40

The Constitution of the United States of America frequently refers to the President using male pronouns. For instance:

He shall hold his Office

Not once is the president referred to with a female pronoun, or even with joint pronouns (e.g. "he or she").

Does this indicate that the Constitution does not allow for a female president (since a woman would not be able to fulfill such functions as e.g. "he shall nominate")?

Some brief online reading found that most people think it does not, but they could not agree on the reason. One suggestion was that the Nineteenth Amendment grants women the right to be President. This doesn't seem so compelling, as the Nineteenth Amendment only discusses the right to vote.

Another suggestion was that the Constitution several times refers to the President as "person" which could be taken to be inclusive of men and women. While "person" certainly does not exclude women, if "he" does exclude women then I'm not sure that "person" would automatically include them, instead of just being a broader term.

A third suggestion was that the term "he" was used as a unisex term to refer to any person.

Is there a definitive answer to this question?

  • 12
    If the subject of how this question was resolved in other countries interests you, you might wish to look at the bizarre history of the "Persons case" in Canada. en.wikipedia.org/wiki/Edwards_v_Canada_(AG) Amongst its oddities is the fact that at the time, the Supreme Court of Canada was not the supreme court of Canada, and that women were determined by the supreme court to be persons when the law restricts the rights of a person, but not qualified persons when the law requires a qualification for office. Truly a low moment for Canada. – Eric Lippert Aug 31 at 21:06
  • @Headcrab : and, in Canada, potentially send to prison those who disagree. Unlikely to happen, but not impossible. – vsz Sep 2 at 5:23
  • 6
    In English, "he" is the generic third-person pronoun. This does not refer to only men. Case closed. – user91988 Sep 2 at 16:31
  • 1
    This certainly puts a bit of a twist on the current trend in gender identification and pronoun use. – PoloHoleSet Sep 2 at 16:50
  • A better question, regardless of if the US constitution allows a woman to be POTUS or not, is that: Will people of the US vote a woman to be POTUS? Answer is the chance is too low. – Alone Programmer Sep 2 at 22:13
106

When the US Constitution was written, "he", "him" and similar were used to refer to all persons regardless of sex.

Per Lexico (which claims to use the Oxford English Dictionary as its source):

He Pronunciation: /hē/ /hi:/
pronoun
third person singular
1. Used to refer to a man, boy, or male animal previously mentioned or easily identified.

‘everyone liked my father—he was the perfect gentleman’
1.1 Used to refer to a person or animal of unspecified sex
(in modern use, now chiefly replaced by “he or she” or “they”)
‘every child needs to know that he is loved’
1.2 Any person (in modern use, now chiefly replaced by “anyone” or “the person”) ‘he who is silent consents’

...

Usage

Until recently, he was used to refer to a person of unspecified sex, as in every child needs to know that he is loved, but this is now generally regarded as old-fashioned or sexist. ...

| improve this answer | |
  • 24
    While I agree, at the time, they probably meant male, white, Christian, landowners - it certainly didn't extend to for example slaves and indenture servants. Women were at best second class citizens with few and limited rights, whom lives were dictated by male relatives (father, brother, guardian) or husbands. Wives were the junior partner of a union between husband and wife - so of course one partner couldn't be compelled to witness against the other in court, a husband would never beat "himself", and if allowed to vote, the wife would vote as her husband, resulting in a "double-vote"... – Baard Kopperud Aug 31 at 4:15
  • 29
    @BaardKopperud Some women voted in New Jersey during the 1700s and early 1800s. It really doesn't matter what was in anyone's head, though some women voting probably was in their head, as they knew about New Jersey women voting before the constitution got ratified. The U. S. Constitution grants the federal government certain things. But, it denies the federal government more and leaves things up to the states. Thus, whatever they imagined inside of their heads doesn't matter much, since the Constitution doesn't grant the federal government the ability to work things that way. – Doug Spoonwood Aug 31 at 4:43
  • 16
    @BaardKopperud You learn something every day... I was always perplexed by the idea that women couldn't vote. But when you see it with an 18th century mindset - obviously, she'd just ask her husband who to vote for - you realise that it would indeed give undue voting power to men with lots of women in their "charge". Women voting is predicated on them being free agents in the first place... – Oscar Bravo Aug 31 at 7:26
  • 14
    AS a side note: women began running for Congress before women were granted the right to vote in Congressional elections. There were arguments as to whether either the constitution or the state constitutions prohibited this. Note that the laws against women voting in the 1800s were state laws or constitutional provisions, not federal ones. – Walter Mitty Aug 31 at 12:16
  • 13
    Letters between John and Abigail Adams reveal a little of what was going on in people's minds at the time. The use of male pronouns does not indicate an intent to limit the office holders to men. The male pronoun "He" was widely used to mean "He or she" at the time. So why was the ninteteenth amendment needed? To invalidate state laws that prohibited women voting. – Walter Mitty Aug 31 at 12:21
79

