Giving Constitutional Argument a Bad Name

So apparently Erwin Chemerinsky goes around maintaining that the text and history of the Constitution don't suggest that a woman can be President. This is called giving constitutional argument a bad name. This outrages me so that I thought I'd just give a quick run-down of different ways to approach this problem from various modal angles.



I think it's useful to start with a basic structural point here. The President is the elected representative of the entire nation, chosen by the people of the whole country in a singular (in our system at least) national election. Our Constitution is predicated on the idea of popular sovereignty, that the people should choose their own rulers. The President is a unique expression of that sovereignty, a choice made on an unmatched scale and with an unmatched amount of attention and deliberation. Limitations on whom the people are allowed to elect, to any office but especially to the office of President, are rather major limitations on the sovereign will of the people. This is not to say that all such limits are undemocratic, but rather that we should not lightly infer their existence. In a general way they cut against the overarching themes of the constitutional system.

Interestingly, those few requirements that the original text of the Constitution clearly does impose, on the President as on members of Congress, are designed with a very specific republican purpose in mind: to prevent the easy ascension of dynastic scions (the age requirement) or foreign noblemen (the residency requirements). Akhil Amar has a lot of interesting things to say about these provisions. There's also obviously the Twenty-Second Amendment, which I tend to dislike for precisely the reasons given above, but is also motivated by the core republican concern of one individual holding power for too long. So we can probably say that, however skeptical we should be of any purported restriction on the people's ability to elect the president they desire, we should be particularly skeptical of ones that don't serve a clear republican purpose.

All of this, of course, informs the prudential analysis of this issue. I suppose a prudentialist could try to argue that women are less fit to be President and therefore that the world will be better (the classic prudential measuring stick) if Presidents are only men. The weakness of this argument should go without saying; particularly within a prudential modality, where we care more about reality than, say, the import of the Fourteenth or Nineteenth Amendments, we can jump directly to the part where it's just not true that women are less competent than men. So in fact the real prudential concern is that judges should really, really, really not be in the business of disqualifying from office the person chosen by the American people to be their head of state. Among other things because, if the grounds of disqualification were anything other than obvious and undeniable (e.g. the person is twenty), the courts would probably just fail, and the person would become President anyway, and that would be a big ol' blow to the courts' prestige. Even asking this question is deeply imprudent.

With this in mind, let's consider the text. The idea here is that the Constitution repeatedly uses the pronoun "he" to refer to the President, and thereby implies that the President must be a man. Otherwise how could "he" "hold his Office during the Term of four Years," or "take the following Oath or Affirmation," or "require the opinion ... of the principle Officer in each of the executive Departments"?

This is stupid.

You don't announce major constitutional limits on the people's sovereign prerogative to choose their own leaders through a pronoun. You just don't. That's insane.

And that's not the end of why it's wrong! There's also, as the article linked above points out, the fact that the section listing requirements to be President uses the gender-neutral word "person." And then there's the suggestion that, in the olden days, "he" was not seen as an especially gendered pronoun. (Side note: I have no independent knowledge of whether this is true. If it is true, it's very interesting.) Now, that's using an original-meaning sort of textualism. There's also the oft-neglected present-meaning textualism of someone like Hugo Black. And the present meaning of "he" is definitely gendered. But the root concept behind present-meaning textual argument is the idea that the people continually reaffirm the Constitution on an ongoing basis, and that what they are ratifying is the text as it would be understood by the ordinary member of society. And I just don't think that if you went up to an ordinary man on the street and read them the full text of Article II and asked them whether it was required that the President be a man, that they'd say yes. Because, again, you don't write something like that into your constitution through your pronoun choices.

