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10/28/2020

More on Gendered Pronouns and Female Presidents
John Vlahoplus

The recent debate over gendered pronouns and female presidents shows that there is rarely anything new under the constitutional sun.  George W. Paschal analyzed the issues in an 1868 work.  Following are excerpts, not in their original order, with my comments bracketed. 

Paschal begins by discussing the presidential eligibility clause:

“And here, again, the language of this clause has to be construed in connection with other clauses and the general understanding of mankind.  For there is nothing in this clause to indicate sex unless it be the word ‘President.’” [The Constitution repeatedly refers to the President using “he,” “him, and “his.”]

“The claims of males to be alone entitled to be ‘Senators’ and ‘Representatives,’ is believed to rest alone upon the masculinity of the word, the single ‘he,’ and the common sense and understanding of men.”  [The Constitution refers to Senators and Representatives using “he,” e.g., “an Inhabitant of that State in which he shall be chosen.”]

“Our advocates for equal ‘Woman’s Rights’ might consider this a very narrow definition; and they might even urge that the pronoun ‘he,’ in other clauses, does not protect woman from the severest criminal statutes [art. IV, sec. 2 requires extradition of one charged with felony or treason “on Demand of the executive Authority of the State from which he fled.”  If this provision applies only to males, women could avoid liability for those severe crimes by fleeing to a different state.  But advocates of women’s rights would not claim that the use of “he” protects women from extradition.]; nor would it deprive woman of the guaranties accorded to ‘him’ and ‘himself,’ standing for the antecedent of ‘person’ in the Vth and VIth amendments.”  [The Fifth Amendment accords a guaranty against self-incrimination using the word “himself.”  The Sixth Amendment accords witness and counsel guarantees using the words “him” and “his.”  Advocates of women’s rights would not accept that those words deprive women of the guarantees.]

How, then, should we interpret these provisions?  Some originalists argue that we should interpret the Constitution as the average American English speaker would have at enactment.  This might lead to the conclusion that only men can be President, Vice President, Senator and Representative.  After all, Paschal refers to the “common sense” interpretation of “he” in the provisions that apply to members of Congress.  And the average English speaker in 1789 America might have believed that references to “he,” “him,” and “his” in the relevant provisions meant that only males could hold those positions.  The average speaker might have considered it absurd to think that women were authorized to hold those positions given their limited political power in the eighteenth century, just as some originalists consider it absurd that American English speakers would have thought that “because of sex” in Title VII covered homosexuals in 1964 given criminal laws of the period.  Some originalists also look to early practices to discern original meaning, such as early claims practices under Title VII, and no woman ran for the House until 1866 or for president until 1872. 

Paschal, however, asserts that the same “common-sense tests” (plural) used to interpret “all other instruments” should apply when interpreting the Constitution: 

“That is to construe it by its language, nature, reason, and spirit, objects and intention, and the interpretations of contemporaneous history, having an eye to the old law, the mischief and the remedy.  See Story’s Const. chapters three, four, and five, and voluminous references.”

In a word, pluralism.

MICHAEL RAMSEY ADDS:  Here is a biographical sketch of George W. Paschal, who seems to have had quite an interesting life.