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2016
The Twice and Future President Revisited: Of Three-Term The Twice and Future President Revisited: Of Three-Term
Presidents and Constitutional End Runs Presidents and Constitutional End Runs
Bruce G. Peabody
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121
The Twice and Future President
Revisited: Of Three-Term Presidents and
Constitutional End Runs
Bruce G. Peabody
†
On July 26, 2016, just a few hours after former Secretary of
State Hillary Rodham Clinton had been formally chosen to be
her party’s presidential nominee, former President Bill Clinton
made the case for his wife’s qualifications for the office.
1
On the
following evening, sitting President Barack Obama addressed
the same Democratic National Convention and argued that
“there has never been a man or a woman . . . more qualified
than Hillary Clinton to serve as President of the United States
of America.”
2
Besides their common support for Secretary
Clinton, an underlying constitutional presumption linked the
appearances of these past and present Presidents: whatever the
future held for Mr. Clinton and Mr. Obama, it would surely not
include additional terms as President of the United States.
In fact, Secretary Clinton had previously commented that
while the notion of choosing her husband to be Vice President
had “crossed [her] mind,” her understanding that he could
never “succeed to the position” of President made such a choice
infeasible.
3
“He would be good” as Vice President, Secretary
Clinton stated, “but he’s not eligible, under the Constitution.”
4
† Professor of Political Science, Fairleigh Dickinson University. The
author thanks Sandy Levinson, David Rosen, Tori Rosen, Seth Barrett
Tillman, and especially Brian Kalt and John Schiemann for their close
readings of earlier drafts of this manuscript and their many helpful comments.
The author also credits Scott E. Gant for the initial idea of twice and future
Presidents, and for much of the research and analysis in the original 1999
piece, which he co-authored. Copyright © 2016 by Bruce G. Peabody.
1. Patrick Healy & Jonathan Martin, Democrats Make Hillary Clinton a
Historic Nominee, N.Y.
TIMES (July 26, 2016), http://www.nytimes.com/2016/
07/27/us/politics/dnc-speakers-sanders-clinton.html?_r=0.
2. U.S. President, President Obama Addresses the Democratic
Convention (CNN Live Event/Special July 27, 2016), http://transcripts.cnn
.com/TRANSCRIPTS/1607/27/se.05.html.
3. Tom LoBianco, Hillary Clinton: Bill as VP Has “Crossed Her Mind,”
CNN (Sept. 15, 2015), http://www.cnn.com/2015/09/14/politics/hillary-clinton
122 MINNESOTA LAW REVIEW HEADNOTES [101:121
In turn, after President Obama’s DNC remarks, CNN
correspondent Jake Tapper stated that the gathered audience
was “emotional and sad about the fact” that the incumbent
President would be leaving office in 2017. Indeed, Tapper noted
that someone in the Convention shouted “four more years” in
the midst of President Obama’s remarks, expressing a
widespread wish among Democrats “even though, of course,
that would be, constitutionally, against the law.”
5
Hillary Clinton and Jake Tapper’s respective conclusions
that neither Bill Clinton nor Barack Obama were
constitutionally permitted to serve again in the office of the
President is shared by many pundits and scholars.
6
The
primary legal basis for this judgment is found in the U.S.
Constitution’s Twenty-Second Amendment, which stipulates
that “[n]o person shall be elected to the office of the President
more than twice.”
7
But this position is not obviously correct. In 1999, when
President Bill Clinton’s second term was drawing to a close, the
Minnesota Law Review published “The Twice and Future
President: Constitutional Interstices and the Twenty-Second
Amendment.”
8
In that article, I anticipated the possibility of
-bill-clinton-vice-president; see also Sally Bedell Smith, Two Presidents in the
White House?, W
ALL ST. J. (May 18, 2016), http://www.wsj.com/articles/two
-presidents-in-the-white-house-1463570533 (discussing the close working
relationship of the two Clintons).
4. LoBianco, supra note 3.
5. President Obama Addresses the National Convention (CNN Live
Event/Special July 27, 2016), http://transcripts.cnn.com/TRANSCRIPTS/1607/
27/se.05.html.
6. See Bruce Ackerman, Constitutional Politics/Constitutional Law, 99
Y
ALE L.J. 453, 491 (1989) (“[T]he Twenty-Second Amendment forbade the
President from seeking a third elected term in office.”); Richard Albert, The
Constitutional Politics of Presidential Succession, 39 H
OFSTRA L. REV. 497,
565 (2011) (“[A] former two-term President is not eligible” to serve as Vice
President); Matthew J. Franck, Constitutional Sleight of Hand, N
AT’L REV.
ONLINE (July 31, 2007), http://www.nationalreview.com/bench-memos/51444/
constitutional-sleight-hand-matthew-j-franck (arguing that President Clinton
cannot become Vice President under the Twelfth Amendment); Alexander
Mallin, Why President Obama Says He Wouldn’t Want to Run for a Third
Term, ABC
NEWS (Jan 24, 2016), http://abcnews.go.com/Politics/president-
obama-run-term/story?id=36488844 (discussing whether Obama would seek a
third term if it wasn’t “prohibited under the 22nd Amendment to the
Constitution”).
7. U.S.
CONST. amend. XXII, § 1.
8. Bruce G. Peabody & Scott E. Gant, The Twice and Future President:
Constitutional Interstices and the Twenty-Second Amendment, 83 M
INN. L.
REV. 565 (1999).
2016] TWICE & FUTURE PRESIDENT REVISITED 123
twice-elected Presidents serving as Vice President or filling
other roles that might allow them to serve again in the office of
President.
9
I concluded that these scenarios were neither
constitutionally prohibited nor politically fanciful.
The issues posed by the original article are ripe for
reexamination today. To begin with, media and political
speculation about Bill Clinton’s role in a possible Hillary
Clinton White House
10
is widespread, ongoing, and relevant: no
previous U.S. administration has faced the extraordinary
prospect of having a former President returning to the White
House in a non-presidential capacity. Moreover, since the end
of his second term, media and other commenters have mused
about Bill Clinton’s political future and whether he could serve
as President again despite existing constitutional restrictions.
11
In the case of President Obama, these issues are arguably
even more pertinent since he is fifteen years younger than Bill
Clinton while remaining popular in his party. Although
President Obama has said he wouldn’t run for a third term
even if he could,
12
questions about his continuing public service
and potential role in subsequent administrations will surely
surface in the years ahead.
13
9. Throughout this essay, “twice-elected” will generally refer to both
Presidents elected twice and President’s elected once who also serve “more
than two years of a term to which some other person was elected President”
(which the Twenty-Second Amendment equates to an election). The original
Twice and Future President article was co-authored with Scott E. Gant, but for
purposes of consistency and simplicity I shall use first person pronouns in
referencing authorship of both the original article and this current essay.
10. Maeve Reston & Sunlen Serfaty, Bill Clinton Embraces Role of
Political Spouse, CNN (July 27, 2016), http://www.cnn.com/2016/07/26/politics/
bill-clinton-democratic-convention-speech.
11. Tom Curry, Could Bill Clinton Be Vice President?, MSNBC (Feb. 20,
2008), http://www.msnbc.com/id/23254868; Jack Shafer, Vice President Bill
Clinton? Take 3, S
LATE (Sept. 7, 2000), http://slate.msn.com/toolbar
.aspx?action=print&id=1006013; Tony Mauro, Would the Constitution Prevent
a Gore-Clinton Ticket?, L
EGAL INTELLIGENCER, July 21, 2000, at 7; see also
Richard Albert, The Evolving Vice Presidency, 78 T
EMP. L. REV. 811, 857
(2005) (discussing media interest in Clinton as Vice President).
12. Mallin, supra note 6.
13. Since 1951 (when the Twenty-Second Amendment was ratified),
almost every twice-elected President has generated some chatter about their
suitability for a third term; Richard Nixon is one obvious exception. Twice-
elected President George W. Bush left office with relatively low public
approval, and has not been linked to the vice presidency, but recent polling
indicates that his popularity is on the rise (although still substantially below
Bill Clinton’s). See Philip Bump, George W. Bush Now Polls Better than
Hillary Clinton and Obama, W
ASH. POST (June 3, 2015), https://www
124 MINNESOTA LAW REVIEW HEADNOTES [101:121
“The Twice and Future President” was the first sustained
and systematic examination of the application of the Twenty-
Second Amendment to twice-elected Presidents who might
again assume the presidency. Since the publication of that
pioneering piece, however, a number of scholars have
subsequently considered, challenged, and added to its basic
claims and arguments.
14
As Richard Albert puts it, since the
start of the twenty-first century, “lawyers, scholars, and lay
persons alike have debated whether the Constitution permits—
and, if it does, whether it should permit—the vice presidency to
serve as a vehicle through which a two-term President might
ascend to the Presidency for a third term.”
15
While one might
think such a basic constitutional question could be readily
addressed, instead it has prompted a “simmering
disagreement” among the attorneys, judges, academicians, and
political figures who have considered this matter.
16
This updated essay reexamines the basic claims in the
“Twice and Future President” article, drawing on subsequent
scholarship and criticism, some of which has explicitly engaged
the original argument. “The Twice and Future President
Revisited” highlights important fault lines in the ongoing
debate about the scope and application of the Twenty-Second
Amendment, considers the most serious challenges to the view
that a President can serve in three (or more) terms, and
discusses the wider significance of these ideas.
More specifically, this essay proceeds in five major parts.
First, Part I reviews the most important claims in the original
“Twice and Future President” article which identified different
scenarios through which a twice-elected President might again
serve as President. Next, Part II examines the most essential
scholarly counter-arguments that the 1999 piece anticipated,
especially critical claims against the position that a person
.washingtonpost.com/news/the-fix/wp/2015/06/03/it-may-be-a-bit-early-for
-republicans-to-celebrate-the-george-w-bush-popularity-boom.
14. See Michael C. Dorf, The Case for a Gore-Clinton Ticket, F
INDLAW
(July 31, 2000), http://writ.news.findlaw.com/dorf/20000731.html; Stephen
Gillers, The Next Best Thing to Being President, N.Y.
TIMES (Mar. 3, 2004),
http://www.nytimes.com/2004/03/03/opinion/the-next-best-thing-to-being
-president.html?_r=0; Joshua Spivak, Bill Clinton for Vice President? Forget
It., H
IST. NEWS NETWORK (Mar. 22, 2004), http://hnn.us/articles/4165.html.
15. Albert, supra note 11, at 857.
16. 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.
2016] TWICE & FUTURE PRESIDENT REVISITED 125
could indeed serve as President in more than two terms. Part
III of this essay considers substantial, new, unanticipated
arguments that have been advanced in recent years. Part IV
reflects on the broader significance of this debate, contending
that the prospect of a “twice and future president” is more than
an academic abstraction or “parlor game,”
17
but instead has
important political and policy implications. In the fifth and
final part, this essay concludes by offering several reflections
on whether the U.S. Constitution might simply be amended to
address the problems raised by three-term Presidents, and
introduces the related concept of “constitutional end runs.”
I. THE ORIGINAL ARGUMENT: THE TWICE AND FUTURE
PRESIDENT
To a significant degree, the original argument was based
on the Constitution’s text. As I argued in 1999, the language of
the Twenty-Second Amendment:
[R]estricts only reelection of an already twice-elected President. The
words themselves do not (1) limit the amount of time, consecutively or
cumulatively, a person may serve, or (2) proscribe such a person from
reassuming the Office of President by means other than election.
18
These observations are significant given that the
Constitution explicitly anticipates numerous means through
which a person might become President or “act” as President
even without being elected to that office. Succession to the
office of President through the vice presidency is perhaps the
most obvious, but overall, the original article identified six
basic scenarios through which a twice-elected President could
again become Commander in Chief.
