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This question regards the USA and its federal constitution.

Article II, Section I of the US Federal Constitution says that:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years

The US Federal Constitution always refer to the "President of the United States of America" as a "he".

One may think that the image of the President of the USA that the framers had in mind was male.

This argument was also presented by Erwin Chemerinsky at TEDx, as you can see in this video, at 4:10.

Here are my questions:

  1. If we use the "originalism/textualism" method of interpretation, is it unconstitutional to elect a female President of the United States of America?

  2. How does the answer to (1) changes if we use the "living constitutionalism" method of interpretation?

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  • @bdb484 Also I don't feel the linked question is really a duplicate of this one: (i) the linked question asks whether it was formerly illegal for a woman to be president, this one asks about what the Constitution says today (ii) the linked question asks whether there was a law expicitly forbidding a female to be president, I am asking about Contitution, which doesn't explicitly forbids that (iii) more importantly, the linked question doesn't ask for a legal theory under "originalism" and/or "living constitutionalist" on how to interpret the Constitution Nov 24 '20 at 16:27
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    I agree. You'll find that the vast majority of the users here have little to no actual training or experience in the law, so they are not particularly adept at distinguishing between related but different issues and questions. That's just part of the reality of using this site.
    – bdb484
    Nov 24 '20 at 16:29
  • Even today it is grammatically correct to refer to a person of unspecified gender as "he". The alternatives are "it" (not used for people) and "they" (not technically correct to use this for singular people, though it may be more common nowadays to cast unknown singular people as unknown groups of people; rather than saying, "if there is a dissenter, let him say so" we might say "if there are dissenters, let them say so"). But using he/him/his for a singular person of unknown gender is correct current usage.
    – Patrick87
    Nov 24 '20 at 16:30
  • @Patrick87 I think the strongest textualist argument would be the one provided by Michael Hardy in the linked question, Article IV section II refering to "a person" as "he". But that would be, at the very best, original intent, not original public meaning Nov 24 '20 at 16:36
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Answer to Question #1: No. Originalism/textualism takes the meaning as the plain meaning language at the time each Article/Amendment was written, not the late 17 century plain meaning of language for everything. So the 13th amendment, which was written in 1865 would be read in the plain meaning of 1865 where as the Articles would be read with the plain meaning used by the founding fathers. In English, it's consider increadibly rude to use the third person neutral singular pronoun to refer to a human being and the pronouns "they/them" were not a third person singular at this time (very recent development in the English Language) nor was gender neutral writing (using he/she) also a thing at the time. Because the president would always be a single human being, the writers would have to use either he or she and there are plenty of documents that have a "gender neutral he" to refer to a generic individual occupation holder when gender was unknown at this general description stage. The framers were discussing the occpuant of the office of President and that individuals government powers, so gender wasn't an issue in their mind.

Additionally, the originalist/textualist would argue that the founders would have been aware of situations where a monarch was in fact a woman. The rule of Queen Anne was monarch for 12 years (5 as queen of England, 7 as Queen of Great Britain) from 1702-1714, which was 52 years prior to the Declaration of Independence. Prior to Queen Anne, you had Queen Elizabeth I, Queen Mary I (the first truly recognized Queen of England and for whom a U.S. State was named (Maryland aka Mary's Land)). Before her was Queen/Lady Jane who ruled for all of 9 days before Mary was installed. Before Jane there was the disputed Clamaint to the throne Empress Matilda/Maude who ruled from April to November of 1141. It's important to note that with all these Queens, they were all Queen Regents (i.e. Queens who ruled, to be contrasted with Queen Consorts, which were Queens whose husbands ruled. In English, a male equivelent to a Queen Consort is called a Prince Consort. There is a fun historical example of this difference mattering in a title in Polands King Jadwiga (1384-1399) who was in fact, a woman. The use of the term King as her title is due to the fact that the Polish Language the word "King" is gender neutral and always refers to a ruling Monarch while the Polish word for for "Queen" always refers to a female Consort of the Ruler. While English word Queen is acceptable in this situation, it's insulting when translated back into Polish. Though it should be pointed out, at the time, Polish nobility didn't want to use the female title cause they couldn't stand her betrothed fionce, Duke William of Austria, who would have inherited the title "King" had he married "Queen" Jadwiga. By crowning Jadwiga "King of Poland," William would only get the title of Prince Consort. For some odd, William decided to not marry Jadwiga upon learning this and getting kicked out of the Polish Court.). Additionally, contemporary to the declaration of independence's signing was Tsar Catherine II of Russia, better known as Tsar Catherine the Great who also took some small naval actions in the aid of the Colonies at during the Revolutionary War. Because the founders would have known about this and did take actions that would have barred a situation similar to Catherine The Great from happening in the US (I.E. Catherine was not Russian but a German princess who married the Tsar that preceeded her reigne. The Constitution Explicitly states that the President must be a citizen of the U.S. by birthright) had they wanted to exclude women, a similar constraint would have explicitly been said. While the OP's quote comes from Article II Clause 1, the qualifications for the officer are taken from Article II Clause 5 (emphasise added):

