Is Bill Clinton Unconstitutional? the Case for President Strom Thurmond

By Paulsen, Michael Stokes | Constitutional Commentary, Winter 1996 | Go to article overview

Is Bill Clinton Unconstitutional? the Case for President Strom Thurmond


Paulsen, Michael Stokes, Constitutional Commentary


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.

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Is Bill Clinton Unconstitutional? the Case for President Strom Thurmond
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