The most significant developments in the past year suggest a potent originalist future.
Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.
But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females. Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.For instance from Matthew: “Whosoever shall not receive the kingdom of God as a little child, he shall not enter therein, “ and from Luke: “For whosoever will save his life shall lose it: but whosoever will lose his life for my sake, the same shall save it.” It is obvious that these comments are addressed to the salvation of both men and women despite using the masculine pronoun.
But Dean Chemerinsky also overlooks the part of the Constitution that describes the actual qualifications to be President: “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.” Notably absent among the qualifications to be President is the requirement of being male. Thus, the text of the Constitution itself shows that there is no bar to a female President.
Dean Chemerinsky tries to bolster his claim with his contention that the Framers undoubtedly intended the President to be male. But this argument fails on two grounds. First, he offers no evidence that Framers had any legal intention to exclude women by means of the Federal Constitution. They may have assumed that Presidents would be male, but this is another matter. The Constitution does not generally enact factual assumptions into law, but operates by rules. Many may have assumed that the South would grow as fast as the North, keeping the regions in political balance. But, as Mike Rappaport and I have observed, that assumption does not affect the rules for representation that ultimately gave the North more political power. Second, originalists do not believe that an unenacted intent can trump the clear meaning of a text.
Finally, as Mike Rappaport and I have also noted, the constitutional amendment process is needed to make originalism an attractive theory of interpretation. Does Dean Chemerinsky really think that if there had been a provision in the original Constitution preventing women from becoming President, it would not have been amended by now? If so, he has a very low opinion of his fellow citizens.
It is quite unfortunate that a Dean of a major law school makes so many simple errors in trying to caricature an interpretive theory he dislikes.