevant portion of the clause, with the relevant words emphasized, is as follows:

“[N]o person who has held the office of President, or acted as President, for more than two years

of a term to which some other person was elected President shall be elected to the office of the

President more than once.” U.S.

CONST. amend. XXII, § 1 (emphasis added).

197

In particular, as discussed earlier, there are some indications that Senator Taft and others

anticipated that the finalized version of the Amendment would stop any one person from serving

as President for more than ten years. See supra note 117 and accompanying text (discussing this

point). In keeping with this notion, if Populopolous had succeeded to the presidency from the

vice-presidency for two years during the 2017–21 term, she could still have been elected President

in both 2020 and 2024—thus occupying the presidency for ten years. By symmetry of logic (so

the Court reasoned in Populopolous’s case), she should likewise get ten years in the presidency—

but not more than ten years—when the term of succession postdated service in the presidential

office. And that is exactly the result that the two-years-only-succession-right interpretation pro-

duces.

198

See U.S. CONST. amend. XXII.

199

This “quoted” language from Justice Disputer’s “dissent” is simply make-believe, of

course.

2015] Two-Time Presidents and the Vice Presidency 1329

emphasized that the Amendment’s treatment of part-term service in the

presidency for more than two years is built around use of the past tense; in

particular, the clause states that “no person who has held the office of Presi-

dent, or acted as President, for more than two years of a term to which

some other person was elected President shall be elected to the office of

President more than once.”

200

This phrasing, Justice Disputer insisted, indi-

cated that “shall be elected” means “shall thereafter be elected.” “The ma-

jority,” he urged, “seeks to transmute a limit on service triggered by a

backward-looking condition that applies when someone already ‘has held

office’ for two years into a new, forward-looking two-year limit on future

service that the text in no way supports.” “This move,” Justice Disputer

concluded, “qualifies as Presto-Chango magic no less marvelous than Harry

Potter’s finest work. But it also perverts the function of those who wear ju-

dicial robes in a way that is downright Voldemortian.”

201

This critique of the two-years-only-succession-right interpretation

packs a serious punch. But our hypothetical Supreme Court majority at least

purported to rely on the operative words of the Twenty-Second Amendment.

It might be said in this regard that the Court read the Amendment’s critical

language—“shall be elected”—in a permissible way to mean “shall be

elected, either in the past or the future.” In addition, the majority made a

fair point in suggesting that its interpretation finds some support in the

Amendment’s legislative history.

202

In short, because Priscilla Populopolous

had been “elected to the office of the President more than once,” she could

not thereafter be put in a position whereby she “held the office of President,

or acted as President, for more than two years.” And so, Populopolous

would have to step down from the presidency after two years of service dur-

200

U.S. CONST. amend. XXII (emphasis added).

201

In a lengthy textual footnote, Justice Disputer went on to note that references to the two-

year-rule in the legislative discussions reflected a clear understanding that it would work this way.

By way of example, the Justice explained, Senator Taft indicated that the Amendment’s treatment

of service by a Vice-President-turned-President concerned the “first term” and thus dictated that

“if he has held office less than two years, he may be reelected twice.” See 93 C

ONG. REC. 1956

(emphasis added).

202

In addition to producing an alignment with the ten-year-limit conception of the Amend-

ment, this interpretation gains some support from the sequence of drafting. This is the case be-

cause the version of the Amendment initially considered by the House specifically used the term

“shall thereafter be ineligible,” but the term “thereafter” was dropped in the drafting process, and

does not appear in the final version of the Amendment. See 93 C

ONG. REC. 863 (emphasis added);

see also U.S.

CONST. amend. XXII. In effect expressing the same idea as the version put before

the House, the initial incarnation of H.R. 27 likewise prohibited any future form of presidential

service if the would-be candidate had “theretofore served as President during the whole or part of

each of any two separate terms.” See supra notes 57–62 and accompanying text (setting forth

these earlier drafts). The omission of such phraseology from the final Amendment gives some

support to the idea that, contrary to Justice Disputer’s hypothetical dissent, the term “no person

shall be elected” does not mean “no person shall thereafter be elected.”

1330 Boston College Law Review [Vol. 56:1287

ing the 2029–33 term. Then her own Vice-President, appointed and con-

firmed in Gerald Ford-like fashion pursuant to the Twenty-Fifth Amend-

ment, would move into the Oval Office.

203

The preceding discussion suggests that the two-years-only-succession-

right interpretation of the Twenty-Second Amendment has more plausibility

than first impressions might suggest. Even so, this interpretation carries

with it a troublesome wrinkle that does not mark the alternatives: the total-

ineligibility, the electoral-ineligibility, and the no-successor-right approach-

es. The wrinkle is that this interpretation could compel a successor Presi-

dent to step down in the middle of a four-year term—indeed, in the middle

of a four-year term during which one hand-off of the presidency had already

occurred—thus thrusting a third President into a single, four-year period of

service.

204

Critics are sure to say that this result is so odd, so disruptive of

government operations, and so fraught with peril for the nation that the

framers of the Twenty-Second Amendment could not have envisioned it.

This practical concern may have a role to play in the decisional calcu-

lus. But it does not rise to the level of an interpretive deal-breaker. In part

this is the case because it is not likely that real-world conditions would

come together in a way that would produce the troubling result.

