Dick Cheney

Keith E. Whittington kewhitt at PRINCETON.EDU
Fri Aug 4 10:13:30 PDT 2000


Sanford Levinson wrote:

> Keith might have greater doubts about Perot, but if Bush wanted
> him on the ticket (and people generally thought that was a good idea), the
> general public (and the pundits) would be entirely comfortable with his
> buying a home in Arkansas or New Mexico and declaring his new identity.

Let me grant that almost no one, in the general public or on this list, believes
that the 12th amendment requirement of diverse residency is substantively
important in the present age, and thus is a mere "technicality" or an "electoral
hurdle" (as the AP initially called it).  I should also note that this fact
radically distinguishes this case from many cases of extrajudicial constitutional
interpretation that I and others find important -- when the relevant
constitutional principle is regarded as substantively important and is
controversial, in cases ranging from the war powers to religious liberty to
impeachment standards.

Even though this is a technicality, it would still be disconcerting if
1) the rule at issue as widely recognized as a "real" constitutional rule (as is
true in this case, but not in others such as the war powers)
2) the rule at issue is regarded by many as constraining in the given case, yet
3) the rule was ignored or dodged with a broad wink

It seems likely to me that the 12th amendment issue is not taken seriously in this
case because (2) does not apply.  Press coverage of Cheney's selection and my
informal conversations with non-con law scholars suggests that the most salient
feature of Cheney's political geography is his long-standing ties to Wyoming.  It
will not take much to convince most people that Cheney has reestablished his
inhabitancy in Wyoming.  Thus, no one has the incentive to press the issue and
insist that everyone play fairly by the rules of the game because everyone already
thinks the Republicans are playing by the rules (not because they think that [even
substantively antiquated] rules don't really matter).  (Though I must admit the
1996 campaign finance activities test my faith on that last point.)

If Sandy doesn't like my Perot example, how about this: instead of Cheney, Bush
picks retiring House Ways and Means chairman Bill Archer of Houston (I won't test
Sandy's goodwill by proposing a Bush-DeLay ticket).  Archer announces that he has
long resided in an apartment near the Capitol and receives mail there and will
register to vote in D.C. (but will do nothing else), and thus is an "inhabitant"
of D.C. for the purposes of the 12th amendment.  (Or what if Archer doesn't have
an apartment there, but announces that he'll sleep on the couch of a friend in
D.C. and thus is an inhabitant?)  Would there be no objection, and no incentive
for the Democrats to press the objection?  Would there be no charges of
parochialism, cronyism, etc. (many of the substantive concerns underlying the
12th's rule)?  Would this not more closely mirror the congressional cases that Ed
Hartnett very usefully highlighted?  It would even feed into existing media
narratives about the campaign (Bush is too dimwitted to pick a V-P who is actually
constitutionally eligible).  Maybe I'm wrong and the 12th's rule could never be
made politically salient, but I think the present case is not a good test.  Most
Americans are prepared to believe (in a non-ironic sense) that Cheney is from
Wyoming.  He quacks like a duck.  (I might note that the Rocky Mountain News
recently published a rather amused editorial about our discussion on this list.)

BTW, congratulations to Sandy on his (rather cautious) op-ed in this morning's NYT
on this issue.

Keith

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