Matt Drudge caught the Clinton News Network with its pants down - way down. Among potential contenders for Vice President, CNN lists, of all people, Bill Clinton. Can you think of any reason - any reason at all - why that might not work? If so, you are overqualified for working at CNN.

CNN whistles past that graveyard that is the U.S. Constitution thusly:

While federal law prohibits a person from seeking a third presidential term, the Constitution does not specify whether or not a former commander in chief can become vice president.

In other words, the legal wizard at CNN who wrote the contender profiles knows that there is a 22nd Amendment, but thinks it’s a statute rather than a constitutional provision.^* Either that, or he was just being coy when he described that amendment as “federal law,” which is technically true, albeit highly misleading. If he understood that it was an amendment, and specifically the 22nd, it’s possible that his con law professor in law school neglected to inform him that constitutional amendments are numbered sequentially. Armed with this superior knowledge, it might have dawned on him that if there is a 22nd Amendment, there must also be a First, a Second, a Third, and so on, up to 21, at least. Then, he might have thought to skim those amendments to see if any of them limited anyone’s ability to become Vice President.

Among the lost amendments is the 12th, which provides in part that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Oops!

In all fairness, there are two weenie arguments one could advance that suggest that Clinton may run for V.P. One is that when the framers of the 12th Amendment referred to a person “constitutionally ineligible to the office of President,” they only intended to refer to those ineligibilities that existed in the Constitution as written at that time. That interpretation is silly for two reasons. First, it would take the notion of “originalism” to an extreme that would make Robert Bork - let alone the nine Supreme Court Justices who were not borked - blush. Second, it’s probably not even right as a matter of original intent. Common sense says that a provision that requires VPs to be eligible for the Presidency must apply to all qualifications for the Presidency at any given time in history. There is no rational reason to say that a person prohibited under any portion of the pre-12th Amendment Constitution may not be V.P. (where he’d be next in line for the office of President, which he cannot assume), while a person prohibited under a newer part of the Constitution may be V.P. (where he’d still be next in line for the office of President, whcih he still cannot assume).

The other weenie argument, which some law professors do seem to take a bit more seriously, is that the 22nd Amendment does not prohibit anyone from serving as President for more than two terms or 10 years, only from being elected to a third term as President. It’s a weenie argument for the same reason that the originalism argument is weenie; yes, it technically jibes with the language of the amendment as written, but no, that interpretation does not make any sense and is thus very unlikely to have been the intended reading. It makes less sense still when you consider other language from the same Section 1 of that amendment:

But this Article … shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

If the “selected, not elected” rule applied, and people could be “eligible” for the office of the Presidency even though they cannot be “elected” to it, this grandfather clause would be unnecessary. A President “holding the office” at the time of ratification would not have been “elected” at any time when the Amendment was in force, and the person merely “acting as President” would never have been “elected” at all.

Note that while I describe both theories as weenie, I didn’t say the theories are necessarily wrong. Courts adopt weenie theories all the time, so I wouldn’t have faulted CNN for raising them. The problem is that they didn’t raise these theories, or any others. Instead, the simply acted as though the 12th Amendment did not exist.

^*It also means he didn’t read the text of Amendment 22 very carefully. While that amendment does prohibit Clinton himself from seeking a third term, it does not prohibit all Presidents from doing so. Presidents who first assume office by Presidential successsion may be elected to two subsequent terms, provided their first term was two years long, or shorter. It was Lyndon Johnson’s unpopularity, and not the 22nd Amendment, that prevented him from seekin a third term in 1968. Similarly, President Ford, had he been elected in 1976, would have been free to seek a third term in 1980.