Wednesday, May 16, 2007

Female Presidents and Original Intent

Tangenting from a discussion as to whether naturalized US citizens ought to be allowed to run for President (which would require a constitutional amendment), Texas Law Professor Sandy Levinson asks whether originalists can even allow women to run for President. After all, "If one is an original intent buff, one might want to interpret 'he' in the Constitution as barring women from running for president, since it surely the case that no Framer could have envisioned any such possibility." Article II begins by using "he" to reference the President, but then shifts to the gender-neutral "person." However, I recall reading that in the early days of the Republic, voting laws that did not specifically restrict suffrage to men were still interpreted that way by the courts. And indeed, I believe in New Jersey an early suffragist tried to take advantage of gender-neutral language, but was arrested by the authorities and prevented from voting.

It does seem difficult to argue that the founders would have anticipated allowing a female President, given the retrograde views on women held in America throughout most of its history. No constitutional amendment has specifically given women the right to President. The 19th amendment did grant them the vote, but one can be franchised and still be prohibited from holding certain political offices (as are naturalized citizens).

So it's a difficult question. Are originalists committed to disallowing women from running for President? Does Hillary Clinton need to follow the same route as Arnold Schwarzenegger and get a constitutional amendment to take her shot at the White House?


Anonymous said...

The above post in Chinese has absolutely nothing to do with the topic. It seems to be mostly a compendium of medical terms relating to various forms of cancer... at least the first part does. It seems to descend into gibberish toward the end.

It should be removed.

Anonymous said...

I learned about a similar incident in a history class to the one you speak of in New Jersey. It may even be the same one, but the people of the state were so take back by the thought of a woman "tainting" the vote that they threw out the results of that election and immediately reheld the election over again.

I'm sure a lot of the writers of the constitution intended, or assumed, that only men would become president. But Jefferson did mean all people when he wrote "All men are created equal...". So I think it would be wrong to say that all of the writers didn't intend to let women hold the office of the president.

Stentor said...

But surely the writers of the 19th Amendment intended it to allow women to be president (or any other office -- your originalist argument would kick Hillary out of the Senate just as much as out of the Presidency). Or is it only the writers of the original Articles and Bill of Rights whose intent counts to originalists?

PG said...

I find this a sign of how silly originalism can get when you take it too far. The Constitution also says, "The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States." Oh, a male pronoun to refer to the Vice President! Yet to my knowledge, no one challenged Geraldine Ferraro's VP candidacy as unconstitutional (given that she was running with Dukakis, *irrelevancy* was more of a concern...). Looking at pronouns is foolish and bad legal reading (whether of the Constitution, a statute, or a regulation) when the requirements for eligibility to the Presidency are already laid out specifically: "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." Had the Founders intended to exclude women, people of color, or anyone else, they could have said as much. That they never imagined anyone other than a white male in the office is no reason to assume that the limits of their imaginations were the same as their intent for the Constitution.

David Schraub said...

Ferraro ran with Mondale in '84, not Dukakis in '88. Come on, I wasn't even alive in 1984 and I know that :-). Not that it made her any more relevant.

Got to watch those sabbaticals, PG. They cause ya to slip.