205

Moreo-

ver, the Twenty-Fifth Amendment now provides helpful guidance as to the

nature of succession rights when such a one-term three-step shift in the

presidency must occur. Critics of the two-years-only-succession-right inter-

pretation might respond that the dangers it raises are so grave that the law

must be read to foreclose any risk that they might arise even if the odds of

their doing so are small. But a rejoinder to this argument builds on the idea

that the danger of such a mid-term presidential power transfer will arise

only if the voters themselves decide that the risk is worth running.

206

Voters

often choose to take chances, including the chance that a candidate will not

remain in office for the full duration of the electoral term.

207

And that is as it

203

See supra note 151 and accompanying text (discussing the Twenty-Fifth Amendment).

204

The earlier hand-off would result from the initial succession of the Vice-President to the

presidency. The latter hand-off would occur when the Vice-President-turned-President would have

to step down after the passage of two years.

205

The full mix of necessary conditions would be: (1) the continued involvement in politics

of someone who has already been twice elected President or who was elected once and served at

least two years of another term by way of succession to the office; (2) that person’s subsequent

election as Vice-President; (3) that person’s succession to the presidency from the vice-

presidency; and (4) the occurrence of that succession prior to the expiration of two years of the

relevant presidential term.

206

See supra notes 131–137 and accompanying text (discussing centrality of free voter

choice).

207

The nation’s voters, for example, reelected President Roosevelt in 1944 even though there

was reason to believe that his health was flagging. See Death of the President, M

ILLER CTR.,

http://millercenter.org/president/fdroosevelt/essays/biography/6 [http://perma.cc/9LFV-AJAX]. They

2015] Two-Time Presidents and the Vice Presidency 1331

should be in a system that eschews paternalistic tinkering with free voter

choice.

208

Put simply, if voters know that an election of a former President

as Vice-President might later require a post-succession presidential power-

transfer—but they elect that former President as Vice-President anyway—it

is hard to say that something is amiss with our system of republican self-

government.

Notwithstanding the preceding analysis, the two-years-only-succ ession-

right interpretation is not sound. As for the language of the Constitution, the

past-tense-centered critique put forward in the hypothesized opinion of Jus-

tice Disputer is strong, if not irrefutable.

209

As for conventional understand-

ings, the idea of a mandatory mid-term step-down by a President who has

already rightly succeeded to that office would seem far removed from the

expectations of most citizens. As for policy, the prospect of a one-term mer-

ry-go-round of three or more Presidents is problematic on its face. But most

importantly, the posited analysis of the Supreme Court of 2028 went down

the wrong track insofar as it focused on a perceived need to draw a negative

implication from the transition clause’s “remainder of that term” language.

It may well be that the two-years-only-succession-right extrapolation is the

most appealing from among the negative-implication-supported interpreta-

tions we have encountered so far—far better, in particular, than the eligibil-

ity-squelching interpretations considered in Parts I and II of this Article. As

the next Part shows, however, there is a sound and entirely sensible way to

interpret the transition clause that causes it to operate only with respect to

the transition period itself.

210

And because this approach reflects the most

plausible interpretation of that clause, interpreters need not and should not

strain to read it to give rise to any post-ratification-term negative implica-

tions at all.

IV.

THE TRANSITION-CENTERED OPERATION OF THE TRANSITION CLAUSE

The preceding discussion identifies four possible substantive limits—

the total-ineligibility limit, the electoral-ineligibility limit, the no-

succession-right limit, and the two-year-only-succession-right limit—that

also voted in 1972 for President Nixon despite preexisting concerns about the White House’s in-

volvement in the Watergate break-in. See Carl Bernstein & Bob Woodward, FBI Finds Nixon Aide

Sabotaged Democrats, W

ASH. POST (Oct. 10, 1972), http://www.washingtonpost.com/wp-srv/

national/longterm/watergate/articles/101072-1.htm [http://perma.cc/7YUE-K4CE].

208

See supra notes 78–79 and accompanying text (discussing legislative preference for free

voter choice).

209

See Albert, supra note 1, at 564–65 (rejecting two-years-only-succession-right approach

because service for more than two years is relevant only in determining “the possibility of a sub-

sequent election to the presidency”) (emphasis added).

210

See infra notes 212–224 and accompanying text (Part IV).

1332 Boston College Law Review [Vol. 56:1287

the Twelfth and Twenty-Second Amendments might impose with regard to

the vice-presidency in forever-operative fashion. Parts I, II, and III show

that none of these interpretative approaches should prevail because the rele-

vant constitutional texts establish no such substantive limits with regard to

the vice-presidency.

211

A critic of this position—such as Professor Amar—

might well respond that this view of things effectively reads key language

of the transition clause out of the Constitution. That clause, after all, states

that the Amendment “shall not prevent any person who may be holding the

office of President, or acting as President, during the term within which this

Article becomes operative from holding the office of President or acting as

President during the remainder of such term.”

212

If the Twenty-Second

Amendment created no new limits as to either vice-presidential eligibility or

succession rights, so the argument from the transition clause goes, there

would have been no reason to give any special transition-term protection to

any “acting . . . President”—that is, to any Vice-President-turned-President.

Put another way, the no-limits-at-all-on-Vice-Presidents interpretation of the

Twelfth and Twenty-Second Amendments renders the special, sheltering

treatment of a Vice-President-turned-Presidents in the transition clause

“mere surplusage,” in violation of interpretive principles that reach back at

least as far as Marbury v. Madison.