Chemerinsky also makes what he thinks is a historical argument, in Bobbitt's terms, i.e. an argument from original intent: "the framers undoubtedly intended that the president would be male." This is true. Well, sort of. What's true is that they undoubtedly anticipated that the President would be male. Those are different things. An even more different thing would be if they had intended to require that the President be male. I don't believe we have any evidence for that proposition. And given the general orientation of the historical modality, we should need specific evidence for that specific proposition in order to reach Chemerinsky's conclusion. The basic idea of historical argument is that of the original contract. Enforcing the terms of this agreement is thought to be the only legitimate basis for judicial interference in the choices made by the people and their representatives. Hence, there's a tendency to ask for fairly specific evidence that a certain thing really was understood to be a part of the original contract. Here, again, we're talking about interfering in the choice of representative made by the people themselves. And to run with the contractual analogy a bit, if you set up a company with the anticipation, and maybe even the desire, that the CEO be a white male, that doesn't equate to an actual requirement that every CEO of the company be a white male unless you put it in writing somewhere. We can very easily imagine a constitution that did impose a sex qualification upon the presidency, and that's not the Constitution they wrote, suggesting that they didn't actually intend to impose such a qualification.

So that's text, history, structure, and prudence. Doctrine, I don't think, has much to say, really, but what it does say comes down on the side of letting women be President. There is of course no case-law on this specific topic. But there is a string of decisions saying, for instance, that an inheritance law which merely creates a default preference for a male executor over a female one, if in other respects they are equally qualified, would violate the Equal Protection Clause. Certainly an absolute bar from the Presidency would be a far, far greater violation of sex equality. The VMI case, U.S. v. Virginia, also stands squarely for the proposition that government is not allowed to limit women's role in society on the basis of sex stereotypes. All of which is to say that the doctrinal analysis of a law barring women from the White House--even setting aside the very genuine lack of power on the part of anyone, state or federal, to impose new restrictions of any kind on the office; see U.S. Term Limits, Inc. v. Thornton--would be rather simple, and lopsided.

But that is of course not the exact posture of this case, which asks whether there is an inherent constitutional requirement of a Y chromosome for the Commander-in-Chief. Moreover, the Supreme Court held, way back when, that the Fourteenth Amendment did not actually invalidate laws denying women the vote, as it concerned only civil rights, not political ones. Minor v. Happersett. Now, there are a few things to say about that case. I think it was wrongly decided. It was promptly nullified by constitutional amendment. And it's wholly inconsistent with the later development of Equal Protection doctrine as concerns political rights. But still, let's assume that the Fourteenth Amendment does not, in fact, speak to political rights, and let's also assume that the original Constitution did require a male President. This is nonsense, as all the preceding discussion should make clear, but making these assumptions sets up a final point.

Namely, a little thing called the Nineteenth Amendment. Now the thing is, that Amendment does not say women can be President. It does not change all those "he"s to "he or she"s. It only says that women can vote, or rather that they can't be denied the vote on account of sex. So it's just barely possible to make out a case that, despite the Nineteenth Amendment, the question of what the original Constitution had to say about this issue still matters. If, as we've (erroneously) assumed, that pronoun really does mean that Martha Washington couldn't have become President, then, just maybe, neither can Hillary Clinton.

This, of course, is wrong. And it's wrong because of the final modality, ethical argument. The core of ethical argument, I think, is the idea that specific constitutional provisions, like those of the Bill of Rights, can legitimately be seen as reflections of a broader constitutional ethos. And one part of the American constitutional ethos is that certain "political" rights travel in a pack: the right to vote, the right to serve on juries, the right to military service, and the right to hold elected office. Implicitly, granting one right, typically the right to vote, carries with it a grant of the others. (This link has long not been honored as to women and military service, for obvious (if wrongheaded) and peculiar prudential reasons.) Hence, the Fifteenth Amendment guarantees not only that black people can vote in elections but that they can vote in jury boxes, and that they can be voted for. (This point comes 100% direct from Akhil Amar.) Similarly, the Nineteenth Amendment must be read as eradicating all sex qualifications for elected office, federal, state, or local. It conveys not merely the right to vote but the broader status of political equality which has long been associated with that right.

A strict, grudging textualist might deny that the Nineteenth Amendment has anything to say about this (non)question. But then, a strict, grudging textualist might be supposed to deny that the First Amendment limits the President's actions when he (hah!) is relying exclusively on his inherent constitutional authority, as it speaks only to Congress making laws. But in the Pentagon Papers case, where the President, relying on his inherent authority, tried to suppress publication of the Pentagon Papers, none of the nine Justices who wrote opinions in that case, New York Times v. U.S., even bothered to mention this issue. Not even Hugo Black, that great (and at times grudging) textualist. Because that's not how constitutions work. The fact that it's really illogical to let women vote but not let them become President actually does have legal significance.

