A Few Constitutional Blunders

The Doodles of Pierce Butler (Pierce Butler Papers, Gilder Lehrman Institute of American History)

History is frequently more complicated than it initially appears, and accordingly, it may be surprising to discover that when George Washington was inaugurated as the first President of the United States, he was constitutionally ineligible for office. Similarly, when John Adams became the first Vice President nine days earlier, he too was constitutionally ineligible for office. There is, in the matter, no gratuitous cynicism, suspicious legerdemain, or alembicated point of law. To the contrary, the observation is benign, simple, and direct, and relies exclusively upon transpicuous historical facts and the plain language of the United States Constitution. More specifically, Article II, Section 1, Clause 5 of the Constitution stipulates the qualifications for president, and it 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; 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.[1]

Marking American independence to the traditional date of July 4, 1776, and emphasizing that before this date, the United States had no political identity, did not exist, and in its place there was only an aggregation of British colonies and British citizens, it is perfectly clear that the earliest date a president and vice president of the United States would have been eligible for office was fourteen years hence, or to be precise, July 4, 1790.[2] Washington, however, was inaugurated on April 30, 1789, and Adams entered office on April 21, 1789, so it is obvious that both statesmen were over a full year short of satisfying the Article II residency requirement. Regrettably, exactly how and why the error occurred is not necessarily known.

When the presidency was discussed and debated at the Federal Convention, the residency requirement received minimal attention. While much effort and energy were devoted to subjects such as the manner and mode of election, the term of office, its powers and structure, and the idea of impeachment, the residency requirement was largely considered inconsequential, and again, the discussion regarding it was exiguous. Perhaps the most complete deliberation is documented in James Madison’s Notes on the Debates in the Federal Convention, which gives a brief account of events between August 20 and 22. In particular, Madison recorded that on the 20th, Elbridge Gerry of Massachusetts moved that the Committee of Detail “be instructed to report proper qualifications for the President,” and two days later, on August 22, the Committee reported back that the President “shall be of the age of thirty-five years, and a Citizen of the United States, and shall have been an Inhabitant thereof for Twenty-one years.”[3]

The issue doesn’t resurface in Notes until September 4, and by that date, the residency requirement of twenty-one years had been altered and reduced to fourteen years, although without any intervening explanation or commentary as to why. Finally, on September 7, the fourteen-year residency requirement was agreed to nem con, or without opposition.

Because the initial residency requirement was twenty-one years, and because no one expected or understood that the country would wait, ludicrously, until 1797 to elect a president, it is probable that either the Committee of Detail or the Convention had intended to write an exception clause into the Article II residency language (as they had done with the natural-born citizen clause), but thoughtlessly neglected to do so. Madison, in fact, openly acknowledged the carelessness of the convention’s behavior surrounding the discussion of the presidency in an 1823 letter to George Hay, and although he was specifically describing the argument regarding the electoral college, his description was equally applicable to the presidential qualifications clause because those debates occurred in close conjunction. Madison wrote: “As the final arrangement of it took place in the latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by fatigue & impatience in all such bodies.”[4]

Hurrying, fatigue, and impatience were not the only potential impediments to more carefully considering the language and implications of the presidential requirements clause. Indeed, the convention was often characterized by confusion and disorder, as delegates arrived and departed at leisure, bored attendees daydreamed and doodled, personal animosities proved disruptive, and the standing rules permitted issues to be debated repeatedly. And, more generally, because the transition from the government of the Articles of Confederation to the government of the United States Constitution was, in many respects, a political revolution as radical as that which separated the colonies from Great Britain, it was inevitable that it would not be accomplished with flawless efficiency and scrupulous perfection.

Ultimately, the residency violation was a mere peccadillo and just one of several similar blunders the convention committed. In that sense, it may have even helped establish an early pattern of pragmatism to which the Founders commonly adhered.As the United States was launched, the letter of the law was considered far less important than the spirit of the law, and if the requirements or provisions of the Constitution were found functionally limiting or hindering in any way, and if transgressing them had no detrimental effect and helped establish the new republic, they were often simply ignored.

To that end, there is an interesting indecorum pertaining to the First United States Congress. Article I, Section 4, Clause 2 of the Constitution necessitated that the first meeting of Congress be held on the first Monday in December.[5] However, when New Hampshire became the ninth state to ratify the Constitution on June 21, 1788, the first Monday in December was less than six months distant, and it wasn’t necessarily considered practical, or even possible, to organize and initiate a new system of government in less than six months. Accordingly, on September 13, 1788, the Confederation Congress, although it had no constitutional authority to do so, designated the first Wednesday of March 1789 to “be the time and the present seat of Congress the place for commencing proceedings under the said constitution.”[6] The First United States Congress subsequently decided to disregard the Article I meetingrequirement altogether, follow the unconstitutional directive of the Confederation Congress, and convene on the first Wednesday in March instead of the constitutionally mandated first Monday in December.

Neither the presidential residency breach nor the Congressional meeting breach was troublesome or damaging in any way, and both now stand as mostly overlooked footnotes in history.Nevertheless, that doesn’t alter the fact that the United States of America began its political life under the Constitution, somewhat amusingly, with a President and Vice President who were ineligible for office and a Congress whose first meeting was unconstitutional.

 

[1]United States Constitution, article 2, § 1, cl. 5(emphasis added)

[2]Whether the traditional date of July 4 or the more historically accurate date of July 2 is used to mark American independence is immaterial.

[3]Lillian Goldman Law Library. (2009) Avalon Project – Documents in Law, History and Diplomacy. United States, avalon.law.yale.edu/subject_menus/debcont.asp.

[4]James Madison to George Hay, September 23, 1823, founders.archives.gov/documents/Madison/04-03-02-0109.

[5]United States Constitution, article 1, § 4, cl. 2.

[6]A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875, memory.loc.gov/cgi-bin/ampage?collId=lljc&fileName=034/lljc034.db&recNum=532&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28jc0341%29%29%230340001&linkText=1.

 

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