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.

The use of "No Person", "Any Person" show that that not only did a potential president not have any explicit conditions on their individual gender, but the founders went out of their way to eliminate any indication in the qualifications clause whatsoever. Had they wanted it in there, they would have said as much (consider that elsewhere in the original Articles, they explicitly dehumanize slaves, we can assume they weren't bound by anything we'd remotely consider "PC" language.). The use of the word "Person" is especially important as Textualists/Originalists veiw the use of the word "person" or "people" in the Original Constitution (as drafted) and the Bill of Rights to explicitly mean "an individual citizen" and usually was gender neutral (This is muddled in the second amendment as at the time, Militia is contextually read to mean all able bodied men of a community (though down to the bare minimum of one able body men if that's all the community had) though through the same lens of the textualist/originalist, the part about the militia is a justification for protecting the "right of the people" (read: right of an individual) against government intrusion. As we'll discuss later, the founding fathers did make an amendment stating that they were too lazy to write down ALL the rights of the people.

All of this is before the 14th amendment, which garentees that all citizens are granted equally and all subordinate governments must not violate the Federal Constitution. Additionally, we have the 9th Amendment which says that just because the constitution does not explicitly list something as a right of the people, does not mean that right can be deniegned to the people. The 10th Amendment takes the 9th Amendment and denigns the Federal government the power to legislate on anything that denigns a 9th Amendment right to the state or the people (In effect, it's a nice way of the founders saying: We're lazy and don't want to go through every possible situation, so when you're in doubt, assume it's a right of the state, unless they don't cover it, then it's the right of the people). The 14th Amendment effectively patches up the loop hole created by the 9th and 10th amendment (i.e. while the Federal Government couldn't denign people certain rights, the State Governments were not bound to these restrictions and they could and did use this loophole in many ways, most notably Slavery).

It should be pointed out, a lack of Universal Sufferage was not prescribed by the constitution. At time of drafting the only direct elections in the Federal Level were for House of Representative members, and the Constitution said that in order to be eligible to vote for Represetatives at the Federal Level, you must be eligble to vote for State Legislature representatives. Voter eligibility was deligated to the states to decide (Many states did grant women the vote prior to the ratification of the 19th Amendment. Just not all of them.). Unamended, the Constitution delegated election of senators to the State Legislatures and the President was through electoral college, and the states determined how electors are allocated (though almost all pick by the candidates state wide popular vote. The two that don't go by district popular vote with the overall statewide popular vote winner getting two additional votes).

Now, with all that out of the way, to answer question 2, the Living Constitution might actually agree with your assesment that using a third person singular masculine pronoun (He) shows that under modern language rules, the Constitution limits presidential eligibility to only men, but they would also have to ignore all of Article II Clause V where eligibility is outlined in gender neutral language. Living Constitutionalists do not ignore sections of the constitution, but rather read the language in modern plain language (thus rules change as the common definitions change). There are circumstances where orignilalists/textualists AND Originalists would read it the same way (though they might see the other side's read as "Right for the Wrong Reasons").

