Clinton's eligibility, IV

Eugene Volokh picks up on Hillary's eligibility problem. I don't have much to add to my previous posts on the subject (here, here and here; not for the first time, we were way ahead of the curve on this one, posting fully ten days before Volokh and Instapundit got in on the act).

I'll add this much: I've seen it asserted that Clinton can escape by resigning, because the clause says that "[n]o Senator ... shall, during the time for which [s]he was elected, be appointed" etc. To me, it seems obvious that allowing resignation to cure the problem reads the proviso "during the time for which [s]he was elected" out of the clause. If the clause really means nothing more than that one must resign to assume an office whose emoluments have been increased, it would mean the same thing if it said only that "no Senator or Representative shall be appointed to any civil office under the authority of the United States the emoluments whereof shall have been increased during their term." Since there is that additional proviso, we have to assume that it means something, and we should assume that it means exactly what it says: that the disability it imposes spans the term for which a person was elected, not the amount of time for which they choose to serve.

Still, some argue that because the clause by its own terms refers to Senators and Representatives, resignation cures the problem, because once they resign, they cease to be a member of Congress (that's so in the line of succession context, for example, so it's not wholly anomalous an argument) and the applicability of the clause evaporates. But if the text isn't clear, it seems to me, that digs those who disagree with my reading into an even deeper hole.

To my way of thinking, as I mentioned in my previous post, if the text ([clarification: the whole text, that is; I include structural analysis under this header]) is ambiguous and if there's no applicable precedent, we determine the purpose of the text as it would have been understood at the time it was enacted, and prefer a construction that achieves its purposes over one that frustrates them, to the extent consistent with the text. See Hart & Sacks, The Legal Process 1169 (Eskridge & Frickey, eds. 1994); United States v. Classic, 313 U.S. 299, 316 (1941). In this case, it takes little subtlety to identify the purpose of the clause. Justice Story put it well: "The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness." 2 Joseph Story, Commentaries on the Constitution of the United States § 864 (1833), accord Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L.J. 399, 422 (2001). (Story, by the way, recognized that the clause is a poor fit for its purposes; just as I've said it is overinclusive in this situation, Story noted that it's underinclusive in others.)

The purpose of the clause is to prevent members of Congress from benefiting from appointment to offices they've had a hand in creating or enriching, then; it should be entirely obvious that allowing an individual to escape this prohibition by resigning from Congress would thwart that purpose. If the purpose was contrary to the text, then the purpose alone would not be sufficient to decide the question. To the extent that there is any ambiguity in the text, however, we can allow purpose to throw light on the text, and I think that the purpose of the clause makes a nonsense of the idea that the defect can be cured by resignation. And, by the way, there is on-point precedent, of a sort: the fact that the OLC has agreed with me repeatedly since 1883 confirms this view.

Lastly, I'll concede that this purposive approach does not settle the question of the Saxbe fix. The purpose would be satisfied by the Saxbe fix - but notice what I've done above. I've used purpose to throw light on a textual ambiguity. I don't think that the restriction that Knox-Saxbe tries to elide is ambiguous in the slightest, and we need to be careful to make a Maryland v. Craig-style analytical mistake where we abstract from the prohibition to the purpose and conclude that if the purpose is satisfied, the prohibition is too.