1995 TAKING TEXT AND STRUCTURE REALLY SERIOUSLY 11Originally published at 74 Tex. L. Rev. 237 (1995).Copyright 1995 by Jordan Steiker, Sanford Levinson, and Jack M. Balkin.All rights reserved.TAKING TEXT AND STRUCTURE REALLY SERIOUSLY:CONSTITUTIONALINTERPRETATION AND THE CRISIS OF PRESIDENTIALELIGIBILITYJordan Steikera1Sanford Levinsonaa1J.M. Balkinaaa1 *237 Throwing down the gauntlet at the entire community ofconstitutional scholars, the editors of Constitutional Commentary at the Universityof Minnesota Law School have recently announced what "could be the mostearth- shaking discovery in constitutional law since Marbury"1 : GeorgeWashington, the Father of Our Country, was constitutionally ineligible to becomepresident of the United States.2 As the editors point out, the argument is "quitestraightforward,"3 especially for those who have drunk deeply from the well ofJustice Scalia's "plain-meaning" approach to legal interpretation.4 But we think a1 Professor of Law, University of Texas School of Law.aa1 W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chairin Law, University of Texas School of Law.aaa1 Lafayette S. Foster Professor of Law, Yale Law School andSometime Visiting Professor, University of Texas School of Law.1 Contest: Was George Washington Constitutional?, 12 CONST.COMMENTARY 137, 137 (1995) [hereinafter Contest].2 Id.3 Id.4 See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORYINTERPRETATION 38 (1994) ("The simplest version of textualism isenforcement of the 'plain meaning' of the statutory provision: that is, given theordinary meanings of words and accepted precepts of grammar and syntax, whatdoes the provision signify to the reasonable person?").2TAKING TEXT AND STRUCTURE REALLY SERIOUSLY 19952their argument is equally compelling for legal scholars who profess any allegianceto the values of traditional legal craft. As Professor Laurence Tribe has recentlyand eloquently reminded us, the traditional lawyer's tools of parsing text,intention, and structure are essential to avoid the temptation—increasinglyprevalent among legal academics these days—of resorting to "free-form" methodsof interpreting the Constitution.5 It is in this spirit of fidelity to text and craft thatwe take up the important, though hitherto neglected, question of presidentialeligibility under the United States Constitution.*238 I. The Minnesota Argument: Virginia Is for Losers The Minnesotans' surprising discovery flows from a literal reading ofthe Eligibility Clause of Article II, section 1: The constitutional text explicitlyrestricts eligibility to those persons who were "natural born Citizen[s], or aCitizen of the United States, at the time of the Adoption of this Constitution. "6Article VII in turn provides that "[t]he Ratification of the Conventions of nineStates, shall be sufficient for the Establishment of this Constitution."7 The termsfor adoption required by Article VII were satisfied when New Hampshire becamethe ninth state to ratify on June 21, 1788.8 Although Virginia, New York, NorthCarolina, and Rhode Island would later vote to join the new nation,9 theConstitution achieved full legal birth with New Hampshire's ratification; hence,only citizens of the nine ratifying states could be denominated "citizens of theUnited States" as of the time of the Constitution's adoption. Because GeorgeWashington was a citizen of Virginia, he "was not a citizen of the United States atthe time the Constitution went into effect under Article VII, and hence wasineligible to be President under Article II. Q.E.D."10 5 Laurence H. Tribe, Taking Text and Structure Seriously: Reflectionson Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV.1221, 1227 (1995).6 U.S. Const. art. II, ' 1, cl. 5 (emphasis added).7 U.S. Const. art. VII.8 HANNIS TAYLOR, THE ORIGIN AND GROWTH OF THEAMERICAN CONSTITUTION 212 (1911).9 Virginia ratified on June 25, 1788, id. at 216, New York on July 26,1788, id. at 216, North Carolina on November 21, 1789, id. at 218, and RhodeIsland on May 29, 1790, id. at 219.10 Contest, supra note 1, at 137.1995 TAKING TEXT AND STRUCTURE REALLY SERIOUSLY 33 Although legal scholars with insufficient devotion to the values of craftand textual fidelity might be tempted to take this argument lightly, one can hardlydeny that the argument appears to be a perfectly straightforward reading of theconstitutional text. And the issue of presidential eligibility, though rarely if everlitigated, cannot be dismissed as a peculiar or isolated constitutional problem.Much of the Constitution is devoted to establishing the minimal requirements fornational office; the Supreme Court's recent decision regarding congressional termlimits11 reflects the significance of discerning those requirements, come whatmay in terms of political consequences. As the Minnesota editors note, theirinterest in constitutional eligibility requirements was piqued by a recent article oftheir fellow Minnesotan, Professor Michael Paulsen, who recently examinedconstitutional limitations on cross-branch service. Paulsen's article, Is LloydBentsen Unconstitutional?,12 addressed the possibility that the former Secretaryof the Treasury was constitutionally disqualified from office because he hadserved as a senator when the Senate voted to increase the secretary's salary.13Notwithstanding its somewhat odd and possibly ad *239 hominem title, Paulsen'sarticle was completely serious in inquiring whether literal readings of theconstitutional text may be casually disregarded because of politicalinconvenience, or if they must instead be fully complied with as a measure of ourenduring commitment to our nation's fundamental legal document. Indeed, another eligibility requirement—that the president must bethirty-five years of age14 — has routinely been held up as the canonical exampleof the importance of taking the constitutional text seriously as binding law. Thethirty-five-year requirement, it is often said, is the quintessential "easy case" thatshows that the Constitution cannot (and should not) be bent to one's personalpolitics and practical predilections.15 For many constitutional commentators, thiseasy case illustrates the truth that, despite the recent popularity of deconstruction 11 U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842 (1995).12 Michael S. Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L.REV. 907 (1994).13 Id. at 907; see U.S. Const. art. I, ' 6 ("No Senator or Representativeshall, during