Is Hillary's candidacy legal?

[drsubrotoroy]

Is Hillary’s candidacy legal?

First published by Dr Subroto Roy at www.independentindian.com and
http://indiansandpakistanisforronpaul.wordpress.com

July 10th, 2007

Is Hillary’s candidacy legal?

By Subroto Roy


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.

[cjhowe]

AFAIK, Two becoming one is purely a religious distinction and not one made in law. The state sees two people. One cannot testify against their spouse because of spousal privilege that is spelled out in the Federal Rules of Evidence. Before the FRE was made law, it was a common law accepted practice.

[drsubrotoroy]

AFAIK, Two becoming one is purely a religious distinction and not one made in law. The state sees two people. One cannot testify against their spouse because of spousal privilege that is spelled out in the Federal Rules of Evidence. Before the FRE was made law, it was a common law accepted practice.

Clearly the state sometimes sees one and sometimes sees two persons. The legal question that the federal courts would have to rule on here would be what applies in the interpretation of the word "person" in the 22nd Amendment.

The US President's wife has had a specific name thus far, viz. "The First Lady", and specific privileges as well as rights and duties flowing from that status. Mrs Clinton enjoyed all those qua First Lady, wife of the President, sharing his hearth and home at the White House. She was one person with him there and remains so politically in her campaign now (viz. her July 4 campaign video).

[SeekLiberty]

Of course not. She's an impeachable Senator and a convictable individual who is a fellow criminal that's complicit in War Crimes as are another 300+ criminal Congressmen.

- SL

[ARealConservative]

IF this story had any credibility, a husband and wife could only cast a single vote in an election whivch is obviously not true.

they are not trreated as one. they remain two individuals in the eyes of the law. the only exception is they cannot be made to incriminate the other and they can't shield property from the other.

[drsubrotoroy]

IF this story had any credibility, a husband and wife could only cast a single vote in an election whivch is obviously not true.

they are not trreated as one. they remain two individuals in the eyes of the law. the only exception is they cannot be made to incriminate the other and they can't shield property from the other.


Of course there is truth in what is being said by way of criticism: the state in somematters sees a married couple as two persons and in other matters as the same person. The question before a federal court would be "What was the intended meaning of "person" in the 22nd Amendment?".

Did the Congress and the States ratifying the Amendment treat as obvious that the President and First Lady were one person? Could they have imagined a future "two-term" First Lady wishing to run for President herself? What may have been their reasonable response to that possibility?

If such a "two-term" First Lady may run, is it okay for her, hypothetically, to de facto act as an agent of her husband? (Say Mrs Bush in 2012?).

The matter may be worth testing in the law as it raises untested legal questions about the Presidency and about marriage.

[drsubrotoroy]

[Could they have imagined a future "two-term" First Lady wishing to run for President herself? What may have been their reasonable response to that possibility? [/QUOTE]

This should have read more precisely:

"Could they have imagined a future "two-term" First Lady wishing to run for President herself with her husband, the former President, by her side? What may have been their reasonable response to that possibility?"

[drsubrotoroy]

#1. Posted by schnapps 2 days ago1."That is a VERY interesting point. I would love to see it pursued with some kind of legal action. Do you think the ACLU would be interested? ha ha"

#2. Posted by Cheesewiz 23 hours ago. "Although I would welcome with open arms any legal basis that would keep the U.S. from further Clinton tyranny, I would have to admit that I am not able to place much weight in the argument advanced here.
William Jefferson Clinton was elected in 1992 and again in 1996. In accordance with the constitutional limit for the presidency, that\’s all she wrote for William Jefferson Clinton.
Of course, there are examples where, so it has been written, that the wife of the president was actually performing the duties of her husband. Woodrow Wilsons wife comes to mind. However constitutionally wrong that was, she actually had no official power under the Constitution. The antics of Hil-liar-y Clinton during her husband\’s tenure, judged at least once to be illegal, might also be construed as another instance. To say that her legal relationship to Bill Clinton, via marriage, excludes her from legally seeking the presidency, is quite a stretch though. I can\’t see such a legal filing being given a long life span in a court of law…..I must also admit that the theory presented in this thread is one that would certainly have my support if that support mattered. If only there were five or more sympathetic votes on the U.S. Supreme Court."


