Why George Washington was an Unconstitutional president

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Great semi-parody/reality piece by Jack Balkin that shows some of the inherent difficulties with originalist jurisprudence.

The piece references that McCain was (may have been?) born in the Panama Canal and therefore it is unclear (to some?) that he is not a natural born citizen hence ineligible for the presidency.

JB:

I have to tell you, frankly, that whether McCain is “natural born” is the least of our worries. If you are truly an originalist, as I am, nobody is eligible to be president today.

The Constitutional line in question reads:

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.”

Now back to Balkin:

Now the key issue for an original meaning originalist, as Sandy Levinson, Jordan Steiker and I pointed out back in 1995, is whether “at the time of adoption of this Constitution” refers only to “Citizen of the United States” or also to the antecedent clause, “a natural born Citizen. We found out that, according to accepted grammatical rules as they existed in 1787, the use of commas marking off the words “or a Citizen of the United States” means that the phrase “at the time of the adoption of this Constitution” refers to both preceding clauses, i.e., both to “natural born Citizen” and to “Citizen of the United States.”

Ergo, only those who were natural born citizens and/or citizens of the US at the time of the adoption can be president. Which means that apparently (by originalist standards) that Zachary Taylor was the last legit president in US History. ZT in hizzey.

Why the clause?:

We concluded, reluctantly, that the framers clearly meant to say that the Constitution could have constitutional presidents only for a generation. Presumably this was based on a Jeffersonian idea that constitutions should have a natural sunset, at which point, a new constitutional convention should be called.

FWIW (for what it’s worth), I’m on record for a second constitutional convention a la Larry Sabato.

But so how did cherry choppin’ never lie tellin’ George W. (Washington clearly not Bush) miss the cut?

But wait– there’s more. The rest of the sentence reads: “neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.” Now Article VII holds that the Constitution comes into being when nine states ratify, which occured on June 21, 1789, when New Hampshire became the ninth state. But this means that nobody could be a resident within the United States until June 21, 1789, and so nobody could be President until June 21, 1805. And that means that Thomas Jefferson, not George Washington, was the first legal President of the United States.

Or they say the US started in 1776 (arguable for sure) meaning no legit prez until 1790, meaning Washington’s first election was invalid–at least until his second year in office. Maybe he got grandfathered in. “It’s Good to be the Father of the Nation…” Except…

But it’s worse than that. Suppose we say that the United States begins in 1775, so that Washington was a resident of the United States for fourteen years before he became President. Nevertheless, that doesn’t mean he was a citizen of the United States “at the time of the adoption of this Constitution.” If you think the Constitution is a compact of states, which was legally adopted on June 21, 1789 when New Hampshire ratified, then “the time of the adoption of this Constitution” was June 21, 1789. But George Washington’s home state of Virginia didn’t ratify until June 25th. This means that at “the time of adoption of this Constitution,” George Washington was not a citizen of the United States, he was only a citizen of Virginia, and therefore he was ineligible when he took the oath of office. And if he was not a citizen at the time of adoption, he could not be a “natural born Citizen” at the time of adoption either.

Oops. I mean really who did Washington think he was? False teeth or no, this s–t can’t fly.

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Published in: on March 11, 2008 at 9:57 am  Leave a Comment  
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