Taking Text and Structure Really Seriously: Constitutional Interpretation and the Crisis of Presidential Eligibility

Abstract

Throwing down the gauntlet at the entire community of constitutional scholars, the editors of Constitutional Commentary at the University of Minnesota Law School have recently announced what "could be the most earth- shaking discovery in constitutional law since Marbury": George Washington, the Father of Our Country, was constitutionally ineligible to become president of the United States. As the editors point out, the argument is "quite straightforward," especially for those who have drunk deeply from the well of Justice Scalia's "plain-meaning" approach to legal interpretation. But we think their argument is equally compelling for legal scholars who profess any allegiance to the values of traditional legal craft. As Professor Laurence Tribe has recently and eloquently reminded us, the traditional lawyer's tools of parsing text, intention, and structure are essential to avoid the temptation—increasingly prevalent among legal academics these days—of resorting to "free-form" methods of interpreting the Constitution. It is in this spirit of fidelity to text and craft that we take up the important, though hitherto neglected, question of presidential eligibility under the United States Constitution.