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Is Bill Clinton unconstitutional? The case for President Strom Thurmond.

Call off the independent prosecutor! Halt the sexual harassment civil suit! Cancel the congressional investigations! This is bigger than Whitewater, Paula Jones, and Travelgate-Filegate-Hillarygate combined: It appears entirely possible that, for the past four years, Bill Clinton has been unconstitutionally serving as President of the United States.

What's more, Vice President Al Gore is constitutionally disabled from ascending to the presidency (once Clinton is either impeached or removed by order of the Supreme Court). Though the case is somewhat closer, I am sad to report that Speaker of the House Newt Gingrich, third in line for the presidency, is also ineligible to assume the office. They are all, constitutionally speaking, just too young for the job. Rather, it appears that the proper, lawful holder of the office of President of the United States is . . . Senator Strom Thurmond, the 93-year-old president pro tem of the Senate!

Can it really be that the (very) senior Senator from South Carolina is the lawful President of the United States? I'm afraid so--at least if one grants the premise, integral to so much of constitutional law these days, that ours is a "living Constitution," with language capable of growth, and whose meaning must constantly be reinterpreted in light of changing conditions. So understood, the 1787 Constitution's command that no person "shall be eligible to the Office of President . . . who shall not have attained to the Age of thirty five Years"(1) is properly read, two hundred years later, to forbid the election or service as President of any person younger than at least 60.

I. WHAT'S TWENTY DOLLARS WORTH THESE DAYS?

I came to this realization in something of a roundabout way: by teaching the Seventh Amendment right to civil jury trial in my Civil Procedure class. The Seventh Amendment provides:

In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise

re-examined in any Court of the United States, than according to

the rules of the common law.

By the time we get to this in Civil Procedure, usually late in the second semester (if at all), the students are already steelycold cynical manipulators of legal texts, and especially constitutional texts, having taken nearly a full year's worth of constitutional law from one or the other of my arch-liberal co-editors of this journal. They are utterly shocked to learn that the predominant mode of analysis of Seventh Amendment issues is almost purely historical: would trial of a particular type of cause of action today have been by jury or by judge, in 1791. What?! They are incredulous. What a crazy, anachronistic, moronic way to read a provision of the Constitution!

And so we search for better principles. I start by reading the text of the Seventh Amendment. We have the usual discussion of the range of things that "Suits at common law" might mean. Then we go on to the next clause: ". . . where the value in controversy shall exceed twenty dollars ...." What, I ask, does "twenty dollars" mean? Some devoted acolyte of Justice Scalia cautiously raises her hand, draws a breath, and boldly intones: "Twenty dollars means twenty dollars."

Hisses and jeers. Encouraged, a different student now raises his hand and gives the correct answer: "Twenty dollars meant a lot more in those days. If the Constitution meant that in 1791 you had to have an amount-in-controversy larger than twenty dollars to get a jury, it probably means that today you have to have an amount-in-controversy of at least $50,000, just like diversity jurisdiction. I'm not sure of the amount, but someone can do the math." (There's a reason these students are in law school and not in the sciences.) The class generally agrees. Sure, there may be some fuzziness in terms of what the dollar value should be, but it is, after all, a Constitution we are expounding, and that must mean that the words "twenty dollars" cannot be given a static meaning. They must change with the time to reflect the changes in currency value over the years. After all, we wouldn't want to think of "due process" as a static concept (these Civil Procedure students have already tap-danced all over Justice Scalia's due process and personal jurisdiction opinions),(2) or "establishment of religion," or (heaven forfend) "equal protection of the laws." Even "Commerce," the bane of the first year Constitutional Law course, is a term whose meaning must change with changed conditions. For the civil jury trial right of the Seventh Amendment, plainly intended to be reserved for cases with a significant amount of money at stake, to be interpreted in a wooden, "literalistic" (i.e. literal)(3) way is just plain unthinkable.

II. HOW OLD IS THIRTY-FIVE THESE DAYS?

Our evolving, shifting Constitution naturally leads one to think about President Bill Clinton. Clinton has occasionally changed his (stated) views on things, and his judicial appointments generally reflect the preferred interpretive philosophy that judges must construe the Constitution in a manner that translates the values of the founding generation into contemporary terms, interpreting our fundamental charter of government in light of changes in society and the human condition, so as to effectuate the overarching vision of justice embodied in that great Document. After all, the Framers of the Constitution deliberately chose language capable of growth. To interpret the document as static, and thus stagnant, would be a betrayal of the Framers' broader vision.