#3 Posted by drsubrotoroy 20 hours ago. "In response to the previous commentator: the matter is one purely of law, not politics. The person at issue may have been an angel good for the country and still be barred by law in the circumstances. The question of constitutional law is: What did Congress and the ratifiers of the 22nd Amendment mean by \”person\”? Could they have imagined a future two-term First Lady wishing to run for President herself, with her spouse, the former two-term President, by her side? If so, and if she was elected, is it okay for that spouse to influence the new Presidency in any way as would be normal for any spouse to do in any family? Hypothetically, the former two-term President could became the principal in the relationship with his spouse as his de facto agent — that surely would breach the intent of the 22nd Amendment and yet is a quite possible scenario. The simple truth may be that those who wrote, passed and ratified the 22nd Amednment could not have imagined such a situation as the present one arising, or they would have spelt out what they meant in the law. What they meant was to enshrine in law the unwritten custom since Washington\’s time that no one (or his family) ends up in the White House for longer than eight years. That custom was broken by FDR in the special circumstances of World War II. The 22nd Amendment was intended not to let it be broken again."

[mdh]

Is Hillary’s candidacy legal?

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.

There is neither legal merit nor logical sense to this argument in any way. Spouses are NOT one and the same person in the eyes of the law, that is a mis-statement. If I murder you, my wife does not go to prison with me.

[drsubrotoroy]

There is neither legal merit nor logical sense to this argument in any way. Spouses are NOT one and the same person in the eyes of the law, that is a mis-statement. If I murder you, my wife does not go to prison with me.

As stated several times before, spouses are obviously seen as different legal persons in some matters and the same in other matters. The issue is purely one of constitutional law: what was the intended meaning of "person" in the 22nd Amendment? Did Congress and the ratifiers of the 22nd Amendment imagine a future two-term First Lady wishing to run for President herself, with her spouse, the former two-term President, by her side? If so, and if she was elected, is it okay for that spouse to influence the new Presidency in any way as would be normal for any spouse to do in any family? Hypothetically, the former two-term President could became the principal in the relationship with his spouse as his de facto agent — that surely would breach the intent of the 22nd Amendment and yet is a quite possible scenario. Etc. Please read previous discussion.

[cjhowe]

There is neither legal merit nor logical sense to this argument in any way. Spouses are NOT one and the same person in the eyes of the law, that is a mis-statement. If I murder you, my wife does not go to prison with me.

This is additionally seen in light of McCain's campaign financing troubles. In that his family fortune is around 53 million, but he cannot spend it because it is in his wife's name. She can only donate $2,300 to his primary campaign just like anyone else
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/11/AR2007071102176.html?hpid=moreheadlines

[STA654]

There is neither legal merit nor logical sense to this argument in any way. Spouses are NOT one and the same person in the eyes of the law, that is a mis-statement. If I murder you, my wife does not go to prison with me.

Exactly

[drsubrotoroy]

This is additionally seen in light of McCain's campaign financing troubles. In that his family fortune is around 53 million, but he cannot spend it because it is in his wife's name. She can only donate $2,300 to his primary campaign just like anyone else
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/11/AR2007071
102176.html?hpid=moreheadlines


This fact about modern campaign finance law is doubtless interesting but may not be relevant to the original interpretation of the 22nd Amendment as intended by Congress in 1947 and ratifiers in 1951. That intent was clearly to enshrine the custom since George Washington's time (broken by FDR) that no one gets to be President in the White House for more than eight years. Those who wrote the 22nd Amendment likely did not anticipate that in the early 21st Century a two-term President could plan to return to the White House as a spouse. "Would such a return go against the spirit/intent of the 22nd Amendment?" is another way of looking at the same matter.

[drsubrotoroy]

http://ustl.org/Press/Press_Releases/20030529.html

News Release
For Immediate Release
May 29, 2003
Contact: Kurt A. Gardinier
(202) 379-3000 ext. 109

CLINTON CALLS FOR CHANGE
TO 22ND AMENDMENT
Wants to Modify Presidential Term Limits

(Washington, D.C.) — While speaking at the John F. Kennedy Library and Museum yesterday, former President Bill Clinton announced that Congress should change the 22nd Amendment that limits a president to two terms.

"I think since people are living much longer . . . the 22nd Amendment should probably be modified to say two consecutive terms instead of two terms for a lifetime," Clinton said.

