Constitutional Law

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).

64 thoughts on “Forget About Obama, Was Washington Constitutional?”

  1. By the looks of the docket the petitioner made such a request but was denied/

    Dec 30 2010 Request for recusal received from petitioner.
    Jan 18 2011 Petition DENIED.

  2. Do you think they would be partial to Obama in any case that may effect his eligibility or his status as president seeing how by his pen they received a lifetime appointment.

  3. Bdaman,
    Kagan and Sotomayor should recuse themselves in any matter that they have an economic interest in or if they have represented any of the parties. I think Kagan has already recused herself in a case that she handled as Solicitor General. This birther nonsense is nothing that any of the Justices should recuse themselves unless Scalia and Thomas and Alito have gone on record as believing in the birther nonsense.

  6. “That makes Thomas Jefferson the first legal President of the United States.” (Nal)

    Thanks a lot, Nal … now all the Jefferson lovers are going to get even bigger heads!

  7. From Steiker, Levinson, Balkin (linked above):

    But what if the piece is a parody? How could one tell this for certain? Perhaps an article is a parody if the arguments it makes are frivolous. Of course, this requires us to differentiate frivolous interpretations of the Constitution from merely imaginative and creative ones. And history has a way of confounding our attempts at making this distinction.

    The best kind of parody is the kind you can’t be sure of.

  8. Larry,
    I took the article to be a sarcastic look at the failings of originalism and how it could be taken to an extreme. But maybe I am mistaken.

  9. I said:

    “Are you suggesting that because of one stupid comma that the founders were saying that anyone born AFTER the adoption of the Constitution could not be eligible for President?”

    Obviously I meant “BEFORE”

    The founders were grandfathered in. Everyone knows that…except Nal.

    Are you trying to tell everyone that the founders are going to start a new government and new country and eliminate THEMSELVES as being President when THEY started it all? My God, I’m laughing so hard it hurts.

  11. Let’s look carefully at what this says:

    “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; 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.”

    Are you suggesting that because of one stupid comma that the founders were saying that anyone born AFTER the adoption of the Constitution could not be eligible for President? Are you really saying that?? If that is what you’re saying [and it’s clear you are] Turley should never let you write another article as a guest blogger and this is one of the many reasons I may leave this blog, especially on weekends.

    The stupidity that had to go into even conceiving this story, let alone typing it, is at record levels and Turley, you should be ashamed of allowing this. Honestly, I don’t think I will be back here if Turley leaves this story up.

    First of all, New Hampshire ratified the Constitution in 1788, not 1789! Second, you completely omit the fact that the articles of Confederation was the newly formed country’s law before the Constitution was ratified. The AOC was ratified in 1781…you completely omit this.

    Also, the sentence “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” applies to Washington, since he was a RESIDENT of the United States [notice it doesnt say CITIZEN] since 1732. Just because Washington was not a resident of the newly formed “United States”, he was still a British subject and living in the AREA [of Virginia] since 1732. What do you expect them to say in the text of the Constitution….”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 area that is NOW the United States but wasn’t before 1776″?? You’re insane.

    You said:

    “This means that nobody would have been a resident until June 21, 1789 and nobody could be President until June 21, 1805. That makes Thomas Jefferson the first legal President of the United States.”

    WTF? NOBODY would be a resident until June 21, 1789 [you meant 1788]and nobody could be president until June 21, 1805 [you mean 1804 if you had a point…but you don’t]? I think I just debunked that. It is clear to anyone with half a brain that the founders were saying “what is NOW the United States” in terms of being a resident of that land.

    Message to Turley: If you leave this post up your credibility is completely shot to hell as a Constitutional professor and I will not be coming back [and hopefully many more follow behind me]. I respected you for a long long time but leaving this post up is the same as endorsing it [it’s actually endorsing it by not immediately removing it, but I’m giving you a chance at least to save face] and if you endorse it, your reputation is gone.

  13. Wait a minute!

    Scalia can read?

    Maybe so, but that won’t help that he’s hard of understanding.

  14. How absurd… hmmm, if only there was something to tell me to avoid results like that…

  18. George Washington was unconstitutional.

    Let’s just leave it at this then: Washington was chairman of the steering committee of the New World nation that is the United States of America; and leave the pesky item about the constitutionality of his presidency, as just another historical footnote.

  19. Strangely enough, it can also be argued that Jefferson was the last real President too.

  20. Way to go George…. I knew that just by being on the One Dollar Bill something was extremely wrong….very wrong… Do you know how many Washington’s it takes to make a Hamilton or a Franklin much less a Chase?

    There has been some argument with this I have read… But just like a corporation any acts that were done and not question seem to have been ratified by the next president…. So as academically as the argument about Texas this would be in academics only….Ain’t no one gonna do anything…

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