Male pronouns can be found all over the constitution.

I look at Article I, Section 3:

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

There are currently 26 US Senators who are female, and there is no question about their eligibility to serve in this post. It therefore follows that there is no question about a woman's eligibility to serve as President (assuming she meets age, citizenship and residency requirements).

| improve this answer | |
  • 3
    The US constitution was also drafted at a time when women could not (even) vote, IIRC. – SX welcomes ageist gossip Aug 30 at 19:38
  • 8
    @Fizz According to en.wikipedia.org/wiki/Women's_suffrage_in_the_United_States, women had the right to vote, and did vote, in New Jersey from 1776 to 1807. As far as I can tell no woman was elected to office, but I don't think the 1776 state constitution forbids it. It consistently uses "he" as the singular pronoun, but "person" as a noun; "man" and "male" don't appear in it. Unfortunately the section on voting rights is in the plural ("all inhabitants", not "any person"), so it can't settle the intended interpretation of "he". – benrg Aug 31 at 2:57
  • 7
    @Fizz The United States Constitution in its original form left many issues of voting, including whether or not women could vote, up to the states. So, no, you don't remember correctly. – Doug Spoonwood Aug 31 at 4:16
  • 11
    The point is it doesn't matter what the founders intended or why New Jersey decided to end women's voting. Women in Congress has set the precedent for President. It's 100 years too late to argue "he means no women" for any federal position. – Owen Reynolds Aug 31 at 14:24
  • 1
    @computercarguy: The Constitution wasn't ratified until 1788, 12 years after the Declaration of Independence, not one year. You're thinking of the Articles of Confederation, which were used as the basis of governance early on, replaced by the Constitution later on. – ShadowRanger Sep 1 at 18:26
56

A definitive interpretation of the constitution can only come from the Supreme Court in the US. The court has not ruled on this. However Supreme court justicies have given their interpretation of the law. Moreover lower courts have ruled on Federal and State laws that use "he". Their conclusions are consistent:

In the interpretation of law, the courts have determined that (in the words of Justice Scalia) “he” is a “traditional, generic, unisex reference to a human being” (source).

Therefore a woman is permitted to be President.

| improve this answer | |
  • 22
    Note, that this doesn't mean that new laws or legal opinions should use "he", merely that in interpreting laws, the courts should assume that "he" is generic, unless there is good contextual reason otherwise. – James K Aug 30 at 20:33
  • 1
    @Fizz "Clearly this interpretation didn't hold water for (granting) women's right to vote for almost 100 years..." No, not so clearly. Poll taxes existed at some points in U. S. history which prohibited voting without paying the relevant tax, and thus men didn't have an unqualified right to vote according to the Constitution. Many issues were left up to the states. – Doug Spoonwood Aug 31 at 4:19
  • 12
    @Fizz Just how did this interpretation not "hold water"? Was there some portion of the Constitution that guaranteed the right to vote, but was held to not refer to woman because of the word "he"? – Acccumulation Aug 31 at 5:02
  • 2
    @Fizz Scalia was co-author of a book of rules for interpreting laws which said (among many other things) that "in the absence of a contrary indication, the masculine includes the feminine (and vice versa) and the singular includes the plural (and vice versa)" (quoted from an adapted summary). Now the conclusion drawn in this answer implies without analysis that there is no "contrary indication" in the constitution, but I don't see any credible argument against that proposition. – phoog Aug 31 at 19:13
  • 2
    @Fizz Yes, Scalia had the absurd notion that the constitution (and its amendments) meant what people thought it meant when they voted for it, not what he (or any other judge) thought was right. – sgf Sep 1 at 11:55
13

