Balkinization: Who Cares About John McCain-- George Washington Is Unconstitutional!

Who Cares About John McCain-- George Washington Is Unconstitutional!

Apparently everyone is up in arms over the fact that John McCain was born in the Panama Canal zone in 1936. Is he a "natural born citizen" eligible to be President under Article II, section 1, clause 4 of the Constitution?

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.

I recently took Ed Whelan's simple one question test to determine whether you are really an originalist and confirmed that, yes, I am one of that proud and hardy band.

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a "natural born Citizen" (or, alternatively, in a provision that long ago ceased to apply to any living persons, "a Citizen of the United States, at the time of the Adoption of this Constitution") How would you figure out what the phrase "natural born Citizen" means?

My answer was D:

(D) You would try to determine the public meaning of the "natural born Citizen" requirement at the time that the Constitution was adopted.

Ed explains:

If it is obvious to you that the proper response is (D), then you are an originalist. If you think that the answer might be (A), then you are probably Justice Stevens, O'Connor, Kennedy, Souter, Ginsburg, or Breyer.

I ask you, how can you disagree with that?

So I busily tried to figure out the original public meaning of the clause, which is a little more complicated than Ed lets on. The Constitution's text actually 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."

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."

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.)

With a little research, Levinson,Steiker and I found out that according to the original public meaning of the document, the last constitutional President was Zachary Taylor.

You might think that this was just a scrivener's error. No so. We discovered that the commas were removed and then added again to successive drafts of the Constitution, so it was clearly something that the framers thought about. 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.

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.

Of course, we could get around this by saying that "the United States" actually comes into being on July 4, 1776, the date of the Declaration of Independence (unless you believe in the compact of states theory, under which the states became, as the Declaration says, "free and independent" sovereigns in 1776.). In any case, if the United States comes into being in 1776, nobody would be eligible to be President until 1790, which means that George Washington was ineligible for his first year in office. And because he was ineligible when elected, the first time he was legally elected President was in 1796. Perhaps we could say that the Constitution comes into being in 1775 with Concord and Lexington, when the War of Independence begins. Then Washington would meet the Constitution's residency requirements. (That is, if he took the oath of office after April 19, 1789. In fact, he took the oath of office on April 30, 1789).

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.

So I am afraid we must conclude that George Washington was unconstitutional.

And that means of course, that we need to take him off the one dollar bill, tear down the Washington Monument, and rename the nation's capital after somebody else. Jefferson already has a capital city named after him, in my home state of Missouri. How about James Monroe?

Am I being serious, or is this just a parody of originalism? Read our 1995 essay "Taking Text, History and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility, 74 Tex. L. Rev. 237 (1995), and find out for yourself.

Posted 5:50 AM by JB [link]

Comments:

Please incorporate by reference the several comments on "natural born" (started by me) to Steve Griffin's post of this past Monday "Three Strikes Against Originalism." I guess Jack as the head umpire of Balkinization doesn't consider Griffin's post worthy of a strikeout call.

I would ask Jack whether Congress (with the approval of an illegal President) has the power to define "natural born" for the purposes of eligibility to be President.

# posted by

Shag from Brookline : 8:21 AM

Larry Solum at his Legal Theory Blog has interesting comments on "natural born" and originalism. While he agrees (with me) that C-Sections and in vitro fertilization should not result in ineligibility, he does not address "cloning."

This issue is a good test for the merits of originalism, what with sex, geography, biology, etc, intertwined. In addition, there are elements of humor. Just imagine constitutional scholars and law students playing "what if" games regarding "natural born." Some may harken back to the Dred Scott decision on "citizen" as perhaps valid even with the Civil War Amendments.

By the way, Solum made reference to "original ambiguity." Is this phrase original with him?

# posted by

Shag from Brookline : 9:42 AM

As we hear from the originalists on the issue of "natural born" I would suggest that they consider their constitutional analyses of the "original intent" and the "original variables" with these "what ifs":

What if it were Hillary Clinton and not John McCain who had been born outside the 50 states?

