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03/22/2017

Why My Daughter Needs Originalism
Chris Green

Yesterday, Senator Amy Klobuchar asked Judge Gorsuch if women could be President, given that the Constitution repeatedly uses the word "he" or "his" to refer to the President. Gorsuch replied somewhat gruffly, "Of course, women can be president of the United States! I'm the father of two daughters and I hope one of them turns out to be president of the United States!" Stanley Fish once commented that my then-five-year-old daughter's question to me about the Originalism Works-in-Progress Conference--"but what are you doing?"--beautifully captured the spirit of the conference, and I too-frequently joke that I will save items for her presidential library. If "he" only refers to men, alas, she will never have one, and neither will Judge Gorsuch's daughters.

Assume for the argument that we will pick our constitutional theory to guarantee the result that women may become president, either today or whenever our daughters are old enough to be president. Which constitutional theory guarantees this result? 

Only originalism.  If linguistic drift changes the requirements of the Constitution, then change in the usage of gender-neutral pronouns changes who may be president. There are many parts of the English-speaking world, especially academic parts of it, in which it would be quite improper to use the word "he" repeatedly to refer to a gender-unspecified individual. Historically, though, "generic he" was of course quite common. If this new norm of language were to become universal, could women be President? Not if today's usage norms are deemed controlling in interpreting the Constitution.  

Sticking with the manner in which language expressed meaning at the time of the Founding is actually the best way to guarantee that women may continue to be eligible for the presidency. Construing "he" in the Constitution to mean what the Founders would have expressed by it--that is, what people in many circles today would say only by saying "he or she"--is clearly the way to go. I therefore put "he" alongside "now" as the Constitution's words which most obviously have only the meaning they expressed at the time of the Founding.

Update (3/23): Mike Rappaport makes the additional important point here that generic "he" is used in the Sixth Amendment. While female chief executives like Elizabeth and Anne were known to the Founders but not common, female defendants were both (a) common and (b) covered by "him" and "his" in the Sixth Amendment.

Update (4/3): David Weisberg replies here, noting that generic "he" is not yet dead and that the only provision explicitly referring to presidential qualifications, Article II section 1 clause 5 (II/1/5), uses "person," rather than a form of "he." II/1/5 does not explicitly say, however, that those meeting its qualifications may be president; it merely says that those not meeting them may not. A negative inference from the use of "he" could still be possible, just we might, say, infer a tacit limit on the ability of someone to be both President and in Congress from the requirements that representatives receive a compensation (I/6/1) and that the President receive none other than his compensation as President (II/1/7). And while generic "he" is not dead yet, it could still die in the future, and it is absurd, I think, to hold women's presidential qualifications hostage to such a change in linguistic norms.

Weisberg's paper attacking originalism makes a number of interesting points; while I cannot respond to all of them now, I have already considered one of them at length: that originalism confuses a term's meaning with its referent.  As a criticism of some of the things that Justice Scalia has said, the argument hits the mark--indeed, I begin my own paper by criticizing Justice Scalia (and others) for blurring the same distinction from time to time--but as a categorical attack on originalism, I think it fails. A sense-based rather than reference-based originalism is both possible and compelling. Another of Weisberg's arguments sets up an infinite regress based on epistemic problems with source material: "If the meanings of the words in the Constitution are questionable because of the antiquity of that document, then so are the meanings of the words in all the source materials from the same period." But originalism is not a theory about how to free constitutional meaning from being "questionable"--at least, it should not aspire to be such a theory. Rather, originalism and its competitors are rival views about what makes constitutional claims true or false. Disagreement and dispute, rather than undermining the existence of such a constitutional truthmaker, actually presuppose one: there must be something that we are disagreeing about. Again, Justice Scalia sometimes argued that only originalism can rescue us from constitutional uncertainty, and this argument was flawed because it blurred epistemic constitutional virtues with ontological ones. Refuting a flawed argument for a theory is, though, different from refuting the theory itself. Carefully distinguishing epistemology from ontology, like distinguishing sense from reference, can help us better see the full set of theoretical possibilities worth considering.