I’ve been reading a book on the 1920 Presidential election and there was mention of a rumor that the Democrats were considering nominating a woman for their Vice-Presidential candidate. But some people challenged this on, among other things, the grounds that it would unconstitutional. In referring to the President, the Constitution clearly states that “he shall hold his Office” (and the Vice President must follow the eligibility standards of the President).
Now the issue was moot in 1920; the rumor was just a rumor and Franklin Roosevelt was the Democratic Vice-Presidential nominee. But was the legal issue ever formally addressed? Has there ever been a court ruling explicitly stating that a woman is eligible for the Presidency or Vice-Presidency? Did the issue ever come up during Ferraro’s campaign in 1984 or at any point during Clinton’s current campaign?
In case anyone missed the point, I’m not suggesting that Hillary Clinton or any other woman should be constitutionally barred from the Presidency and I’m not interested in a debate on that topic. Let’s stick with the legal precedents and leave opinions out of this.
Women hold, or have held, just about every other position in the government save the President and Vice President. There are women acknowledged to be in the line of succession as we speak. There is no way to twist the language of the Constitution to allow the current reality but disallow a female President, and the only people I’ve ever heard of who would bar women from holding office are the Dominionists and similar who would throw over the Constitution entirely.
Belva Ann Lockwood was on the presidential ballot of the Equal Rights Party in 1884 and 1888. In those days few states allowed women to even vote; she couldn’t even vote for herself. She was also the first woman admitted to practice before the US Supreme Court. Janet Kagen wrote a story for the anthology Alternate Presidents based on the premise that she had won the 1888 election called “Love Our Lockwood”.
There are “rules of construction” in many law codes, and I’d be very surprised if the U.S.C. didn’t have one, for the guidance of judges, prosecutors, law enforcement personnel, and any other interested parties. They spell out the various guidelines in applying statute law. (E.g., the singular includes the plural; because the law makes it illegal to steal a car doesn’t mean that stealing two cars is somehow legal.) One element of such codes is humorously stated as “the male embraces the female”; i.e., unless specifically defined as applying to males only or contextually relevant to males only, any reference to “a man” or “he” or other masculine usages is to be construed as also meaning “a woman” or"she" where pertinent. E.g., “A man is guilty of the crime of burglary when he knowingly, intentionally, maliciously, and feloniously enters into the residence or business place of another without consent and with intent to steal or to commit some other felony” does not mean that a woman cannot be convicted of burglary; “man” and “he” are common gender words in such contexts.
A similar issue arose in Canada at about the same time in the 1920s, in relation to the appointment of federal senators. Section 23 of the Constitution Act, 1867 uses gender-specific language to define the qualifications of senators:
However, s. 24 of the Act uses the gender-neutral term “persons”:
When women began to push for the right to vote and hold public office, the question arose whether this language meant that Senators had to be male.
The federal government referred the issue to the Supreme Court of Canada, which ruled that “he” meant “boys club”, and that women could not be appointed to the Senate.
The matter was appealed to the Judicial Committee of the Imperial Privy Council in Britain, which in 1929 overturned the SCC in what’s been known as the “Persons case” - women, said the Privy Council, are “persons” within the meaning of s. 24, and can be appointed to the Senate.
In doing so, the Privy Council, set out the doctrine of constitutional interpretation known as the “living tree” doctrine :
The living tree doctrine is an example of principles of construction that Polycarp is referring to; however, I doubt that particular doctrine would get much traction in the SCOTUS, at least with justices like Scalia, and the emphasis on originalism. (I’ve heard that Scalia and one of the justices of the Supreme Court of Canada, Justice Binnie, actually have a dog and pony show where they go around debating originalism versus living tree.)
Note that “he” is also used to describe the members of the House of Representatives and the Senate. So if “he” is not gender-neutral in the Constitution, then women presumably could not be Congress-critters either.
A couple fundamentals of textualism is plain reading of the words and an understanding of the text from the perspective of its authors.