213

What is the answer to this mere surplusage critique? The answer is that

the transition clause—in particular, its allusion to an acting President—is

susceptible to an interpretation that accords that clause significant meaning

solely with regard to the operation of the transition period itself. And as a

result, the terms of the transition clause create no need to derive from it by

negative implication some otherwise-unstated, textually-untenable, and

still-ongoing post-ratification-period limit on vice-presidential service. In-

deed, the transition clause is subject to either of two separate interpretations

that focus its effects squarely on the transition period itself. The first of

those interpretations—that is, the “no-future-prejudice interpretation”—posits

that the effect of the clause was to exempt any presidential service that oc-

curred during the ratification term from counting toward the two-term limit

on future runs for the presidency. The second and even more plausible in-

terpretation—that is, the “clarity-for-all-past-Presidents interpretation”—

posits that the clause spelled out precisely how all past holders of the presi-

211

See supra notes 31–150 and accompanying text (Part I), 151–176 and accompanying text

(Part II), 177–209 and accompanying text (Part III).

212

U.S. CONST. amend. XXII (emphasis added).

213

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (rejecting interpretation of Article

III that would permit Congress to vest original jurisdiction in the Supreme Court because it would

render the express allocation of original and appellate jurisdiction “mere surplusage” and “entirely

without meaning”).

2015] Two-Time Presidents and the Vice Presidency 1333

dential office would be treated during the transition period, with regard to

both the reach and the limits of the transitional protections they would re-

ceive.

The key point is that each of these readings of the transition clause is

far more plausible than any of the four text-distorting interpretations con-

sidered in Parts I through III. In addition, because both the no-future-

prejudice interpretation and the clarity-for-all-past-Presidents interpretation

accord all of the transition clause’s terms independent meaning, they un-

dermine any mere-surplusage argument said to support either the total-

ineligibility, the electoral-ineligibility, the no-succession-right, or the two-

years-only-succession-right interpretive approaches. The preceding analysis

establishes that none of those interpretations reflects a sound synthesis of

the operative texts of the Twelfth and Twenty-Second Amendments. And the

analysis that follows confirms that conclusion by revealing that there is no

reason whatsoever to embrace any one of those problematic syntheses based

on the supposedly implicit commands of the Twenty-Second Amendment’s

transition clause.

A. The No-Future-Prejudice Interpretation

What was the aim of the Twenty-Second Amendment’s transition clause?

On one view, an important purpose of the clause was to protect anyone who

succeeded to the presidency during the ratification term from suffering a near-

term future disadvantage based on that period of service. The focal point of

this argument is the “shall not prevent” language of the transition clause,

which might be read to mean something like “shall not stand in the way

of.”

214

On this view, the transition clause operated to permit any Vice-

President-turned-President to serve—rather than “prevent” that person from

serving—for the full “remainder of [the transition] term” in a specialized

sense. In particular, such ratification-term service would not compromise that

person’s ability to secure election to the presidency twice more thereafter,

even if the “remainder of such term” service turned out to last more than two

years.

This view of the transition clause is subject to challenge. Skeptics might

say, for example, that it would have been easy for the drafters of the Twenty-

Second Amendment to choose different words for the clause if they meant for

it to embody this no-future-prejudice meaning. But spelling out this meaning,

in terms well-suited for an economically phrased constitutional amendment

(and, indeed, only a transition clause in that amendment), may not have been

easy at all. The naysayers might add this point: If the drafters had meant for

214

Prevent, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “prevent” as “[t]o stop

from happening; hinder or impede”).

1334 Boston College Law Review [Vol. 56:1287

the relevant clause to support this no-future-prejudice approach, they at least

would have substituted a less ambiguous word for the verb “prevent,” such as

“hinder” or “impede.”

215

This argument may prove too much, however, be-

cause the drafters no less easily could have substituted another term for the

verb “prevent”—such as “prohibit” or “proscribe”—to lock down any intent

to reject the no-future-prejudice interpretation.

216

No matter what one might say about these matters, the no-future-

prejudice interpretation gives independent meaning to the “acting . . . Presi-

dent” language of the transition clause without raising any of the serious

textual problems engendered by the four substantive limits considered in

Parts I through III. In any event, that interpretation does not stand alone.

This is the case because, even if the transition clause is read not to look to

the future at all, its reference to the “acting . . . President” performed an im-

portant function that negates any effort to cast it as mere surplusage.

B. The Clarity-for-All-Past-Presidents Interpretation

This second way of viewing the transition clause focuses its effect

wholly on the transition term itself. On this view, all of the would-be inter-

pretations considered in Parts I through III, to the extent they depend on the

215

See id.

216

One possible difficulty with the no-future-prejudice interpretation is that “the remainder of

such term” language might be seen as strangely affording no help to the successor President who

already served more than two years on the date of ratification, as opposed to the ratification-term

successor President who had not yet served two years. However, this obscure problem (assuming

it even is a problem) could have been avoided by endorsing a common-sense text-driven structural

protection for such a person in keeping with principles the Supreme Court has recognized in the

past. See, e.g., Alden v. Maine, 527 U.S. 706, 733–34 (1999) (relying largely on Eleventh

Amendment’s textual protection of state sovereign immunity in federal court in concluding that a

parallel non-textual principle of state sovereign immunity should apply no less in states’ own

courts). The legislative history of the Twenty-Second Amendment also may create a problem for

the no-future-prejudice interpretation because Congress’s focus, in crafting the transition clause,

was on persons who would have served as President prior to the term of ratification, as was the

case with President Truman. See supra note 93 and accompanying text (discussing Taft-Tydings

proposal). But one might say in response that Senator Taft reshuffled the entire transition clause

deck when he supplemented the preexisting “prevent” clause with a new, separate, and unlimited

grandfathering clause that dealt solely with President Truman as part of the eleventh-hour effort to

forge a workable cross-party compromise. See supra notes 87–100 and accompanying text (dis-

cussing Taft-Tydings proposal). All things considered, perhaps the best that can be said about the

“shall not prevent” language is that it was meant in essence to ensure fair treatment to persons

who happened to hold the presidential office during the transition period. And if that is true, it

would be no stretch to conclude that one form of fair treatment involved not disadvantaging a

Vice-President-turned-President with regard to future runs for the presidency based on ratifica-

tion-term service that followed an election occurring before the day on which the Twenty-Second

Amendment took effect.

