Most people now agree that the 22nd Amendment to the Constitution, which limits presidents to two elected terms, was a mistake. Never has that been more obvious than at present, when most Americans are legally barred from voting for a man they would like to see back in the White House.
Recent opinion polls confirm that Bill Clinton, who after eight years in office garnered the highest approval ratings ever recorded for a president at the end of his term, remains immensely popular. This is hardly surprising: under Clinton’s stewardship America enjoyed a booming economy, gargantuan budget surpluses, almost no military conflict, and the respect of the international community.
By contrast, less than six years after the end of the comparative golden era that was the Clinton presidency, America is drowning in record levels of debt, mired in a catastrophic war, and hated by almost all of our former allies. It’s no wonder that George W. Bush appears to be well on the way to becoming the most unpopular president in American history. Indeed, if not for the 22nd Amendment, it seems likely that Bill Clinton would still be president, and we would have avoided most of the calamities of the past five years.
It follows that anyone who could devise some legal way to return Clinton to the presidency would be performing a service of such magnitude that he would deserve to have his statue adorn every public square of this great nation.
I therefore submit the following proposal: When Sen. Hillary Rodham Clinton, D-N.Y., makes her long-expected announcement that she is running for president, she should also announce that her husband will be her running mate, and that, if elected, she will resign from office, effective Jan. 21, 2009.
The meaning of the text of the 22nd Amendment could not be plainer. It reads, in relevant part, “No person shall be elected to the office of the President more than twice.” And, as legal scholars such as Justice Antonin Scalia have pointed out many times in recent years, when the meaning of a legal text is plain, it is both unnecessary and illegitimate to enforce anything other than that meaning.
Thus, while Bill Clinton cannot be re-elected, nothing bars him from becoming president again. Indeed, one suspects that much of Hillary Clinton’s status as the front-runner for the Democratic presidential nomination is a product of the hope that, by electing her, the people would be re-electing her husband in all but name.
Yet such is the perversity of the human _ or, more precisely, the legalistic _ spirit, that some wretched shyster is sure to object that the 12th Amendment prohibits the carrying out of this beneficent plan. The 12th Amendment provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Bill Clinton is not “constitutionally ineligible to the office of President.” He is merely constitutionally ineligible to be elected president. Furthermore, how would the claim that the 12th Amendment bars Clinton from serving as president ever come to be enforced as a matter of law? Such a thing could happen only if the Supreme Court were to choose to entangle itself in the purely political question of who ought to be our next president _ something that the current Supreme Court, dominated by conservative jurists opposed to judicial activism, would surely refuse to do.
Only the 18th Amendment, which enacted Prohibition, can compete with the 22nd for the title of worst change to the text of the Constitution. We can always hope that, just as Prohibition was formally repealed, the 22nd Amendment will meet a similar fate. Until then, the legal path to another era of peace and prosperity is clear.
(Paul C. Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)