A woman as president? The gender-neutral Constitution.

[From Eugene Volokh: Following up on Professor Robert Natelson's series of posts last week on the Constitution's original meaning, here's one more, though dealing with qualifications for office rather than financial matters.]

Indeed, the argument is made that under originalism it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as "he," and the framers clearly intended that they be male.

– Erwin Chemerinsky, Constitutional Law: Principles and Policies (3d ed. 2006) (citing Richard B. Saphire, Judicial Review in the Name of the Constitution, 8 U. Dayton L. Rev. 745, 796-97 (1983)

Although I have not undertaken an independent analysis of this issue, it would be quite surprising to learn that the framers had a specific "intention" that women would be qualified for the presidency.

– Richard B. Saphire, op. cit.

Although Professor Saphire's use of this issue was principally a way of elucidating problems in constitutional interpretation, Professor Chemerinsky's treatise cites his article as an illustration of what he calls "The Basic Arguments for Nonoriginalism." At a time in which there are highly creditable female candidates for president in both major political parties, perhaps it is time to address how the framers intended the Constitution to handle the issue. (By "framers," I mean specifically the Constitution's drafters.)

At the outset, we should be clear that the Constitution's use of "he" and its variants to refer to the president is of little evidentiary weight, since during the Founding Era, as in all modern history before the 1970s, those words served as standard pronouns of indefinite gender. Of much more weight is other evidence that Professor Saphire would fine "quite surprising," because it points firmly to the conclusion that the framers did indeed intend to allow women to be elected president.

In other words, just as the framers consciously omitted the religious tests for office-holding that appeared in all state constitutions and the racial tests that appeared in some, they also omitted the gender restrictions featured in nearly all.

For most of the state constitutions in force in 1787 contemplated that officeholders would be male. By way of illustration, the Virginia constitution provided for the election to the state Senate of "the man who shall have the greatest number of votes in the whole district," and the New York constitution described the state legislature as consisting of "two separate and distinct bodies of men." Although it is true that contemporaneous usage encompassed a generic meaning of "man" to signify a human being, the context strongly suggests that these documents meant "man" in the narrower, male sense. The Virginia constitution's repeated use of the word "man," for example, seems to have been interpreted in practice to limit voting to men. Other constitutions expressly limited voting to "male inhabitants" (New York, Massachusetts) or "freemen" (New Hampshire, Pennsylvania).

Contrasting with this approach was the New Jersey constitution. In that instrument, the words "man" and "men" nowhere appeared. It explicitly granted both suffrage and the right to hold office to "all inhabitants" who met certain property requirements, and it uniformly referred to officeholders as "persons." This was not empty form: In the real world, New Jersey women voted. In fact, they voted in sufficient numbers that New Jersey political operatives routinely included appeals for the female vote. See Judith Apter Klinghoffer & Lois Elks, "The Petticoat Electors": Women's Suffrage in New Jersey, 1776-1807, 12 J. Early Republic 159 (1992). The New Jersey constitution did resort to the pronoun "he" in describing officeholders, but the context shows the meaning to have been generic.

The framers of the federal Constitution sought to draft an instrument that would last for the ages. They certainly were aware of female voting in New Jersey, and they probably knew of sporadic female voting (in defiance of law) in states such as Massachusetts. Indeed, the trends of the time favored female political involvement generally—probably to a greater extent than half a century later. The historical records show women as active participants in the ratification debates on both sides of the issue. In addition to voting for convention delegates in New Jersey and perhaps elsewhere, women organized parties, parades and rallies, mostly for the federalist cause. Presumably both sides, but certainly federalists, made written appeals to women for political support. Mercy Otis Warren of Massachusetts, later a distinguished historian, contributed essays for the anti-federalist side.

For all the framers knew, the near future might bring female suffrage in states other than New Jersey. On such matters, the framers favored deferring to the states.

The records of the 1787 Constitutional Convention show that gender neutrality was the prevailing approach from the beginning, although its complete triumph did not come until the end.

