A Comment on Originalism and Women Presidents
David Weisberg comments:
I notice that several recent posts [ed.: see here by Chris Green and here by Mike Rappaport] express the view that originalism is the only theory of constitutional interpretation that assures the result that a woman might be qualified to be president, supposedly because one has to revert to a time-dated meaning of "he" to refer to both men and women.
Of course it is true that there are numerous references to the president as a "he" in the Constitution, but in the one and only provision of the document that sets forth the formal qualifications or requirements of eligibility of the office, "he" disappears and "Person" is used:
"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 have been fourteen Years a Resident within the United States." (Art. II, Sect. 1)
I would also note that the use of "he" to refer to both sexes is not exactly a usage that is relegated to the distant, misty past. On page 89 of Reading Law (published in 2012), Scalia and Garner write: "The choice is this: Give text the meaning it bore when it was adopted, or else let every judge decide for himself what it should mean today." Of course Justice Scalia knew there were women on the bench.
I have published on SSRN a paper demonstrating that Justice Scalia's originalism is irreparably flawed. See Justice Scalia’s Originalism: A Flawed Theory that Obscures an Important Truth by David E. Weisberg :: SSRN But, in light of the foregoing, little girls may continue to aspire to high offices, even after originalism has been discarded.
I agree with one implication of this comment, which is that a good bit of what's called originalism is really just textualism (and much of nonoriginalism is also nontextualism, at least in the sense that it does not confine itself to the most plausible reading of the text). And I agree that presidential eligibility is an example. Claims that woman could be ineligible to the presidency are not just bad originalism; they are bad textualism.