What if it were Barack Obama and not John McCain or Hillary who had been born outside the 50 states, especially in a foreign country?

Would the originalism arguments differ?

# posted by

Shag from Brookline : 10:45 AM

Ingenious. However, I find something like the opposite interpretation more colorable, viz., that one is eligible to the office of President if one is either (1) a natural born Citizen or (2) a Citizen of the United States. And since everyone is a Citizen somewhere, then by (1), everyone is eligible to the office of President (as long as he or she adopts the Constitution, of course).

# posted by

"Q" the Enchanter : 10:53 AM

Textualism is not limited to a hyper technical reading of the text. It is a basic technique of statutory interpretation that a court will not read absurdities into the text of a law.

The provision at issue 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."

If you read this passage without the commas, common sense recommends that the Presidency was limited to natural born citizens OR citizens who were naturalized at the time of the adoption of the Constitution.

Interpreting the second comma to cause both initial clauses to be modified by the phrase "at the time of the adoption of this Constitution" needlessly creates an absurd impossibility.

The fact that other commas were added and subtracted during successive drafts of the Constitution does not mean that the drafters of the Constitution intended this absurd result to arise from this particular comma.

This exercise does appear to be an attempt to parody textualism into something it is not.

# posted by

Bart DePalma : 11:08 AM

Removing commas originally in the text seems to be an originalist method to impose intent, meaning, understanding, etc, that may not have originally existed to support their positions, inducing comas with their rhetoric.

What we need is a Mel Brooks version of his 2000 year old man schtick with Mel playing a Founder and being asked about original intent, etc, on certain aspects of the Constitution. Who might we recommend as Mel's straight (or gay) man?

# posted by

Shag from Brookline : 11:19 AM

Addendum to my comment above: The restrictions the constitution sets on eligibility to the office of president are all limited in scope to "persons." Therefore, it would also appear that nonpersons are eligible to that office without restriction.

# posted by

"Q" the Enchanter : 11:48 AM

That means that persons born after 1789 aren't eligible to be President of the United States.

Accordingly, McCain is the only qualified candidate.

# posted by

mls : 12:11 PM

Bruce Springsteen may be revising his song for the fall campaign to:

"NATURAL BORN IN THE USA"

in support of either Obama or Clinton.

# posted by

Shag from Brookline : 12:18 PM

"It is a basic technique of statutory interpretation that a court will not read absurdities into the text of a law."

But wait, isn't the Constitution a "contract," properly approached as one would approach "any other contract?"

At least, that's what the Constitution was yesterday...

...today, it's a statute subject to the "techniques of statutory interpretation."

# posted by

Scott : 12:30 PM

John McCain is an "anchor baby" because he was born in a US territory, the Canal Zone.

It is ridiculous to question McCain's citizenship while illegal aliens' children born in the USA are automatically granted US citizenship at birth.

Here is another line of reasoning --

According to the Dred Scott decision, US blacks were not considered to be citizens at the time of the adoption of the Constitution and hence were ineligible to be president according to the clause that only natural-born citizens or citizens when the Constitution was adopted were eligible to be president. This constitutional ineligibility to be president was not implicitly repealed by the 14th Amendment because the Supreme Court said in Posadas v. National City Bank of New York 296 U.S. 497, 503 (1936),

The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment.

So Obama is not eligible to be president.

# posted by

Larry Fafarman : 2:16 PM

What is the source for your "accepted grammatical rules/practice in 1787?

Simple Justice in its take on this has a comment However on March 26, 1790 the First Congress, including a number of the Framers, passed the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."However on March 26, 1790 the First Congress, including a number of the Framers, passed the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."
Anyone know if this is correct?
Link: http://blog.simplejustice.us/2008/02/28/the-panamanian-president-john-mccain.aspx

# posted by

landloc : 2:17 PM

The restrictions the constitution sets on eligibility to the office of president are all limited in scope to "persons." Therefore, it would also appear that nonpersons are eligible to that office without restriction.

