Is George Washington Constitutional?

george-washington2.jpgOver at Balkinization, Jack Balkin has a humorous post about interpreting Article II, section 1, clause 4 of the Constitution, which requires that only “natural born citizens” be eligible to be President. The clause provides:

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.

Balkin writes:

In other words, the original public meaning of the clause says that to be President you either have to have been a natural born Citizen at the time of the adoption of the Constitution, or otherwise a citizen of the United States at the time of adoption, i.e., 1789. That means that persons born after 1789 aren’t eligible to be President of the United States. And that includes not only John McCain, but Hillary Clinton and Barrack Obama. (In fact, it includes George W. Bush, but everybody knows he wasn’t legally elected anyway.) . . . .

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 occurred 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.

I sure hope that we can find some way to make George Washington constitutional. It would be quite a bummer if he weren’t constitutional, especially since I teach at George Washington University Law School.

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4 Responses

  1. Howard Wasserman says:

    But you still are a private school, so the constitution does not apply . . .

  2. Peter Smith says:

    Constitutional Commentary ran a piece (presumably by Dan Farber) almost 15 years ago making this exact argument. See But Cf., Was George Washington Constitutional? 12 Const. Comment. 137 (1995).

  3. Paul Gowder says:

    Haha, well, on no more than one second of thought, I think the, ahem, more fundamental language in the constitution (“The executive power shall be vested in a President of the United States of America.”) trumps. 🙂

  4. James says:

    People – get real! There is two warr going on, a bad economy, presidential race, poverty all around the globe, food crisis around the worl, aids epedimic, and many other things that are effecting us all – and you bring this up as a issue? This happened over 200 years ago – there was a reason behind selecting George Washington as President. I would recommend reading your history first before you make a case, i.e. gather the facts before presenting your case. Congress authorized the selection of George Washington as President based on many honorable and noble qualities that he possesed. So – how about you research something like: “How to save the planet from total destruction!”