Gorsuch Nods

I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some of it.  One of the exchanges, which has drawn some attention, involved Senator Amy Klobuchar asking Judge Gorsuch whether a woman President is consistent with the original public meaning:

“So when the Constitution refers like 30-some times to ‘his’ or ‘he’ when describing the president of the United States, you would see that as, ‘Well, back then, they actually thought a woman could be president even though women couldn’t vote?” Klobuchar asked.

“Senator, I’m not looking to take us back to quill pens and horses and buggies,” Gorsuch responded.

“But if you could answer that question, it’s pretty important to me,” she said.

“I’m trying to. Of course women can be president of the United States,” Gorsuch said in an exasperated voice. “I’m the father of two daughters, and I hope one of them turns out to be president.”

Unfortunately, Judge Gorsuch blew this answer.  Sure, he indicated that women could be President, but gave no reason for believing the original meaning allowed it.  His answer appeared to suggest that originalist could only believe this by violating their interpretive principles.

Significantly, there was a clear answer to the question.  When the Constitution was written (and until recently and even today to an extent), the term “he” had at least two meanings.  It could mean a male or it could mean any person, whether male or female.  (Similarly, the term “mankind” referred to all people, not just men.)

In fact, some of the constitutional provisions strongly suggest that women were covered by these terms.  Consider the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Clearly women could be criminal defendants and clearly they would enjoy the right to confront witnesses, to compulsory process, and to the assistance of counsel.

Thus, one need not depart from the text of the Constitution to permit women to be President.  One needs only to read the term “he” to have one of the meanings it had at the time of the Constitution.  Thus, originalism allows women Presidents.  In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that”he” only refers to males.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Recent Popular Posts

Related Posts

Comments

  1. W. B. Allen says

    You are of course right in this assessment. But this is a more direct path to answering the question, which is to interrogate the eligibility or qualifications clause. It is an originalist principle that a statement of exclusions identifies omissions as inclusions. The eligibility clause begins “no person.” It is a statement of exclusion. It identifies the excluded “persons,” among whom no particular gender is identified. It therefore follows that no particular gender is excluded. Q.E.D.

  2. nobody.really says

    Thus, originalism allows women Presidents. In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that”he” only refers to males.

    Oh, that’s inspired! Rappaport, did you discover this nugget? I’m planning to plagiarize it promptly, and I’d like to know precisely who I’m robbing.

    • gabe says

      It ain’t Rappaport. I have seen this twice previously today.

      OMG – are we in for a constitutional amendment that would include the ze and other newly created gender pronouns?

      • nobody.really says

        So other people stole it before I could? DAMMIT….!

        Why must people be so unethical–and so fast? It’s just not fair to us slow unethical people.

  3. Mike Rappaport says

    I did not steal this point. Others may have beat me to it, but I didn’t take it from anybody. Of course, I might have read it and forgotten about it, but I don’t think so. There are “independent discoveries.”

    • gabe says

      So you are saying that you are “slow’ BUT ethical. I’ll buy that even if nobody. really thinks otherwise. Ha!

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>