A couple of questions.

[J. J.]

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I think that you are reading too much into it. In order to be "eligible" to serve, an individual must meet the eligibility qualifications set forth in Article II--nothing more, nothing less.

I don't, especially when, as always, we look at the intent of the framers.

[Emsworth]

I don't, especially when, as always, we look at the intent of the framers.

I do not believe that there is any reason to consider the intent of the framers here, or in any other case. The United States ratified the text of the Constitution; they did not ratify the intentions of the Framers.

And even if one does wish to make decisions on the basis of the intent of the Framers, then what indication of intent is better than the text itself? The Twenty-Second Amendment's text makes it clear that no-one shall be elected to the Presidency more than twice, but it is equally as clear that an individual who has been elected President twice may still succeed to the office. And if someone may succeed to the Presidency, then he is eligible to that office. And if someone is eligible to the Presidency, he is eligible to the Vice Presidency. There is no reason to deviate from the literal meaning of the text.

[J. J.]

I don't, especially when, as always, we look at the intent of the framers.

I do not believe that there is any reason to consider the intent of the framers here, or in any other case. The United States ratified the text of the Constitution; they did not ratify the intentions of the Framers.

I disagree and know of very few serious constitutional scholars who would agree.  We would not need the Federalist Papers if that was the case.

[/quote]
And even if one does wish to make decisions on the basis of the intent of the Framers, then what indication of intent is better than the text itself? The Twenty-Second Amendment's text makes it clear that no-one shall be elected to the Presidency more than twice, but it is equally as clear that an individual who has been elected President twice may still succeed to the office. And if someone may succeed to the Presidency, then he is eligible to that office. And if someone is eligible to the Presidency, he is eligible to the Vice Presidency. There is no reason to deviate from the literal meaning of the text.
[/quote]

But these were written at times when the assumption was that eligibly for the presidency equaled eligibility to be elected president.

[Emsworth]

I disagree and know of very few serious constitutional scholars who would agree.

Common law precedents suggest that the intent of the lawmakers is to be collected from the text, and not from any other source. For the text is the only thing that the lawmakers (or a majority of them) have officially agreed to.

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The Federalist may help an individual understand the original meaning of a phrase whose implications have changed over time. Thus, the Federalist and other sources suggest that "commerce" meant "trade" when the Constitution was ratified.

But aside from clarifying the meaning of a word that may have evolved, the Federalist plays no role at all. If the Federalist contradicts the text of the Constitution, then the Constitution prevails.

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Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

[J. J.]

Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

It deals with the qualifications for holding the office.  The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president

As for:

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Sorry, legislative intent  comes into play when the text is ambiguous.  We  cannot determine it this refers to "qualification at election" or "qualification to serve."

[Emsworth]

The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president...

No it would not. There is a clause that says that no person shall "be eligible to [the Presidency] who shall not have attained to the Age of thirty-five Years." There is no clause that says that no person shall be eligible to the Presidency who shall have been elected twice.

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If the plain text is ambiguous, then one must simply resort to the settled rules and canons of statutory construction.

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If we take the Twelfth Amendment literally, then no-one who is ineligible to be President is eligible to be Vice President.

But if, according to your logic, the term "eligible" means "eligible to be elected," then the term "ineligible" must also mean "ineligible to be elected." Therefore, would you agree that although Clinton could still be appointed Vice President, even though he supposedly cannot be elected?

[J. J.]

The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president...

No it would not. There is a clause that says that no person shall "be eligible to [the Presidency] who shall not have attained to the Age of thirty-five Years." There is no clause that says that no person shall be eligible to the Presidency who shall have been elected twice.

It doesn't quite say that; it is ambiguous as to if it refers to someone "elected" or not.  Now, I would believe it refers to serving, not election, but I also believe that that the XXII Amendment says that.

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If the plain text is ambiguous, then one must simply resort to the settled rules and canons of statutory construction. The idea that the statements of one or two individuals--even individuals as distinguished as Hamilton and Madison--can

[/quote]

Intent is one of those canons.

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If we take the Twelfth Amendment literally, then no-one who is ineligible to be President is eligible to be Vice President.

But if, according to your logic, the term "eligible" means "eligible to be elected," then the term "ineligible" must also mean "ineligible to be elected." Therefore, would you agree that although Clinton could still be appointed Vice President, even though he supposedly cannot be elected?
[/quote]

No, I was just constructing a counter example (as noted above) to show the conclusion to which your logic leads.

[adam]

How about this. Could a one term president run for the vice-presidency?

[Emsworth]

Intent is one of those canons.

As I said earlier, intent can only be determined from the text, and not extraneous sources. For example, James Kent writes in his Commentaries on American Law, "It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of the statute..."

