I have just posted on SSRN a new draft: Hillary Clinton, Michelle Obama, and the Unwritten Twenty-Second Amendment. Here is the abstract:
In 1994, the popular children's cartoon show "Animaniacs" aired a song about the presidents of the United States, culminating in the lyrics, "Now in Washington, DC/ There's Democrats and the G.O.P./ But the one in charge is plain to see/ It's Clinton, first name Hillary." Its humor illustrated what Americans come to expect--first spouses effectively serve in the role of President of the United States, if only informally. When Americans voted in 2016, they recognized that she was ineligible to be elected as President of the United States--she could not serve a third term because of the Twenty-Second Amendment.
This Article proceeds in three parts. First, the Article examines the text of the Twenty-Second Amendment, which provides that "[n]o person shall be elected to the office of President more than twice." Through a Blackstonian understanding of the common law tradition of coverture, the Article argues that the word "person" includes both married spouses, as the public understood the amendment when it was ratified in 1951--even as coverture was being abolished in most jurisdictions.
Second, even in light of some ambiguity of the meaning of the word "person," the "unwritten" Constitution informs us that presidential spouses are ineligible to serve as President. Tracing George Washington's example of serving just two terms in the White House to the enactment of Twenty-Second Amendment, the tradition of no spouse running for the office remains an indelible practice that informs our understanding of the Constitution.
Third, the people's uniform rejection of presidential spouses running for the office of President--in the 2008 presidential primaries, and the 2016 general election--suggests that spouses are not eligible for the office. The people, after all, may independently judge the qualifications of candidates for the office of President, and their interpretation, as construed through their behavior, informs this view of the Amendment. It concludes by teasing out the implications for a potential presidential run for office for Michelle Obama and how litigation seeking to exclude her from running might fare.
Comments (and offers from law reviews) welcome!