2015] Two-Time Presidents and the Vice Presidency 1335

transition clause, try to make far too much out of far too little.

217

In other

words, all four of those interpretations—namely, the total-ineligibility, the

electoral-ineligibility, the no-succession-right, and the two-years-only-

succession-right approaches—try to extrapolate significant post-transition-

period substantive limits from a clause that was meant to focus simply on

the transition period itself. We have seen that each of these extrapolations

clashes directly with the texts of the operative Amendments. In striking con-

trast, the clarity-for-all-past-Presidents interpretation creates no such textual

tensions at all. And, in particular, it accords independent meaning to that

clause’s treatment of an “acting . . . President,” even if the operative provi-

sions of the Twelfth and Twenty-Second Amendments impose no limits

whatsoever on would-be Vice-Presidents.

To see why, one must begin by recognizing that the substantive limits

on presidential service imposed by the Twenty-Second Amendment were

inextricably tied to time, including potentially differing periods of time over

which past or present presidential service might occur. In turn, this feature

of the Amendment created a complicated set of retroactivity problems for

its framers to consider. This Article already has touched on some of those

complexities. What was Congress to do, for example, with President Harry

Truman, who was already well into a period of extended presidential service

when the Amendment came under consideration? And what about Presi-

dents other than Truman? Might the transition rules, for example, pay atten-

tion to—among other things—the difference between elected Presidents and

non-elected Presidents during the ratification term, prior to the ratification

term, or both? What about even the simplest case of a person who had

served two elected terms as President prior to the four-year period during

which ratification occurred? Should the new Amendment be deemed entire-

ly inapplicable to such a person? Should it apply only ex post in the sense

that no effect would be given to the two pre-ratification terms, but that later

terms would count toward the operative two-term limit? Might Congress

split the difference by deciding that one of those pre-ratification-period

terms, but not both, should count for Twenty-Second Amendment purposes?

Should Congress forge different rules depending on whether the earlier term

was a fully-served electoral term or only a partially- or fully-served succes-

sor term?

The critical point is that, in crafting the transition clause of the Twen-

ty-Second Amendment, Congress could have incorporated into it a rich

217

See supra notes 31–150 and accompanying text (Part I), 151–176 and accompanying text

(Part II), 177–209 and accompanying text (Part III). See generally King v. Burwell, 135 S. Ct.

2480, 2495 (2015) (“We have held that Congress ‘does not alter the fundamental details of a regu-

latory scheme in vague terms or ancillary provisions.’” (quoting Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001))).

1336 Boston College Law Review [Vol. 56:1287

blend of retroactivity-related rules. No less important, whatever retroactivi-

ty-related rules Congress did put in place were going to do two separate

things at the same time: First, they would set forth some amount of non-

retroactivity protection for persons who might otherwise come within the

reach of the Amendment’s substantive restrictions. Second, they also would

establish the outer limit of non-retroactivity protections that such persons

would receive.

With these points in view, it becomes easier to see that the second part

of the transition clause, including its reference to any “acting . . . President,”

did useful work in establishing the rules with respect to (and only with re-

spect to) the transition period itself. To begin with, the transition clause

drew a distinction between the Amendment’s treatment of President Truman

and every other pre-ratification President.

218

Thus, the first part of the tran-

sition clause gave President Truman a lifetime Twenty-Second-Amendment

pass. The second part of the clause, in contrast, declared that all other per-

sons—whoever they might be—would receive a far less robust form of non-

retroactivity protection. Of no small importance, the second part of the tran-

sition clause also established that all of these other persons—whether they

previously had served one, two, or even three or four terms as President, or

served part terms or full terms, or served by way of election or succession—

would be treated the same way. No crazy quilt of retroactivity rules would

be incorporated into the Amendment’s text, and no court would have to

struggle with any of the many anti-retroactivity problems that any particular

former President might bring before it. Rather, all former Presidents other

than President Truman would receive protection from being defrocked dur-

ing the ratification term. And that was the only protection they would re-

ceive.

Assume, for example, that someone other than President Truman—say,

Adlai Stevenson—had been elected President in 1948 and then again in

1952. Assume further that the Twenty-Second Amendment was not ratified

until 1958; that in 1956 Stevenson had been elected Vice-President; and that

he had become acting President in late 1957 due to the incapacitation of the

President. Now make one final assumption—that the drafters of the Twenty-

Second Amendment had failed to deal with the case of an “acting . . . Presi-

dent” in the transition clause.

219

One resulting problem leaps into view.

Without such a treatment, a court might reason that the drafters of the

Amendment meant to distinguish between elected Presidents and successor

Presidents in such a way that only elected Presidents could serve “the re-

218

See 93 CONG. REC. 1940 (statement of Sen. Taft) (“I merely wish to invite the attention of

the Senator to the difference between President Truman and any man who would occupy his office

in the future.”).