19
Scenarios 1 and 2
involved twice-elected Presidents serving as Vice Presidents
who then either became or acted as President following the
removal, death, resignation, impeachment, or disability of the
elected President. Scenarios 3 and 4 considered circumstances
where a Vice President-elect might become or act as President
if the President-elect died before assuming office or if a
President-elect was not ultimately chosen or deemed qualified
for the office. Scenario 5 focused on statutory succession laws
which might name a former, twice-elected President to serve as
President, and Scenario 6 concerned a House selection of a
17. Id. (discussing constitutional “parlor games” involving Bill Clinton’s
role in a Hillary Clinton administration).
18. Peabody & Gant, supra note 8, at 613 (citations omitted).
19. Id. at 568–69.
126 MINNESOTA LAW REVIEW HEADNOTES [101:121
twice-elected President under the terms of the Twelfth
Amendment under circumstances where no person was able to
secure a majority of electoral college votes.
As a corroboration of the textual case for these six
scenarios, I extensively probed the legislative history of the
Twenty-Second Amendment (including discussions of early
versions of the amendment, congressional arguments about
how to interpret the final, adopted language, and the sparse
ratification debates). While I found no clear-cut evidence that
the amendment’s authors and supporters consciously wished to
leave open a three-term President “loophole,” many lawmakers
clearly understood that their final language restricting persons
“elected to the office of the President” did not foreclose other
mechanisms for filling the presidency.
II. ANTICIPATED OBJECTIONS BY CRITICS AND
RESPONSES
The original “Twice and Future President” article
anticipated objections to these basic textual, historical, and
structural arguments—objections that have since been raised
and refined by legal scholars and other commentators.
A. T
HE TWELFTH AMENDMENT
The Twelfth Amendment has been perhaps the most
important and recurring source of criticism of the original
Minnesota Law Review argument. This amendment states that
“no person constitutionally ineligible to the office of President
shall be eligible to that of Vice-President of the United
States.”
20
Scholars have offered three different readings of this
“Ineligibility Clause” in order to make sense of how it applies to
the Twenty-Second Amendment generally, and the problem of
presidential succession specifically.
21
20. U.S. CONST. amend XII. The Presidential Succession Act of 1947
identifies the line of succession after the Vice President but stipulates that it
only applies “to such officers as are eligible to the office of President under the
Constitution.” 3 U.S.C. § 19. Even though scholars have raised questions
about the constitutionality of the law, for the purposes of this essay, one can
treat this “eligibility” language as raising the same issues as those posed by
the Twelfth Amendment.
21. See Dan T. Coenen, Two-Time Presidents and the Vice-Presidency, 56
B.C. L. Rev. 1287, 1293–1331 (2015) (discussing various ways to construe the
Twelfth Amendment and its “ineligibility” provision). Coenen’s analysis of
third-term Presidents is the most thorough and nuanced scholarship on the
issue to date.
2016] TWICE & FUTURE PRESIDENT REVISITED 127
In the first view, the “constitutionally ineligible” language
of the Twelfth Amendment refers to any constitutional
restrictions that prevent a person from serving as President
through any means. Thus, the Twelfth Amendment’s language
surely encompasses the “eligibility” provisions of Article II,
Section 1, Clause 5, which are the minimum qualifications
needed to serve as President; these include being a “natural
born citizen,” at least thirty-five years old, and a U.S. resident
for fourteen or more years. Under this reading, a thirty-four
year old, no matter how distinguished, charismatic, or worldly,
would clearly be barred from the vice presidency under the
terms of the Twelfth Amendment and Article II.
22
Such a view
of the Twelfth Amendment is supported by noting that
“because presidential and vice presidential candidates were not
formally distinguished” before ratification of the amendment,
“anyone elected Vice President was also qualified to be
President.”
23
Once the Twelfth Amendment became law,
however, these individuals were selected through different
electoral procedures and the need to ensure their simultaneous
qualification for the office of President became necessary.
Drawing on this interpretation, one might contend that the
Twenty-Second Amendment effectively added to the
Ineligibility Clause by putting restrictions on twice-elected
Presidents.
24
Stated differently, perhaps the Twenty-Second
Amendment expanded our understanding of who is ineligible to
the vice presidency by adding twice-elected Presidents to this
prohibited category.
The original “Twice and Future President” rejected this
argument on the grounds that the Twenty-Second Amendment
eschews the Twelfth Amendment’s general language of
ineligibility in favor of focusing specifically on restricting
22. Another attribute that seems applicable to the Twelfth Amendment’s
Ineligibility Clause is impeachment. It appears reasonable to stipulate that a
President who is impeached and removed from office is ineligible to the office
of President (at least for the impacted term) and is also, therefore, ineligible to
be Vice President.
23. Peabody & Gant, supra note 8, at 618.
24. After all, the Fourteenth Amendment arguably supplemented the
Article II restrictions by barring individuals from serving in “any office, civil or
military, under the United States” if they previously swore an official oath to
support the Constitution but then engaged in “insurrection or rebellion
against the same, or [gave] aid and comfort to the enemies thereof.” While this
provision originally targeted officers in the states of the Confederacy it could,
presumably, also apply to contemporary disloyal rebels and insurrectionaries.
128 MINNESOTA LAW REVIEW HEADNOTES [101:121
elected Presidents.
25
A twice-elected President is surely
ineligible, under the terms of the Twenty-Second Amendment,
to be elected President again, but she is not obviously
“ineligible” to serve as President through other means.
26
Conspicuous here is the parallel “eligible” language in the
Twelfth Amendment and Article II—language that is not
present in the Twenty-Second Amendment.
27
The 1999 “Twice and Future President” article drove this
point home by drawing on the legislative history surrounding
the Twenty-Second Amendment, demonstrating that the
amendment’s authors considered more comprehensive language
(that would have made twice-elected President ineligible for the
presidency) which they subsequently and clearly rejected.
28
As
the scholar Dan Coenen concludes:
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 Amendment, chose to jettison the very language
on which the argument for ineligibility based on the Twelfth
Amendment hinges.
29
Notwithstanding this view, some scholars advance an
alternate, second reading of the Twelfth Amendment and its
relationship to the Twenty-Second Amendment. In this
conception, the word “eligible” refers implicitly to elections. In
other words, under this approach, the Twenty-Second
Amendment should be understood to say, in effect, that “no
person unelectable to the office of President shall be elected to
the office of Vice-President of the United States.”
Two proponents of this point of view are the scholars Akhil
Amar and Eugene Volokh. Amar defends his position with an
25. Peabody & Gant, supra note 8, at 597.
26. See Dorf, supra note 14 (a twice-elected President “is not ineligible to
the office of President . . . . He is only disqualified (by the Twenty-Second
Amendment) from being elected to that office.” (emphasis omitted)).
27. See Akhil Reed Amar, Intratextualism, 112 H
ARV. L. REV. 747, 788
(1999) (discussing an intratextual interpretive approach in which we read “the
words of the Constitution in a dramatically different order, placing textually
nonadjoining clauses side by side for careful analysis”).
28. Peabody & Gant, supra note 8, at 597.
29. See Coenen supra note 21, at 1300. One of the “jettisoned” early
versions of the Twenty-Second Amendment barred any person from being
chosen or serving “as President of the United States for any term, or be[ing]
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 separate terms.” Peabody & Gant, supra note 8, at 593.
2016] TWICE & FUTURE PRESIDENT REVISITED 129
etymological approach, noting “that the words ‘eligible’ and
‘electable’ spring from the same Latin root, and that standard
dictionaries have long included ‘electable’ as one of the
traditional definitions of eligible.”
30
Volokh’s analysis is similar,
although perhaps more explicitly originalist insofar as he
argues that eligible and electable were basically
interchangeable terms as “understood in 1804,” when the
Twelfth Amendment was ratified. As he sees it, since a twice-
elected President has no “capacity to be elected” President
again under the Twenty-Second amendment, this lack of
electoral eligibility renders her unfit to be Vice President as
well.
31
One might begin by noting that such readings of the
Twelfth Amendment, even if sound, only prohibit some
scenarios though which a twice-elected President might again
serve as President. Again, if we accept that eligibility subsumes
the concept of election, then the Twenty-Second Amendment
can be effectively rewritten to say that “no person unelectable
to the office of President shall be elected to the office of Vice-
President of the United States.” Even under this reading,
however, a twice-elected President could still assume the vice
presidency through non-electoral means (such as via
nomination, which might occur if the regularly elected Vice
President dies, resigns, or is impeached and removed), or could
succeed to the presidency through a statute (as authorized by
Article II of the Constitution and the Twentieth Amendment).
32
30. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 622 n.8
(2006).
31. See Eugene Volokh, Bill Clinton for Vice-President?, V
OLOKH
CONSPIRACY (June 19, 2006, 1:30 PM), http://www.volokh.com/posts/
1150738214.shtml.
32. An originalist and historical orientation might contend that the
Twelfth Amendment’s language about vice presidential eligibility implies that
elections were the only basis for becoming Vice President. In this view, at the
time the Twelfth Amendment was ratified, there was no basis for
distinguishing between eligibility to be elected Vice President and eligibility to
serve as Vice President (because election was the only mechanism for
becoming Vice President—since the Twenty-Fifth Amendment, which covered
vice presidential nominations, wouldn’t be ratified for another 163 years).
Such an approach arguably ignores the provisions of Article II, Section 1 and
the Twelfth Amendment which stipulate conditions under which the Senate
shall choose a Vice President, circumstances that do not obviously equate with
election. But cf. Brian C. Kalt, Don’t Kill the Candidate: Remedying Congress’s
Failure to Use Section 4 of the Twentieth Amendment, H
ARV. J. LEG.
(forthcoming 2016). In any event, whatever the framers of the Twelfth
Amendment understood about the mechanisms for vice presidential selection,
130 MINNESOTA LAW REVIEW HEADNOTES [101:121
Moreover, there are several shortcomings with the “eligible
means election” approach.
33
To begin with, proponents of this
view must presumably understand Vice Presidential eligibility
under the Twelfth Amendment to also include the qualification
requirements of Article II, Section I, Clause 5 (Presidents must
be a natural-born citizen, thirty-five years old, and have
fourteen years of U.S. residency). Otherwise, this
interpretation of the Twelfth would seem to leave open the odd
possibility that one could assume the presidency through non-
electoral means without being bound by this qualification
language.
34
But once we “fold in” the qualification
requirements, the Twelfth Amendment becomes something like
this: “[T]o be eligible to be Vice President a person must be
electable as President.”
But such a move muddies the waters, and detracts from
the basic claim that eligibility and electability should be
understood as being roughly the same. Moreover, this
construction is somewhat odd and even strained given the
parallel (ineligible-eligible) language in the Twelfth
Amendment. Why would the President’s “ineligibility” refer
just to the qualification language of Article II, Section 1, Clause
5,
35
while the “eligibility” of the Vice President would refer to
such expectations were clearly modified by the Twenty-Fifth Amendment
which provided for nominations to resolve vacancies in the office of the Vice
President.
33. See Coenen, supra note 21, at 1318–20 (discussing what he calls the
“electoral-ineligibility interpretation”).
34. Of course, in other contexts the Constitution imposes requirements for
filling an office that apply only at the time of election. See U.S.
CONST. art. I,
§ 3, cl. 3 (“No Person shall be a Representative who shall not have attained to
the Age of twenty-five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State in
which he shall be chosen.” (emphasis added)). Thus, some constitutional
requirements only apply at the time of election, while other requirements go
directly to the question of eligibility to be elected or to take or hold office. See
Brian Kalt, Can the Senate Refuse to Seat Blagojevich’s Appointee?,
C
ONCURRING OPINIONS (Dec. 30, 2008), https://concurringopinions.com/
archives/2008/12/can_the_senate.html. A strong case can be made that
“eligibility” extends at least to “eligibility to be elected, if not also to holding
the office.” See generally Seth Barrett Tillman, Who Can Be President of the
United States?: Candidate Hillary Clinton and the Problem of Statutory
Qualifications, 5 B
RIT. J. AM. LEGAL STUD. 95, 9771 n.1 (2016) (discussing the
theoretical difference between “qualifications” and “eligibility requirements”).