The answer is probably not as definitive as you'd like. By some academic analyses (almost consensus, one could say)

"women had no status in the Constitution of 1787"

While the constitution used some gender-neutral language, early interpenetration in that direction e.g. voting rights for women in New Jersey were quickly struck down by 1807.

That view is echoed in a longer piece of (Supreme) justice Sandra Day O'Connor, who attributes the practical striking down of laws discriminating against women to the post-1970s reinterpretation of 14th Amendment by the Supreme Court. More officially, these should have been enshrined in the Equal Rights Amendment (for women) of 1972, but that amendment never came to pass, although its failure spurred many concrete substitutes in narrower areas:

Women emerged in significant numbers all across the country in the 1960s to demand equal opportunity, primarily in the workforce. Pursuant to its power under the Commerce Clause, Congress enacted both the Equal Pay Act of 1963 and Title Vll of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of race or sex. In 1972, Congress sent the proposed Equal Rights Amendment to the states for ratification. In response, although it was not ratified, many states became active in reviewing state legislation to remove discriminatory laws and to pass state civil rights legislation. The Supreme Court began to look more closely at legislation providing dissimilar treatment for similarly situated women and men in the early 1970s. The first case in which the Court found a state law discriminating against women to be unconstitutional was Reed v. Reed. The case was decided in 1971, more than 100 years after the ratification of the 14th Amendment. Applying only a rationality standard, the Court struck down an Idaho law giving men an automatic preference in appointments as administrators of estates. Following Reed, the Court invalidated a broad range of discriminatory statutes under the Equal Protection Clause of the 14th Amendment. For example, a federal law providing for determination of a spouse's dependency based on the sex of the member of the armed forces claiming the benefits; a Social Security Act provision allowing widows bur not widowers to collect survivors benefits; state law requiring divorced fathers to support their sons until age 21 but their daughters only to age 18; a state law permitting the sale of beer to women at age 18 but not to men until age 21; a state law requiring men but not women to pay alimony after divorce; and a state statute granting only husbands the rights to manage and dispose of jointly owned property without the spouse's consent. In 1976, in the case of Craig v. Boren, the Court adopted a somewhat stricter standard of review for sex, based classifications and held that to "withstand constitutional challenge [under the Equal Protection Clause] ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."

All in all, the Court has heard over 50 cases since 1971 involving various sex, based challenges under the Equal Protection Clause to stare and federal laws relating to hiring, promotions, maternity leave, disability insurance, pension rights and seniority. Some of the challenges have been brought by women, some by men. Not all such challenges have been successful. But there is no question that the Court has now made clear that it will no longer view as benign those archaic and stereotypic notions concerning the roles and abilities of males and females. A statute classifying people on the basis of sex will not be upheld without an exceedingly persuasive justificanon for the classification.

So given the principles enunciated in Boren (1976), it's probably fair to say that challenging women's right to be elected would probably fail miserably in front of the Supreme Court thereafter, in view all the other (50 or so) laws struck down.


Having said this, a 1976 article notes that while the 14th Amendment Equal Protection is the most likely legal safeguard of the right to be elected, there are some alternative (legal) views some tying the candidacy with the right to vote:

Protection of the right to vote through the Fourteenth Amendment has been the most frequent justification for invalidation of restrictions on candidacy. The right to vote, and, more importantly, the right to an effective vote, has served as the basis for application of a compelling state interest standard to any regulation impinging upon that right. Protection of candidates' rights is traced through a circuitous route whereby it is shown that voters' rights are abridged by the impairment of a candidate's ability to gain access to the ballot. The right to vote, it is argued, loses its importance in the absence of a meaningful choice for the voter, and hence restrictions on candidates' opportunities to run for office indirectly restrict voters as well.

