Why  the  Constitution  permits  a  Gore-Clinton  ticket
Michael C. Dorf ( Contributor - FindLaw )

Leading in most polls, Texas Gov. George W. Bush had the luxury of allowing political calculations to take a back seat in his choice of a running mate.

Rather than selecting a flashy personality from a large "battleground" state that might go either way in the election, Bush could afford to choose Wyoming's bland but experienced Dick Cheney as his veep hopeful.

Vice President Al Gore, whose campaign needs a serious jumpstart, cannot afford a similar luxury. Instead, Gore must choose a running mate who will generate a sense of excitement.

Who would be a better choice than the most charismatic and skillful politician of his generation, William Jefferson Clinton?

Indeed, New York Times editorialist Thomas L. Friedman has already suggested President Clinton as a potential veep choice for Gore. To be sure, Friedman made this suggestion jokingly. But Clinton's charisma is no joke. With Clinton on the ticket, many swing voters might choose Gore over Bush (although those suffering Clinton fatigue might well swing the other way).

Prognostication aside, the prospect of a Gore-Clinton ticket raises an interesting constitutional question: Can a man who has been president for eight years be elected and serve as vice-president?

Language of the 22nd Amendment

Tremulous Republicans and other naysayers will no doubt claim that the 22nd Amendment would bar a Clinton vice-presidency. This amendment, enacted after FDR was elected president for the fourth time, imposes a two-term limit on presidential candidates.

Now, the language of the amendment certainly does not expressly apply to a vice-presidential candidate. But other constitutional provisions guarantee that the vice-president becomes president upon the death, incapacity, impeachment, or resignation of the president.

Thus, if a two-term president like Bill Clinton became vice-president, that would raise the specter of a possible third Clinton presidential term, a specter that would become a reality if any of these unfortunate events were to befall a President Gore. Some might argue that, as a result, a Clinton vice-presidency (and that of any two-term president) would be unconstitutional.

In support of this argument, one might also cite the 12th Amendment, which provides, in pertinent part, that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

President Clinton is certainly ineligible to be elected to another presidential term, based on the 22nd Amendment. Some might infer from the 12th Amendment that he is therefore also ineligible to be elected to a vice-presidential term.

Constitution permits a Clinton vice-presidency

But these naysayers would be wrong. The Constitution permits Clinton to be elected vice-president, and if necessary to ascend for a third time to the presidency as careful attention to the language of the 12th and 22nd Amendments shows.

The 12th Amendment would allow a Clinton vice-presidency. Its language only bars from the vice-presidency those persons who are "ineligible to the office" of President. Clinton is not ineligible to the office of president, however. He is only disqualified (by the 22nd Amendment) from being elected to that office.

This is no mere semantic distinction. Article II of the Constitution carefully defines exactly who is "eligible to the Office of President": anyone who is a natural born citizen, at least 35 years old, and has been a U.S. resident for at least 14 years.

For example, Secretary of State Madeleine Albright is ineligible for the office of president because she is a naturalized, rather than a natural born, citizen. Accordingly, the 12th Amendment renders her ineligible to the office of vice-president as well.

But Bill Clinton can serve as vice president, because the 22nd Amendment's prohibition on running for a third presidential term is not a condition of the office of president.

The 22nd Amendment states: "No person shall be elected to the office of the President more than twice, and no person [who has served more than half a term] shall be elected to the office of the president more than once."

The language is quite clear. It places no limits whatsoever on how many terms someone may serve as president, only how many times he can be elected.

In other words, the 22nd Amendment does not set conditions on what the 12th Amendment calls eligibility to the office of president. Anyone who is born here and has lived here for 14 years becomes eligible to be president on his or her 35th birthday and is then so eligible forever.

Thus, if. Clinton were to be elected vice president and ascend to the presidency based on, for example, Gore's resignation, then nothing unconstitutional would have occurred. Clinton would have been elected to the presidency only twice though he would serve as president thrice. Under the 22nd Amendment, that is perfectly permissible.

The spirit of the 22nd Amendment

Nonetheless, it could be argued that permitting Clinton to run for, and be elected to the office of, vice president violates the spirit if not the letter of the 22nd Amendment.

The argument is a weak one, however. The 22nd Amendment was adopted in part simply to formalize the tradition unbroken until FDR that American presidents should not seek a third term.

It was also a reaction to the growth in the power of the president in the 20th Century. But in seeking the vice-presidency, a job in John Nance Garner's unforgettable phrase, "not worth a bucket of warm spit," Clinton would hardly be bidding for dictatorial powers.

Furthermore, Republicans trying to fend off the winning Gore-Clinton team lack moral standing to invoke the spirit of any constitutional provision, in preference to its plain language.

George W. Bush proudly calls himself a "strict constructionist" who hews to the letter of the Constitution. And the exegesis of the 22nd Amendment that I have provided here is exactly the sort of "textualism" that Bush's judicial heroes Antonin Scalia and Clarence Thomas routinely applaud.

Of course, even if Gore were to offer him the number two spot, Clinton might turn it down. That would be a mistake for Clinton and for the country. He thrives on campaigns and we, as a people, thrive on him.