A couple of questions.

[Emsworth]

But someone who is term limited is not constitutionally ineligible to be President. Clearly, if Bill Clinton was Secretary of State and the requisite people died, he'd become President. The 22nd amendment is merely a limitation on who can be elected President.

Jfern is perfectly correct.

There is a difference between the language of Article II and the language of the Twenty-Second Amendment. The former states, "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, etc." The Twenty-Second Amendment, on the other hand, states, "No person shall be elected to the office of the President more than twice, etc." Thus, Article II imposes an eligibility requirement, while the Twenty-Second Amendment relates not to eligibilty but to elections.

Certainly, no one can make a reasonable argument that Bill Clinton is prohibited by the text of the Twenty-Second Amendment from succeeding to the office of President. Surely, if Clinton can succeed to the office of President, then he is not "ineligible."

It is believed, for example, that the intent of the framers in the separation of powers is that a Speaker becoming President would have to resign to become "acting President," even though not specified in the Constitution.

I think that the Constitution goes even further than that: the text implies that neither the Speaker, nor the President pro tempore, nor any other member of the legislative branch, is entitled to succeed to the Presidency, with or without resigning. If both the Presidency and the Vice Presidency are vacant, Congress is only empowered to provide "what Officer shall then act as President," the term "Officer" here being equivalent to "Officer of the United States." But members of Congress, the Speaker included, are not Officers of the United States.

[Emsworth]

Well does "eligible to the Office of President" mean "eligible for election to the Office of President?"

It would seem to mean "eligible to hold the Presidency," not "eligible for election."

[Emsworth]

Using the logic you are suggesting, someone ineligible for election, only, would be eligible to succeed to the presidency, even if not a citizen.

How so? Under Article II, an individual is ineligible to become President unless he is a natural born citizen.

[Emsworth]

Because Article II assumes that the only way for the President to be elected is to be elected president.

So what? The text, interpreted according to its plain meaning, suggests that no-one may be President unless he meets certain qualifications. The fact that, at some particular time, the only way of becoming President was being elected President, does not change the plain meaning of the text.

[Emsworth]

Well then, the text of the two term limit might not have anticipated someone becoming President other than by election; this could be properly considered a qualification.

The text clearly does anticipate people becoming President other than by election. It reads, "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once." Considering the bolded text, how can it be asserted that the Twenty-Second Amendment did not anticipate succession to the presidency?

[Emsworth]

The same way that Article II prevents someone not a citizen from serving via succession.

How can the Twenty-Second Amendment prevent someone from serving as President in the same way as Article II, when the language of the two is so clearly different. The former speaks of being elected; the latter speaks of being eligible. The two are very different things.

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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.

[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.

[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?

[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?

[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.

[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.

[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.

[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.