This theory, taken to its purely logical conclusion, would require that any infringement on candidacy be viewed as an infringement upon voters' rights, but this approach does not seem to have been adopted anywhere.

Williams v. Rhodes provided the first indication at the Supreme Court level that voters' rights could be impaired through candidacy restrictions. The Court, per Justice Black, announced that the Ohio laws in question placed heavy burdens, not only on the right to associate, but also on "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." While acknowledging that "the State is left with broad powers to regulate voting," the Court rejected arguments that Ohio had a compelling interest in promoting the two-party system, in seeing that the election winner be the choice of a majority of the voters, and in preventing voter confusion due to the remote possibility of the presence of too large a number of parties on the ballot.

Bullock v. Carter, a 7-0 decision, reinforced the identification of voters' rights with candidates' rights. The statute there in question required filing fees for local office in Texas primary elections as high as $8,900 without any writein vote or other alternative method by which candidates could be entered on the ballot. Chief Justice Burger's opinion for the Court discussed the law in terms of the rights of voters:

The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.

However none of these (latter) cases involved sex-based discrimination, so the connection is more tenuous/theoretical. They also largely pre-dated most of the other ones in which the Supreme court drew boundaries on sex-based discrimination. So, saying that the 19th Amendment has some implications on women's right to candidacy might also have a legal leg to stand on.


And since two answers here rely on the interpretation of pronouns in the Constitution... that's also an argument but not an incredibly convincing argument, alas. The election of the first woman to Congress did precede the 19th amendment, but not by much... and a law review around that time pointed out that courts tended interpret the ambiguity against women.

III. HE/HIM/HIS

All pronoun references to the President, the Vice President, Senators and Representatives, and other officers are masculine. Some version of a male pronoun appears close to 50 times in the Constitution. Indeed, the qualifications for electors in the Fourteenth Amendment is specifically stated as “male.”

Use of the male pronoun to refer to all humans, according to linguist Dennis Baron, can be traced back as far as the Latinists of the sixteenth century and was widely accepted in the eighteenth century. Women seeking voting rights argued that, if the male pronoun was general to all sexes, its exclusive use in suffrage statutes could not pose any impediment to the suffrage of women. Equally, they argued, it could not bar women from being able to take up elected office. A note in the Harvard Law Review in 1910 summed up the chauvinism of the time, stating that “although the exclusive use of masculine pronouns in the constitutions in this country has never been regarded as excluding women, there has been little tendency to construe general provisions in their favors.” The article went on to observe that contemporary courts had tended to construe any ambiguity against female office-holding.

That attitude did not seem to deter Sara Platt Decker of Denver, Colorado, however, who considered a run for Congress in 1909. Speculation about a female congressional candidate sparked one opinion writer to object — “[s]trict adherents to the letter of the Constitution maintain that the presence of the masculine pronoun, and the absence of any other, obviously renders ineligible any person of the feminine persuasion.” It seems, however, that this writer held a minority view. Jeanette Rankin, of Montana, became the first elected female congress member in 1916 – four years before ratification of the 19th Amendment. And, although there was a bit of grumbling by sources to the Washington Post about pronouns and Montana’s new representative, her swearing in took place without much pronoun based objection. By 1922, the idea that she could have been barred from office because of pronouns barely merited a sentence in Joseph Ragland Long’s treatise on American Government: “[T]he pronoun ‘he’ [in Article I] includes both sexes.”

Today, the assumption that “he” means “he or she” has become so entrenched, that when former Senator and Secretary of State Hillary Clinton ran for President in 2015, no one in mainstream legal circles attempted to argue that she was ineligible for the Presidency.

