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4 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2009)

handle is hein.journals/dukjppsid4 and id is 1 raw text is: WHY OUR NEXT PRESIDENT MAY
KEEP HIS OR HER SENATE SEAT:
A CONJECTURE ON THE
CONSTITUTION'S
INCOMPATIBILITY CLAUSE
SETH BARRETT TILLMAN*
In a few months, We the People will go to the polls and elect the
electors who will elect (or, at least, have an opportunity to elect') the
next President of the United States. Short of an act of God or an act
of war, the next President will be a sitting United States Senator.2 The
expectation is that a Senator/President-elect resigns his or her
legislative seat (or that resignation of the Senate seat happens by
operation of law) some time prior to (or in consequence of) taking
the presidential oath of office. The widely held view in large and
influential academic circles,' and among the educated public generally,
* Seth Barrett Tillman is a law clerk to the Honorable Malachy E. Mannion, Magistrate
Judge, United States District Court for the Middle District of Pennsylvania. The views
expressed are solely my own. I would like to thank Christine S. Patrick, Associate Editor at The
Papers of George Washington, and the editors at the First Federal Congress Project who have
generously given me the benefit of their time and advice. Furthermore I thank Dean Essary and
the faculty at the Campbell University School of Law and Dean Saxton and the faculty at the
Quinnipiac University School of Law for having given me the opportunity to present earlier
versions of this paper.
1. See U.S. CONST. art. 11, § 1, cl. 3, amended by U.S. CONST. amend. XII (discussing
House contingency election procedure in the event no candidate receives the requisite electoral
college majority).
2. At the time this Article was drafted, Senators Clinton, McCain, and Obama were the
leading announced candidates participating in Democratic and Republican party primaries.
Senator  Clinton's senate  term  terminates  in  2013. Hillary  Clinton-Biography,
http://bioguide.congress.gov/scripts/biodisplay.pl?indexCOO1041 (last visited Sept. 19, 2008).
Senators McCain   and  Obama's terms expire in    2011. John   McCain-Biography,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=M000303 (last visited Sept. 19, 2008);
Barack Obama-Biography, http://bioguide.congress.gov/scripts/biodisplay.plindex=0000167
(last visited Sept. 19, 2008). The next quadrennial presidential term starts in 2009. See infra note
66 (discussing the congressional and presidential election calendars in detail).
3. E.g., AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 131 (2006)
[hereinafter AMAR, BIOGRAPHY] (Article I, section 6 barred a sitting president from serving in

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