Hence the genius of the Supreme Court in ruling that corporations are "persons".

However on March 26, 1790 the First Congress, including a number of the Framers, passed the first naturalization law: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens."

This doesn't solve the problem, because, normally speaking, Congress can't modify a term in the Constitution. For example, Congress can't change the definition of "free speech".

In this particular case, however, there's some originalist basis for thinking Congress DOES have such authority. The reasoning goes like this:

What Blackstone says is that the common law rule was that only persons born within the King's "dominion" were citizens. This rule was then modified by statute to include those born overseas of natural born subjects. Thus, an originalist could argue that the Constitution froze in time both the common law meaning and its statutory amendment.

But there's a more inclusive way to look at it as well. We might also reason that the Constitution in this particular case DID include the power of the legislature to modify the rule. The reasoning would be that if that power weren't part of the meaning, there'd be no reason to accept the statutory amendment to the common law rule.

By this reasoning, Congress could make Arnold a citizen or Henry Kissinger or anyone else. Such a holding would be perfectly consistent with the rule of the Insular Cases (that Congress can define the boundaries of the United States).*

*I'd love to hear from the originalists just why it is that the term "United States" is not frozen as of 1789, but the term "natural born citizen" is.

# posted by

Mark Field : 2:49 PM

don said...

BD: "It is a basic technique of statutory interpretation that a court will not read absurdities into the text of a law."

But wait, isn't the Constitution a "contract," properly approached as one would approach "any other contract?"

The same rule applies to interpreting contracts.

# posted by

Bart DePalma : 3:22 PM

Questions:

If McCain was not a US citizen at birth, then exactly when did he become a US citizen?

Was McCain born stateless?

# posted by

Larry Fafarman : 3:28 PM

"We found out that, according to accepted grammatical rules as they existed in 1787, the use of commas "

As I understand the accepted grammatical rules on use of commas at that time, you essentially stuck one in wherever you thought somebody would pause to take a breath. They were pretty much devoid of meaning otherwise, which is why you'll see legal documents such as constitutional amendments printed here with these commas, there with other placement.

Aside from the false premise, it was mildly amusing.

# posted by

Brett : 4:11 PM

Bruce Ackerman's Letter to the Editor in today's NYTimes presents a non-originalist view that indeed John McCain is eligible to be President. He uses a holistic approach that ties in the equal protection clause of the 14th Amendment with the eligibility clause, closing with:

"When choosing among plausible interpretive options, we should always choose the one that makes the most sense of the entire Constitution, regardless of the date at which particular provisions were enacted."

Do pure originalists disagree with Ackerman's approach while agreeing with his conclusion?

# posted by

Shag from Brookline : 5:01 PM

James Monroe already has the capital city of another nation named after him. I think we'll have to rename DC "Adams." Perhaps we could cut the Washington Monument in half, and have one for John and one for John Quincy.

# posted by

Andrew : 6:52 PM

shag from brookline said...

Bruce Ackerman's Letter to the Editor in today's NYTimes presents a non-originalist view that indeed John McCain is eligible to be President. He uses a holistic approach that ties in the equal protection clause of the 14th Amendment with the eligibility clause, closing with:

"When choosing among plausible interpretive options, we should always choose the one that makes the most sense of the entire Constitution, regardless of the date at which particular provisions were enacted."

Do pure originalists disagree with Ackerman's approach while agreeing with his conclusion?

Do you have a link to the entire letter? Ackerman appears to touch upon a number of interpretive tools in that last paragraph. Based on what you have posted, though, Ackerman is engaging in far too many steps.