219

See U.S. CONST. amend. XXII, § 1.

2015] Two-Time Presidents and the Vice Presidency 1337

mainder” of the ratification term. In other words, the reference to the “act-

ing . . . President” in the transition clause removed the possibility that a

court might apply the transition clause—in a plausible, but congressionally

unintended, way—to block our hypothesized version of Stevenson from

serving out the full 1957–61 term. And for this reason, the transition

clause’s treatment of an “acting . . . President” is not mere surplusage under

the clarity-for-all-past-Presidents interpretation.

Also consider another hypothetical case—one in which Stevenson, in

addition to rendering eight years of presidential service from 1949 to 1957,

also served the 1957–61 term as acting President. Assume also, again, that

there was no treatment of an “acting . . . President” in the Twenty-Second

Amendment’s transition clause. Finally, assume that this case includes a

new wrinkle—namely, that Stevenson wants to run for President again in

1960. Can he? With no treatment in the transition clause of an “acting . . .

President,” we would not know the answer. Invoking the “presumption

against retroactivity,”

220

some courts might say that such a candidate should

have a shot at a third electoral term as President, at least where (as this hy-

pothetical case posits) most of the officeholder’s presidential service pre-

dated ratification and no transition clause specifically barred that outcome.

With the actual transition clause on the books, however, this result would be

foreclosed. This is the case because the text of that clause provided a clear

marker of the boundary of non-retroactivity protection given to someone in

the circumstances confronted by the thus-hypothesized President Stevenson.

He could serve out “the remainder” of the term of ratification—in this case,

the 1957–61 term. But that was the full measure of the non-retroactivity

protection he would receive, so that he could not secure election as Presi-

dent for another term in 1960. Again, the key point is that the treatment of an

“acting . . . President” in the second part of the transition clause does not con-

stitute mere surplusage if one embraces the clarity-for-all-past-Presidents in-

terpretation. This is so because the “acting . . . President” language estab-

lished not only that any President other than Harry Truman (whether that

President took office by election or succession) would receive “remainder of

the term” non-retroactivity protection during the four-year period of ratifica-

tion, but also that any such President also would receive nothing more.

The broader point is that all of the words of the second part of the tran-

sition clause had much work to do even if the Twenty-Second Amendment

did not disqualify otherwise eligible candidates from running for the vice-

presidency, limit vice-presidential succession rights, or impose a generally

applicable two-year limit on the period of post-succession service. The

function of those words was to specify, in a comprehensive and unitary

220

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 261 (2012).

1338 Boston College Law Review [Vol. 56:1287

fashion, the full extent of operative retroactivity-related rules that would

apply to any person other than Harry Truman who might end up serving or

acting as President during the single presidential term during which the

Twenty-Second Amendment was ratified.

221

The clarity-for-all-past-Presidents interpretation comports with the

simple, common-sense notion that the subject matter of the transition clause

most logically should be the period of transition itself. It also finds support

in the legislative history of the transition clause in two respects. First, that

history reveals that the clause in fact was designed to focus on ratification-

term-specific difficulties presented by past Presidents, beginning with Pres-

ident Truman.

222

Second, that history shows that the clause’s reference to an

221

One might challenge the clarity-for-all-past-Presidents interpretation on the ground that

Congress could not have intended to embrace such a rule because it would have oddly affected

only one person—namely, Herbert Hoover. As we have seen, this is the case because Section 2 of

the Twenty-Second Amendment required that ratification occur within seven years of approval by

Congress. U.S.

CONST. amend. XXII, § 2; see supra note 150. On the better view, however, any

argument along these lines for rejecting the clarity-for-all-past-Presidents view is misplaced. In-

deed, many separate reasons converge to support this conclusion. First, while the legislative record

includes a few references to the seven-year period, there is no indication that Congress ever re-

flected on its interaction with other provisions of the Amendment. Second, the Herbert-Hoover-

will-be-the-only-person-affected peculiarity arose only because of an eleventh-hour, previously

unexpected change to the transition clause that singled out President Truman for lifetime protec-

tion. (In other words, prior to this late-stage change, President Truman was the main target of the

“remainder of such term” protection—not just President Hoover.) Third, Congress may well have

drafted Section 1 of the Twenty-Second Amendment without paying heed to the seven-year ratifi-

cation period, in light of the possibility that the Amendment, in its final drafted form, might be

endorsed by Congress only in some later congressional session, perhaps well down the road; in

that case, the transition clause could well have affected persons in addition to President Hoover.

Fourth, Congress could have later sought to extend the seven-year ratification period (as later

Congresses did with regard to the proposed Equal Rights Amendment, see H.R.J. Res. 638, 95th

Cong. (1977)), thus expanding the coverage of the transition clause to a set of persons that ranged

well beyond President Hoover. Finally, even if this Herbert-Hoover-only argument does cut

against the clarity-for-all-past-Presidents interpretation, it also cuts against the negative-

implication-based total-ineligibility, electoral-ineligibility, no-succession-right, and two-years-

only-succession right interpretations. In the end, the only extrapolation from the transition clause

that avoids this complication is the no-future-prejudice interpretation because only that interpreta-

tion provides protection to the Vice-President who becomes President during the ratification term

without any reference to Herbert-Hoover-like past presidential service.