35. Presidential constitutional “ineligibility” under the Twelfth
Amendment can’t prohibit non-electoral means to the office since that would
prevent Vice Presidents from becoming or acting as President. Therefore, the
“eligible means election” approach seems to apply the (in)eligibility language
2016] TWICE & FUTURE PRESIDENT REVISITED 131
these provisions plus the requirement that a Vice President be
electable to the presidency?
36
In addition, it seems pertinent that the “constitutional
ineligibility” language of the Twelfth Amendment occurs at the
very end of the amendment, immediately after a discussion of
the procedure through which the Senate will “choose the Vice-
President,” in circumstances where the presumptive Vice
President is unable to secure a majority in the electoral college.
If the Twelfth Amendment’s reference to constitutional
eligibility was really focused on electability, its syntactic
placement (in the same clause discussing a non-electoral
procedure) seems peculiar at best.
37
Finally, one should note the
obvious: the constitutional text references “elections” and
“eligibility” as distinct words, and in ways that are not
obviously fungible.
38
A third and final interpretation of the Twenty-Second
Amendment in light of the Twelfth Amendment adopts the
view that any twice-elected President is wholly ineligible to be
President, and, therefore such a person is also ineligible to be
Vice President under the terms of the Twelfth.
39
As Matthew
Franck puts it:
Since the ordinary path to the presidency contemplated by the
Constitution is via the ballots of . . . electors, then by any ordinary
differently for Presidents and Vice Presidents.
36. The best response is probably to argue that the framers of the Twelfth
Amendment understood that election covered all means through which a Vice
President assumed the office of Vice President, but, as discussed above, this
hardly resolves the matter. See supra note 32 and accompanying text.
37. The specific, concluding language of the Twelfth Amendment is this:
The person having the greatest number of votes as Vice-President,
shall be the Vice-President, if such number be a majority of the whole
number of Electors appointed, and if no person have a majority, then
from the two highest numbers on the list, the Senate shall choose the
Vice-President; a quorum for the purpose shall consist of two-thirds of
the whole number of Senators, and a majority of the whole number
shall be necessary to a choice. But no person constitutionally
ineligible to the office of President shall be eligible to that of Vice-
President of the United States.
U.S. CONST. art. XII, cl. 1. Arguably, the “[b]ut no” phrasing implies that the
eligibility restrictions are pertinent to the Senate’s choice of Vice President, a
linkage which would seem to weaken the Posner-Volokh “eligibility as
election” understanding.
38. See Coenen, supra note 21, at 1318 (arguing that the “electoral-
ineligibility interpretation . . . stretches the text of the Twelfth Amendment
beyond the breaking point”).
39. See LoBianco, supra note 3 (discussing Hillary Clinton making a
similar argument about her husband’s vice presidential eligibility).
132 MINNESOTA LAW REVIEW HEADNOTES [101:121
mode of legal reasoning, the 22nd Amendment changed the answer to
the question—who is “constitutionally ineligible to the office of
President”? . . . Now the class includes aliens, immigrants, citizens
under 35, others failing the residency requirement, and persons
previously elected twice (or having served one term elected and more
than half of another’s term after succeeding from the vice
presidency—another requirement of the 22nd Amendment).
40
Such a view is probably best defended through a kind of
functional analysis. Elections are the ordinary means through
which we select Presidents, and serve, in turn, as a pivotal
basis for their political and institutional power. Under the
terms of the Twenty-Second Amendment, a twice-elected
President is barred from accessing this signature means to the
presidency. A twice-elected President, therefore, might be
understood as ineligible for both the presidency and vice
presidency, because the main attribute of a Vice President is
her capacity to serve as President of the United States through
elections. As Franck summarizes, because a twice-elected
President is constitutionally ineligible “to be elected president”
he or she is also “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.”
41
But adopting this position appears to depend on circular
logic or miss the broader point: people can become President
through electoral as well as non-electoral means. Even if they
are prohibited by the Twenty-Second Amendment from
assuming the presidency through the former process, it is not
obvious why they are precluded from the latter. And, therefore,
the Twelfth Amendment’s broad talk of “constitutionally
ineligible” Vice Presidents seems largely irrelevant to twice-
elected Presidents.
42
One might again counter that since elections serve as the
most important (and ordinary) means through which people
become President, it is reasonable to include other,
40. See Franck, supra note 6.
41. Id.; see also Albert, supra note 6, at 565 (indicating that the vice
presidency “is an office for which a former two-term President is not eligible”);
Volokh, supra note 31 (“[I]t would seem that a two-term incumbent is
‘ineligible’ to the Presidency . . . precisely because he is made unelectable to
that office.”).
42. Of course, if my judgment is wrong, that is, if twice-elected Presidents
are barred under the Twenty-Second Amendment from serving in the office of
President, then they are also prohibited from being eligible for the vice
presidency under the terms of the Twelfth Amendment.
2016] TWICE & FUTURE PRESIDENT REVISITED 133
presumptively less important, non-electoral mechanisms within
the prohibitions of the Twenty-Second and Twelfth
Amendments. But this idea, that a primary constitutional
mechanism subsumes secondary mechanisms, is not an obvious
rule of legal construction. Indeed “secondary mechanisms”
(such as, say, the recess appointment power) are set out as
independent alternatives precisely because they aren’t implicit
in existing powers.
43
B. CONSTITUTIONAL PURPOSES
In addition to the Twelfth Amendment’s Ineligibility
Clause, claims about the purposes underlying the Twenty-
Second Amendment (and other constitutional provisions) have
provided another major line of attack for those skeptical that
twice-elected Presidents can again serve in the office of
President.
44
More than thirty-five years ago, John Hart Ely famously
criticized “clause bound-interpretivism” in which “judges
deciding constitutional issues . . . confine themselves to
enforcing norms that are stated or clearly implicit in the
written Constitution,” often by focusing on passages in
isolation.
45
Scholars like Franck have decried a similar, narrow,
literal tack in construing the Twenty-Second Amendment.
46
In
43. Moreover, non-electoral presidential succession is not always
“secondary” to presidential election as a political matter. When William Henry
Harrison died in only his thirty-second day in office, Article II, Section 1,
Clause 6 provided that Vice President John Tyler would succeed him, although
the exact nature of this transfer of authority was contested. See BRIAN C.
KALT, CONSTITUTIONAL CLIFFHANGERS: A LEGAL GUIDE FOR PRESIDENTS AND
THEIR ENEMIES 65 (2012). But surely in 1841, this non-electoral basis for
power was ultimately more important in filling the office of President (and
shaping the course of American history) than the mechanisms of the electoral
college.
44. Id. at 144 (“The notion that a constitutional provision should be
interpreted in a way that vindicates its intended purpose is a powerful one in
American law.”); see also Coenen, supra note 21, at 1308–14 (considering a
“purpose-based analysis” of the Constitution’s application to twice-elected
Presidents). See generally 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) (discussing the theory of purposivism in statutory
interpretation).
45. J
OHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL
REVIEW 1 (1980).
46. Franck, supra note 6 (objecting to treating the words of the
Constitution “in isolation from one another, rather than as parts of a whole
134 MINNESOTA LAW REVIEW HEADNOTES [101:121
order to avoid lapsing to a mere academic diversion, in which
professors “fiddle around with the text of the Constitution until
we make readers believe it means the opposite of what it
[actually] says,” Franck proposes that we adopt an
understanding of the Twenty-Second Amendment (and Twelfth
Amendment) that treats these provisions “as parts of a whole
that has an integrated meaning and purpose.”
47
Among other advantages, such a purposive (and structural)
approach enables constitutional interpreters to circumvent
crabbed or overly formal readings of the text that, while
logically consistent, yield purportedly troubling outcomes.
48
As
Brian Kalt explains, some “constitutional interpreters often
prefer a ‘second-best’ reading of the text that vindicates a
provision’s purpose, over a reading that parses the text
perfectly while missing the point of the provision.”
49
Applying this sort of a purposive orientation to the Twenty-
Second Amendment might lead us to conclude that the
“amendment’s drafters [simply] wanted to send presidents
home after two terms.”
50
If we subsequently parse the text and
arrive at a legal conclusion with a different result, we run the
risk of making “the amendment accomplish the exact opposite
of what it was supposed to.”
51
In a related vein, Bruce
Ackerman cautions that instead of pursuing “ingenious
constructions” of the Twenty-Second Amendment that allow
twice-elected Presidents to once again serve as Chief
Executives, we should return to the widely understood goals
driving its proposal and ratification.
52
So what are these objectives, and how do we glean them?
The original “Twice and Future President” answered these
questions by focusing on the legislative history and intent
that has an integrated meaning and purpose”); see also Albert, supra note 11,
at 857–59 (arguing against narrow clause-bound textualist analysis).
47. Franck, supra note 6.
48. See Albert, supra note 11, at 857–59 (arguing against a “myopic”
interpretation of the Constitution in favor of a “proper, holistic reading” that
would bar “a two-term President” from again becoming President).
49. K
ALT, supra note 43, at 144.
50. Id. at 6.
51. Id. at 143.
52. B
RUCE A. ACKERMAN, BEFORE THE NEXT ATTACK: PRESERVING CIVIL
LIBERTIES IN AN AGE OF TERRORISM 204 n.34 (2006); see also KALT, supra note
43, at 144 (arguing that we need to focus on the purpose or “point” of the
Twenty-Second Amendment). Kalt does not privilege what I am calling
constitutional purposivism, but does give the modality a fair and nuanced
application to the Twenty-Second Amendment.
2016] TWICE & FUTURE PRESIDENT REVISITED 135
behind the Twenty-Second Amendment and by considering
whether a three-term President would somehow violate the
“spirit” of the amendment or the Constitution as a whole.
53
Scholars have subsequently offered what amount to three
specific approaches to construing the purposes of the Twenty-
Second Amendment.
First, one might try to define the goals of the amendment
54
by focusing on the immediate political and historical concerns
that spurred its proposal and ratification, namely, preventing
another FDR. President Franklin Delano Roosevelt was elected
to an unprecedented four consecutive terms, and there is little
doubt that this accomplishment alarmed many of the officials
and commentators who advocated for a post-FDR limit to
presidential service. As Coenen puts it, Roosevelt clearly
“framed the thinking of every political representative who was
called on to consider the Twenty-Second Amendment.”
55
This pragmatic recognition of the actual impetus behind
the amendment is somewhat appealing, but raises a number of
problems. To begin with, seeing the Twenty-Second
Amendment as largely an anti-Roosevelt initiative doesn’t
clearly delimit what part of his legacy was offensive. Was it the
President’s violation of an alleged, informal two-term
tradition?
56
Was it the fact that he served for four consecutive
terms? Or was it something broader, such as a more
thoroughgoing abuse of executive power? The Republican Party
Platform of 1948 seemed to endorse this last view, as it
congratulated Congress for battling against a “trend of
extravagant and ill-advised Executive action” and imposing a
53. Peabody & Gant, supra note 8, at 614–17, 627–33.
54. Identifying the “goals of the amendment” might involve at least two
intertwined tasks: identifying what the authors and supporters of the
amendment intended to say (that is what did they think the legal language
would accomplish) and examining what they intended to accomplish (what
broader political and institutional changes they thought would occur as a
result of this language). While, obviously, it can be difficult to distinguish
these two strands, for those purposivists who insist that some portion of legal
language doesn’t really mean what it says (or, at least, isn’t self-evident in its
meaning) focusing on what the legal drafters intended to accomplish may help
us determine what they intended to say. Thanks to Brian Kalt for this
distinction.
