Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

This conflict is especially evident in the language of Article I, section 2, clause 2 quoted above.  The provision speaks of “no person” who does not satisfy certain qualifications, thereby suggesting that persons may serve, not just males.  Moreover, the provision could have easily added that no person can serve “who shall not be a male” as a qualification.

While the original meaning appears to indicate that females can serve as members of Congress or as President, I am not sure that all versions of nonoriginalism support this result.  Consider the view that we should interpret the Constitution based on the modern meaning of its terms.  In an effort to induce writers not to use “he” to mean “he or she”, feminists and others have suggested that “he” always means a male person and does not have the “he or she” meaning.  Suppose they have succeeded in changing the meaning of the word he.  Then, under the modern meaning interpretive view, they might have had the unintended effect of prohibiting women from serving as President or in Congress.  Another example that illustrates the weakness of the view that interprets the Constitution based on the modern meaning of the words.