222

In particular, the transition clause, in its initial form, afforded all potential officeholders

“remainder of such term” non-retroactivity protection in a unitary, across-the-board way. The

essential purpose of this draft clause, however, was to deal with President Truman because every-

one knew that he had already served a major portion of the 1945–49 term and that he might well

seek the presidency one or more times in the near future, including during what would turn out to

be the term of ratification. It was only at the last stage of the drafting process that President Tru-

man was afforded stand-alone lifetime protection by the first part of the transition clause. Con-

gress nonetheless retained the original transition clause language as the clause’s second part, ap-

parently on the theory that someone other than President Truman could somehow end up within

the Amendment’s reach during the ratification term. The relevant point is that because the purpose

of the transition clause was very narrow, it is an ambitious project to extract from it substantial

ongoing substantive limitations on the freedoms of both candidates and voters. To be sure, the

2015] Two-Time Presidents and the Vice Presidency 1339

“acting . . . President” made particularly good sense—in keeping with the

clarity-for-all-past-Presidents interpretation—in light of how earlier ver-

sions of the Amendment’s substantive terms had dealt with Presidents who

came into office by way of succession, rather than election.

223

In short, the

transition clause—based on its text, its subject matter, and its history—best

supports (by a wide measure) the clarity-for-all-past-Presidents interpreta-

tion. And that interpretation does not comport with, far less command, the

recognition of otherwise nonexistent substantive rules that would impose

significant limits on would-be Vice-Presidents in perpetuity. For this reason,

the transition clause—when accorded its proper meaning—supports the

conclusion that, going into the future, a twice-before-elected President can

be elected Vice-President and then can succeed to the presidency from that

office for the full duration of the unexpired term.

224

transition clause anticipated the possibility that a Vice-President-turned-President, who had twice

before been elected President, might be serving as President during the term of ratification—just

as was the case with our hypothesized version of President Stevenson. The clause also anticipated

that someone might make the argument—however unfair and overreaching it might be—that such

a person could not continue to hold the presidential office during the still-unfolding four-year

term, in light of the Amendment’s recent ratification. The core purpose of the transition clause

was to take the sting out of these arguments, exactly as the clarity-for-all-past-Presidents interpre-

tation does.

223

The key point here is that, prior to emergence of the Taft-Tydings compromise, the pro-

posed text of the Twenty-Second Amendment’s substantive restraint provided as follows: “A

person who has held the office of President, or acted as President, on 365 calendar days or more in

each of two terms shall not be eligible to hold the office of President or to act as President for any

part of another term.” See supra note 61 and accompanying text (emphasis added) (discussing

Senate Judiciary Committee proposal). The “remainder of such term” transition clause was origi-

nally tethered to this substantive restraint. Moreover, with regard to this substantive restraint, the

transition clause made obvious sense because it allowed an acting President to serve out “the re-

mainder” of the ratification term even though such a person would “not be eligible . . . to act as

President” during that term in the absence of some form of anti-retroactivity protection. Notably,

the text of the transition clause—in this, its originally intended, context of use—carried with it no

negative implication whatsoever; rather, it simply created an exemption with regard to the ratifica-

tion term from the explicitly stated substantive restraint on service embodied in the proposed

Amendment. When the Taft-Tydings proposal later came forward, this same “remainder of such

term” language was simply carried over to it. Moreover, this carry-over occurred with no indica-

tion of any kind that the transition clause was somehow being re-conceptualized so as to cause it

to assume a new and critical role in generating an otherwise nonexistent, text-straining, voter-

restricting, for-all-time negative implication with regard to the Amendment’s operative substan-

tive reach. Especially against this backdrop, there is every reason to endorse the clarity-for-all-

past-Presidents interpretation. This is so because that interpretation ascribes to the transition

clause exactly the same form of ratification-term-specific, non-retroactivity protection that that

same clause had provided prior to the legislative tinkering that produced the final Taft-Tydings

revision. See King, 135 S. Ct. at 2492 (declining to give rigid, program-altering reading to a dis-

crete portion of the statutory text when there are signals that it “does not reflect the type of care

and deliberation that one might expect”).

224

See United Sav. Ass’n of Tex. v. Timbers of Inward Forest Assocs., 484 U.S. 365, 371

(1988) (noting that “[a] provision that may seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme . . . because only one of the permissible meanings produces a

1340 Boston College Law Review [Vol. 56:1287

V. IN CONCLUSION: BRINGING IT ALL BACK HOME

On Maggie’s Farm, the third track of Bob Dylan’s 1965 album Bring-

ing It All Back Home, he wails: “I got a head full of ideas that are drivin’ me

insane . . . .”

225

The preceding discussion raises its own risk of producing

information overload. So how does the weaver of the legal tapestry bring

together the many strands of analysis, some central and some subsidiary, set

substantive effect that is compatible with the rest of the law” (citations omitted)); Lynch v. Al-

worth-Stephens Co., 267 U.S. 364, 370 (1925) (observing that “the plain, obvious and rational

meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing

but the . . . ingenuity and study of an acute and powerful intellect would discover” (citation omit-

ted)). As the forgoing discussion shows, the clarity-for-all-past-Presidents interpretation does not

render the reference to an “acting . . . President” in the transition clause mere surplusage. But what

if one somehow concluded that it did? On the better view, that interpretation would still be the

right one. Indeed, at least five reasons support this conclusion. First, in context, the reference to

acting Presidents in the transition clause very naturally carried forward to that clause identical

language that already appeared in the operative-rule-creating, immediately-preceding sentence of

the Twenty-Second Amendment. (In particular, the Amendment’s operative clause rendered it

applicable to a “person who has held the office of President, or acted as President, for more than

two years.” It thus was entirely natural and sensible to deploy a parallel construction in the transi-

