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Old 01-14-2020, 06:13 PM
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Who says a woman can be president of the US?


AFAIK the only pronoun used to refer to a President in the US Constitution is "he". The ERA has not been ratified. Are women ineligible to be POTUS? Have courts ruled on this?

Yeah sure, I know the "he includes she" generalization. But could sexist opponents challenge an electoral win by a female because of the exact Constitutional wording?
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Old 01-14-2020, 06:27 PM
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Article I, Section 2, United States Constitution:

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.
I think the time to have made such a linguistic argument over the Constitution's use of pronouns was over a hundred years ago (when Jeanette Rankin of Montana became the first woman elected to Congress).

I don't know if anybody ever did make such an argument; if so, there would presumably be some court case to cite as precedent.
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Old 01-14-2020, 07:10 PM
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But could sexist opponents challenge an electoral win by a female because of the exact Constitutional wording?
Anyone can challenge anything in court. However, that particular challenge would be laughed or scorned out of the docket as frivolous.
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Old 01-14-2020, 07:31 PM
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I think the time to have made such a linguistic argument over the Constitution's use of pronouns was over a hundred years ago (when Jeanette Rankin of Montana became the first woman elected to Congress).

I don't know if anybody ever did make such an argument; if so, there would presumably be some court case to cite as precedent.
There was a court case like this in Canada a century ago, the “Persons’ case”. The issue was whether women could be Senators in the federal Parliament, as the relevant constitutional provisoire referred only only to “he” in describing the qualifications.

The Supreme Court of Canada unanimously held that women were not qualified persons and could not be appointed. The Judicial Committee of the Privy Council (imperial) overturned the decision.
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Old 01-14-2020, 07:37 PM
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I underlined the relevant section.

Quote:
1 U.S. Code § 1.Words denoting number, gender, and so forth

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

words importing the singular include and apply to several persons, parties, or things;

words importing the plural include the singular;

words importing the masculine gender include the feminine as well;

words used in the present tense include the future as well as the present;

the words “insane” and “insane person” shall include every idiot, insane person, and person non compos mentis;

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

“officer” includes any person authorized by law to perform the duties of the office;

“signature” or “subscription” includes a mark when the person making the same intended it as such;

“oath” includes affirmation, and “sworn” includes affirmed;

“writing” includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise.

(July 30, 1947, ch. 388, 61 Stat. 633; June 25, 1948, ch. 645, § 6, 62 Stat. 859; Oct. 31, 1951, ch. 655, § 1, 65 Stat. 710; Pub. L. 112–231, § 2(a), Dec. 28, 2012, 126 Stat. 1619.)

Last edited by Little Nemo; 01-14-2020 at 07:37 PM.
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Old 01-14-2020, 08:07 PM
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Then there's this:

Elizabeth Warren says Bernie Sanders didn't think a woman could be president. He denied it.

Those more progressive than I am might have a conflict here. On the one hand, they have to say that a woman can win -- otherwise, they are sexists discouraging our girls from reaching high. On the other hand, if one firmly believes sexism is rampant, as woke progressives like Sanders tend to, one implication is that being female hurts you at the polls.

I think there must be some thousands of voters who vacillated before voting for Trump in 2016, partly because of gender. But they wouldn't like to think of themselves as someone who never votes for a woman. So in as much as candidate gender matters -- and it probably only matters if the election is quite close -- this is a good year to nominate a woman.

What's more plausible?

A woman is unelectable?

Or an elderly Jewish man, who had a heart attack about 100 days ago, and is a socialist who used to be a Trotskyite, is unelectable?

Warren is electable.

If his health holds up, elderly Joe Biden is electable.

Amy Klobuchar has little chance of getting the nomination, but is super-electable.