So, to sum up, there's almost no reason to think the original Constitution required that the President be a man. It's basically just a stupid, gotcha textualism, plus or minus some "historical" argument that doesn't even attempt to understand why the intentions of the Framers have legal status, and maybe a dash of sexist-and-therefore-bullshit prudentialism on one side. On the other side we have the best readings of both text and history, a suggestive-if-not-exactly-on-point doctrinal analysis, an overwhelming structural objection to the whole enterprise of finding obliquely implied limitations of this sort, and an equally overwhelming prudential aversion to judicial interference in the choice of a President. And were it not so, the Nineteenth Amendment ought justly be read as signifying a change in the constitutional ethos broader than just the right to vote, but encompassing political equality for women in all dimensions.

This is not a hard case. It isn't even really a case. There isn't a single form of constitutional argument in which I would think Chemerinsky's position is the better one.

And that brings me back to my real objection to what Chemerinsky is doing here, which isn't just that he's wrong. He's wrong for a very specific reason, namely his desire to show off how stupid originalism is. And, well, he's not wrong that originalism of the sort he's doing would be pretty stupid. If he can show me Antonin Scalia, or anyone else, operating at that level, yes, I will happily agree that that's stupid of them. (And honestly, he probably can, because originalists often get pretty stupid about it.) But he's just wrong that, if we think that the constitutional text and history are legally binding, we must therefore think that Hillary Clinton can't be President. And he's obviously wrong, to an extent that I'd hope most laypeople could spot on their own; certainly every other law professor quoted in that article can spot why he's wrong. And so this makes a damn poor argument from absurdity that text and history shouldn't be viewed as binding. 

That's a shame unto itself, because originalism, as opposed to the textual and historical modalities, really is a very bad thing. The view that we should only rely on historical argument, or on some particular, perhaps somewhat odd-looking version of it, does an awful lot of damage. But it's also a shame in a bunch of broader ways. In the course of his attack on originalism, Chemerinsky reinforces the originalist's view of the world as divided between a stern, lawlike originalism and a formless, lawless non-originalism. He also ends up becoming just as much of a legal ideologue as the people he's attacking, because he doesn't just suggest that text and history can't be the be-all and the end-all of constitutional argument, he implicitly suggests that they're silly and absurd argument forms that shouldn't be used at all. In point of fact historical argument is both highly compelling and quite useful, when used as one among many forms of legal argument. People miss the point, but the core of the argument for Brown v. Board of Education really is quite historical in nature, and an extension of this same argument furnishes one of the better bases for the sex equality and gay rights cases.* Insulting the idea that the Framers' intentions and the words they enacted into law have major legal significance does damage, then, to the cause of equality, as well as just to the broader sense that the Constitution is in any way law.

All of this because, operating at what might charitably be called a high school level of textual exegesis, Chemerinsky thought he had a clever point about how originalism is dumb.

Sigh.




*In his seminal article defending the Brown case, my grandfather gave the following account of the propositions necessary to decide the case: "First, the equal protection clause of the fourteenth amendment should be read as saying that the Negro race, as such, is not to be significantly disadvantaged by the laws of the states. Secondly, segregation is a massive intentional disadvantaging of the Negro race, as such, by state law. No subtlety at all." The former proposition can actually be supported in many ways, but the strongest and most direct is the historical modality. Indeed, grandfather said as much, later in the piece: "It may have been intended that "equal protection" go forth into wider fields than racial. But history puts it entirely beyond doubt that the chief and all-dominating purpose was to ensure equal protection for the Negro."
So that's the Brown case. The extension into sex equality and gay rights requires embrace of the so-called "anti-caste" principle, the idea that the Fourteenth Amendment was in fact designed to eradicate not just the subjugation of the Negro race but any form of caste or class legislation that created second-class citizenship for certain members of society. The analogue to grandfather's second proposition comes quite readily, once we accept this analogue to the first proposition.