tion clause.) Second, the reference to the acting President helped to communicate the comprehen-

sive coverage meant to be provided by the second portion of the transition clause—that is, cover-

age of every potential ratification-term President except Harry Truman. Third, the interpretive

canon based on mere surplusage must be applied in any event with attentiveness to other canons,

including canons based on textual clarity that may (and, in this case, very strongly do) exert coun-

terforces. See King, 135 S. Ct. at 2492 (noting that “our preference for avoiding surplusage is not

absolute” (quoting Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004)); S

CALIA & GARNER, supra note

220, at 59, 176 (noting that “[n]o canon of interpretation is absolute” and that “[e]ach may be

overcome by the strength of differing principles that point in other directions”; adding, with regard

to the anti-surplusage canon, that: “So like all other canons, it must be applied with judgment and

discretion, and with careful regard to context. It cannot be always dispositive . . . .”). Fourth, the

anti-surplusage canon does not operate, in any event, when the relevant text is rightly viewed as

serving to remove any doubt about how the Constitution operates in a particular context. See, e.g.,

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (noting that the Necessary and Prop-

er Clause was included in the Constitution simply to “remove all doubts” about the existence of

implied legislative powers). Finally, in crafting the Twenty-Second Amendment, there was espe-

cially good reason to remove any doubt about the delegitimizing of any person handling the presi-

dential office—including any successor or acting President—during the one-time, distinctly vola-

tile presidential term in which the Twenty-Second Amendment would initially take effect. In par-

ticular, this clarification (even if it were only a clarification) held the promise of sparing both the

then-sitting or then-acting President and the nation as a whole from the risk of severe disruption

by preempting any effort by such a person’s political opponents to demand an immediate ouster

from office on the date of ratification. Notably, the existence of any such demands—regardless of

their lack of legal merit—would inevitably involve distraction, partisan rancor, and unfairness

both to the actual or acting President and to those members of the electorate who had supported

the ticket that included that person prior to ratification. With these dangers in view, it would have

been, and was, entirely sensible for the drafters of the transition clause simply to sweep all such

arguments off the table for purposes of the set-of-one four-year term during which ratification

occurred.

225

BOB DYLAN, Maggie’s Farm, on BRINGING IT ALL BACK HOME (Columbia Records

1965).

2015] Two-Time Presidents and the Vice Presidency 1341

forth in the preceding pages? To recognize the complexity of the task is im-

portant in and of itself. The vast majority of analyses of whether a twice-

elected President can take on the vice-presidency have cropped up in news-

paper commentaries, television interviews, blog posts, and the like. There is

nothing wrong with analyses of this kind. As this Article shows, however,

the questions raised by the Twelfth and Twenty-Second Amendments do not

lend themselves to quick and easy answers.

This point should cause us to shift attention to another fact of legal

life. Those who labor in the field of constitutional interpretation inevitably

bring to their efforts differing values, differing styles of analysis, and differ-

ing points of emphasis. In working through the questions considered here,

some analysts will focus on the text of the Twelfth and Twenty-Second

Amendments; others will pay more attention to their underlying purposes.

Some observers will attend to how the Twenty-Second Amendment came to

be; others will ignore that history altogether. Some interpreters will bring to

the task a preference for broad and clear directives; others will be willing to

accept a greater measure of nuance and contextualism. Some analysts will

brush aside efforts to rely on the “spirit of the Constitution”; others will not

hesitate to seek guidance in the organizing themes of our founding charter.

And there will be great differences of opinion, too, about what those organ-

izing themes might be. In this setting, for example, some analysts will em-

phasize the longstanding republicanism-centered norm of maximizing free

voter choice. But others will say that the crafters of the Twenty-Second

Amendment sought to forestall the emergence of autocracy, thus establish-

ing a pro-republican counter-theme of properly limiting voter freedom in

nationwide elections. Many interpreters will insist that the meaning of the

Twelfth and Twenty-Second Amendments must operate today in exactly the

same way it operated in 1951; others might pay heed to shifting background

conditions, emphasizing such matters as the ever-growing powers of the

modern presidency, the lengthening of human lifespans, or the proliferation

of ever-more-vexing international crises.

In the face of these complexities, some observers will take the view

that a decisive cutting of the Gordian Knot is needed, so as to bring at least

the benefit of legal certainty to this welter of confusion. Adopting this view,

however, does not move the ball forward because there exist two polar-

opposite ambiguity-defeating resolutions of the interpretive muddle. Ac-

cording to one resolution, a twice-before-elected President cannot become

Vice-President and therefore cannot succeed from that office to the presi-

dency if a vacancy occurs. According to the other resolution, a twice-

before-elected President can run for Vice-President, can succeed from that

office to the presidency if a vacancy arises, and then can serve out the full

remainder of the still-unfolding term. Because each of these resolutions

1342 Boston College Law Review [Vol. 56:1287

provides a clear and comprehensive solution, a commitment to the cause of

certainty does not help resolve the key questions at hand. Some other way

to “bring it all back home” must be found. So how should the story end?

It is important at the outset to recognize that the analysis set forth in

this Article—despite its twists and turns—does not leave the law rudderless

on a sea of doubt. Take, for example, Judge Posner’s argument that the

Twenty-Second Amendment, of its own force, bars the election of a twice-

before-elected President to the vice-presidency. On close inspection, this

contention faces so many difficulties that it should be moved off the table.