55. Coenen, supra note 21, at 1307.
56. See Bruce G. Peabody, George Washington, Presidential Term Limits,
and the Problem of Reluctant Political Leadership, 31 P
RES. STUD. Q. 439, 440
(2001) (“Conventional popular and even scholarly accounts of the two-term
tradition confuse . . . the historical contours of this practice . . . .”).
136 MINNESOTA LAW REVIEW HEADNOTES [101:121
“limitation of Presidential tenure to two terms.”
57
One suspects
that there was no obvious contemporary consensus about what,
precisely, was core to Roosevelt’s alleged electoral and political
misdeeds.
In any event, interpreting the Twenty-Second Amendment
through the perspective of contemporaneous critics of the four-
term President, doesn’t really address whether twice-elected
Presidents might someday assume office through non-electoral
means. As Coenen points out, no advocates for the Twenty-
Second Amendment fretted “about electing a former President
as Vice-President” because “[t]his possibility was far removed
from the sort of overreaching that reformers perceived in the
actions of Franklin Roosevelt.”
58
Perhaps a more promising basis for discovering the true
purposes of the Twenty-Second Amendment is to return to the
specific discussions that accompanied its passage and ultimate
approval. In other words, what objectives did the authors (and
supporters) of the amendment express while crafting its
language? As already noted, the original “Twice and Future
President” analysis covered these issues extensively,
59
and
other scholars have also returned to this history. Without
rehashing the discussion in full, there are three pertinent
conclusions we can draw from the proposal and ratification
debates.
First, the congressional advocates of the Twenty-Second
Amendment widely agreed on only generic goals. Many
members of Congress who supported the amendment concurred
with some variation of the notion that it was designed to
57. Republican Party Platform of 1948, AMERICAN PRESIDENCY PROJECT,
http://www.presidency.ucsb.edu/ws/?pid=25836 (last visited Nov. 2, 2016). The
Twenty-Second Amendment was both formally proposed by Congress and sent
to the states in 1947. It was ratified under the terms of Article V in 1951. See
D
AVID KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S.
CONSTITUTION, 1776–1995 331 (1996); Peabody & Gant supra note 8, at 598–
99; see also Coenen, supra note 21, at 1310 (discussing the ambiguity of
Ackerman’s conclusion that the Twenty-Second Amendment was intended to
prevent a repeat of “Roosevelt’s lengthy stay in the White House”).
58. Coenen supra note 21, at 1307–08. Another objection one might make
to a Roosevelt focused approach to understanding the amendment’s purposes
is that this privileges the partisan animus that motivated many of the
supporters of the Twenty Second-Amendment. See Carlos E. Gonzalez, 80
W
ASH. U. L.Q. 127, 206 (2002) (“[T]he Twenty-Second Amendment
demonstrates how party politics can distort the ability of legislative bodies to
embody We the People.”).
59. Peabody & Gant, supra note 8, at 599.
2016] TWICE & FUTURE PRESIDENT REVISITED 137
prevent anyone “from holding too long the office of Chief
Executive” (out of fear that this would pave the road to
entrenched and tyrannical rule).
60
Thus, the Senate Report that
accompanied the amendment called the measure “a reasonable
restriction on the possibility of an executive dynasty.”
61
Second, and as noted earlier, it seems fair to conclude that
nothing in the deliberations surrounding the Twenty-Second
Amendment indicate Congress intended to open the door to a
future three-term President. That said, there is ample evidence
that legislators were aware of the constitutional differences
between elections and other mechanisms for attaining the
presidency. As Kalt argues, such distinctions were “not subtle”
and were surely on the minds of many lawmakers. After all, the
framers of the Twenty-Second Amendment contemplated and
debated its contours while keenly aware that President
Truman had entered the White House through non-electoral
means.
62
Indeed, the third observation one should make about the
debates that produced the Twenty-Second Amendment is that
Congress initially considered quite different, and more
comprehensive legal language, which it subsequently
abandoned in favor of its ultimate focus on presidential
elections.
63
The initial proposal approved by the full House, for
60. 93 CONG. REC. 1945 (statement of Sen. Revercomb); see also Peabody
& Gant, supra note 8, at 614–17; K
ALT supra note 43, at 134–58.
61. S.
REP. NO. 80-34, at 2 (1947). Of course, if one takes the “dynasty”
view seriously, it suggests that a Clinton-Clinton ticket would be more
reprehensible than, say, a Clinton-Obama ticket.
62. See K
ALT, supra note 43, at 139 (when the amendment was crafted
“every generation in living memory had featured unelected presidents”). One
can probably conclude that the framers of the Twenty-Second Amendment
were, on the whole, aware that their language created “loopholes,” but their
pragmatic judgment was that it was so unlikely these loopholes would be
exploited that they thought the “simple” text ultimately adopted was worth
this risk. See Peabody & Gant, supra note 8, at 595 n.145 (discussing Senator
Warren Magnuson’s contention that the “simple” language of the amendment
would help “the people of the United States . . . know what they are voting on
when it is presented to the States”).
63. Some early versions of the Twenty-Second Amendment restricted how
long a person could “hold the office of President,” perhaps not covering
individuals who would simply “act” as President, while others unquestionably
covered both those holding the office and acting as President. But, again, it
remains difficult to know whether this legislative history points to the true
concerns of the Twenty-Second Amendment’s authors, or confirms that the
final language focusing on restricting elections was consciously and carefully
chosen. K
ALT, supra note 43, at 140.
138 MINNESOTA LAW REVIEW HEADNOTES [101:121
example, stipulated that “[a]ny 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.”
64
This approach would have precluded some if not
all of the three-term President scenarios discussed in the
original “Twice and Future President” article.
65
But Congress
ultimately approved the more ambiguous and less
comprehensive language we know today as the Twenty-Second
Amendment.
66
Before leaving the purposive argument about the Twenty-
Second Amendment, one might consider a third and final
approach, one that transcends both a narrow political focus on
FDR’s opponents as well as a sustained inquiry into the
intentions of the specific congressional proponents of the law.
Instead, we might look to popular understandings of the
amendment. What were the expectations of “ordinary”
Americans about what the measure was supposed to
accomplish? This orientation may make particular sense in the
context of a constitutional amendment, which is a broad-based
change to a form of law that has a unique and privileged
relationship with the American people.
67
64. H.R. REP. NO. 80-17, at 1 (1947). Coenen notes that one might argue
that this early comprehensive language in the House signaled the true
intentions of Congress, but given the ultimate approved language this
argument appears strained. Coenen, supra note 21, at 1300 (dismissing the
argument that “the repeated references 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”).
65. The indicated language is not necessarily comprehensive. One might
argue, for example, that being “ineligible to hold the office of President” is
different from being able to act as President, a distinction perhaps implied by
the language of the Twenty-Fifth Amendment which distinguishes
circumstances where Vice Presidents “become President” and those where a
VP is “Acting President.” Thanks to Seth Barrett Tillman for this argument.
66. What is the explanation for Congress’s shift from the seemingly
comprehensive language of the House to the election oriented language of the
actual Twenty-Second Amendment? The legislative history provides no clear
answer. Political compromise, and the belief of some that the Senate language
was simpler seem to have been motivating factors. Coenen further makes the
case that the shift reflected coalition building efforts including less
encompassing language “was designed to respond to widespread concern about
the scope of the then-pending draft’s displacement of the preexisting norm of
voter autonomy in executive branch elections.” Coenen, supra note 21, at 1305.
67. S
OTIRIOS A. BARBER, ON WHAT THE CONSTITUTION MEANS 50–57
(1986) (describing an “aspirational” understanding of American
constitutionalism in which the “typical citizen” accepts the supremacy of the
Constitution as binding on him or herself).
2016] TWICE & FUTURE PRESIDENT REVISITED 139
Trying to ascertain “the people’s” understanding of the
Twenty-Second Amendment is at the heart of a number of
analyses of the amendment’s purposes. Thus, Amar emphasizes
that the amendment is an example of a “self-imposed” limit on
Americans’ electoral choices, a restriction “resulting from a
broadly inclusive democratic process featuring a series of
extraordinary votes” designed “to prevent entrenchment in
America’s most powerful office and to promote a healthy
rotation.”
68
Similarly, Ackerman objects to the idea that a
twice-elected President can serve as Vice President (or
otherwise serve as President again) on the grounds that the
Twenty-Second Amendment “represents a considered judgment
by the American people, after Franklin Roosevelt’s lengthy stay
in the White House” to limit the President to no more than “two
elected terms.”
69
This “popular expectations” approach to constitutional
purposes is not without its challenges. Most obviously, we
cannot readily identify what the American people believed the
Twenty-Second Amendment was supposed to accomplish.
Polling from 1939–1949 indicates, at best, deeply divided public
opinion on several variations of this question.
70
For example, in
1949, when the Twenty-Second Amendment was making its
way through the states as part of the ratification process, forty-
nine percent of the public opposed “adding a law to the U.S.
Constitution to prevent any President of the United States
from serving a third term” (while forty-three percent approved
this language).
71
It’s not clear how much of this opposition (or
support) reflects a judgment that the Twenty-Second
Amendment would prevent people from serving in a third term.
But even if we stipulate that this is what the public believed,
68. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114
H
ARV. L. REV. 26, 37 (2000).
69. A
CKERMAN supra note 52, at 204 n.34.
70. Among other problems, one should note that this public opinion data
was measured in a period when reliable polling was still in its infancy. See
generally B
ARBARA A. BARDES & ROBERT W. OLDENDICK, PUBLIC OPINION:
MEASURING THE AMERICAN MIND 18–19 (5th ed. 2016) (discussing the origins
of the modern polling industry).
71. Kathleen Weldon, The Public and the 22nd Amendment: Third Terms
and Lame Ducks, H
UFFINGTON POST (Aug. 11, 2015), http://www
.huffingtonpost.com/kathleen-weldon/the-public-and-the-22nd-a_b_7967538
.html; see also Stephen W. Stathis, The Twenty-Second Amendment: A
Practical Remedy or Partisan Maneuver?, 7 C
ONST. COMMENT. 61, 65 (1990)
(discussing popular attitudes about the Twenty-Second Amendment in the
years leading up to its proposal).
140 MINNESOTA LAW REVIEW HEADNOTES [101:121
the polling data indicates a popular plurality rejecting this
purpose.
The state ratification debates, which could be another
promising source for information about popular beliefs about
presidential term limits, don’t furnish much help either. As one
periodical summarized, the Twenty-Second Amendment “glided
through legislatures in a fog of silence—passed by men whose
election in no way involved their stand on the question—
without hearings, without publicity, without any of that
popular participation that should have accompanied a change
in the organic law of the country.”
72
In summary, what can we conclude about the intended
purposes of the Twenty-Second Amendment? Does a purposive
approach (whether informed by the amendment’s proximate
historical context, relevant legislative history, or popular
understandings) allow us to circumvent or at least supplement
a plain words reading of the amendment? If not, don’t we run
the risk of allowing “a president who is barred from an honest
reelection to become president through some ponderous
constitutional convolution?”
73
But instead of offering a choice between “common sense”
understandings and the worst of academic casuistry, these
questions point instead to a values dilemma: an irreducible
tradeoff between our commitment to constitutional text and
constitutional purposes. The decision to set aside a textual
command in favor of purposes (assuming we can identify them)
must be weighed on several scales, including measures of the
clarity of the text, how confidently we can construe a purpose at
odds with that language, and the legal and political
consequences at stake in one interpretation versus another.
74
A
purpose-based analysis may help a legal interpreter sift
through multiple plausible readings of a law, or it may assist
72. The Two-Term Limit, NATION, Mar. 10, 1951, at 216–17; see also
L
OUIS W. KOENIG, THE CHIEF EXECUTIVE 65 (1964) (the Twenty-Second
Amendment’s “four-year journey through the state legislatures stirred a
minimum of public discussion”).