The very idea that the intent of the whole legislature can be deduced from the comments of one or two individuals is, I would argue, utterly unjustified.

[J. J.]

Intent is one of those canons.

As I said earlier, intent can only be determined from the text, and not extraneous sources. For example, James Kent writes in his Commentaries on American Law, "It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of the statute..."

The very idea that the intent of the whole legislature can be deduced from the comments of one or two individuals is, I would argue, utterly unjustified.

I'm afraid that is quite out of step with current jurisprudence.  Case in poit is this precedent:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=196&invol=1&friend=nytimes

IIRC there was a case from the 1980's where the Court found that a late 18th Century civil rights act applied to people of Semitic origin, because the intent at the time would have classed Semitic peoples as non white.

Legislative intent is used when the statute is unclear, and could, and probably would, come into play here.

[Emsworth]

I'm afraid that is quite out of step with current jurisprudence.]/quote]
Of course. Current jurisprudence has wandered very far from the original meaning of the Constitution, and from the principles established by the common law.

The Supreme Court had it right when it said in 1844, "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself" (Aldridge v. Williams). Likewise, the Constitution is the will of the People, and the only mode in which that will is spoken is in the Constitution itself.

[J. J.]

I'm afraid that is quite out of step with current jurisprudence.]/quote]
Of course. Current jurisprudence has wandered very far from the original meaning of the Constitution, and from the principles established by the common law.

The Supreme Court had it right when it said in 1844, "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself" (Aldridge v. Williams). Likewise, the Constitution is the will of the People, and the only mode in which that will is spoken is in the Constitution itself.

Here is the case I was thinking of,  SHAARE TEFILA CONGREGATION v. COBB, 481 U.S. 615 (1987)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=481&invol=615

White noted:

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It was a unanimous decision, including Marshall and Scalia; those are two very different judicial philosophies that recognize the role of intent.

I'm sorry, but you have not demonstrated your case that intent is not relevant.

[Emsworth]

I've read the decision in Shaare Tefila Congregation v. Cobb. It has nothing to do with "intent," and everything to do with the original meaning of a particular phrase--"white." It is the definition of a particular term that mattered, not the intentions of any particular lawmaker.

If you wish to claim that the definition of "eligible" has changed since the eighteenth century, then you may certainly make that argument. But there is still no justification for relying on the so-called "intent" of the lawmaker.

[J. J.]

I've read the decision in Shaare Tefila Congregation v. Cobb. It has nothing to do with "intent," and everything to do with the original meaning of a particular phrase--"white." It is the definition of a particular term that mattered, not the intentions of any particular lawmaker.

If you wish to claim that the definition of "eligible" has changed since the eighteenth century, then you may certainly make that argument. But there is still no justification for relying on the so-called "intent" of the lawmaker.

Here, I bolded and italicized it for you:

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[Emsworth]

The Court observed that the "definitions of race" had changed over time. It used legislative history to reach this conclusion. Based on the original definition of race, and upon the text, it reached the conclusion that the lawmakers had intended something. There is nothing exceptional about this. In any event, I have already conceded that that the Supreme Court's modern jurisprudence recognizes "intent" and "legislative history" as an interpretive tool. Hence, there is no need to argue about Shaare Tefila Congregation.

But this jurisprudence, as Antonin Scalia has cogently argued on many occasions, is both incorrect and illegitimate. The common law rule was that the intent of the legislators can be determined from the text statute alone. For instance, as Baron Parke of the Court of Exchequer put it in Becke v. Smith, the court should "adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself" (emphasis added).

The rule that parliamentary history could not be used in the courts was established by the Court of King's Bench in Millar v. Taylor (1769). The U.S. Supreme Court agreed; it held in Alridge v. Williams (1844), "In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used..."

So whatever modern jurisprudence might be, it must at the very least be agreed that, at the time the Constitution was framed, "original intent" was not a generally accepted interpretive tool.

[J. J.]

Arguably, either was the Courts ability to rule a law unconstitutional, as is the separation of power doctrine, using that logic.  In reality, both are constitutional.

[True Federalist (진정한 연방 주의자)]

Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

It deals with the qualifications for holding the office.  The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president

Prior to the XIIth, the Vice President was the person who came in second in the Presidential election, and as such had to be inherently eligible to be elected President.  With a separate ballot for the Vice President, the qualifications had to be explictly stated for that office as well.

[J. J.]

Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

It deals with the qualifications for holding the office.  The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president

Prior to the XIIth, the Vice President was the person who came in second in the Presidential election, and as such had to be inherently eligible to be elected President.  With a separate ballot for the Vice President, the qualifications had to be explictly stated for that office as well.

Well, you still had the possibility of the deaths of both.  IIRC, several early VP's did die in office, though after the amendment.