Is Hillary’s candidacy legal?

Mrs Hillary Clinton, Senator from New York State, is one of the leading contenders for the Democratic Party’s nomination for President of the USA in 2008. But a question arises, as she is the wife of a former two-term President, whether her candidacy is legally allowed under the US Constitution and American law.

America’s first President, George Washington, held office for two consecutive four-year terms and declined to run for a third term in 1796. From that time onwards to Franklin D. Roosevelt, it became a constitutional custom in the USA that no President would serve for more than two four-year terms. Two Presidents (Ulysses S. Grant and Theodore Roosevelt) were criticised for wishing for a third non-consecutive term and were unable to break the unwritten rule that prevailed since Washington’s time.

Franklin Roosevelt won first in 1932 and then again in 1936; by 1940, the USA had almost joined the world war then in progress, and the constitutional custom was broken. Roosevelt won a third term in 1940 and a fourth term in November 1944, but died in office a few months later to be succeeded by his Vice-President Harry S. Truman.

Franklin Roosevelt will be the last American President to serve more than eight years in office as the US Constitution was amended to prevent anyone serving more than two terms ever again, thus enshrining into law the customary rule since Washington’s time. The 22nd Amendment to the US Constitution was passed by the US legislature on 21 March 1947 and ratified on 27 February 1951. It said: “No person shall be elected to the office of the President more than twice.…”

Mrs Clinton’s problem is that she has been and remains married to a person who has been elected to the office of President twice, namely William Jefferson (“Bill”) Clinton. Ironically, Bill Clinton’s Presidency was marked by extra-marital sexual indiscretions, and Mrs Clinton may have had reason enough to end her marriage with him through divorce. But she chose not to. Had she done so, she would have been distinct from him in the eyes of the law and not faced any potential constitutional barrier to running for the Presidency now.

She remained and remains married to Bill Clinton. In the common law tradition, husband and wife are “one” in the eyes of the law. For example, a spouse may not be compelled to testify against his/her spouse. That is something enshrined in the law of India also: Section 122 of the Evidence Act says a person lawfully married cannot be compelled to testify against his/her spouse. In the common law tradition, a spouse also cannot be accused of larceny against a spouse during duration of a marriage.

The idea at the root of this is that marriage is a legally meaningful relationship and that spouses are one and the same person in the eyes of the law. Applying this to Hillary Clinton now, this means she and Bill Clinton are one and the same legal person and remain so as long as they are married. Hence, her candidacy for the US Presidency may well be found by a US federal judge to be unlawful in breaching the 22nd Amendment. Of course, the judge could advise her to get divorced quickly (e.g. in Nevada) and then run again as a single person who was legally distinct from a two-term President.

Technically and legally you know he would not be the co-president. We’re just going to have to remain in disagreement on this as a viable strategy to derail Mrs. Clinton’s candidacy. She’s got so much other baggage and such hig negatives and turn-offs that she ain’t gonna make it. If she wins the nomination (and I believe she might not), that is going to do more to polarize the Republicans to turn out to vote than anything else will.

And, to kind of turn the topic, do you really truly believe Hillary is going to even let Bill be around her White House? She is not going to want him anywhere near her authority. I half suspect if she’d (God forbid) win she’d divorce him within the first year.

Hello, thanks for all the discussion about my question re Mrs Clinton and the 22nd Amendment. The point is quite simple — Jeb Bush and his brother are not the same legal person in the eyes of the law nor are the Bush father and son. But the Clintons may be, and may be by choice as many married couples in the US choose to be — e.g. observe their jointly filed tax returns (let alone informal talk about a co-presidency). Re the 22nd Amendment, ask the following hypothetical: suppose Barack Obama becomes President and wins re-election; after 8 years in the White House, his wife then decides she wants to try to be President and runs for the office. (Or suppose Laura Bush had done so in 2008). May the incumbent President campaign for his spouse? The 22nd Amendment was clearly intended to stop such things though the authors of the 22nd Amendment could not have foreseen such an eventuality. Certainly back then a President and First Lady were the same legal person for the purpose of the Amendment, and a presidential spouse would simply not have been so ambitious as to wish to return to the White House with her husband once she had left. (Of course Mrs Eisenhower had a prominent and dignified public role after she had been widowed.)

Re myself, yes I am not the businessman who owns an airline; I went in 1980 from Cambridge University where I worked for my PhD under Frank Hahn to Virginia Tech in Blacksburg to join Professor James Buchanan’s Center for Study of Public Chocie for two years as Visiting Research Associate. I did give a talk at GMU when they moved there in 1983. More at my blog www.independentindian.com

Correction:
“Of course Mrs Eisenhower had a prominent and dignified public role after she had been widowed”
should have read
“Of course Mrs Roosevelt had a prominent and dignified public role after she had been widowed.”

Mrs Eisenhower may have done so too but I meant Eleanor Roosevelt in the sentence.

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