73. K
ALT, supra note 43, at 144.
74. See Peabody & Gant, supra note 8, at 614 (discussing problems in
discerning the “legislative history” of a constitutional amendment). For a
discussion of the relative merits and disadvantages of executive term limits,
see generally Tom Ginsburg, James Melton, & Zachary Elkins, On the Evasion
of Executive Term Limits, 52 W
M. & MARY L. REV. 1807 (2011) (noting that
sufficient popularity enables executives to ignore term limits by amending or
replacing constitutional provisions imposing them).
2016] TWICE & FUTURE PRESIDENT REVISITED 141
us in deciding that our adherence to legal language needs to be
set aside in favor of other trumping values. But deviations from
text come with a cost. The purported advantages of textual
analysis include accountability (that is, knowing something
about who the authors of a law are), clarity of guidance,
limiting judicial discretion, and stability.
75
It is beyond the scope of this essay to engage in a
thoroughgoing analysis of the text-purpose tradeoff in general,
or how we might reconcile it in the complicated case of the
Twenty-Second Amendment specifically. Nevertheless, given
the seeming lack of ambiguity in the amendment’s language (a
point conceded by several defenders of purposive readings of the
Twenty-Second Amendment) and the comparatively equivocal
and mixed goals of the amendment’s contemporaneous
supporters, it seems reasonable to put the burden on purpose-
impelled skeptics to explain why a twice-elected President is
ineligible to serve again.
76
III. MAJOR NEW OBJECTIONS BY CRITICS AND
RESPONSES
As we have seen, the original “Twice and Future President”
article anticipated some of the major lines of criticism that
were raised after the piece was published. Specifically, these
objections were based on the purported limiting effects of the
Twelfth Amendment on the Twenty-Second Amendment, and
various readings of the Twenty-Second Amendment’s true
purposes. But nothing in these claims seems sufficient to
overturn the article’s original conclusion: on balance, neither
the Constitution’s eligibility provisions nor the best efforts to
ascertain the purposes and functions of the amendment bar a
twice-elected President from again seeking the office through
75. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE
CONSTITUTION 25–38 (1982) (reviewing textual argument and some of its
advantages); S
UE DAVIS, CORWIN AND PELTASON’S UNDERSTANDING THE
CONSTITUTION 31–38 (17th ed. 2007) (reviewing different approaches to
constitutional interpretation including textualism); see also K
ALT, supra note
43, at 140 (arguing that the authors of the Twenty-Second Amendment were
keenly aware of how, especially in the context of constitutional amendments,
they would need to weigh and select every word carefully).
76. As Coenen notes, “the framers of the Twenty-Second Amendment”
tried to strike a balance between their competing worries about entrenching
the power of one figure through extended occupation of the presidency and
“stripping away the longstanding prerogatives of the American electorate” to
select their Chief Executive. Coenen, supra note 21, at 1311.
142 MINNESOTA LAW REVIEW HEADNOTES [101:121
means other than presidential reelection. However, over the
past decade or so, scholars have raised other and more novel
objections, and these deserve to be taken seriously as well.
A. T
HE PRESIDENT IN WAITING RESTRICTION
We might begin with a somewhat truncated argument
offered by judge and scholar Richard Posner. Posner has
argued that “read literally, the Twenty-Second Amendment”
allows former Presidents to serve as Vice Presidents.
77
But he
also advances an alternate reading of the Twenty-Second
Amendment in which its restrictions on persons “elected to the
office of the President more than twice” apply to any person
elected to the vice presidency who subsequently takes office as
President, since such a person is elected to the vice presidency
with the presumption of being able to serve in the office of
President.
78
As Posner puts it, “Electing a vice president means
electing a vice president and contingently electing him as
president. That interpretation, though a little bold, would
honor the intention behind the Twenty-Second Amendment.”
79
In other words, a twice-elected President could not serve as
Vice President through election, because such a person would
be elected to the vice presidency and contingently elected
President at the same time (violating the provisions of the
Twelfth and Twenty-Second Amendments).
Posner’s interpretation that a Vice President is elected as
“President in Waiting” is characteristically creative, and
reflects the important recognition that the Vice President and
President are paired as the only two officials elected by the
nation as a whole. It may also implicitly acknowledge that the
office of Vice President has often been seen as somewhat
politically and legally hollow, only truly meaningful if
permanent or temporary succession to the presidency is
required.
That said, the “President in Waiting” reading of the
Twenty-Second Amendment’s application to the vice presidency
suffers from several flaws. To begin with, one might note that
the vice presidency is an official office to which a person is
elected. Vice Presidents possess official and unofficial functions
besides being able to take over as President. Most notably, the
77. Baker, supra note 16 (quoting an email message from Judge Posner).
78. Id.
79. Id.
2016] TWICE & FUTURE PRESIDENT REVISITED 143
Vice President serves as President of the Senate, breaking ties
in that body.
80
Seen in this light, when voting for Vice
President, the public doesn’t just cast its ballots for a
“President in Waiting,” but for a particular constitutional
officer. This point somewhat undermines Posner’s contention
that the Twenty-Second Amendment’s prohibition of any
person being “elected to the office of the President more than
twice” includes both Presidents elected to the office and Vice
Presidents elected to a separate office who subsequently
become President or act as President.
Furthermore, the terms of the Constitution (and
specifically the Twelfth, Twenty-Second, and Twenty-Fifth
Amendments
81
) do nothing to suggest that a person who
succeeds to the office of President as an elected Vice President
has thereby been effectively “elected to the office of President.”
As Coenen points out, the constitutional text actually “makes it
clear that such a person is not elected to the office of the
President, but instead is elected to the office of the Vice-
President, just as common usage would suggest.”
82
Finally, one might note that Posner’s “President in
Waiting” interpretation of the vice presidency leaves other
issues unresolved. For example, the argument only seems to
cover circumstances where a person is elected to the office of
Vice President as opposed to being nominated (under the terms
of the Twenty-Fifth Amendment).
83
80. The participation of the Vice President is also required under the
terms of the Twenty-Fifth Amendment for declaring that a sitting “President
is unable to discharge the powers and duties of his office.” U.S. CONST. amend.
XXV, § 4; see also Sanford Levinson, No Vice, B
OS. GLOBE, July 1, 2007, at D1
(discussing the “unprecedented influence” wielded by former Vice President
Dick Cheney); Scott Shane, Cheney in Dispute on Oversight of His Office, N.Y.
TIMES (June 22, 2007), http://www.nytimes.com/2007/06/22/washington/22cnd
-cheney.html (former Vice President Cheney arguing that the office of VP is
uniquely positioned between the legislative and executive branches).
81. For example, the Twelfth Amendment sets out separate procedures
(including “distinct ballots”) for selecting Presidents and Vice Presidents, and
the Twenty-Second Amendment explicitly constrains the service of a Vice
President who holds the office of President or acts as President during a term
“to which some other person was elected President,” language indicating that
a President’s conventional selection via election is qualitatively distinct from a
Vice President’s succession to the presidency.
82. Coenen, supra note 21, at 1321–23.
83. Also, it isn’t clear how the Posner thesis would apply generally to Vice
Presidents who succeed to the office of President, including Presidents elected
to a single term who then serve as Vice President and, subsequently,
President through succession. Presumably such persons are simply bound by
144 MINNESOTA LAW REVIEW HEADNOTES [101:121
B. A
REVERSE READING OF THE TWENTY-SECOND AMENDMENT
Besides Posner’s approach, legal researchers have
identified a second inventive objection to some kinds of three-
term Presidents, based on what one might call a “reverse
reading” of the Twenty-Second Amendment. We have already
seen how some constitutional scholars have called for
transcending supposedly cramped, acontextual, “clause-bound”
analyses of presidential term limits, favoring, instead, a more
purposive and structural approach. In a different context, Amar
has advocated for a general “intratextual” orientation, in which
we eschew reading “the words of the Constitution in order” in
favor of a more “holistic” conception.
84
This modality for construing constitutional text sets the
stage for an innovative, almost non-linear reading of the
Twenty-Second Amendment, one that focuses on the language
restricting those who have “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.”
85
The reverse reading
contends that under these terms, a twice-elected President is
only eligible to become President or act as President through
non-electoral means for two years or less in a given term begun
by a different, elected President.
Read in a straightforward way, the language of the
Twenty-Second Amendment anticipates that some who succeed
to the presidency (through non-electoral means) will hold the
office, or act as President for a time, but may still seek to gain
the office again by election. Such persons are limited to one
elected term if they held the presidency (“or acted as
President”) for “more than two years of a term to which some
other person was elected.”
86
But suppose that after two elected terms, a former
President is subsequently elected Vice President. This person
then becomes President after, say, the elected President dies, a
the “two year rule”—so long as they succeeded to the presidency for two years
or less, they are eligible to be elected President a total of two times. But this
view seems in some tension with the idea that a twice-elected President is
barred from being elected as VP because doing so elects her as a President in
Waiting. Why isn’t a President elected to one term and subsequently elected
VP also an elected President in Waiting (and therefore restricted under the
Twenty-Second Amendment even if she serves as President through
succession for only one day)?
84. Amar, supra note 27, at 788.
85. U.S.
CONST. amend. XXII.
86. Id.
2016] TWICE & FUTURE PRESIDENT REVISITED 145
few months into the new term. Under these circumstances, can
we sensibly claim that the Twenty-Second Amendment places a
two-year cap on the successor President’s service? After all, as
soon as this individual serves for more than two years of a term
to which some other person was elected, hasn’t she violated the
amendment’s language that says such persons shall not “be
elected to the office of the President more than once”?
87
Is this
successor President, therefore, obliged to step down after two
years?
Coenen offers two main reasons why this reverse reading
of the Twenty-Second Amendment is troublesome. First, he
notes that the different tenses in the Amendment imply that it
applies to a President “who has [previously] held the office of
President, or acted as President, for more than two years” of
another’s term who “thereafter” is elected to the Office.
88
In
other words, the sequence of this language seems to go one
way: governing only those who obtain the office through non-
electoral means but then seek election.
Coenen’s second point is that a reverse reading of the
Twenty-Second Amendment can have strange policy and
political implications. After all, it could require a “successor
President 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.”
89
Such an outcome would be “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.”
90
We might add to Coenen’s arguments by noting
that this obligatory departure would be curious insofar as its
closest analogies (mandatory intra-term removal of Presidents
occurs only through impeachment, resignation, disability, or
death) possess a much different character (since they deal with
emergencies and unforeseen and unavoidable events).
87. See Coenen, supra note 21, at 1327–89 (discussing what he calls “the
two-years-only-succession-right interpretation”). See generally Bruce G.
Peabody, Reversing Time’s Arrow: Law’s Reordering of Chronology, Causality,
and History, 40 A
KRON L. REV. 587 (2007) (discussing problems with
chronology and the law).
88. Coenen, supra note 21, at 1329 (emphasis in original).
89. Id. at 1330 (emphasis added).
90. Id. at 1330.
146 MINNESOTA LAW REVIEW HEADNOTES [101:121
A final obvious objection is to note that “reverse readings”
are not the standard ways of understanding sentence
construction, and can lead to perverse (and clearly incorrect)
outcomes in other contexts. The proposition that “[n]o one who
commits a felony shall be allowed to vote” is a relatively
straightforward legal rule, but its reverse reading (something
like: “If you are allowed to vote, you shall not commit a felony”)
is neither the intended purpose nor coherent. The reverse
reading of the Twenty-Second Amendment seems open to a
similar critique.
