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10/22/2020

More on Whether The Original Meaning Allows for Female Presidents
Mike Rappaport

During the Gorsuch confirmation hearings, the question came up whether the original meaning allowed women to become President, because the Constitution referred to the President as a "he."  I wrote a post saying that Gorsuch had flubbed the question.  Gorsuch could have argued quite persuasively that the original meaning permitted women to become President, but instead attempted to defensively avoid the question.  Here is an excerpt:

Sure, he indicated that women could be President, but gave no reason for believing the original meaning allowed it.  His answer appeared to suggest that originalist could only believe this by violating their interpretive principles.

Significantly, there was a clear answer to the question.  When the Constitution was written (and until recently and even today to an extent), the term “he” had at least two meanings.  It could mean a male or it could mean any person, whether male or female.  (Similarly, the term “mankind” referred to all people, not just men.)

In fact, some of the constitutional provisions strongly suggest that women were covered by these terms.  Consider the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Clearly women could be criminal defendants and clearly they would enjoy the right to confront witnesses, to compulsory process, and to the assistance of counsel.

Thus, one need not depart from the text of the Constitution to permit women to be President.  One needs only to read the term “he” to have one of the meanings it had at the time of the Constitution.  Thus, originalism allows women Presidents.  In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that ”he” only refers to males.

Recently, I was discussing this blogpost on a constitutional law listserv.  One of the participants criticized my argument on the ground that while “he” could mean either “he” or “he or she,” the fact that it meant “he or she” in the sixth amendment did not necessarily mean it meant “he or she” as to the presidency.  This is true, although the fact that it means “he or she” as to the sixth amendment does provide some evidence that it means the same as to the presidency.

But based on this objection, I explored the issue further, leading to me conclude with much greater confidence that the Constitution’s original meaning allows women presidents.

The additional evidence comes from the qualifications language.  The Constitution states the qualifications of someone to be President in Article II, section 1, clause 4.  It states the three qualifications of citizenship, age, and residency:

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 been fourteen Years a Resident within the United States.

So this clause suggests that sex is not a qualification, since it is not mentioned. 

Now, it might be argued that the Constitution could impose other qualifications in other places.  And therefore Article II, Section I, which says of the president “He shall hold his office during the Term of four years,” might impose another qualification. 

This is a theoretical possibility, but I think a very weak argument.  If one were to read this clause as imposing a qualification based on sex, that qualification would be oddly written and oddly placed.  If one was intending to prohibit women from becoming Presidents, the most obvious way to do so would have been to add it to the express list of qualifications in Article II, section 1 by saying “only men can become President.”  By contrast, the alleged prohibition on women serving as President is in another clause.  And it is allegedly imposed indirectly by saying “He shall hold his office.”  This strongly suggests that we should read the “he” as having the meaning that includes females.

In addition, the express list of qualifications in Article II, Section 1 suggests that women can be President in another way.  It says “No person except a natural born Citizen . . . shall be eligible to the office of President.”  If the authors were implying that women could not be President based on the “he” in Article II, section 1, it would have made sense to say something like “No man except a natural born Citizen . . . shall be eligible . . . .”  That would have more strongly implied a prohibition on females.  By saying “No person,” however, the Constitution suggests that the presidency is open to all persons. 

One of the benefits of debate is that it improves the quality of our views.  This challenge significantly improved my argument.