Much Ado about Nothing: Dick Cheney and the Twelfth Amendment

By Ho, James C. | Texas Review of Law & Politics, Fall 2000 | Go to article overview

Much Ado about Nothing: Dick Cheney and the Twelfth Amendment


Ho, James C., Texas Review of Law & Politics


The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves.1

I. INTRODUCTION

From day one, Democrats have attacked Texas Governor George W. Bush and former Defense Secretary Dick Cheney as the "two Texas oil men" ticket.2 Following on this theme, a number of legal commentators have raised Twelfth Amendment concerns with the Republican team-most notably Sanford Levinson of the University of Texas.3 Their arguments have been given a public airing in The New York Times, the Los Angeles Times, the Associated Press, Time magazine, The New Orleans TimesPicayune, the Denver Rocky Mountain News, the Denver Post, The Kansas City Star, the Pittsburgh Post-Gazette, the Sarasota Herald-- Tribune, The Boston Globe, The Hartford Courant, and Findlaw's new web-magazine, Writ.4

The Twelfth Amendment, which repeats similar language in Article II of the Constitution,5 does not bar the election of a President and Vice President from the same state. However, it does prohibit members of the electoral college from voting for a President and a Vice President who are both "inhabitants" of their state-a limitation some claim could prove crucial in this close race, should Cheney require Texas' thirty-two electoral votes to garner a majority.6

This debate should receive a warm welcome not only from Bush-Cheney supporters, but also from anyone who believes in upholding the Constitution and the rule of law. Make no mistake: the Twelfth Amendment presents no hurdle for the Republican ticket.7 Nevertheless, the discussion serves an important function. It reminds us of the importance of enforcing restrictions on the exercise of government power by federal officers-restrictions which have been repeatedly and unapologetically violated by the Clinton-Gore administration,8 most notably by civil rights attorney Bill Lann Lee9 and law professor Walter Dellinger10-as well as preserving the constitutional division of power between the states and the federal government.

II. THE TWELFTH AMENDMENT

It is well-established that one's "domicile" is determined by physical presence in a particular state and intent to make one's home there indefinitely.11 A person can have one and only one domicile at any moment in time, and the only way to lose domiciliary status in one state is to gain such status in another.12 By contrast, "residence" is a broader and more inclusive concept, reflecting the reality that a person can live in more than one state at one time.13

However, the Twelfth Amendment does not refer to either of these legal concepts. Instead the Constitution employs the more ambiguous term "inhabitant," not only in the Twelfth Amendment, but also in Article I when discussing eligibility for Congressional office.14

The word "inhabitant" escapes easy definition. Although it has existed for over two centuries, the constitutional reference to "inhabitant" has not been authoritatively analyzed or construed. In various statutory contexts, courts have construed the term in a number of ways, spanning "a range of different relationships between a person and a place."15 Thus, one could argue that "inhabitancy" means "domicile," "residency," or some other concept altogether.

The strongest arguments, however, favor importing the concept of domicile into the Twelfth Amendment. This paper will discuss these arguments, looking first to the text of the Constitution and second to the original intent of the Framers. It will then conclude that, on the facts, Cheney is domiciled in the state of Wyoming, not Texas. Moreover, even if inhabitancy is defined by residency rather than domicile, Cheney still does not risk losing Texas votes because he has left Texas and is no longer a resident there. Finally, even if, under a different set of facts, Cheney were currently an inhabitant of Texas, a number of cures and escape devices remain to address any resulting Twelfth Amendment complications for the Bush-Cheney ticket. …

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