One final note, but the difference between Originalists and Textualists is the acceptance of outside commentary by the Founding Fathers in interpretation. An Originalist will also cite examples from history that the founders might have been aware of(ala my listing of various Queen Regents), to their contemporanious writings (Hence why you hear a lot about the Federalist Papers and the Anti-Federalist papers as both explained the reasoning be hind the Unamended Constitution and the Bill of Rights respectively) and even drafts of articles and amendments that did not make the final cut. Textualists will concern themselves with the plain meaning of the language used but would not reach to outside sources to justify what the founding fathers meant when they wrote it. If they had meant something different, they would have written something different.

As an example, an Originalist might side with someone on the right to a religious exception to the Constitution because when drafting the Second Amendment, there was originally a clause about respecting religious objections to bearing arms in a Milita. The Textualist would come to the same conclusion, because the First Amendment restricts the government from unduly burdening the exercise of their own personal religious beliefs (the Originalist would agree on this point too, but the draft about this as well, as the line in the second amendment was cut when the first amendment made it redundant). Here, a living Constitutionalist would agree with the Textualist but not the Originalists.

TLDR:

Textualists ask "What was the writer saying?" Originalists ask "What was the writer thinking?" Living Contstitutionalists ask "What are we hearing?"

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    A minor point: "Singulat they" is not a recent development in English. It dates to the 1400s, and was used by Shakespeare and ither respected writers.. It was not, I think, common in legal writing in the 1700s and 1800s. It has of course recently become far more popular than it was in, say, the 1900s. Nov 24 '20 at 22:20
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    "living document" analyses take note not just of changes in the meanings of words, but of changes in legal and social concepts. "The press" was a literal press in the 1780s, but its essential meaning is now taken to mean any form of mass communication. The founders probably did not anticipate female legislators or executives in the US, but did not explicitly prohibit such (and they easily could have, many were skilled writers). Nov 24 '20 at 22:26
  • Many of the founding fathers were quite aware of women: most were married and John Adams himself held an intricate correspondence with his wife Abigail Adams who is attributed to have written: "Remember the ladies"! battlefields.org/learn/articles/women-american-revolution
    – Trish
    Nov 25 '20 at 7:50
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    Additionally: Some women did fight in Militia, such as Molly Pitcher or Margaret Corbin, the latter of which got a soldier's pension for disabled veterans from the war of independence! Many more did follow the army in the support train, providing medical care.
    – Trish
    Nov 25 '20 at 7:57
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There is no such restriction.

At the time the Constitution was written it was the common practice to use "he" for a person of unknown or unspecified sex. The use of that word cannot be taken to imply a restriction to males.

If it were not settled before, the 19th Amendment granting voting rights to all adult women would have settled the matter.

While it is true that no woman has yet been elected to, or held, the office of President, women have been elected to Congress. But the 2nd paragraph of Article I section II provides that:

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.

If the use of "he" were a restriction to male office holders, no woman could be elected to the House. And in fact the Hon Nancy Pelosi, a woman, is currently Speaker of the House, and would become President in accordance with law should both the current President and Vice-President die, resign, or become ineligible without a new VP being appointed and confirmed as provided for in the 25th Amendment.

The argument made in the question is without merit.

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  • You said At the time the Constitution was written it was the common practice to use "he" for a person of unknown or unspecified sex. This would be an originalism argument, what the word meant at the time of adoption. Is there any evidence, for example in the Federalist Papers, that they used "he" for a person of unspecified gender? Were there, at the time of adoption or immediately after, some laws that used the word "he" but were applied to woman nevertheless? Nov 24 '20 at 15:20
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    Do voting rights automatically imply the right to be president?
    – bobcat
    Nov 24 '20 at 15:36
  • For the 19th Amendment, I share what MaxB said (it is not unusual that you can vote but you cannot be elected to office). For women have been elected to Congress, this would be acceptable under the "living constitutionalism" theory, it seems to be. It is basically "today, nobody believes that", while saying nothing about how people felt in the past days. So I would characterize it under a "living constitutionalist" argument Nov 24 '20 at 15:58
  • The OP's actual questions are (1) how do originalists analyze this issue; and (2) how do living constitutionalists analyze this issue? This answer doesn't seem to answer either question, though it seems to capture the final outcome of both analyses.
    – bdb484
    Nov 24 '20 at 16:24

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