I’d love to read a Scalia ruling on the topic. Not that it would ever get to the SCOTUS, nor that he would end up barring HRC from office, just that as a hyper-intelligent super-jurist and the standard bearer (of sorts) for textualism, I think his analysis would be quite interesting and detailed.
Would the equal protection clause and the suspect class of women come to bear? At its passage, women still weren’t eligible to vote, nor were they part of the initial class.
I have no idea why textualism is stuck in my craw the past couple weeks. I’m awfully sorry if it seems I’m morphing into the JDT of the issue.
A plain reading of “he” and “his” are that these words are referring to a man. And I don’t think anyone would argue that the 18th century authors of the Constitution did not envison the idea of a female President. I’d love to see some Original Intent advocate try to talk their way out of this one.
A plain reading of he and him in the Constitution, as said earlier, has always meant both men and women.
You can also search through the entire Constitution and Bill of Rights and not find any mention of the qualifications of voters at all.
The controversy came from the 14th Amendment, which specifically referenced males.
The most likely reason for the lack of formal refutation is that nobody ever considered the contention that a female couldn’t be elected president serious enough to bother with. The seating of Jeannette Rankin in the House in 1917 - three years before the 19th Amendment - made any argument moot. As Northern Piper mentioned, “he” is used in regard to Congress as well.
It’s no more of an argument than most tax evaders’ arguments. People say all sorts of silly things all the time. That hasn’t changed throughout our history.
The Constitution isn’t a law code. It’s the basis for the codes of law in the United States. At some point, one must rely on the plain use of language, even in codes of law, to determine what the law says.
What do you base that on? It’s probably generally understood to mean that now in a legal sense but that hasn’t always been the case. I think it’s pretty clear that the signers of the Constitution didn’t believe that men and women were legally equal. So at what point did it change?
At what point does a man become bald? Obviously it was a gradual process that happened over a long period of time, with Women’s Suffrage being an important waypoint on that trip.
I think the point he was making was that originalists view such interpretation as reckless and misguided. Rather than looking at what terms mean today, they would look at what they meant from the perspective of those who wrote them down and ratified the work. If terms and mores evolve over time, the proper way to incorporate them into Constitutional law is via the Amendment process. If something has gotten to the point where its “duh” value is extreme (i.e., a woman can be president, duh), than an Amendment respecting that should be will likely pass. If it isn’t, then the issue isn’t so settled that it should be a part of the Constitutional fabric. This is why the bar for Amendment passing is so high (consider its requirements relative to passing a law). (Note: I don’t mean to imply that only easily passed Amendments should be part of the fabric, just that passage is the test.)
In some ways the OP is a bit of a Gotcha, Ya!, The (challengeable) premise of the OP is that an originalist would be forced to either i) arrive at an absurd result, ii) concede that given the eighteenth-century perspective, and given the care taken to phrase each clause, allowing a woman to hold “his” office would require an amendment explicitly making the Constitution gender neutral (or some such repair); iii) turn to less-than-strong argumentation that the original text already was gender neutral (less-than-strong in comparison to other originalist arguments); iv) rely on later Amendments to avoid a confrontation; or v) say hello to Opal.
While it’s a purely theoretical question (see Jeannette Rankin), I’d still love to read a Scalia opinion (or Law Review article) that faces this issue straight on. If you’ve read his opinions, they aren’t simple hand waving and smoke-blowing. Rather, they reflect a meticulously detailed step-by-step analysis. His logic is occasionally assailable, and I daresay he would end up in iii above (or some variation or mix), but I think his analysis would be, well, beautiful.
A strict interpretation of the Opal clause (which says that only the third item in a list may mention Opal) would say that you have failed to apply it appropriately. The fact that you’ve done so would say that you’re part of the living tree school rather than an originalist. What do have to say for yourself?
What do you base your contention on? Do you have any grounds for saying that in English law man only meant males? Do you believe that if a law about murder read, “he shall be punished” that women could get off scot-free?
I think your premise that any references to “he” in the Constitution means a male only is wrong. I also think originalists have their heads up their asses. Even so, I think if you tried to pull this as a trap on a knowledgeable law scholar who was an originalist you’d wind up a tiny spot on the floor.