C. THE TRANSITIONS CLAUSE OBJECTION
In addition to both the “President in Waiting” argument
and the “reverse” reading of the Twenty-Second Amendment’s
restrictions, the amendment’s concluding “Transitions Clause”
has been a source of imaginative new arguments against the
possibility of three-term Presidents. Specifically, the
transitions language of the Twenty Second Amendment holds
that:
[T]his 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.
91
These provisions do two things: first, they effectively
exempted the President sitting at the time the amendment was
proposed (Harry Truman) from the law’s restrictions. More
important for the purposes of this essay, the text’s subsequent
and rather encompassing language (which references both
individuals “holding” the office or “acting” as President) seems
to anticipate various ways through which someone might
assume the presidency, including through non-electoral means.
In the judgment of scholars like Amar, such comprehensive
language wouldn’t be necessary if the rest of the Twenty-
Second Amendment only restricted presidential elections.
92
Stated differently, why would the Transitions Clause give
special protection to “acting” Presidents (which might include
Vice Presidents who have temporarily taken over the duties of
an elected President) if these figures weren’t otherwise
restricted under the terms of the Twenty-Second Amendment?
91. U.S. CONST. amend. XXII, § 1.
92. A
MAR, supra note 30, at 436 n.8.
2016] TWICE & FUTURE PRESIDENT REVISITED 147
As Coenen summarizes:
[T]here 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 otherwise
foreclosed such a person from becoming Vice-President and thereby
assuming the rights and duties of that office, as a general rule.
93
At first blush, this seems like a substantial blow against
the analysis and conclusions advanced in the original “Twice
and Future President” piece. However, several points limit the
damage done by this “transitions” argument. First, there are
good reasons to think that the transitions language in the
Twenty-Second Amendment is distinct and stands on its own
from the rest of the text’s provisions.
94
Indeed, the language of
the Twenty-Second Amendment seems to apply distinctly to
three different groups of people. The first is comprised of the
sitting President at the time the amendment was proposed (as
noted, Truman is exempted from the Twenty-Second
Amendment). The second group consists of anyone serving as
President (through election or other means) during the
presidential term when the amendment goes into effect. The
individuals in this second group (the elected President at the
time of ratification, or any person acting as President or who
became President during this term) are allowed to finish their
term even if the Twenty-Second Amendment would otherwise
restrict them. And the third group, then, represents every other
subsequent President.
This approach, based on understanding the “transitions”
language as limited to the first and second groups of
Presidents, sequesters the Transitions Clause from the rest of
the Twenty-Second amendment. Such a construction is
supported by both the explicit language of the amendment
(which establishes unique rules for each group), as well as the
sequence in which these words appear. In order for Amar’s
“transitions” argument to apply, we would have to assume that
“the drafters of the Twenty-Second Amendment somehow
meant to set forth a [general,] functionally problematic
restriction” in a transition clause at the very end of the
Amendment, rather than at the outset, where the basic terms
of the Amendment are presented.
95
One might plausibly
93. Coenen, supra note 21, at 1315.
94. Id. at 1326.
95. Id. at 1343.
148 MINNESOTA LAW REVIEW HEADNOTES [101:121
criticize such a reading as one where the Transition Clause’s
“tail” wags the “dog” constituted by the rest of the amendment.
As Coenen puts it, “transition clauses themselves do not
establish operative rules” but only rules regarding “the
transition period itself.”
96
In contrast, Amar’s approach to the
Twenty-Second Amendment arguably privileges the Transition
Clause at the expense of both the core language of the Twenty-
Second Amendment and the drafting lawmakers’ focus on
limiting elected Presidents.
D. J
URISPRUDENTIAL PRAGMATISM AND THREE-TERM
PRESIDENTS
One can identify a final set of new arguments made
against the basic conclusions of the original “Twice and Future
President.” While not consistently pursued, some analyses of
the Twenty Second Amendment implicitly or briefly draw on
variants of jurisprudential pragmatism in criticizing the three-
term presidency thesis.
97
Such pragmatic approaches weigh
heavily the legal and political implications of interpreting a law
or favor consequentialist considerations in helping to select
between several plausible readings of legal language. As Posner
famously articulated, for a judicial pragmatist, “[I]f one
possible interpretation of an ambiguous statement would entail
absurd or terrible results, that is a good reason to reject it.”
98
Pragmatic interpretations of the Twenty-Second
Amendment might focus on the potential deleterious effects of
permitting individuals to serve as President for more than two
terms. These outcomes might include entrenching executive
power and imbalancing the separation of powers. Further, if
one believes that the Twenty-Second Amendment (and the
96. Id. at 1327, 1336.
97. See, e.g., K
ALT, supra note 43, at 138 (discussing how “voters’ policy
preferences” and considerations of “political expedience” would matter a great
deal in applying the Twenty-Second Amendment to the problem of three-term
Presidents); Coenen, supra note 21, at 1326 (discussing the importance of
“practical problems” in interpreting the Twenty-Second Amendment including
concerns about “destabilizing uncertainty and political gamesmanship as to
what person might come to occupy the highest office in the land”).
98. R
ICHARD A. POSNER, OVERCOMING LAW 234 (1995). As we’ve already
seen, Coenen relies on a pragmatist argument in opining that compelling a
President to step down in the midst of a term (required under the “reverse
reading” approach to the Twenty-Second Amendment) would be so “odd,” so
politically unsettling, and so perilous for the nation that it must be rejected.
Coenen, supra note 21, at 1330.
2016] TWICE & FUTURE PRESIDENT REVISITED 149
Constitution as a whole) technically allows for a third-term
President, one might still disfavor this interpretation on the
grounds that much of the public and many political leaders
would reject or question this viewpoint. This need not simply be
a matter of “knuckling under” to public opinion, but a
recognition that in our political order, the voices of “We The
People” have always been powerful determinants in shaping
the effective meaning of our highest law.
99
Even if a twice-
elected President determines that the weight of all other
evidence suggests she can serve as Vice President, she might
conscientiously choose not to do so if convinced that most
people hold a different view of not just the political wisdom but
the constitutional propriety of such a move. Stated differently,
the public’s views are likely to form an outer boundary of what
our constitutional politics will permit.
In the face of such opposition, a legal pragmatist might be
concerned that a nation facing a three-term President might
also experience de facto uncertainty about who has authority to
act as Commander in Chief or even some delegitimization to
our political institutions and the rule of law (with opponents of
the “twice and future President” argument dismissing it as a
kind of lawyerly “trick” that runs against common sense).
These are serious concerns. Three factors, however, make
the pragmatist argument difficult to apply to the circumstances
considered in this essay. To begin with, a meaningful
evaluation of the consequences of a third term presidency is
likely to require case-specific analysis.
100
An unpopular former
Chief Executive who is elevated to the presidency without
widespread support and by “accident” (perhaps this person was
99. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC
OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING
OF THE
CONSTITUTION 4 (2009) (discussing how “the American people came to
understand and then to shape the role played by the justices, thus defining the
terms of their own constitutional democracy”); L
ARRY D. KRAMER, THE PEOPLE
THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 29–34
(2004) (describing the American “customary” or “popular” view of
constitutional law in which “constitutional interpretation and enforcement
were left to the community”).
100. Judicial pragmatism can involve either general or specific legal
judgments. We can say that the reference to “He” in Article II, Section 1,
should not be understood to limit the presidency to men either because it
would entail the ridiculous and impermissible result that women would be
excluded from the presidency or in noting that such an interpretation would
set aside the popular judgment of the people if they, say, elected Hillary
Clinton as President.
150 MINNESOTA LAW REVIEW HEADNOTES [101:121
named in a presidential succession statute) raises a
substantially different pragmatist assessment than a scenario
where a victorious President-elect dies, but only after selecting
a respected twice-elected Vice President as running mate (a
choice that is explicitly sanctioned by the public through, say,
an electoral college landslide).
The second, related observation is that the “absurd or
terrible” legal and political outcomes pragmatists seek to avoid
can be difficult to measure, especially longitudinally. When
initially announced, Miranda v. Arizona (1966)
101
mandated
unpopular constitutional rules that were broadly opposed by
law enforcement personnel, lawmakers, a majority of the
public, and even some judges.
102
Some of these figures declared
that the Miranda rules would hamper law enforcement efforts
and lead to a dramatic rise in crime.
103
By 2000, however, public
opinion overwhelmingly supported the ruling and it had
famously “become embedded in routine police practice to the
point where the warnings . . . [were] part of our national
culture.”
104
Our abstract and acontextual assessments about the
consequences of allowing a twice-elected President to serve
again must recognize that even strongly held views about the
legitimacy of laws (and their effects) can shift dramatically over
time.
The third, closely related point is simply to observe that
jurisprudential pragmatists, especially those making
assessments from the relative isolation and insulation of the
bench, should exhibit humility regarding their capacity for
political and consequential judgment; this is an area where
courts should generally defer to the views of elected officials,
101. Miranda v. Arizona, 384 U.S. 436 (1966).
102. M
ATTHEW E. K. HALL, THE NATURE OF SUPREME COURT POWER 61–71
(2010) (reviewing reactions to Miranda and scholarship on its implementation
and impact).
103. See, e.g., Controlling Crime Through More Effective Law Enforcement:
Hearings Before the Subcomm. on Criminal Laws and Procedure of the S.
Comm. on the Judiciary, 90th Cong. 1120 (1967) (statement of New York
County District Attorney Frank Hogan).
104. Dickerson v. United States, 530 U.S. 428, 430 (2000); Bruce Peabody,
Fifty Years Later the Miranda Decision Hasn’t Accomplished What the
Supreme Court Intended, W
ASH. POST: THE MONKEY CAGE (June 13, 2016),
https://www.washingtonpost.com/news/monkey-cage/wp/2016/06/13/your
-miranda-rights-are-50-years-old-today-heres-how-that-decision-has-aged
(contending that while the decision was “widely unpopular when first handed
down . . . abundant evidence shows that over the years, the basic Miranda
rules were accepted by society”).
2016] TWICE & FUTURE PRESIDENT REVISITED 151
policymakers, and voters. With respect to the issues considered
in this essay, there’s no reason to think that judicial and legal
expertise make judges especially capable of weighing the long
term outcomes of permitting or forbidding a person from
serving as President in a third term. There surely are areas of
law where judges are better positioned for these sorts of policy
determinations. In evaluating the impact of the Miranda
warnings, for example, judges had many iterative opportunities
to ascertain the decision’s effects and weigh these with
standards and metrics courts were familiar and comfortable
using (such as the rates at which confessions were thrown out).
But sui generis judgments about what will happen if we allow,
say, President Obama to serve as Vice President is not the kind
of subject within the ken of most jurists, because it raises so
many unfamiliar and speculative questions about political
legitimacy and effectiveness.
IV. BROADER IMPLICATIONS OF THE THREE-TERM
PRESIDENTS THESIS
Since 1999, a small but serious-minded group of
researchers have considered whether twice-elected Presidents
can once again serve as the nation’s Chief Executive by pushing
their way through various interstices in our supreme law.
105
These scholars have reviewed and engaged past debates on this
question, and introduced new lines of inquiry, but have not
achieved much agreement about the Constitution’s strictures
regarding presidential service.
106
This absence of consensus,
together with the conclusions of prominent political figures
(including both Clintons) that twice-elected Presidents cannot
again serve in the office of President places a heavy burden on
those arguing to the contrary.
107
Indeed, unsettled legal terrain
105. See Baker, supra note 16 (discussing how the prospect of Vice
President Bill Clinton generates disagreement amongst scholars, judges, and
lawyers); Spivak, supra note 14 (noting that scholars disagree about the
application of the Constitution to a potential Clinton vice presidency).
106. See Baker, supra note 16 (discussing the “simmering disagreement on
whether a president who has already served two terms can be vice president”).