And, because of the power of incumbency, and if the economy holds steady, the favorite has to be Donald Trump
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Old 01-14-2020, 08:37 PM
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P.S. on my last post:

One I didn't mention, Pete Buttigieg is probably quite electable. But I don't want to think about what sort of despicable character assassination Trump would throw against him, and so have no idea if it would stick.
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Old 01-14-2020, 09:53 PM
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Originally Posted by Little Nemo View Post
I underlined the relevant section.
Quote:
1 U.S. Code § 1.Words denoting number, gender, and so forth

In determining the meaning of any Act of Congress, unless the context indicates otherwise—
<snip>
words importing the masculine gender include the feminine as well;
<snip>
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
<snip>
Many thanks for that! Were I feeling nitpickish, I'd note that this section refers to "any Act of Congress", which does not include the US Constitution. The second bit defines a group as a "person", which could lead to long discussions beyond the scope of my OP. So I still wonder if Original Constructionists would get a hearing in court over sexist Constitutional interpretation.

Last edited by RioRico; 01-14-2020 at 09:56 PM.
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Old 01-14-2020, 09:57 PM
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This is too slow. We need a live site where we can post while listening to this debate.
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Old 01-14-2020, 10:20 PM
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Originally Posted by RioRico View Post
AFAIK the only pronoun used to refer to a President in the US Constitution is "he". The ERA has not been ratified. Are women ineligible to be POTUS? Have courts ruled on this?

Yeah sure, I know the "he includes she" generalization. But could sexist opponents challenge an electoral win by a female because of the exact Constitutional wording?
If there were any chance of such an argument holding water, you know the Republicans would have been screaming it from the rooftops all through 2016.
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Old 01-14-2020, 11:12 PM
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You have this:

Quote:
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.
There are no male pronouns in that clause and the drafters specifically included the word "person" when they could have easily used "man" or "male person."

Given that, and the fact that then and sometimes today it is still proper to refer to a generic third person as "he" when that is meant to refer to both males and females would make such an argument very difficult, if not entirely frivolous.
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Old 01-14-2020, 11:23 PM
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This sounds like a yes-but-not-yes legal issue. If it were ever challenged Constitutionally, the Supreme Court would probably take all of twelve seconds to hand down a 9-0 unanimous ruling that "he" does not preclude a woman from being president.
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Old 01-14-2020, 11:24 PM
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There was a court case like this in Canada a century ago, the “Persons’ case”. The issue was whether women could be Senators in the federal Parliament, as the relevant constitutional provisoire referred only only to “he” in describing the qualifications.

The Supreme Court of Canada unanimously held that women were not qualified persons and could not be appointed. The Judicial Committee of the Privy Council (imperial) overturned the decision.
Interesting. Reading up on this, I see that the British North American Act of 1867 stated the following:

Quote:
The governor general shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a senator.
However, in 1867 another statute (which I cannot find) prohibited women from holding office. A later law removed this disqualification, but the 1867 law stayed in place with regard to Senate appointments.

So the Supreme Court cobbled together that if laws that were sufficiently contemporaneous used "persons" in the context of Senate appointments yet barred women from holding any office, then by deduction, the term "persons" in the BNAA related to Senate appointments did not include women.

That seems...forced but it looks like people in Canada thought that was pretty clear.

But..in any event, there was no equivalent U.S. law that prohibited women from holding office in 1789 so that someone might even make that argument.
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Old 01-15-2020, 12:15 AM
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Yes, the SCC reached that conclusion, but the JCPC overturned.

The case is significant, not just because of the outcome, but because it implemented the “living tree” approach to constitutional interpretation in Canada, which holds that terms used in the Constitution can be interpreted by modern conceptions.

The judge who gave the JCPC decision, Viscount Sankey the Lord Chancellor, held that denying women the right to sit in the Senate was a relic of “a more barbarous age.”
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Old 01-15-2020, 12:34 AM
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Another nitpick (or should it be another thread?) about "1 U.S. Code § 1.Words denoting number, gender, and so forth" cited above: "the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;" brings to mind the Constitution: "No Person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States..." Qualifications for Senators are similar, with different numbers.

