Skip to main content
Find a Lawyer



Monday, Jul. 31, 2000

Leading in most polls, Texas Governor George W. Bush had the luxury of allowing political calculations to take a back seat in his choice of a running mate. Rather than having to select 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 would 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, Mr. 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?

The Constitutional Argument Against A Clinton Vice-Presidency

Tremulous Republicans and other naysayers will no doubt claim that the Twenty-Second Amendment would bar a Clinton Vice-Presidency. This amendment -- enacted after F.D.R. 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 which 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 Twelfth 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 Twenty-Second Amendment. Some might infer from the Twelfth Amendment that he is therefore also ineligible to be elected to a vice-presidential term.

Why A Clinton Vice-Presidency Would Be Entirely Constitutional

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 Twelfth and Twenty-Second Amendments shows.

The Twelfth 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 Twenty-Second 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 Twelfth Amendment renders her ineligible to the office of Vice President as well.

But Bill Clinton can serve as Vice President, because the Twenty-Second Amendment's prohibition on running for a third Presidential term is not a condition of the office of President. The Twenty-Second 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 Twenty-Second Amendment does not set conditions on what the Twelfth Amendment calls eligibility to the office of President. Anyone who is born here and has lived here for fourteen years becomes eligible to be President on his or her thirty-fifth 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, Mr. 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 Twenty-Second Amendment, that is perfectly permissible.

The Spirit of the Twenty-Second 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 Twenty-Second Amendment. The argument is a weak one, however. The Twenty-Second Amendment was adopted in part simply to formalize the tradition -- unbroken until F.D.R. -- 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 Twentieth 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 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 Twenty-Second Amendment that I have provided here is exactly the sort of "textualism" that Bush 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.

Michael C. Dorf is vice dean and professor of law at Columbia University, where he teaches civil procedure and constitutional law. He is the co-author, with Laurence H. Tribe, of the book "On Reading the Constitution."

Was this helpful?

Copied to clipboard