There is a rule of construction where, if a provision of law can plausibly be read in two ways, then the way which exists in the most harmony with the other provisions of the law should be used. However, as I posted above, the Eligibility Clause's text is clear and one can pretty readily understand what is required. Thus, there is no need to consult the 14th Amendment unless Ackerman claims that it amended the Eligibility Clause.

# posted by

Bart DePalma : 7:39 PM

Ackerman's letter is available at:

http://www.nytimes.com/2008/03/01/opinion/l01mccain.html?_r=1&ref=opinion&oref=slogin

Or link to www.nytimes.com for today and click on "Opinion" and then on "Letters" and scroll. I guess clarity of constitutional text is in the eye of the beholder or the originalist who is clairvoyant.

# posted by

Shag from Brookline : 11:01 PM

Given that the Constitution clearly says "natural born" rather then "native born," I would say that that Prof. Balkin's, uh, novel interpretation is only slightly sillier than the whole flap.

# posted by

Essayist-Laywer : 12:59 AM

What if a candidate for president was born by Caesarian section? Is (s)he "natural born" or not?

# posted by

John in Nashville : 4:36 AM

If the reference had been to "native born" rather than "natural born" might that have included and perhaps been restricted to Indians?

There is nothing about the "missionary position" (or other "natural position") in the Constitution so I guess in vitro fertilization (even if the egg and sperm embryo is "foreign born" and implanted in a foreign country) and even cloning would retain Presidential eligibility if the deliverer-mother is a U.S. citizen, regardless of where the delivery takes place, even by C-section.

# posted by

Shag from Brookline : 6:23 AM

Presumably Ackerman’s letter is designed to exemplify the advantages of a non-originalist approach to constitutional interpretation. It strikes me that, at the least, he has chosen a poor example. How is it that reading the “natural born Citizen” provision to encompass persons born overseas reduces discrimination or invidious discrimination? Sure it treats one group (persons born as US citizens outside its territory) equally with another group (persons born in the US) but in doing so it now treats them better than a third group (naturalized citizens who were not born in the US). Isn’t that just as discriminatory?

Indeed, couldn’t it be argued (rather more plausibly than in ML’s clever parody of originalism) that Ackerman’s approach should logically favor the narrower reading of “natural born Citizen”? Discriminating against persons based on the location of their birth certainly sounds less invidious than discriminating based on the identity of their parents.

It is also noteworthy that the 14th Amendment refers to “all persons born or naturalized in the United States.” It has been suggested that this language is what has caused the confusion about the meaning of “natural born Citizen,” because the original meaning (ie, any person born as a citizen, regardless of location) is actually quite clear. http://volokh.com/posts/1204265246.shtml

# posted by

mls : 9:06 AM

Sorry, I erroneously referred to ML, rather than JB, as the author of the original post.

# posted by

mls : 9:27 AM

Given that the Constitution clearly says "natural born" rather then "native born," I would say that that Prof. Balkin's, uh, novel interpretation is only slightly sillier than the whole flap.

The problem for originalists is that the common law rule equated "native born" and "natural born".

# posted by

Mark Field : 10:05 AM

What if the parents have dual citizenship: U.S. and [fill in the country]? And the delivery takes place (a) in that other country or (b) in a third country? Is there a coin flip? What weight would be given to the fact that conception took place in (a) U.S., (b) that other country or (c) in a third country?

By the way, didn't Republicans make an effort to disquality FDR's eligibility to be President because of questions as to his place of birth? So once again I ask originalists in expounding their views to consider if this situation applied to Obama or to Clinton how would they come down constitutionally? We all have our little biases, don't we?

# posted by

Shag from Brookline : 10:17 AM

We all have our little biases, don't we?

yes we do

# posted by

mls : 12:32 PM

"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."

I think that Professor Balkin's comments seem to be an argument by reduction to absurdity against a certain form of originalism' However, taking the argument at its face value, if "at the time of the adoption of this Constitution" applies to both parts of, "a natural born Citizen or a Citizen of the United States", we are left to explain what "natural born Citizen" was not a "Citizen of the United States" at the time of the adoption of the Constitution. FOr example, were citzens of the CSA eligible?