This same idea of capacity for growth, however, should lead supporters and detractors alike to think about Bill Clinton another way: How much better a President might Clinton have made if he had had more of a chance to mature, to grow in wisdom and stature, for the distractions and indiscretions of his youth to fade, for his political principles to stabilize!

Surely this is what the Framers of the Constitution had in mind when requiring that the President be at least thirty-five years old--five years older than the minimum age for senators and a whopping ten years older than the minimum age for representatives. An obsessive focus on the exact number--thirty-five--would, of course, miss the entire constitutional point, merely for the sake of wooden literalism. Maturity is the key, as measured by a proportion of the normal expected lifespan. And however mature thirty-five was to the founding generation, it surely is not a standard for maturity today. As a fraction of one's likely lifespan, attaining to the ripe old age of thirty-five used to be a big deal. Not any more. People today live much longer. (You didn't find many ninety-three-year-old senators in the First Congress, I betcha.)(4)

By the same reasoning, then, that "twenty dollars" cannot possibly mean just twenty dollars, it follows almost a fortiori that the presidential qualifications clause's term "Age of thirty five Years" cannot possibly mean, literally, "Age of thirty five Years." To paraphrase the Supreme Court's words on another occasion, although the text would appear to be limited only to those under age thirty-five, we should understand the Qualifications Clause "to stand not so much for what it says, but for the presupposition . . . which it confirms."(5)

The presupposition of the thirty-five-year-old age provision--its policy and purpose--is to ensure a suitably mature President, someone who has lived a good fraction of life and gained the wisdom that (I am told) results from having lived and seen so much of life. The constitutional provision for age surely must evolve, along with the rest of the Constitution. Somebody else can do the math (there's a reason I'm not in the hard sciences either), but my best estimate is that "thirty-five" today means something more like "fifty-nine-and-a-half" (the youngest age for penalty-free withdrawals from an IRA, among other things). Maybe it's even a little higher yet.(6)

III. PRESIDENT THURMOND?

Bill Clinton was born on August 19, 1946, making him fortysix when elected and still a childish fifty today. Al Gore, of course, gives new meaning to the term "green."(7) He is a mere kid of forty-eight.(8) Newt Gingrich, who as Speaker of the House is next mentioned in the presidential sucession statute,(9) is also in need of more seasoning. He just turned fifty-three.(10) The next person in line, by statute, is the President pro tempore of the Senate, a position by tradition reserved to the most senior senator in the body: to wit, Strom Thurmond.(11)

We thus have a serious constitutional problem on our hands. Strom Thurmond is the lawful President of the United States. Bill Clinton, usurper, currently holds the office. Some folks say that impeachment is the only way to remove a sitting President. Surely that can't be right. What if the President, though having committed no high crime or misdemeanor in the eyes of Congress (or not having been proved to have committed such an offense), plainly lacks the constitutional qualifications for the job? What if, for example, the electoral college went completely bananas and selected my dog, Gus, to be President of the United States?(12) Surely the Chief Justice should refuse to swear in President Gus the Dog, even if the lawfully constituted electoral college chose him. It follows, I think, that if Congress doesn't impeach the unconstitutional "President" Clinton, the courts should be able to order Clinton's ouster, in a proper declaratory judgment action brought by Strom Thurmond against Clinton (and against Gore and Gingrich). There are some things that process can't cure and the political question doctrine shouldn't hide from judicial review.

Then again, there's always the possibility (remote, but still alive, as of this writing) that Clinton will be defeated by Bob Dole in the 1996 election, mooting the whole issue.(13) So far, Dole has been strangely reluctant to press the age issue. The issue would seem to be a good one for him, though: The Constitution requires a grown-up for President, he could argue, and if the nation doesn't elect a mature 73-year-old, it might well find itself with a really mature 93-year-old.(14)

