I am reviewing this article in my political science class... It's a bit enigmatic.
"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.
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?
You would try to determine the public meaning of the "natural born Citizen" requirement at the time that the Constitution was adopted.
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?"