If "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals" are Persons, can they be granted citizenship and hold elective office?
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Old 01-15-2020, 01:04 AM
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Interesting. Reading up on this, I see that the British North American Act of 1867 stated the following:



However, in 1867 another statute (which I cannot find) prohibited women from holding office. A later law removed this disqualification, but the 1867 law stayed in place with regard to Senate appointments.

So the Supreme Court cobbled together that if laws that were sufficiently contemporaneous used "persons" in the context of Senate appointments yet barred women from holding any office, then by deduction, the term "persons" in the BNAA related to Senate appointments did not include women.

That seems...forced but it looks like people in Canada thought that was pretty clear . . .
Looks pretty clear to me. The BNAA provision you quote only refers to the GG summoning qualified persons. If there's a legal provision somewhere that says only men (or people over 18, or citizens, or . . .) can serve in the office, then women (minors, non-citizens, . . .) are not qualified persons.
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Old 01-15-2020, 01:07 AM
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Another nitpick (or should it be another thread?) about "1 U.S. Code § 1.Words denoting number, gender, and so forth" cited above: "the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;" brings to mind the Constitution: "No Person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States..." Qualifications for Senators are similar, with different numbers.

If "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals" are Persons, can they be granted citizenship and hold elective office?
Even if the interpretive provisions in 1 US Code § 1 applied to the Constitution, which they do not, they only operate "unless the context indicates otherwise". A provision which refers to persons being "natural-born citzens" and attaining such-and-such years of age clearly sets a context which shows that natural persons are intended. Whatever about a corporation becoming a citizen, it cannot become a "natural-born" citizen.
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Old 01-15-2020, 01:44 AM
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Looks pretty clear to me. The BNAA provision you quote only refers to the GG summoning qualified persons. If there's a legal provision somewhere that says only men (or people over 18, or citizens, or . . .) can serve in the office, then women (minors, non-citizens, . . .) are not qualified persons.
Yes, but later, and before the SCC heard the case, the legal provision (not the BNAA provision) was changed to state that women could hold office. Northern Piper can correct me if I am wrong, but I understand it to be something like this analogy in U.S. law:

1814: Congress passes a law that says that a state may appoint "any qualified person" as Senator.

1814: Congress passes a law that says that no woman shall hold any federal office.


1911: Congress passes a law repealing the law forbidding women from holding federal office.

In 1922 there is a Supreme Court case deciding whether a woman can be a Senator.

Under the SCC's reasoning, since the 1814 Congress did not deem a woman to be a "qualified person" that a woman is STILL an unqualified person for the Senate despite the 1911 law. That, to me, seems a forced interpretation.

It seems to me that what a "qualified person" is depends on current law; that the 1814 Senate law was meant to be flexible in its definition of "qualified" which is unlike our current Constitution which was strict and said 35 years was the minimum for the President. No subject Congress or Court could legitimately say that "35" means "40" or "18" or "50" or "21."

If it said "of sufficient maturity of age" then that would be flexible and be able to be defined by subsequent laws.
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Old 01-15-2020, 01:48 AM
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Another nitpick (or should it be another thread?) about "1 U.S. Code § 1.Words denoting number, gender, and so forth" cited above: "the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;" brings to mind the Constitution: "No Person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States..." Qualifications for Senators are similar, with different numbers.

If "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals" are Persons, can they be granted citizenship and hold elective office?
I think that would fall under "unless the context indicates otherwise".
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Old 01-15-2020, 04:54 PM
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Even if the interpretive provisions in 1 US Code § 1 applied to the Constitution, which they do not...
That's the point I made about "masculine" encompassing "feminine" - it applies to federal laws, not the supreme law. Without ERA passage, doesn't "he" mean masculine only in constitutional interpretation? Absurd now, yes, but that's what is written.

Not that inconsistencies matter. "Congress shall make no law... abridging the freedom of speech, or of the press..." but does so anyway. "This Constitution... and all Treaties made... shall be the supreme Law of the Land..." except treaties broken since the beginning. Yes, Constitution is only a scrap of paper.

