He Said She Said

UC-Irvine Law Dean and noted constitutional law scholar Erwin Chemerinsky critiques originalism, and several prominent originalists including Ilya Somin, Michael Ramsey, and Mike Rappaport respond. The argument they are most disdainful of is Chemerinsky's assertion that the constitution's exclusive use of "he" to refer to the President and Vice President indicates that only men can hold those positions under the original meaning of the document. "Uncharacteristically weak," declares Somin, while Ramsey labels the claim "preposterous," an argument "so poor I wonder if someone else wrote it and attached his name to it." They both contend that until quite recently "he" was used as a gender-neutral pronoun, so it is impossible to infer that its usage in the constitution was meant to render the executive branch gender exclusive.

While they may ultimately be correct, I think Chemerinsky's argument has more heft to it than they admit. It was of course common practice to use "he" as a general pronoun, though whether that was because it was understood to include women or because it was understood that women were not relevant to the conversation is less obvious. "He" in relation to political positions could just as easily stem from a widely shared understanding that women were not political subjects. Ramsey musters some intertextual evidence to support his position -- that when Article II, Section 1 delineates the necessary qualifications for a President it speaks of a "person" rather than a "man." And that has some persuasive force, but the problem is that the same archaic convention which allowed "he" to stand in for men and women also allowed for "person" to refer only to men. There are plenty of occasions where dead white men spoke of humanity or people with the assumption and understanding that it was only men about which they spoke.

More broadly, while it may be true that "he" could at the time have been understood to include both men and women, it also certainly could be used to refer only to men (how else would one do it?). Whether or not it was taking the former meaning or the latter is an exercise in interpretation, and one that depends on context. "Men" was similarly generic in character to "he" at the dawn of our nation, yet it is hard seriously contend that the phrase "all men are created equal" was meant to include women. Would citizens during the framing era have understood "he", in the context of who the Constitution contemplated could be President, to be inclusive of men and women alike, or just men? I would wager the latter.

Now arguably this doesn't close the door on originalist analysis of the clause's meaning. Arguably, the popular belief that "he" in this context referred to men and men alone was only the original expected application of the clause, not its original semantic meaning. This is a distinction Jack Balkin draws, and not all originalists accept his typology. But working off it for a moment, it's unclear. Words and phrases often can have very different semantic meanings at the same time period (for example, "hot dog" can mean either a tubular meat or a show-off). Where multiple meanings exist at a given time, is a generally understood consensus that one particular definition attaches in a particular context a case of "expected application" or "semantics"? Not an easy question, in my view.

This is not to say that Chemerinsky is necessarily right and his critics wrong. I'm not an originalist, so I hesitate to make definitive pronouncement on what results originalism yields (in part because I think they're often more indeterminate than its proponents would care to admit). But I think his point has more gravity than its given credit for, and citing the linguistic convention that "he" could have been in that era a gender-neutral pronoun does not actually get us that far.

UPDATE: Relevant to this discussion is an interesting history of gendered pronouns in the English language. Apparently the use of "he" as a gender neutral pronoun was first proposed in 1745, so it was certainly accepted by the time of the Constitution's drafting and probably understood as a possible meaning in the abstract, though again not necessarily in the context of who could serve as president.

YOLO?

I have a question for my readers: Do you feel a sense of continuity in your life, or do you feel disconnected from your self of 5 or 10 or 15 years past? As for me, I don't feel any strong disconnect between my 15-year old self and my 27-year old self. I think I think the same way, I have many of the same interests, and similar shortcomings (whether that means I was a very mature 15-year old or am a very immature 27-year old I leave to others). It's not that nothing has changed at all, but it feels like change within a single continuity, not like the younger me was a different person at altogether.

But I often hear people talk about how they were "a totally different person at 15," how that apparently separate human was "such an idiot." Sometimes it comes in the form of supporting more paternalistic protections for younger persons -- "when I was 15, I thought I was an adult and in control, but I actually had no idea what I was doing." When I hear someone say that at 25, I always assume they will say the same thing about their 25 year old self at 35. Somewhere I imagine an eighty-year old woman telling others at a nursing home how at 70 she was such an ignorant little tart.