107. When prominent officials like the Clintons express doubts about the
three-term presidency it creates something of a practical precedent that poses
an additional challenge for future twice-elected Presidents who wish to serve
again. As Kalt puts it, “The more that Congress and Presidents reinforce the
constitutional impropriety of serving more than two terms, the more voters
will be inclined to vote against a candidate trying to exploit the careless
loophole left in the Twenty-Second Amendment, and thus the smaller that
152 MINNESOTA LAW REVIEW HEADNOTES [101:121
is not a reassuring surface for someone who would consider
taking a bold and dramatic step back to the White House. Nor
is it comfortable footing for a nation that needs to have
unstinting confidence in the authority, legitimacy, and power of
its Commander in Chief.
So, stated somewhat differently, aren’t the stakes simply
too high to entertain seriously the arguments advanced in both
the original “Twice and Future President” piece as well as this
updated essay? And if that’s the case, what’s the broader
purpose of this inquiry? What makes it something “more than
an academic diversion?”
108
The first point to note in this regard is that however
unlikely the circumstances outlined in this essay seem to be at
the moment, politics, even constitutional politics, can be a
dynamic and even fickle enterprise. The remarkable post-Civil
War expansion of black voting power and civil rights was
impelled by outright military surrender, the Reconstruction
Amendments, and a vigilant and motivated Republican party.
109
In less than a generation, however, party interests shifted and
much of this progress was undone.
110
The jurisprudential gap
between Bowers v. Hardwick (denying “a fundamental right
upon homosexuals to engage in sodomy”)
111
and Obergefell v.
Hodges (extending Fourteenth Amendment protections to
“personal choices central to individual dignity and autonomy,
including intimate choices that define personal identity and
beliefs”)
112
seems vast, but is separated by less than 30 years.
One can surely identify other instances of relatively rapid legal
transformations.
113
The potential for change in our future political and legal
attitudes should, therefore, induce us to think carefully about
what appear to be seemingly unlikely scenarios today. After all,
one of the primary purposes of written law is to try to constrain
imperfectly foreseen events through binding rules. In a similar
loophole will become.” KALT, supra note 43, at 157.
108. Albert, supra note 11, at 857.
109. See ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED
REVOLUTION, 1863–1877 271–80, 314 (1988).
110. Id. at 601–02; WILLIAM GILLETTE, RETREAT FROM RECONSTRUCTION,
1869–1879 48–55 (1979).
111. 478 U.S. 186, 190 (1986).
112. 135 S. Ct. 2584, 2597 (2015).
113. See, e.g., H
ALL, supra note 102, at 62 (the public’s constitutional
judgments about Miranda “change[d] dramatically in the thirty-four years”
between the initial decision and its most serious challenge in Dickerson).
2016] TWICE & FUTURE PRESIDENT REVISITED 153
manner, one of the critical drivers of legal interpretation is to
think through permutations of those rules even when these
applications seem remote or even unlikely. In short, the
constitutional problems considered in this essay and in related
scholarship “could well become real-life problems at some point
in the future” and, if they do, the nation will be better served by
having a “thoroughgoing treatment of the legal issues prepared
outside the maelstrom of an ongoing political crisis.”
114
As Kalt
points out, the most important constitutional problems posed
by the secession of southern states in 1861, as well as the
contested presidential elections of 1876 (and 2000) were
foreseeable, but insufficiently considered by politicians, the
courts, and the public.
115
Surfacing such issues in advance is no
panacea, but it helps support the rule of law and a political
order based on “reflection and choice” rather than “accident and
force.”
116
In the case of the Twenty-Second Amendment, the
prospects of a third-term President rising on a future political
horizon is made somewhat more likely by a number of factors.
Presidents twice-elected to White House are likely to embody
some impressive combination of ambition, political skill,
popularity, familiarity, and resourcefulness—traits that could
incline these individuals to seek the office of President again
through perceived constitutional loopholes. Moreover, in recent
years, a number of these figures have been relatively young,
further inviting speculation about how they might continue to
serve their country in the years ahead.
117
114. Coenen, supra note 21, at 1291–92. Cf. KALT, supra note 43, at 2
(“American history is full of . . . constitutional debacles and near misses . . . .”).
115. K
ALT, supra note 43, at 155 (“[D]uring the 2000 election crisis, when it
still looked like the dispute might not be resolved in time, a New York Times
op-ed suggested that Congress provide for two-termer Bill Clinton to stay in
power until the election could be properly resolved.”).
116. T
HE FEDERALIST NO. 1 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). The suggestion that thorough and responsible constitutional
interpretation requires some anticipation of future scenarios, even somewhat
unlikely ones (from the perspective of the present) is in some admitted tension
with my prior contention that we should be humble about the judiciary’s
ability to engage in assessments of political consequences. But the two points
are certainly not synonymous: a responsible judge should try to anticipate
different scenarios or events that will make today’s interpretation or
jurisprudential rule problematic. That point is not quite the same as giving a
jurist wide latitude to assess the political stakes of one reading over another;
the first is more of an act of legal imagination while the second involves more
precise calculations of consequences.
117. See Coenen, supra note 21, at 1291 (“At least in the modern era, twice-
154 MINNESOTA LAW REVIEW HEADNOTES [101:121
Finally, the rise of hyper-partisanship and with it, the
ascension of what Mark Tushnet calls “constitutional hardball”
(constitutionally valid practices that are nevertheless in
tension with significant political norms and values) may also
make a three-term President more likely in the twenty-first
century.
118
Future partisans might well seek to use the formal
rules of the Constitution to advance their candidates and
policies, even in ways that upset conventional and informal
understandings of how the nation conducts its political
business.
119
In sum, future Presidents may well test the limits of the
Twenty-Second Amendment, and scholarship like this essay
will help us respond. But we can also frame the issue more
positively and proactively: there are good policy reasons to
explore the prospects of a three-term President. The most
obvious application involves presidential succession, giving rise
to questions about whether we should reform our existing laws
governing who is to serve as Commander in Chief should both
the sitting President and Vice President die or become disabled.
In recent decades these questions have taken on some added
urgency in light of ongoing concerns about terrorism and
maintaining “continuity in government” during crises or
attacks on our highest leaders.
120
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.”). Both Bill Clinton and Barack Obama will have been
55 at the time they left office following their second term.
118. Mark V. Tushnet, Constitutional Hardball, 37 J.
MARSHALL L. REV.
523, 553 (2004) (describing constitutional hardball as “political claims and
practices—legislative and executive initiatives—that are without much
question within the bounds of existing constitutional doctrine and practice but
that are nonetheless in some tension with existing pre-constitutional
understandings”).
119. In the context of the Twenty-Second Amendment, one might note that
the alleged “two term” tradition upon which the amendment is founded is
much more tentative and uneven than usually presented. See Peabody, supra
note 56.
120. See generally John C. Fortier & Norman J. Ornstein, If Terrorists
Attacked our Presidential Elections, 3 E
LECTION L.J. 597 (2004) (identifying
potential terrorism targets during the American election cycle); Robert E.
Gilbert, The Contemporary Presidency: The Twenty-Fifth Amendment:
Recommendations and Deliberations of the Working Group on Presidential
Disability, 33 PRESIDENTIAL STUD. Q. 877 (2003) (discussing the Clinton-era
Working Group on Presidential Disability); James C. Ho, Ensuring the
Continuity of Government in Times of Crisis: An Analysis of the Ongoing
Debate in Congress, 53 C
ATH. U. L. REV. 1049 (2004) (discussing measures
necessary to ensure a functioning Congress in the wake of a terrorist attack);
2016] TWICE & FUTURE PRESIDENT REVISITED 155
Under Article II and the Twentieth Amendment of the
Constitution, after the Vice President, the order of presidential
succession is determined by congressional statute. The current
law, the Succession Act of 1947, stipulates that the Speaker of
the House and President pro tempore are next in line, followed
by various cabinet officers in the chronological order in which
their departments were first established.
121
Scholars have
raised substantial concerns about the constitutionality of the
Succession Act (on separation of powers and other grounds).
But even if one sets these admittedly pressing issues aside, it
should also trouble us that the first two figures named in the
current statute have no guaranteed national security
background or executive governing experience, not to mention
broad public recognition or legitimacy. Is it really optimal to
put these individuals in immediate proximity to the reins of
executive authority—particularly since they would most likely
be tapped under especially trying circumstances? In the
aftermath of a horrific attack or catastrophic accident, orderly,
confident, and experienced leadership should be at a premium,
but these traits might not be supplied by the legislative
specialists currently at the front of the succession queue. As
Albert puts it:
The Speaker of the House and the Senate President pro tempore may
be schooled in the science of legislation but both are inexpert in the
art of popular leadership. Neither possesses the presidential timbre
necessary to pilot the country in the aftermath of an attack nor enjoys
the democratic legitimacy that only a national election can confer.
122
Paul Taylor, Proposals to Prevent Discontinuity in Government and Preserve
the Right to Elected Representation, 54 S
YRACUSE L. REV. 435 (2004)
(discussing measures necessary to ensure a continuous government in the
event of a terrorist attack).
121. 3 U.S.C. § 19 (2012).
122. Albert, supra note 6, at 498; see also John C. Fortier & Norman J.
Ornstein, Presidential Succession and Congressional Leaders, 53 C
ATH. U. L.
REV. 993, 998 (2004) (“For both constitutional and policy reasons, we favor a
return to a purely executive branch line of succession.”). Of course, a case can
be made that either a Speaker or Senate Majority leader, who are likely to
have significant governing experience and the support of a majority of at least
one congressional chamber, would be superior presidential choices than, say, a
person low down on the (current successor) list of executive department heads.
See generally John Manning, Not Proved: Some Lingering Questions About
Legislative Succession to the Presidency, 48 S
TAN. L. REV. 141 (1995)
(challenging the view that the Speaker is a poor succession choice). But my
argument here is different: a recent, twice-elected President may be a superior
choice to all of these figures—and should certainly be considered in the mix.
156 MINNESOTA LAW REVIEW HEADNOTES [101:121
On the basis of these and other concerns, Albert proses
that we revise the succession law to privilege former Presidents
(in reverse chronological order—that is, starting with whatever
President was last in office) from the same party as the elected
but unavailable President. These figures “are the only ones
equipped with the proven competence, domestic repute, and
foreign stature needed to pull the United States out of the
depths of disaster.”
123
Albert specifically contends that twice-elected Presidents
would not be eligible for his new succession law under the
terms of the Twenty-Second and Twelfth Amendments. But as
we have seen, this conclusion is quite likely mistaken on the
grounds that the Twelfth Amendment’s reference to
constitutional ineligibility does not obviously extend to twice-
elected Presidents who assume the office of President through
non-electoral means.
124
Indeed, such figures might possess just
the right mix of relevant experience, political credibility, and
limited personal ambition to help the nation best in a time of
trial.
CONCLUSION: CONSTITUTIONAL END RUNS
Almost two decades after the publication of “The Twice and
Future President,” the weight of legal, historical, and policy
argument still falls on the side of permitting a twice-elected
President to lead the executive branch once again. That said,
there is certainly both scholarly and popular uncertainty about
this conclusion, and good reasons to think we would benefit
from greater clarity in this regard.
So why not just amend the Constitution to obtain closure
on these issues? As a legal matter, simply changing the
Twenty-Second Amendment to read “No Person shall serve or
act as President in more than two terms” would probably
suffice—regardless of whether this is, in fact, a good policy
idea.
125
123. Albert, supra note 6, at 499.
124. Again, a twice-elected President might obtain the office of President
not only through succession as Vice President, but also via some more
presumably attractive position such as, say Secretary of State (through a
succession statute).
125. In 2011, former President Bill Clinton argued that “the 22nd
Amendment should probably be modified to say two consecutive terms instead
of two terms for a lifetime because we’re all living longer.” Live from the
Headlines (CNN television broadcast May 28, 2003), http://transcripts.cnn
2016] TWICE & FUTURE PRESIDENT REVISITED 157
The problem with this approach is that the U.S.