Quote:
...they only operate "unless the context indicates otherwise". A provision which refers to persons being "natural-born citzens" and attaining such-and-such years of age clearly sets a context which shows that natural persons are intended. Whatever about a corporation becoming a citizen, it cannot become a "natural-born" citizen.
So a corporation can't be President - but why not legislative or judicial offices, where the "natural-born" requirement doesn't apply?
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Old 01-15-2020, 08:44 PM
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Geraldine Ferraro was the Democratic Party's candidate for Vice President in 1984. Now obviously that election was a blowout for the Republican Party but the fact is a woman was selected to be potentially a heartbeat away from the presidency thirty-six years ago.
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Old 01-16-2020, 02:05 AM
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That's the point I made about "masculine" encompassing "feminine" - it applies to federal laws, not the supreme law. Without ERA passage, doesn't "he" mean masculine only in constitutional interpretation? Absurd now, yes, but that's what is written.

Not that inconsistencies matter. "Congress shall make no law... abridging the freedom of speech, or of the press..." but does so anyway. "This Constitution... and all Treaties made... shall be the supreme Law of the Land..." except treaties broken since the beginning. Yes, Constitution is only a scrap of paper.

So a corporation can't be President - but why not legislative or judicial offices, where the "natural-born" requirement doesn't apply?
I feel we're approaching admiralty law and universal commercial code territory. And I don't plan on going there.

I'll just say that your interpretations of various legal terms are not ones that are shared by people within the American legal system.
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Old 01-16-2020, 03:42 AM
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Anyone can challenge anything in court. However, that particular challenge would be laughed or scorned out of the docket as frivolous.
Not really. The issue is settled, the Male pronoun is always presumed to include the female one as per king standing canons of statutory interpretation.
So more like thrown out with a polite note.
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Old 01-16-2020, 03:46 AM
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P.S. on my last post:

One I didn't mention, Pete Buttigieg is probably quite electable. But I don't want to think about what sort of despicable character assassination Trump would throw against him, and so have no idea if it would stick.
He is gay and I think Trump will be smart enough to avoid that directly.
Buttigieg was very deeply closeted and dated women when he was younger. That lends itself to the “depraves homo” trope and I fully expect Trump and his supporters to play that.
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Old 01-16-2020, 05:02 AM
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You poor, poor sea monkeys.

You just never will learn with this gender shit.

I have to come in here every few months to see how bad you've gotten.
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Old 01-16-2020, 06:57 AM
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That's the point I made about "masculine" encompassing "feminine" - it applies to federal laws, not the supreme law. Without ERA passage, doesn't "he" mean masculine only in constitutional interpretation? Absurd now, yes, but that's what is written.
No. Even without the US Code, the English language has always subsumed the feminine within the generic form of "he." It doesn't matter if you are Antonin Scalia or Ruth Bader Ginsburg, when I say, "If a person drives on the interstate, he must obey the speed limit" that means men and women. No reasonable judge would say otherwise and to argue otherwise would get you laughed out of court.
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Old 01-16-2020, 07:52 AM
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You poor, poor sea monkeys.

You just never will learn with this gender shit.

I have to come in here every few months to see how bad you've gotten.
That'll earn you a warning, UnwittingAmericans. Could be for either threadshitting or insults. Who cares?

Don't do it again.
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Old 01-16-2020, 05:17 PM
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I feel we're approaching admiralty law and universal commercial code territory. And I don't plan on going there.

I'll just say that your interpretations of various legal terms are not ones that are shared by people within the American legal system.
Absent passage of the ERA, how have courts ruled on gender per the Constitution? No, I do NOT think women are excluded from certain offices whose occupants are referred to as "he" but I do wonder if literalist readings may be considered by courts.

That's about human women. And nonhumans? Animals have been voted into local office in the US and commissioned as military officers in other countries, including Japan. Can an armadillo be a judge? And an organized group is a "person" in the US; what prevents the appointment or election of a corporation, charity, or glee club to government office?
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Old 01-16-2020, 11:11 PM
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That'll earn you a warning, UnwittingAmericans. Could be for either threadshitting or insults. Who cares?