# posted by

-bwg : 2:49 PM

BD: "It is a basic technique of statutory interpretation that a court will not read absurdities into the text of a law." But wait, isn't the Constitution a "contract," properly approached as one would approach "any other contract?" The same rule applies to interpreting contracts.

Of, course, while Bart is right on this narrow point, the real problem with his "contract" analogy is that subsequent conduct of the parties is considered THE MOST RELIABLE means of interpreting a contract. Thus, contracts are interpreted consistent in an analogous manner to the "living constitution" theory that Bart decries.

# posted by

Dilan : 10:17 PM

For me, the most interesting point in the McCain nativity controversy, if we may dignify it as such, is the parallel between the Canal Zone and Guantanamo. The Bush Administration asserted that the US has no sovereignty there, the better to excuse otherwise presumably unwarranted detention processes that are forbidden on American soil. But now comes John McCain claiming the privileges of one born on American soil. Is this not contradictory? Is it seemly for his partisans to disown sovereignty on Guantanamo while claiming it in the Canal Zone? This is mere Humpty Dumptyism.

'When I use a word,' Humpty Dumpty said, in a rather scornful tone,'it means just what I choose it to mean, neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

# posted by

Larry Koenigsberg : 6:48 PM

Larry Koenigsberg said,
>>>>>> and Guantanamo. The Bush Administration asserted that the US has no sovereignty there, the better to excuse otherwise presumably unwarranted detention processes that are forbidden on American soil. <<<<<<

That is the first time I heard that one. The usual excuse for denying constitutional protections to Guantanamo detainees is that they are allegedly illegal foreign enemy combatants.

# posted by

Larry Fafarman : 12:34 AM

But now comes John McCain claiming the privileges of one born on American soil. Is this not contradictory? Is it seemly for his partisans to disown sovereignty on Guantanamo while claiming it in the Canal Zone? This is mere Humpty Dumptyism.

One difference is that the Canal Zone had special status and forms available to ensure the citizenship of people born there. That is, statutes exist that have defined the parameters of sovereignty and citizenship more clearly than has been done in Guantanamo Bay.

As a person born in the Canal Zone, this issue is near and dear to me, and I wouldn't wish the adjudication process I had to undergo (because my parents failed to fill out a necessary form at the time of my birth) on my worst enemy.

I say McCain is in the clear on this, although obviously I have my biases. :)

# posted by

PMS_CC : 11:47 AM

Barack Obama came close to being born in a US territory -- he was born in Hawaii only shortly after statehood began. Also, his father was probably not a US citizen when Barack was born.

It is high time to remove that silly requirement from the Constitution, anyway.

# posted by

Larry Fafarman : 12:50 PM

Larry Solum at his Legal Theory blog has several posts on this topic, including a link to a 1988 Yale Law Journal (Vol. 97, 881) article by Jill A. Pryor titled:

"The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty"

that addresses fairly completely the issues involved, some of which were addressed in comments. Originalism and textualism ain't beanbag. Jill should be applauded for her efforts at a time when possible biases regarding a particular Presidential candidate seem not to have been in issue.

# posted by

Shag from Brookline : 10:02 AM

Hello, I enjoyed your look at the "original" intent. A short while back a friend put together a different case for outlining the ineligibility of George Washington, John Adams and many others.

Washington
http://ballsnews.com/george-washington-was-ineligible-to-be-president.html

Adams
http://ballsnews.com/john-adams-ineligible-to-be-president.html

Jefferson
http://ballsnews.com/was-thomas-jefferson-eligible-for-president.html

The conclusion is that Adams and Washington may not have been eligible due to the latter restrictions in the eligibility clause. Jefferson, however, appears to have been legit.

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