Marco Rubio is on most short lists for the Republican vice presidential nomination, with the principal objection the question as to whether he is constitutionally eligible. How should we view this issue? At the outset, we need to dispose of the idea that the Constitution contemplates political parties nominating candidates to run for president or vice president. Both parties and candidates have no constitutional reality at all.
The method for electing both these executive branch officers is through a special constitutional body, the Electoral College. The method of choosing those presidential electors has evolved over time and has varied from state to state. Until 1824, those electors were not chosen by the people at all, so if you want a good trivia question, ask someone for the popular vote in the 1820 presidential election (there is none.) Some, like South Carolina and Colorado, retained the right of the state legislature to choose those electors past the 1824 election.
Regardless of how these officers are chosen - and each state legislature has exclusive constitutional power to choose that method - the role of those electors has not changed. Each presidential elector exercises independent judgment and votes for whom he wishes for president and vice president, and implicitly in that prerogative and duty is to cast a ballot only for someone qualified to be president or vice president. What this means is that if a Perry-Rubio ticket swept all fifty states that means nothing. The Electoral College could instead elect Tim Pawlenty and Joe Biden to be president and vice president.
Even when presidential electors began to be chosen by the people, the ballots were either provided by political parties or by the voter. In effect, every ballot was a “write-in” and nothing could prevent voters from casting ballots for electors who promised to vote for a person who was not qualified to be president.
That may be the way our political system has worked, but the Constitution, still very much in force in this area, provides for something radically different. The Electoral College meets. Its members may cast ballots for whomever they wish. That means regardless of the outcome of the presidential election in November 2012, these electors could choose Bob Newhart or Mike Ditka to be president. “Presidential candidate” means something to us, but it is a phantom in the Constitution. If there is no such critter as a “presidential candidate” in the Constitution, then the notion of a “political party” with its “nominee” is even more ephemeral; in fact the idea was not only absent from the Constitution but it was repellant to the men who wrote that document.
The Electoral College is a deliberative body, although it does not meet collectively but rather in states. In determining who its members feel are the proper persons to be elected president and vice president, the Electoral College exercises constitutional authority and as part of that must also determine the constitutional qualifications of such persons.
The Constitution provides in Article I, Section V the parallel to judging the qualifications of the persons elected president and vice president. That section explicitly says that the “Each House shall be the judge of its own Returns, Elections and Qualifications of its Members.” What does that mean? If a 23-year-old is elected to the House of Representatives, and the House votes to seat him as qualified, then constitutionally the issue is resolved. If a 28-year-old is elected to the Senate and the Senate determines that he is qualified, then constitutionally the issue is resolved.
We may believe that those chambers have acted contrary to the Constitution – as indeed they may have - but it does not mean bad faith. In the early days of the republic, the year of birth and even the place of birth were not always known with absolute certainty. Was a person born in a part of Oregon Territory disputed by our nation and Britain born “in the United States” or not? Was a young man raised in the wilds required to know his age?
In some cases these questions were matters of fact, or as much fact as could be discernable, and in other cases these were matters of interpretation. Consider, for example, the requirement that any member of the House of Representatives must be when elected “an Inhabitant of that State in which he shall be chosen.” Who determines what “Inhabitant” means? The Constitution places that power solely in the House of Representatives itself. That includes the power to be mistaken or to be wrong.
We must also consider that if the Electoral College is not the proper body to determine the qualifications of a person to be president, then where is that supposed to be decided? It cannot be the federal bench. When Washington was elected president, there was no federal bench at all – no Supreme Court, no inferior federal courts, and no jurists at all. These, necessarily, came after the election and installation of both the president and Congress.
Moreover, federal courts have only such power as Congress gives them – with a few areas of constitutional original jurisdiction provided in Article III. Congress could remove by statute any authority that any federal court had to determine the qualifications of a person to be president. There can hardly be a “constitutional” power in federal courts to judge this as Congress can remove it by statute.
Is there any other constitutional body that could disqualify a person from the presidency? The House of Representatives elects the president if no one has a majority in the Electoral College and it can impeach a sitting president, but only for misconduct in office. The 25th Amendment gives the cabinet some authority to relieve a president in time of incapacity to serve, but the amendment relates pretty clearly to physical or mental incapacity and it presumes, by its restoration of the president to his office, that the person in the Oval Office is constitutionally qualified.
What does that leave? Well, it leaves self-regulation. The oath of office requires an incoming president to swear or aver that he will uphold the Constitution, which would include the Article I limitations. And it leaves the Electoral College.
Does this mean that dubious presidential qualification is irrelevant? No, of course not: but it does mean that this is a political, not a legal issue. The continued furor unfortunately, is a reflection of how much we have come to define all issues of government as, ultimately, legal issues. Although it is quite clear that no serious reading of the Constitution could give any federal jurists the right to determine the eligibility of a president chosen by the Electoral College, we have grown up seeing judicial opinions as being superior to other constitutional agencies.
Presidential electors ought not to choose as president anyone who is not eligible for that office, and state legislatures (whose powers we ought to trust much more than federal judges) have absolute power to determine how those electors are chosen. If we want to clean up the system for electing presidents, start with state legislatures, who were intended to be the eight hundred pound gorilla in a constitutional system in which those bodies, alone, elected the Senate, chose presidential electors, and could amend the Constitution.