Stacie Rumenap, executive director for U.S. Term Limits, responded to Clinton's comments: "By term limiting the president of the United States, the 22nd Amendment provides that no matter how much power a given chief executive may gather, there's a definite limit on how long he may wield it. At a maximum, a fresh face and a fresh perspective will be brought to the White House every eight years."

While Clinton said such a change "probably" wouldn't apply to him he didn't rule out the possibility of a future run.

"There may come a time when we elect a president at age 45 or 50, and then 20 years later the country comes up against the same kind of problems the president faced before. People would like to bring that man or woman back but they would have no way to do so," Clinton said.

Rumenap countered: "Voters would be surprised to learn how many politicians have never held a real job in the private sector. For example, if it weren't for term limits, Bill Clinton most likely wouldn't have been looking for his first ever non-governmental job at the age of 54. The fact remains that all politicians face the same potential to be corrupted by power. And only term limits ensure that no single person can ever hold a monopoly on that power. Our country fought a revolution to get rid of a king, and we certainly don't need another king — not Clinton or anyone else."

The 22nd Amendment was ratified on February 27, 1951, six years after the death of former President Franklin D. Roosevelt who had been elected to a record four terms.

For more information about the 22nd Amendment, or the national term limits movement, please contact Kurt A. Gardinier at U.S. Term Limits at 202-379-3000, extension 109.

[drsubrotoroy]

http://ustl.org/Press/No_Uncertain_Terms/column/Presidential_Celebration.html

"NO UNCERTAIN TERMS by Paul Jacob
Presidential Celebration
February 26, 2001

Fifty years ago, on February 27, 1951, the states completed the work of ratifying the 22nd Amendment, which officially and formally limited the terms of the presidency of the United States.

It was a good start.

In his inaugural address, President Bush noted, "the peaceful transfer of power is rare in history, but common in our country." A well-turned phrase, if perhaps a bit of a cliché. Yet that's part of the wonder — that even after one of the most hard-fought and contentious presidential contests in our nation's history, the ordinary workings of America's extraordinarily stable and peaceful democracy continued apace, almost yawn-worthy.

But we should never take it for granted. Anyone who reads the papers knows that around the globe, political leaders often cling to power until their last dying breath, or have to be yanked kicking and screaming from the seat of power. Not only for our own sake, but also for the sake of the peoples of the whole earth, we must work to keep our democracy robust and vibrant.

To accomplish that goal, we rely on the good will and honor of the people who lead us — their civic conscience. We also rely on the democratic institutions we have inherited, and the checks and balances that keep power dispersed and close to the people. Those checks and balances work to ensure that power does not become too concentrated in one branch of government or one person.

So when and if there are problems in our democracy, we should admit those problems forthrightly and work to correct them. Term limits are a crucial means to that end.

The Founders did not formally provide for term limits, instead placing their trust in the honor of those who would serve. For many years, their trust seemed justified: Congress saw frequent and significant turnover, at least until the twentieth century. And until Franklin Roosevelt, no chief executive had ever served more than twice. But even many who had supported a wartime president for a fourth term saw the wisdom of making presidential term limits formal and official.

And so we celebrate the 50th anniversary of a renewed and strengthened commitment to democracy.

The 22nd amendment provides that no person shall stand for office for the Presidency of the United States more than twice. It ensures that no matter how much power a given chief executive may gather to his bosom, there is a definite limit on how long he may wield it. Every eight years, there will be a fresh face, a fresh perspective — a fresh start.

But if term limits are good for the president, why not for others whom we elect and who also wield great power over our lives? As early as the 1947 debate on presidential term limits, a certain Senator O'Daniel proposed that all federal officials be term-limited, not just the President. His proposal was rejected 82 to 1. The recommendation has been periodically revived, most spectacularly after the 1994 elections. But while a growing number of citizen legislators have voluntarily limited their own terms in office, career politicians of both parties have done nothing but pay lip service and stonewall.

All politicians face the same incentive, the same potential to be corrupted by power, to treat their seat like a personal monopoly. And our democratic legacy deserves more than lip service. It's time to return the government to the people at long last. Congress should honor the 50th anniversary of presidential term limits by passing a limit on their own terms.

In a 1951 editorial on the presidential term limit, The Washington Post observed, "power-grasping officials are common enough in history and current world experience to warrant this safeguard."

That's still true."

