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Mike Rappaport


Originalism and Female Presidents, Again
Michael Ramsey

The question whether the Constitution allows only male Presidents (because it refers to the President as "he" in Article II) apparently is back.  In addition to Mike Rappaport's recent post, there is excellent analysis from Rob Natelson (A woman as president? The gender-neutral Constitution) and John McGinnis (Martha Could Have Succeeded George).  And Chris Green sums it up well here, as quoted in US News

“If we take the original meaning, historically ‘he’ was used to refer to both men and women,” says Green, currently a visiting fellow at Princeton University. “The idea that ‘he’ refers only to men, and that we must say ‘he or she’ to refer to a gender-unspecified person, is new.”

Exactly right.  My comments on the issue, from a couple of years ago, are here: Dean Chemerinsky's Lame Critique of Originalism.  I wrote:

[Dean] Chemerinsky argues:

The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.

Preposterous.  I would think that pretty much anyone who has (figuratively) set pen to paper in the modern era knows that until quite recently “he” was used generically to include both men and women when the gender was unknown.  In our more sensitive times we’ve modified that practice to take into account the potential offense it gives women (rightly so, in my view, although we’ve struggled to come up with a satisfactory alternative).  But there isn’t the slightest doubt it was the grammatical custom in the framers’ era.  As Wikipedia puts it:

Problems of usage arise in languages such as English, in contexts where a person of unspecified or unknown sex is being referred to, but the most natural available pronouns (he or she) are gender-specific. In such cases a gender-specific pronoun may be used with intended gender-neutral meaning, as he has been used traditionally in English, although she is now sometimes used instead … 

If there were any doubt, the Constitution sets out (in Article II, Section 1) the specific qualifications to be President; not only is “male” not one of them, but the relevant section speaks of a “Person” with the given characteristics being eligible.

No Person except a natural born Citizen … 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 …

Moreover, the founding generation knew how to limit things to men when they wanted to: typically voting was extended to “adult male citizens” with certain qualifications. 

I’m not aware of any originalist or originalist-oriented scholar who thinks Chemerinsky's view is even plausible, much less that an originalist "would have to say" what Chemerinsky argues.

To reiterate the conclusion: no one who takes originalism seriously thinks it even plausible that the Constitution might bar women from the presidency.  This is a talking point by non-originalists who want to discredit originalism but don't bother to understand it.

And to be clear: it's not because barring women from the presidency is a bad outcome.  Of course it is a bad outcome, but originalism does not guarantee good outcomes.  Sometimes it will lead to results we will find uncomfortable under modern morality.  This just isn't one of those times.