The thrust of Judge Posner’s contention is that the Vice-President is “elect-

ed to the office of the President”—albeit conditionally—within the meaning

of the Twenty-Second Amendment. But other portions of the Twenty-

Second Amendment itself directly undermine this interpretive position,

even if one can somehow dodge the separate problem that ordinary speakers

would seldom describe being elected to the office of Vice-President as the

same thing as being “elected to the office of the President.” It follows that,

if a twice-before-elected President cannot run for Vice-President, it must be

because of the joint operation of the Twelfth and Twenty-Second Amend-

ments.

As to this matter, thoughtful observers have expressed different views.

Indeed, first-rate legal thinkers have concluded that the class of persons

who are “ineligible for the office of the President” under the Twelfth

Amendment includes those persons who cannot “be elected” to that office

under the Twenty-Second. But the treatments of the issue offered by these

commentators tend to be preliminary in nature or abbreviated in scope,

whereas the comprehensive treatment offered in the preceding pages shows

at least that these analysts have failed to grapple with key arguments against

their position. Most important, if the drafters of the Twenty-Second

Amendment had meant to establish a rule about eligibility, they could have,

should have, and would have used the language of eligibility. Indeed, the

logic of this contention is especially strong because the word “eligible” (1)

is the operative term of the Twelfth Amendment, (2) was used in Article II,

Section 1 to capture the very set of exclusions meant to be covered by the

Twelfth Amendment rule, and (3) appeared repeatedly in drafts of the Twen-

ty-Second Amendment before Congress, with good reason, specifically

chose to abandon its use. In these circumstances, basic principles of inter-

pretation point with clarity to a simple conclusion: Congress’s decision not

to use the language of eligibility in the Twenty-Second Amendment indi-

cates that it meant not to establish an eligibility rule.

Nor is this problem somehow skirted by reformulating the no-

eligibility approach to focus on ineligibility only for election, as opposed to

ineligibility for appointment. As we have seen, there are many problems

2015] Two-Time Presidents and the Vice Presidency 1343

with this approach. Most fundamentally, it is at odds with the Twelfth

Amendment’s unitary textual focus on “eligibility for the office of the Pres-

ident”—a phrasing that offers not the faintest hint of recognizing a distinc-

tion between alternative modes of assuming the presidential or the vice-

presidential office.

This brings us to the transition clause. Professor Amar has rendered val-

uable service in highlighting the relevance of the clause to the matters consid-

ered here. But any effort to build an argument for ineligibility based on this

obscure provision travels several bridges too far. Put simply, the many argu-

ments for permitting two-time Presidents to become Vice-President—based

on textual non-parallelism, late-stage substitution of new terminology, the

contextual relevance of Senator Magnuson’s substitute amendment, and the

underlying constitutional theme of free voter choice—render untenable any

effort to exploit the “housekeeping” transition clause to salvage the otherwise

unsalvageable eligibility-limiting interpretation of the governing Amend-

ments’ substantive terms. And that is all the more the case because other,

more reasonable extrapolations from the transition clause are at hand.

So which of the non-eligibility-related extrapolations makes the most

sense—the no-succession-right interpretation, the two-years-only-successor-

right interpretation, the no-future-prejudice interpretation, or the clarity-for-

all-past-Presidents interpretation? The last of these choices is the best by a

wide margin.

Embracing the no-succession interpretation requires an assumption

that the drafters of the Twenty-Second Amendment somehow meant to set

forth a functionally problematic restriction that was wholly untethered to

the Amendment’s substantive terms. And although the two-years-only-

succession-right interpretation may be the most plausible of these interpre-

tations that place an ongoing, substantive limit on vice-presidential service,

it creates serious problems of its own. In particular, this interpretation re-

flects a highly ambitious, non-past-tense reading of the statutory text that

would compel destabilizing mid-term shifts in the presidency under some

circumstances.

The no-future-prejudice interpretation is more plausible than either the

no-succession-right interpretation or two-years-only-succession-right ap-

proach to the Twenty-Second Amendment. But the clarity-for-all-past-

Presidents interpretation best fits with the text and structure of the transition

clause itself. That approach, after all, focuses the operation of the transition

clause on the transition period itself, while attributing to the drafters a sen-

sible plan to deal with the distinctly complex set of transition problems pre-

sented by the operative terms of the Twenty-Second Amendment. Most im-

portantly, the clarity-for-all-past-Presidents approach accords significance

to all the words of the transition clause, while ascribing a meaning to it that

1344 Boston College Law Review [Vol. 56:1287

is simultaneously responsive to the text, structure, purpose, and history of

all the operative constitutional provisions.

Bringing It All Back Home includes another track—Dylan’s famous

Subterranean Homesick Blues—in which he famously observes: “You don’t

need a weatherman to know which way the wind blows.”

226

Perhaps Dyl-

an’s point applies here. Some observers are sure to declare that no party

convention would ever choose a former two-term President to run for the

vice-presidency. Indeed, they might note that the very swirl of legal com-

plexities revealed by this Article confirms the soundness of this prognosti-

cation. But if history teaches us any lesson at all, it is to never say never. It

may be that no prior-two-term President will seek the vice-presidency in

our next presidential election. But someday, one likely will. And when that

happens, the analysis offered in this Article indicates three things: (1) Amer-

ica’s voters can legally place that person in the vice-presidency; (2) that

person can later succeed from that office to the presidency; and (3) if such a

succession occurs, no cap on the duration of resulting presidential service

will inhibit that person from serving out the full remainder of the term.

226

BOB DYLAN, Subterranean Homesick Blues, on BRINGING IT ALL BACK HOME, supra

note 225.