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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.

Reader Discussion

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on November 02, 2015 at 11:30:32 am

Amusing, but does anyone really believe that the proponents of the "living constitution" are arguing in good faith?
Their assumption is that history is progressing in a direction that they like, and the constitution must be adapted to suit that direction. The theory is designed to suit that belief--any logic to the contrary notwithstanding.

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Richard S
on November 02, 2015 at 15:58:06 pm

The use of male pronouns continued until the whole "Ms." era of feminism started in the 1970s.

In elementary school in the 1960s I was taught that to use male pronouns in exactly this fashion. Also "mankind" was assumed to include woman, "policeman" included woman police officers, "Dear Sirs" was the correct way to address an unknown recipient of a formal letter,

For instance "If one is concerned about the exact location he should consult a local map". Would clearly be a case of using the "he" in a gender neutral way.

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Richard
on November 02, 2015 at 16:49:27 pm

Gender neutral? I thought that was now verboten!!

Nowadays, we must *divine* how someone is "self-identifying" on that particular day.
We would not want to offend, now would we?

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gabe
on November 04, 2015 at 15:21:51 pm

I strongly suspect that this journalist's true intention in raising such a "point" is not to get an answer but is instead to mock the concept of originalism. Let's please not advance his efforts by taking such a question seriously.

Incidentally, it seems to me that such angels-and-pins flyspecking is instead a species of strict-constructionism, which I have always viewed as being fundamentally different from originalism. For example, it might have been that the prospect of a female president was so outside of the Framers' contemplation that they never considered the possibility (they were, after all, men of their time), but in any event it is inconceivable to me that they were moved to preclude this by using masculine pronouns in the Consitution.

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John Thompson

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