Paul Jacob is the national director of U.S. Term Limits in Washington, D.C.

[daveforstatehouse16]

until someone even files a lawsuit who cares, Hillary isn't going to win the presidentcy or the nomination if this is a real issue. Bottomline this won't cost her any votes. No one who is about to vote for her doesn't realize she is married to Bill




As stated several times before, spouses are obviously seen as different legal persons in some matters and the same in other matters. The issue is purely one of constitutional law: what was the intended meaning of "person" in the 22nd Amendment? Did Congress and the ratifiers of the 22nd Amendment imagine a future two-term First Lady wishing to run for President herself, with her spouse, the former two-term President, by her side? If so, and if she was elected, is it okay for that spouse to influence the new Presidency in any way as would be normal for any spouse to do in any family? Hypothetically, the former two-term President could became the principal in the relationship with his spouse as his de facto agent — that surely would breach the intent of the 22nd Amendment and yet is a quite possible scenario. Etc. Please read previous discussion.

[drsubrotoroy]

until someone even files a lawsuit who cares,

Indeed. Some interested party (e.g. US Term Limits?) has to file a lawsuit and make the argument before a federal judge. Presumably the Clinton Campaign will oppose it. The judge will rule. It goes to appeal. The Circuit Court of Appeals will rule. The Supreme Court may or may not grant certiorari. That will lawfully determine whether the meaning of "person" in the 22nd Amendment meant to include a two-term First Lady who wishes to re-enter the White House as President with her husband, the former two-term President, by her side.

[ShaneC]

well, I certainly don't like hitlary, however, I think she does have every "right" to run.

I'm still praying she and Rudy both lose horribly though.

[drsubrotoroy]

I think she does have every "right" to run.

Mrs Clinton's right would have been untramelled except for the 22nd Amendment. Even with the 22nd Amendment, there may have been no objection to Mrs Roosevelt running for President even though she had been a four-term First Lady -- because her husband, the late four-term President, would not have been re-entering the White House along with her. Of course if the 22nd Amendment does not bar Mrs Clinton today, it will not bar, say, Mrs Bush in 2012 either.

[drsubrotoroy]

Of course if the 22nd Amendment does not bar Mrs Clinton today, it will not bar, say, Mrs Bush in 2012 either.

Sorry, this contained a logical mistake. It should have read

"Of course if the 22nd Amendment does not bar Mrs Clinton today, it does not bar Mrs Bush in 2008 either."

I.e., logically speaking, the present two-term First Lady would be as free to start her own campaign to be the next President even while she was in the White House.

[JohnCrabtree]

Look at the timeline though. Women had olny been allowed to vote for less than 20 years. The vast majority of women were stay at home moms, they had no place in the workforce, or in government. The concept of a woman running for office especially at the federal level and for the top office ws laughable. The writers of the amendment simply did not think it was merit enough to mention.

With that being said, I do not think that the 22nd amendment does bar hillary from runing, but I do think that it should be amended to do so. The relationship between a Husband and a Wife is extremely close, and you would have the same people making decisions that you had before.

[drsubrotoroy]

Look at the timeline though. Women had olny been allowed to vote for less than 20 years. The vast majority of women were stay at home moms, they had no place in the workforce, or in government. The concept of a woman running for office especially at the federal level and for the top office ws laughable. The writers of the amendment simply did not think it was merit enough to mention.

With that being said, I do not think that the 22nd amendment does bar hillary from runing, but I do think that it should be amended to do so. The relationship between a Husband and a Wife is extremely close, and you would have the same people making decisions that you had before.

This seems to me a very judicious opinion -- the kind a federal district judge may come to.

The point I have reached in the logical problem is this: if Mrs Clinton is not barred by the 22nd Amendment from running for President, despite being a former two-term First Lady intending to reintroduce a former two-term President back into the White House, then obviously nor would be Mrs Bush -- for 2008.

I.e., Hillary Clinton and Laura Bush would be seen in exactly the same way with respect to the 22nd Amendment. If that is so, Bill Clinton and George W. Bush may each campaign for their respective spouses -- for 2008. (The fact Laura Bush is not running is logically irrelevant.)

Hence, it becomes possible for a two-term sitting President to start campaigning for his spouse's election to the Presidency after him. That seems contrary to the intent of the 22nd Amendment any way it is looked at.