(1.) U.S. Const., Art. II, [sections] 1, subd. 5. (2.) See, e.g., Burnham v. Superior Court, 495 U.S. 604 (1990) (plurality opinion per Scalia, J.). (3.) Law students soon learn that if you don't like some interpretive methodology, just say "ick" at the end of it and everyone will realize that the method is bad. E.g. formalist-ick, literalist-ick, originalist-ick. "Activistic" has not caught on, however. (I guess it sounds too much like "atavistic.") (4.) I remember when my dad turned 35. He remarked that he was now old enough to be President. I was not quite nine, but expressed considerable skepticism at the prospect. Dad explained that 35 was a magic age because it represented being "middle-aged." He said that that was when you could look back further than you could look ahead. That was in 1968. My dad has since changed his view, and rightly so. Now that he is 63, and I am 37, we heartily agree that middle age does not arrive at 35 (what a laugher. that one!), but somewhere in the late 50s, at the earliest. (5.) Cf. Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, 1122 (1996) ("Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts,'we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms") (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). (6.) Average life expectancy in 1750 was approximately 32. In 1815 it was approximately 40, in 1900 it was 44, but by 1985 it was 70. Charles B. Clayman, M.D., ea., The American Medical Association Encyclopedia of Medicine 639 (Random House, 1989) (chart). See also, Richard L. Berke, Still Running: Is Age-Bashing Any Way to Beat Bob Dole?, N.Y. Times, (May 5, 1996) (chart comparing ages of presidents with life expectancy at the time they served).

A mildly amazing number of legal scholars and committed deconstructionists (with some overlap in these two categories) has addressed the issue of whether the "Age of thirty five Years" provision does or does not make for easy cases. The provision is regularly cited as the quintessential example of an unambiguous constitutional provision. See, e.g., Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 555 (1994) ("[W]e think it is as clear that the text of the Constitution, as it was originally understood, creates a unitary Executive as that it requires the President to be at least thirty-five years old."); Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 414, 420 (1985). Others have insisted that the case is not so clear, on a variety of imaginative theories, see, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 Nw. U. L. Rev. 250 (1989) (unconstitutional ageism); Gary Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151, 1174 (1985) (suggesting a "maturity" standard that could raise or lower the age), but the critics seem to focus mostly on the prospect of a President younger than 35 being constitutionally permissible, rather than the prospect that a President older than 35 might nonetheless be unconstitutional. At least some have raised (without embracing) the possibility that an older age might be required. Peller, 73 Cal. L. Rev. at 1174; Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 536 (1983); cf. Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Interpretation, 65 S. Cal. L. Rev. 2505, 2528-32 (1992) (hypothetical discussing immature 36-year-old). (7.) Cf. Senator Al Gore, Earth in the Balance: Ecology and the Human Spirit (Houghton Mufflin Co., 1992). (8.) Gore was born on March 31, 1948. To be technical (and why not?), the Constitution does not specify any age requirement for the Vice President. But Gore cannot assume the office of President unless he is of legal, constitutional age. U.S. Const., Art. II, [sections] 1, subd. 5, ("neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years. . . ") (emphasis added). If Clinton is removed from office, dies, or resigns, the Twenty-fifth Amendment prescribes that "the Vice President shall become President." U.S. Const., Amend. XXV, [sections] 1. No dice for Gore; he may not assume the office.

But there's a potential loophole: Anticipating the Thurmond constitutional coup, Clinton could, pursuant to Section 3 of the Twenty-fifth Amendment, "transmit[ ] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President." U.S. Const., Amend. XXV [sections] 3 (emphasis added). Given the Amendment's elaborate structure of temporary presidential incapacity and its distinctive provisions for the Vice President serving as "Acting President," there is a decent argument that the Vice President would not in fact be assuming the office of President, but merely all of its powers and duties. (9.) 3 U.S.C. [sections] 19 (1988). (10.) Gingrich was born on June 17, 1943. There is at least some question of whether the presidential succession statute is itself unconstitutional. See Akhil Reed Amar and Vikram Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995). The brothers Amar make a clever, even strong, argument (and one they apparently intend to be taken seriously) that Congress' constitutional power to prescribe which "Officer" shall serve as President in the event both the President and Vice President die, resign, or are impeached does not permit them to designate a member of Congress to become President. (11.) Strom Thurmond was born on December 5, 1902. That makes him older than five states. Thurmond, of course, was an independent candidate for President in 1948, when he was Governor of South Carolina (at the age of forty-eight). He carried four states, receiving thirty-nine electoral votes. (12.) Or Ross Perot, for that matter. (13.) Compare Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996); Clinton v. Jones, cert. granted 116 S. Ct. 2545 (1996) (cert. granted to decide whether a President who--it must be assumed, given the procedural "posture"--dropped his pants and lewdly propositioned a female state employee while he was Governor of Arkansas, is immune from civil suit while in office as President). (14.) Of course, Thurmond is up for re-election this year, too, and might be defeated by his young, upstart challengers. Stay tuned.

Michael Stokes Paulsen, Associate Professor of Law, University of Minnesota. Age 37. Copyright 1996. All rights reserved.
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Author:Paulsen, Michael Stokes
Publication:Constitutional Commentary
Date:Dec 22, 1996
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