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?
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.
Anyone can challenge anything in court. However, that particular challenge would be laughed or scorned out of the docket as frivolous.
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.
I underlined the relevant section.
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 :mad:
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.
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.
This is too slow. We need a live site where we can post while listening to this debate.
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.
You have this:
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.
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.
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.
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.
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.”
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?
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.
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.
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.
I think that would fall under “unless the context indicates otherwise”.
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?