Forget About Obama, Was Washington Constitutional?

-Submitted by David Drumm (Nal), Guest Blogger

The Constitution’s text on the issue states “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.” The problem arises due to a pesky comma. Does the clause “at the time of the Adoption of this Constitution” refer only to “a Citizen of the United States” or to both clauses including “a natural born Citizen?” It turns out that according to accepted rules of grammar in 1787, the pesky comma means that “at the time of the Adoption of this Constitution” refers to both antecedent clauses.

This means that the President must be a natural born citizen at the time of adoption or a citizen at the time of adoption, 1789. Any person born after 1789 isn’t eligible to be President of the United States. That makes Zachary Taylor the last constitutional President.

You might think that the pesky comma was just a typo (writo?) by an overworked scrivener or maybe a drop of ink that ran a little. But the commas were removed and reinserted numerous times for different drafts of the Constitution, so it was something that was given serious thought by the framers. There’s no backspace when using quill and ink, so you have to decide what to write before you write it.

Wait, it gets better. The rest of the statement 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.” Article VII states that “The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same.” The ninth state was New Hampshire which ratified on June 21, 1788.

This means that nobody would have been a resident until June 21, 1788 and nobody could be President until June 21, 1802. That makes Thomas Jefferson the first legal President of the United States.

We must conclude that, based on originalism, George Washington was unconstitutional.

H/T: Balkinization, Steiker, Levinson, Balkin (pdf).