William Paterson's New Jersey Plan, offered early in the convention, followed his state's gender-neutral drafting practice: It referred to those participating in public affairs as "citizens," "inhabitants" and "persons." Only once did "man" or "men" appear, and then in the phrase "body of men" to describe a presumably armed band defying federal law. But gender neutrality was also characteristic of Edmund Randolph's Virginia Plan, offered even earlier. From the beginning, moreover, the framers accepted that representation in lower house of the national legislature would be based on state population or wealth—not by the number of males, as in states such as New Hampshire and New York.

To be sure, the framers actively considered some gender qualifications. On July 26, 1787, the convention submitted its adopted resolutions to a Committee of Detail, which was tasked with preparing the Constitution's first draft. Committee member James Wilson prepared an outline suggesting that electors be limited to "freemen," as in his own state of Pennsylvania. His colleague Edmund Randolph's initial outline listed "manhood" along with "citizenship" and "sanity of mind" as possible suffrage qualifications. But the committee deleted those qualifications from its final (Aug. 6) draft because they were "not justified by the [convention's] resolutions." Gender qualifications were left to the states, with the possibility of congressional override.

Nor did the Committee of Detail's draft include explicit gender qualifications for federal officers. It did not use the singular word "man," and the president was referred to as a "person." It could, however, be considered ambiguous on the subject, for it followed the language of the New York constitution by describing the national legislature as consisting of "two separate and distinct Bodies of Men." That draft also granted the president the title of "His Excellency," with no provision for any "Her Excellency."

Moreover, any inference that "he" and "men" were generic was weakened on Aug. 29, when Pierce Butler of South Carolina proposed, and the convention adopted, the first draft of the Fugitive Slave Clause. It stated that "If any Person bound to service or labor in any of the United States shall escape into another State, He or She shall not be discharged … but shall be delivered up … " Of course, the phrase "He or She" might suggest that when the Constitution employed "he" and its variants without their female counterparts, the document was speaking only of males.

On Sept. 10, the Committee of Style began the final drafting process. As reported on Sept. 12, that committee's version –

• Dropped the "Bodies of Men" description of the national legislature.
• Avoided all use of "man" and "men," and employed only gender-neutral terms such as "person," "citizen," "inhabitant," and titles such as "officer" and "elector."
• Omitted the power of Congress to override state laws on voter qualifications, thereby fully empowering states to enfranchise women for federal as well as state elections.

Around the same time—the evidence conflicts on whether by action of the Committee of Style or by the convention—the Fugitive Slave Clause was amended to delete the phrase "He or She." As a result, the federal Constitution mirrored the approach of its New Jersey counterpart: Electors and officers were "persons," "inhabitants," or "citizens," and the pronoun "he" and its variants were generic.

During the ratification debates, the Constitution's gender neutrality, like its religious and racial neutrality, provoked some controversy. That controversy was more muted over gender and race than over religion (anti-federalists argued strenuously for a requirement that federal officeholders be Christians), but traces of it remain in the historical record. For example, "Cato," an important anti-federalist essayist (probably New York governor George Clinton), criticized the Constitution's allocation of Representatives by "inhabitants" rather than by male freemen:

… the mode of legislation in the infancy of free communities was by the collective body, and this consisted of free persons, or those whose age admitted them to the rights of mankind and citizenship—whose sex made them capable of protecting the state, and whose birth may be denominated Free Born … But, what aid can the community derive from the assistance of women, infants, and slaves, in their deliberation, or in their defence?

Perhaps due to fear of alienating half the population, most complaints about gender neutrality seem to have been kept out of print. But Hugh Henry Brackenridge, later a justice on the Pennsylvania Supreme Court, preserved some of their content in an essay satirizing anti-federalist arguments:

The first thing that strikes a diligent observer is the want of precaution with respect to the sex of the president. Is it provided that he shall be of the male gender? … Without [such an] exclusion what shall we think if in progress of time we should come to have an old woman at the head of our affairs[?]

In the event, anti-federalists did not prevail, and our choice of credible presidential candidates happily includes some who are female. Contrary to claims of some critics, originalist interpretation does not question their legitimacy.