Today’s electoralvote has an interesting observation on the election:
If Hillary Clinton wins the primary and election, we will have a constitutional crisis because she is not eligible to be President. Problem? She’s a woman. Article II, Section 1 of the constitution starts:
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: …”
Notice the word “He.” Nothing about “He or she.” But what about the 19th amendmnent, you ask? It reads in full:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.
Not a word about holding public office. Just voting. Thus the “He” in Article II, Section 1 is still operative. It hasn’t been overridden. But Hillary could pull a fast one. She could choose Bill as her running mate, then resign immediately after being inaugurated. Wouldn’t this run afoul of the the 22nd amendment? Nope. It starts out like this:
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.
So Bill can’t be elected again, but nothing stops him from succeeding to the office in the event of the President’s resignation, impeachment, incapacitation, or death. Some people might not like that, so they can vote for McCain to avoid these nasty constitutional issues. Well not exactly. McCain wasn’t born in the United States. He’s a Zonian.
What about Obama? He was born in Hawaii. When did it become a state, now? Ah. 1959. When was Obama born? 1961. So it was part of the United States when he was born, but not by much. It would have been kind of messy to have three candidates for President, none of whom was actually eligible for the job. SCOTUS would have had to work overtime to pick a President. Chances are Justice Scalia would have asked: “What was the original intent of the founders (Scalia is an Originalist). The intent was clearly that the President should be a propertied white male. Slaves counted for 3/5 of a person (Article 1, Section 2, paragraph 3) and while women counted for purposes of apportioning seats in the House, they couldn’t vote or hold office.
Now, of course this argument intrigues me, as both a board gamer (and thus a rules lawyer), and someone who interprets criteria for a living. Remember, the qualifications for President are:
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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
So, although the claim of “he” might knock out Hillary, the qualifications don’t knock out either John or Oback (as we’re on a first name basis). But then again, the 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Is the Canal Zone part of the United States? I don’t see where the constitution otherwise defines what is a citizen. However, later definitions extended the definition to cover children born to U.S. parents overseas. But the discussion is interesting, and it has never been tested (the only candidates not born in a state were Barry Goldwater, George Romney, and John McCain).
In short, we still could have some interesting Supreme Court involvement.