Don't do it again.
I'll admit if somebody called me a sea monkey, I'd feel more confused than insulted.
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Old 01-17-2020, 01:14 PM
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Absent passage of the ERA, how have courts ruled on gender per the Constitution? No, I do NOT think women are excluded from certain offices whose occupants are referred to as "he" but I do wonder if literalist readings may be considered by courts.

That's about human women. And nonhumans? Animals have been voted into local office in the US and commissioned as military officers in other countries, including Japan. Can an armadillo be a judge? And an organized group is a "person" in the US; what prevents the appointment or election of a corporation, charity, or glee club to government office?
The same thing as the "he" question. It is clear from the text, the original meaning, or even the living and evolving meaning. An office holder must be a natural human being.

AFAIK, all of those animals that have been given awards or appointed to an office were done only in a ceremonial fashion for a nice news story because the animal did something positive. I mean, how could an armadillo be a judge? Are the parties and there attorneys actually going to attend court and watch the armadillo shit all over the bench? Are they actually going to speak to the armadillo and expect a response?
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Old 01-17-2020, 01:16 PM
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Also, this "corporations are people" thing. Yes, for many purposes in law a legal fiction is created where corporations are treated as people. That doesn't mean we get all crazy with it and say that they are people for all purposes. They cannot marry each other, for example.
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Old 01-18-2020, 06:55 PM
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The same thing as the "he" question. It is clear from the text, the original meaning, or even the living and evolving meaning. An office holder must be a natural human being.
What courts have ruled on a "natural human being" requirement?

Quote:
AFAIK, all of those animals that have been given awards or appointed to an office were done only in a ceremonial fashion for a nice news story because the animal did something positive. I mean, how could an armadillo be a judge? Are the parties and there attorneys actually going to attend court and watch the armadillo shit all over the bench? Are they actually going to speak to the armadillo and expect a response?
Judge Diller can be wired to respond, or can be replaced by a magic 8-ball. Have courts ruled on inhuman beings or inanimate devices (like AIs) holding office?

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Also, this "corporations are people" thing. Yes, for many purposes in law a legal fiction is created where corporations are treated as people. That doesn't mean we get all crazy with it and say that they are people for all purposes. They cannot marry each other, for example.
Have any corporations attempted marriage? Isn't a merger effectively the same?
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Old 01-18-2020, 07:22 PM
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Have any corporations attempted marriage? Isn't a merger effectively the same?
Well, analogous in some respects, but not the same.

For example, in most jurisdictions a marriage may be voided if it is not consummated. How would two corporations consummate their "marriage"?
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Old 01-18-2020, 07:40 PM
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There's something similar that happens in hostile takeovers, but it's more of a metaphorical thing and only happens to one of the corporations.
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Old 01-18-2020, 07:50 PM
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Yes, metaphorical. No exchanges of bodily fluids involved.
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Old 02-03-2020, 04:55 PM
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What courts have ruled on a "natural human being" requirement?


Judge Diller can be wired to respond, or can be replaced by a magic 8-ball. Have courts ruled on inhuman beings or inanimate devices (like AIs) holding office?


Have any corporations attempted marriage? Isn't a merger effectively the same?
I think, with respect, that you are being overly literal with this whole "corporations are people" concept. No court has ever ruled on whether Microsoft can run for Congress or marry Apple because nobody would make such an absurd argument. A corporate merger is not a marriage by any definition. AIs are not people by any law. Animals are not people.

Corporations are people as a legal fiction only for the purposes that we recognize as the reasons why we created corporations in the first place, primarily limited liability in a business endeavor where an individual or group of individuals would be particularly foolish to expose themselves and their personal finances to garnishment by everyone in the world. There is a whole body of corporate law and its justifications that cannot be summarized in one post, thread, or even an entire article. "Corporations are people" is a short hand attempt to explain some of the law's protections.

But it doesn't mean that they are people in the sense that they love, grieve, marry, hold office, take a dump in the morning, or get too drunk after the Super Bowl. The analogy, like all analogies, cannot be extended to infinity.
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