In any event, that's my vantage point, but I gather it's not the only one. So -- do you feel a sense of continuity with your younger self, or do you view him or her as a distinct and separate entity from who you are today?

More Than One Star

Governor Rick Perry (R-TX) has been doing a nationwide swing to promote the virtues of his policies in the Lone Star state. Maryland Governor Martin O'Malley (D) reminds him that being 49th in high school graduation rates and 50th in health insurance coverage is nothing to brag about.

[W]hile Perry likes to promote the job creation in Texas during his time in office, he leaves out a critical point: The jobs “miracle” he touts is driven by low-paying, non-sustainable jobs. This year, Texas — tied with Mississippi — leads the nation for the percentage of hourly paid workers earning equal to or less than the minimum wage. More than one in 10 workers nationwide earning at or below the minimum wage works in Texas.

The fallacies of his argument don’t end there. Even on Perry’s preferred metric for comparison — taxes — businesses fare quite well in Maryland. According to the Anderson Economic Group, Maryland’s businesses have the seventh-lowest business tax burden, while Texas ranks 17th. Additionally, both established firms and new investments do well in Maryland. The conservative Tax Foundation ranks Maryland as having the eighth-lowest tax burden on mature firms, while Texas ranks 12th. Ernst and Young ranks Maryland as having the 12th-lowest tax burden on new investment; Texas has the 20th-lowest burden.

My administration has made Maryland a better place to do business by focusing on middle-class and sustainable jobs. In addition to being No. 1 in median income, the median wage for hourly workers in Maryland is $14.17 vs. $12.00 in Texas, which lags the national median of $12.80. And while Texas leads the nation in minimum-wage workers, the U.S. Chamber of Commerce ranks Maryland first in the nation in innovation and entrepreneurship, second in concentration of science, technology, engineering and math jobs and third for its “talent pipeline.”

How did we make this possible? By investing in our schools, which Education Week has ranked No. 1 in the nation since 2007. Maryland did more than any other state to hold down rising college tuition costs. We modernized infrastructure and invested in growing sectors such as biotechnology and life science, green technology and clean energy, aerospace and advanced manufacturing.

These investments didn’t come without a price. First, my administration cut more in state spending than any governor in Maryland history. We also had to ask the wealthiest Marylanders to pay a bit more by making income taxes progressive for the first time in state history.

Even though I now live in Virginia, I'm still a Marylander at heart (and a product of those top-ranked public schools, to boot). Governor Perry might not want to be so eager to put his state side-by-side with mine. Some states deserve more than a single, lone star.

Song of Songs

I've often joked that the Cantor is my ultimate synagogue nemesis -- were it not for Cantors showing off, the service would end in half the time and I'd be that much closer to the delicious bagels at the reception. To be fair, I'm a tough critic to please -- were it up to me, every song would be sung exactly as it was when I was growing up, with no alterations whatsoever. This may run in the family -- at my old synagogue, I distinctly recall that anytime the Cantor experimented with a new melody, my dad would start loudly singing the old one in reprimand. It never caused the tune to be changed, but perhaps it served as a deterrent.

Whenever I go to a new synagogue, I'd always grouse about how I preferred the singing at my home congregation. As I grow older, even the tunes at my home synagogue grow more unfamiliar, which I don't like. Our new Aleinu sounds like a funeral dirge, for example. But hearing that new tune (and others) made me wonder -- just how old are the songs we sing? Not the words, but the music? Are they hundreds of years old, recognizable in the Shetls of Europe or the villages of the Middle East? Or are they all reinvented anew by each generation of Hazzans? Do we have any way of knowing? I doubt songs such as these were ever committed to a score. It seems like one of those mysteries that may be unknowable. But maybe not -- historians have sussed out stranger facts.