Mar 122008

UPDATE: No I apparently can’t. Stupid pesky 12th Amendment and its fine print…

UPDATE 3/21: Or can I? See Update 4 below.

Much fuss is being made over whether the unique circumstances of John McCain’s birth — in the Panama Canal Zone to two American citizen parents — preclude him from fulfilling the “natural born” requirement of the US Constitution’s articulated qualifications for the office of the President:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. Article II, Section 1.

In elementary school I had always been taught that “natural born” meant that you had to be born on American soil — the idea being that someone born elsewhere might have split loyalties, with some being devoted to the place of birth instead of the US. That reasoning may still be the logic behind the requirement, but knowledgeable legal scholars are saying that “natural born” really only differentiates between naturalized citizens and those who were citizens by virtue of their birth — which the citizenship of their parents could establish regardless of where they were born.

In looking over Article II, Section 1 of the Constitution, however, much more interesting realizations come to mind.

There is, for instance, this subsequent paragraph in the same section:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. (Emphasis added.)

Which raises the question: were Hillary Clinton to win the election, via what Constitutional mechanism would she be able to get paid? (I suppose there might be one — something with privileges and immunities, perhaps? — but I’ve been poring over the text and not finding it. So much for originalism…)

But what was most interesting to me in reading this paragraph and the other relevant clauses in the Constitution was what it means for my own political ambition.

While I have always been aware that, due to the age requirement, I would not be eligible to run for President before 2012, I see no such obstacle to my running for Vice-President in this very election. (UPDATE: Apparently the lust for power can be quite blinding….)

By the time I would take office in January of 2008, I would be 34 — too young to be President, but apparently old enough to be Vice-President, which seems to have none of its own age criteria. (UPDATE: Well, not spelled out on its own…) Perhaps because the Vice-President serves as president of the Senate the age requirement for Senators might be applicable, but Senators need only be at least 30 years old, which I’ve long since surpassed.

True, before my 35th birthday, should the rules of succession be called into play I would be ineligible to take on the mantle of the Presidency. But in such case it would surely simply pass to the next in line (see the 20th Amendment), and, anyway, it would only be a mere three months and change from the date of swearing in (January 20) before age would cease to be an infirmity. Some have suggested that someone ill-equipped to fulfill the role of the Presidency should not be put in a position where they could conceivably inherit the office. But that admonition seems more applicable to someone whose incapacity would be incurable. Not for a natural-born Jersey girl whose April birthday is right around the corner.

So given the occasion of this analysis I feel it time to accelerate my political plans and declare my candidacy for Vice-President in this November’s Presidential election. Leading Presidential candidates should feel free to get in touch so we can discuss how to form the winning ticket. And, given that I’m a woman, how I would get paid.

UPDATE: Well, apparently the 12th Amendment is standing in my way, which either I didn’t notice earlier or failed to recognize the significance of. Then again, surely there’s some legal interpretation that would preserve my eligibility… For the good of the country, you know… After all, it’s just three measly months! It’s not like I was born in a whole other country like some candidates…

UPDATE2: And not only that, but I am otherwise so perfectly suited. E.g., I come from a politically-connected family (my dad’s on a local school board) and I don’t read the Constitution any less badly wishfully than certain other presidents do…

UPDATE3: In the comments Mitch echoes what many others have been saying in questioning whether the “natural born” requirement still makes sense. I’m not sure how I feel about it, but I am sure that it’s a bad idea to change a constitution to support any particular person’s political ambition. Though I loathe invoking Godwin’s Law with the following example, it should be remembered that, while the German constitution during the Weimar Republic had flaws, including that it set the scene for Hitler to be able to legitimately rise to power, he was able to cement his position by changing the constitution to suit his needs. I don’t mean to suggest that any political figures in today’s America have similarly sinister agendas, but the rules we have have served us well these 200+ years. We should feel free to improve upon them when there are valid reasons to do so, but not for anyone’s political convenience.

UPDATE4: According to Calvin Massey and Marty Lederman in the comments here, I may still be eligible. The question hinges in how the last line of the 12th Amendment, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States,” is interpreted. Wherein does the ineligibility lie? In standing for the election? In being elected by the electoral college? Or in occupation of the office itself? My current thinking now tends to think that I’d be eligible to stand for election for vice-president, but likely ineligible to be elected so. But my initial reading tended to suggest the opposite, hence the original drafting of this post.

 Posted by at 7:35 am

  4 Responses to “Yes I can… be Vice-President?”

  1. Sorry, youngster: As the Twelfth Amendment says, “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

  2. Gosh darnit… I read the thing a gazillion times today and didn’t see that. Or at least not process the implications.
    OK, so I’ve updated the post…

  3. No one’s talking about whether the ‘natural born’ requirement still makes sense. Granted a constitutional amendment is infeasible for this election cycle, but does it really make sense to deny the top job to someone who was, say, born in Canada and naturalized along with her parents at a young age? (I’m thinking of the governor of Michigan – not Arnold but he ought to be able to compete if he wants to)

  4. What’s Really at Stake in the Veepstakes:

    Right now, there is all sorts of gossip and speculation about who John McCain and Barack Obama are going to pick as their vice presidential nominees. Most of that speculation focuses on the possible impact of the vice presidentia…

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