1340 Boston College Law Review [Vol. 56:1287
V. IN CONCLUSION: BRINGING IT ALL BACK HOME
On Maggie’s Farm, the third track of Bob Dylan’s 1965 album Bring-
ing It All Back Home, he wails: “I got a head full of ideas that are drivin’ me
insane . . . .”
225
The preceding discussion raises its own risk of producing
information overload. So how does the weaver of the legal tapestry bring
together the many strands of analysis, some central and some subsidiary, set
substantive effect that is compatible with the rest of the law” (citations omitted)); Lynch v. Al-
worth-Stephens Co., 267 U.S. 364, 370 (1925) (observing that “the plain, obvious and rational
meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing
but the . . . ingenuity and study of an acute and powerful intellect would discover” (citation omit-
ted)). As the forgoing discussion shows, the clarity-for-all-past-Presidents interpretation does not
render the reference to an “acting . . . President” in the transition clause mere surplusage. But what
if one somehow concluded that it did? On the better view, that interpretation would still be the
right one. Indeed, at least five reasons support this conclusion. First, in context, the reference to
acting Presidents in the transition clause very naturally carried forward to that clause identical
language that already appeared in the operative-rule-creating, immediately-preceding sentence of
the Twenty-Second Amendment. (In particular, the Amendment’s operative clause rendered it
applicable to a “person who has held the office of President, or acted as President, for more than
two years.” It thus was entirely natural and sensible to deploy a parallel construction in the transi-
tion clause.) Second, the reference to the acting President helped to communicate the comprehen-
sive coverage meant to be provided by the second portion of the transition clause—that is, cover-
age of every potential ratification-term President except Harry Truman. Third, the interpretive
canon based on mere surplusage must be applied in any event with attentiveness to other canons,
including canons based on textual clarity that may (and, in this case, very strongly do) exert coun-
terforces. See King, 135 S. Ct. at 2492 (noting that “our preference for avoiding surplusage is not
absolute” (quoting Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004)); S
CALIA & GARNER, supra note
220, at 59, 176 (noting that “[n]o canon of interpretation is absolute” and that “[e]ach may be
overcome by the strength of differing principles that point in other directions”; adding, with regard
to the anti-surplusage canon, that: “So like all other canons, it must be applied with judgment and
discretion, and with careful regard to context. It cannot be always dispositive . . . .”). Fourth, the
anti-surplusage canon does not operate, in any event, when the relevant text is rightly viewed as
serving to remove any doubt about how the Constitution operates in a particular context. See, e.g.,
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (noting that the Necessary and Prop-
er Clause was included in the Constitution simply to “remove all doubts” about the existence of
implied legislative powers). Finally, in crafting the Twenty-Second Amendment, there was espe-
cially good reason to remove any doubt about the delegitimizing of any person handling the presi-
dential office—including any successor or acting President—during the one-time, distinctly vola-
tile presidential term in which the Twenty-Second Amendment would initially take effect. In par-
ticular, this clarification (even if it were only a clarification) held the promise of sparing both the
then-sitting or then-acting President and the nation as a whole from the risk of severe disruption
by preempting any effort by such a person’s political opponents to demand an immediate ouster
from office on the date of ratification. Notably, the existence of any such demands—regardless of
their lack of legal merit—would inevitably involve distraction, partisan rancor, and unfairness
both to the actual or acting President and to those members of the electorate who had supported
the ticket that included that person prior to ratification. With these dangers in view, it would have
been, and was, entirely sensible for the drafters of the transition clause simply to sweep all such
arguments off the table for purposes of the set-of-one four-year term during which ratification
occurred.
225
BOB DYLAN, Maggie’s Farm, on BRINGING IT ALL BACK HOME (Columbia Records
1965).