The 22nd Amendment leaves open several possible ways a two-term president could serve all or part of a third term without being elected. The text of that amendment, as ratified, prohibits a two-term president from “being elected” to a third term, but it doesn’t prohibit him from “serving,” “acting” or “holding” that office. Indeed, the framers explicitly rejected broader exclusionary language that would have made it constitutionally impossible for a two-term president to get anywhere near the Oval Office. Instead they accepted a compromise that created a loophole bigger than the new ballroom in the East Wing of the White House.

This doesn’t mean that President Trump will actually run for a third term. He has told the media that he won’t. It does mean that there are circumstances, unlikely but possible, under which a two-term President could ascend to the presidency without being elected to a third term. Among them is the following:

Imagine the United States being subject to a massive terrorist attack in which both the President and the Vice President are assassinated. Neither the Speaker of the house or the president pro temp are qualified to assume the duties of the president during such a crisis. A successful two-term president has been serving as secretary of state. A bipartisan public wants him to assume the office of President. Would the 22nd Amendment absolutely bar the two-term president from serving out the term of the assassinated president?

The 22nd Amendment certainly does not specifically address that scenario, or others that could possibly occur in our unpredictable world.

Because of the inherent ambiguity of the 22nd Amendment and because some partisans were advocating that President Trump actually seek a third term, I decided to write a short book, analyzing the issue from an academic, non-partisan, perspective. As soon as the book was announced I received criticism for “putting ideas” in the heads of those who want the current president to seek a third term – an idea that one of my former Harvard colleagues deemed “unthinkable.” Well that’s not how I decide what to write (or think) about. The text of the 22nd Amendment invites, indeed demands, thinking about, debating and perhaps revising its words.

I have carefully researched the history of the 22nd Amendment and have come to three conclusions: 1) the purpose of the amendment was to preclude a two-term president from serving a third term; 2) framers of the amendment proposed language that would have achieved that purpose; 3)they rejected that language and agreed upon a text that leaves open the possibility of a two-term president serving a third term to which he is not elected.

These conclusions create a conflict between different modes of constitutional interpretation. Textualists advocate exclusive reliance on the final text of a constitutional amendment, regardless of its purpose. Others argue that if the text is ambiguous, the purpose should determine its meaning. Yet others argue that even if the text is unambiguous, it’s clear purpose should trump (pardon the pun) the text. In this case, both the text and the purpose seem unambiguous – but they point in opposite directions. The text leaves open the possibility of a third term under extraordinary though unlikely circumstances. The purpose would seem to foreclose that possibility.

This conflict between text and purpose warrants discussion and perhaps clarification of the 22nd Amendment through an additional amendment. If the purpose is as clear as it seems, it should be rather easy to amend the text to provide unequivocally that a two-term president cannot, under any circumstances, serve a third term. It would take time to fix the 22nd Amendment, so the issue of how it should be interpreted in its current form will persist for at least a time.

It is unlikely that this issue – and the conflict underlying it – will become real, in part because many voters would reject any attempt to circumvent what they correctly understand to be the purpose of the amendment. Even before it was enacted, many voters who voted for FDR’s second term voted against his breaking the tradition of a third term. Even more would likely vote against a two-term president who they believed was violating a constitutional amendment.

So let’s continue to discuss – as a thought experiment – the fascinating issue of whether President Trump could constitutionally serve a third term, without concern about his actually seeking to do so.