Constitution is extraordinarily difficult to change.
126
This is
true not only because the enduring formal rules of amendment
require comparatively demanding supermajority thresholds,
but also as a historical matter: it is harder to enact Article V
constitutional changes in the twenty-first century.
127
While
Darren Patrick Guerra notes that the Constitution has been
amended on average once every 8.2 years, if one takes out the
Twenty-Seventh Amendment (which was ratified over the
course of more than two centuries), no amendment has been
ratified for the past 44 years.
128
Again, some of this difficulty
can be attributed to rising partisanship within government,
and the resulting unwillingness of leaders and rank and file
officials to identify the broadly shared ground needed for
constitutional revision. Our current ideological and party divide
is exacerbated by invariant features of American politics, such
as our complex separation of powers system, which includes
divisions between and within state and federal authority.
129
Of course, the difficulty of changing the American
Constitution isn’t automatically troubling. Indeed, for much of
our history, the relative immutability of our supreme law was
seen as a signature strength of our republic.
130
Among other
.com/TRANSCRIPTS/0305/28/se.12.html.
126. See Donald S. Lutz, Toward a Theory of Constitutional Amendment, in
R
ESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF
CONSTITUTIONAL AMENDMENT 261 (Sanford Levinson ed. 1995) (presenting an
Index of Difficulty which shows that the U.S. Constitution is the second
hardest to change in a survey of 30 nations).
127. STEVEN L. TAYLOR, MATTHEW S. SHUGART, AREND LIJPHART, &
BERNARD GROFMAN, A DIFFERENT DEMOCRACY: THE US IN COMPARATIVE
PERSPECTIVE 79–80 (2014) (making the case that the U.S. Constitution’s
formal amendment process make it one of the most “rigid” amongst
comparable democracies).
128. D
ARREN PATRICK GUERRA, PERFECTING THE CONSTITUTION: THE CASE
FOR THE
ARTICLE V AMENDMENT PROCESS (2013). For a discussion of the
Twenty-Seventh Amendment, see Sanford Levinson, Authorizing
Constitutional Text: On the Purported Twenty-Seventh Amendment, 11 C
ONST.
COMMENT. 101 (1994) (discussing the amendment’s “uncertain status”).
129. See generally T
HOMAS E. MANN & NORMAN J. ORNSTEIN, IT’S EVEN
WORSE THAN IT LOOKS 163 (2012) (discussing how our separation of powers
system does not comport well with our current era of polarized parties but
concluding that “major constitutional restructuring” is a “purely academic”
fantasy); Bruce G. Peabody & John D. Nugent, Towards a Unifying Theory of
the Separation of Powers, 53 A
M. U. L. REV. 1, 32 (2003) (discussing the “the
fractured ways in which political authority is distributed between various
institutions of governance”).
130. See Larry Alexander & Frederick Schauer, On Extrajudicial
158 MINNESOTA LAW REVIEW HEADNOTES [101:121
benefits, such a stable governing charter helps protect against
political “overreaction to more immediate impulses of the
moment.”
131
Moreover, courts and other public officials have
devised alternate, non-Article V mechanisms for effectively
changing the meaning of the Constitution, with constitutional
interpretation and reliance on case precedents as some of the
most prominent of these mechanisms.
132
In more recent years, however, scholars from diverse
substantive and ideological backgrounds have been making a
different case. In the eyes of these thinkers, our constitutional
stability has become a troubling stasis that undermines core
values (like our commitment to democracy),
133
is “inadequate to
the demands of twenty-first-century America,”
134
and at least
partly impedes our capacity to address pressing policy issues of
a national and international scope, such as climate change.
135
Sanford Levinson has gone so far as to call the Article V
process for amending our supreme law the “worst single part”
of an “imbecilic” Constitution, that contributes to a
“dysfunctional, even pathological” politics.
136
Thomas Mann and
Constitutional Interpretation, 110 HARV. L. REV. 1359, 1371 (1997) (law’s
primary purpose is “to settle authoritatively what is to be done” to foster social
and political stability); Sonia Mittal and Barry R. Weingast, Constitutional
Stability and the Deferential Court, 13
U. PENN. J. CONST. L. 337, 338 (2010)
(describing U.S. constitutional stability as “unique in the world”).
131. Richard J. Lazarus, Super Wicked Problems and Climate Change:
Restraining the Present to Liberate the Future, 94 C
ORNELL L. REV. 1153, 1198
(2009).
132. See Sanford Levinson, How Many Times Has the United States
Constitution Been Amended? (A) < 26; (B) 26; (C) 27; (D) > 27: Accounting for
Constitutional Change, in R
ESPONDING TO IMPERFECTION: THE THEORY AND
PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed. 1995). As
Brian Kalt points out, it is likely that the abundance of non-Article V changes
to the Constitution have decreased the perceived urgency for formal
constitutional amendment and, conversely, that the difficulty of formal legal
change encourages experimentation with non-Article V mechanisms. E-mail
from Brian C. Kalt, Professor of Law, Michigan State University College of
Law to Bruce G. Peabody, Professor of Political Science, Fairleigh Dickinson
University (Aug. 3, 2016, 17:41 EST) (on file with author).
133. S
ANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE
CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT)
(2008).
134. L
ARRY J. SABATO, A MORE PERFECT CONSTITUTION: WHY THE
CONSTITUTION MUST BE REVISED 4 (2007).
135. See Lazarus, supra note 131; see also generally S
OTIRIOS BARBER,
CONSTITUTIONAL FAILURE (2014) (arguing that American political dysfunction
indicates a failing constitution).
136. Sanford Levinson, Our Imbecilic Constitution, N.Y.
TIMES CAMPAIGN
STOPS (May 28, 2012, 8:36 PM), http://campaignstops.blogs.nytimes.com/2012/
2016] TWICE & FUTURE PRESIDENT REVISITED 159
Normal Ornstein emphasize, instead, a debilitating “mismatch
between parliamentary-style political parties” and our
enduring constitutional “separation-of-powers system that
makes it extremely difficult for majorities to work their will.”
137
Overall, they lament, this combination results in a destructive
loyalty to party over country, putting us “at risk because of an
inability to govern effectively.”
138
Assuming these critics of constitutional inertia are right,
139
what is the way out of this tricky dilemma? How do we solve
the puzzle of a nation facing pressing political problems while
its constitutional order (both the constitutional text itself and
the prevailing views about how it should be interpreted)
represents a significant barrier to needed reforms and policy
innovation?
This essay’s analysis of the Twenty-Second Amendment
suggests a possible, difficult way forward. We might use the
three-term President as a kind of case study of a wider
phenomenon: constitutional end runs. These represent efforts
to circumvent and even subvert widely accepted
understandings of what the Constitution means in favor of
more unconventional and even idiosyncratic readings, often by
exploiting inconsistencies or interstices in the constitutional
text.
One can think of a constitutional end run as a kind of
variation of what Stephen L. Carter has identified as a
constitutional “impropriety.”
140
According to Carter, a
constitutional impropriety is a government act that is not
forbidden by the Constitution (and the prevailing
interpretations of that document) but which is nevertheless
“contrary to the spirt of the document, as reflected in the
document’s history and in its role in the constitutional story
05/28/our-imbecilic-constitution.
137. M
ANN & ORNSTEIN, supra note 129, at 102.
138. Id. at 101.
139. There is, of course, a group of scholars who push back against the
constitutional dysfunction thesis, and either argue that our contemporary
problems are less serious than depicted, or that their true source lies beyond
the Constitution and its resistance to change. See generally What Do We Talk
About When We Talk About the Constitution?, 91 T
EXAS L. REV. 1119, 1132
(2013) (with Akhil Reed Amar) (concluding that we shouldn’t “blame the
Constitution for most of our problems”).
140. Stephen L. Carter, Constitutional Improprieties: Reflections on
Mistretta, Morrison, and Administrative Government, 57 U.
CHI. L. REV. 357
(1990).
160 MINNESOTA LAW REVIEW HEADNOTES [101:121
that We the People of the United States, tell about ourselves.”
141
In a sense, a constitutional impropriety involves a legally valid
act that is still regrettable from the perspective of our most
cherished constitutional values.
In contrast, a constitutional end run involves a
controversial constitutional interpretation, perhaps even an
application that many (or most) would find troublesome,
flawed, or even wrong. Unlike a constitutional impropriety,
these constructions of our supreme law push the envelope of
accepted understandings of how the Constitution works. At the
same time, however, end runs (at least when they are
defensible) advance important values immanent in our
constitutional order, or help secure vital policy and political
goals that are otherwise unattainable.
Arguably, the Twenty-Second Amendment
142
could provide
the opportunity for such an end run. Allowing a popular twice-
elected President to run again for the White House (as, say,
Vice President) would, obviously, serve democratic values
insofar as the public would have an opportunity to select (or
reject) a person otherwise blocked through traditional
presidential election channels (under the terms of the Twenty-
Second Amendment). We can also imagine more specific cases
where a twice-elected President might be tapped through a vice
presidential selection or even an amended succession statute to
help stabilize an administration beset with scandal or at least
serve as a trusted placeholder until the next election.
143
Something similar might occur if a presidential election is
141. Id. at 392.
142. There are surely other areas of constitutional politics where we can
imagine such controversial (but arguably beneficial) end runs. See, e.g., Bruce
Peabody, Opinion, Term Limits for Supreme Court Justices, T
HE BERGEN
RECORD (Feb. 21, 2016), (discussing how to impose “Supreme Court term
limits” without a constitutional amendment through a “non-binding pledge” to
retire).
143. Under this scenario, the President and Vice President might agree to
resign (circumventing divisive and disruptive impeachment proceedings) on
the condition that a twice-elected President of the same party be named to fill
the remainder of the term. Conversely, if we believe that the three-term
president argument advanced in this essay is likely to be widely perceived as
legally valid, we might posit a quite different kind of end run based on
blocking a twice-elected president on the grounds that this would pose a
significant danger to our constitutional order. Such an analysis might say
something to the effect of, “Yes, everyone knows the Twenty-Second
Amendment permits a twice-elected President to serve as Vice President, but
permitting this would damage the valuable principle of rotation in office and
otherwise encourage a concentration of executive power.”
2016] TWICE & FUTURE PRESIDENT REVISITED 161
disputed (such as occurred in 2000), and the nation needs a
trusted, experienced figure to serve as a stand in until the
relevant legal and political questions are resolved.
It is well beyond the purview of this essay to explore fully
the implications of identifying and promoting constitutional
end runs. Surely some of these maneuvers could be dangerous
and pose threats to the rule of law or to political institutions
and constitutional practices we hold dear. But other end runs
could help us address real problems and enact needed changes
by effectively skirting constitutional constraints that seem
ossified, unworkable, and resistant to formal change—
beginning with the amendment process itself. If successful and
ultimately supported, such end runs might even become widely
accepted over time, generating a new norm of accepted
constitutional practice.
A constitutional order refashioned with such legal bypasses
should make us uncomfortable. It threatens to create a kind of
constitutional Rube Goldberg machine, a construction that may
break down, and is constantly in danger of inviting charges of
illegitimacy and obfuscation. We the People probably deserve
better. But in a nation wracked with party division, policy
discord, and inherited “Tudor institutions,”
144
this may be the
best way to balance our commitment to the traditional rule of
constitutional law with new and pressing imperatives for
change.
144. Samuel P. Huntington, Political Modernization: America vs. Europe,
18 W
ORLD POL. 378, 380 (1966) (“In America [unlike Europe] the political
system did not undergo any revolutionary changes at all. Instead, the
principal elements of the English sixteenth-century constitution were exported
to the New World, took root there, and were given new life at precisely the
time they were being abandoned in the home country. These Tudor
institutions were still partially medieval in character.”).
