22nd Am, 12th Am, and Clinton as VP

[Volokh, Eugene]

	I realize that this is far from perfect evidence, but the earliest
law dictionary the library could find for me, Bouvier's (1843), defines
"eligibility" as "capacity to be elected."  (I take it that, by extension,
for appointed offices it would mean "capacity to be appointed.")  If that's
how the term was understood in 1804, then Clinton would not be eligible to
the office of President, and thus under the 12th Amendment not eligible to
the office of Vice-President.  

	Some mid- to late 1800s cases also define eligible as referring to
"capacity of holding, as well as capacity of being elected to an office"
(see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that's in the context
of saying that someone who isn't eligible to an office isn't capable either
of holding the office or being elected to it.  I've seen no evidence that,
contrary to the Bouvier's definition, a person would have been seen in the
early 1800s as being "eligible" to an office when he was legally barred from
being elected or appointed to it, and the only question related to whether
he could automatically assume it under some succession statute.

	I realize that there may be some uncertainty about whether the
proper timeframe for understanding the original meaning is the early 1800s
(when the 12th Amendment was adopted) or the 1960s (when the 25th Amendment
was adopted); but I think that since the question relates to the meaning of
the word "eligible" in the 12th Amendment, we should focus on the early
1800s.

	Eugene