Although these case have been basically forgotten by now, the original 1910 article (Note, Eligibility of Women for Public Office, 24 HARV. L. REV. 139, 140 (1910)) provides some examples in which the lack of voting rights was interpreted as extending to lack eligibility:

Most constitutions restrict suffrage to males, and even where eligibility for office is not expressly confined to electors, it would seem naturally to be predicated on the right to exercise this primary governmental function. On this ground, several cases have denied women the right to hold office.

[footnote:] See Atty.-Gen. v. Abbott, supra; Atchison v. Lucas, supra. But see State v. Hostetter, supra; Wright v. Noell, supra. It has been said that conferring suffrage on women makes them eligible for office. See State v. Cones, I5 Neb. 444. Cf. Olive v. Ingram, 2 Strange III4. But in England it has been held that a woman is not eligible even for an office for which she can vote. Beresford-Hope v. Lady Sandhurst, supra.

So the all-inclusive male-pronoun was hardly that convincing before the 19th Amendment.

| improve this answer | |
  • 8
    "While the constitution used some gender-neutral language, early interpenetration in that direction e.g. voting rights for women in New Jersey were quickly struck down by 1807." That was the New Jersey legislature that changed their law, not the U. S. federal government: books.google.com/… – Doug Spoonwood Aug 31 at 4:23
  • 1
    "voting rights for women in New Jersey were quickly struck down by 1807" But "struck down" usually means declared invalid by a court, whereas I seem to recall that this was altered by the legislature. And that it was 1804. But I could be wrong about the year. Or maybe even about the manner of change, but I'll be surprised if it was a court of law rather than the legislature. – Michael Hardy Sep 2 at 19:16
7

Generally speaking, the constitution concerns itself with citizens. In other words, people who are entitled to vote are entitled to participate in governance at any level (save only the president must be a naturally born citizen); there is no explicit class of people entitled to lead different from those who are legally entitled to participate by voting. In the early days of the nation a citizen was explicitly white, propertied and male, but over time the franchise has been expanded to include anyone born or naturalized to the nation, and that expansion of the franchise naturally extends to roles in government. To oppose a female president, one would have to argue that women are not 'citizens' in the sense meant, which would make for a peculiar legal argument.

| improve this answer | |
  • 5
    "naturally born"... oh my god, so to become the US President one cannot be born by the Caesarean section?! :D – quetzalcoatl Aug 31 at 10:51
  • 4
    Citizenship does not imply a right to vote, even less so in the 18th century than today. The assertion that "citizen was explicitly white, propertied and male" is incorrect. Women were also citizens, as were children, yet they could not (and the latter still cannot) vote. Similarly, disenfranchised felons are still citizens. A court ruled in Lynch v Clarke (1844) that a woman born in the US was a US citizen despite a long residence in Ireland. Her citizenship obviously did not depend on her right to vote or lack thereof. – phoog Aug 31 at 19:29
  • @quetzalcoatl I keep hearing about the Caesarian section; I'll have to visit it sometime if I ever get to Rome. But people born there were obviously not born here. – Grault Sep 2 at 1:29
4

Let's read for ourselves.

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.

There is no mention of gender whatsoever. "He" as the preferred pronoun arises from the assumption that the President would be male. The Framers were pretty specific otherwise.

| improve this answer | |
0

Remember. "He" does not necessarily mean a male here. It means a human as well as written in the constitution.

| improve this answer | |
0

The Fifth Amendment refers to a "person" with "himself".

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

According to Wikipedia, James Madison presented the original draft of this amendment not long after he was a central figure in drafting the US Constitution.

So it seems pretty clear that "himself" was also a sex/gender-neutral term.

| improve this answer | |
  • I figure that the Fifth Amendment clearly applied to women from the beginning (whereas one might argue that women couldn't hold office until later), so showing that the sex/gender-neutral "himself" was used to refer to any person would pretty clearly demonstrate that this was the original intention of the terminology rather than a later re-interpretation. – Nat Sep 3 at 0:17

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .