Constitutionally, Can a Woman Serve as President?

“THE ISSUE IS THE LANGUAGE”

by Glen Day, ©2020

(Sep. 24, 2020) — Women have served the nation in Congress, the courts, and other public offices for decades. But may a woman run for and hold the office of President or vice-president of the United States? Most people would say “yes,” a woman may run for and be president or vice-president just like a man. Haven’t women run for those offices in the past? The question is ridiculous. But there is a constitutional question regarding a woman’s eligibility that has not been addressed. For whatever reason, no one has raised the issue. The issue is the language used in Article II of the Constitution.

The United States Constitution is written in gender-neutral language. The one exception is found in Article II of the document, which uses male-specific pronouns when describing the office and duties of the president. Does this mean or imply that only a man may be president of the United States? That is the question that needs clarification.

Article II of the U.S. Constitution created the executive branch of government, consisting of the president, vice president, and other executive officers and staffers appointed by the president. Per Article II, the executive power of the federal government is vested in the president.

The writers of the Constitution used male-specific language when describing the position and duties of the president. Not once did they use female-specific language. There are 19 references (20 if the one in the 25th Amendment is counted) regarding the president using the male pronouns of “he” and “his” in Article II. There are no feminine references at all. Some would argue the use of the male pronouns “he” and “his” were not meant to be exclusive to men. It is common in English to use male gender language such as “man” or “mankind” when referring to humanity in general. But the founders were not referring to humanity in general. They were referring to one person; the president, and they used those male pronouns not once or twice but 19 times.

The Constitution does not explicitly state the president must be a man or that a woman shall not be president, but history and those male pronouns in Article II clearly imply just that.

The founders were 18th century men with 18th century worldviews. Those views were that women had no place in political matters. The Constitution was created by (land owning) white men, primarily for the economic, political, and legal benefit of those men. The Constitutional Convention was made up of 55 white men from the 13 states. Women were not involved in the creation of the document. There is no record of any discussions concerning women, their rights, or duties during the Constitutional Convention.

During the early years of United States, women were at best second-class citizens. Women were considered dependent, subservient, and unequal. The tenet of “coverture” existed and meant a married woman was not a person under the law. Her legal being was bound to that of her husband. Husband and wife were legally one entity and the husband was the foremost member of that union. The wife’s separate legal existence just disappeared. It was referred to as “legal death.” Wives could not control their property unless specific provisions were made before marriage. They could not file lawsuits or be sued separately from their husband. They couldn‘t enter into or execute contracts without the involvement of their husband. Husbands were responsible for all aspects of their wife including discipline. Husbands could legally beat their wives. If a woman ran away from her husband and home, she would be considered a thief for stealing the clothes on her back. Women could not vote in most states and could not hold public office. Husbands were required to provide food, shelter, and clothing for their wives. He also became responsible for any debts she acquired prior to the marriage. Single women had it a little better. They could live where they chose, work at jobs not requiring a license or college degree (those jobs belonged to men), enter contracts, sue and be sued and own property. Women were not required (or allowed) to perform the responsibilities required of men such as military service, jury duty, court testimony and posse comitatus.

Married women needed permission from their husbands to do just about anything in the public domain. The “Cult of True Womanhood” was in effect, a belief that women were to be pious, submissive wives and caring mothers, bearing lots of children (important because children often died young in those days) and be concerned only with home and family.

Given the social norms and conditions of that time, a woman as president and commander-in-chief of the military was out of the question, impossible, beyond comprehension. Any man who suggested such a thing could be ridiculed and ridden out of town on a rail. Women needed the care and protection of men. They were physically and emotionally delicate and much too weak to manage such a position. Besides, who will care for the children and household? Politics, managing a country and war were the purview of men, not women. These views continued into 19th and 20th centuries and to some degree even to today.

It was not until 1916 that a woman was allowed to serve in an elected position in the federal government. Jeannette Rankin, a Republican, from Montana (a state that permitted women’s suffrage), was the first woman elected to the House of Representatives. That was 127 years after the Constitution was ratified.

Prior to the ratification of the 19th Amendment, voting rights for women (and men) were a state issue. Some states allowed women to vote; most did not. All states allowed men to vote.

The 19th Amendment is one sentence long and states:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”

This Amendment came about because of the lawsuit of Minor v. Happersett, 88 U.S. 162 (1875), the United States Supreme Court ruled that Mrs. Minor did not have a federal constitutional right to vote. The Court upheld a Missouri Court decision that refused to register a woman, Virginia Minor, as a voter because Missouri law allowed only men to vote. Mrs. Minor’s husband filed the lawsuit on her behalf, as the law forbids her, as a married woman, to file it herself. The ruling was based on the Privileges and Immunities clause of the 14th Amendment. The Supreme Court accepted that Mrs. Minor was (1) a U.S. citizen, even referring to her as a “natural-born Citizen” but found that the U.S. Constitution did not include a right to vote for men or women.

Note: It took 99 years from the Declaration of Independence to clarify, in the Minor Case, that women were in fact U.S. citizens.

Men of the 18th Century created our Constitution and men and women of the 19th and 20th Centuries using the amendment process and case law made improvements. But wish as we might, we cannot put into the Constitution what isn’t there or ignore what is there because it is sexist and no longer politically correct. Those male pronouns are there in Article II and are not going away just because they may be outdated. They cannot be blacked out with a Magic Marker. There are procedures for changing the Constitution that must be followed. In a society governed by law, due process matters. If the law is not followed, human rights lose their foundation and become a target for whatever impulse is in vogue at any time.

Each clause in the Constitution is significant. The Supreme Court will not interpret a new amendment as meant to cancel out an older clause, unless it is clear the new one was adopted for that purpose or a conflict cannot be resolved without revoking the older clause.

“It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.” – Marbury v. Madison, 5 U.S. 137

If the 19th Amendment or any of the other Amendment had included, “The right of citizens of the United States to hold any public office shall not be denied,” there would be no issue!

Doesn’t the 14th Amendment grant everyone the right to be president? Firstly, the 14th Amendment says nothing about the Office of President. The 14th Amendment passed in 1868 and was created to ensure that former slaves received equal protection under the law. It theoretically granted equality to freed black men and all men in general, but not so much for freed black women and all women in general. To get a clearer picture, one must understand the status of women in the 19th century.

A year after its passage, Myra Bradwell attempted to use the Amendment to become an attorney in Illinois. Mrs. Bradwell, a law school graduate, had passed the bar and challenged the Illinois Supreme Court decision stopping her from practicing law in that state.

The Illinois Supreme Court ruled Mrs. Bradwell was legally “disabled:” As a married woman she had no separate legal existence apart from her husband’s. The case went to the United States Supreme Court and Bradwell argued, like Virginia Minor, that her 14th Amendment rights had been violated. The Supreme Court ruled the Amendment did not require states to allow women into the legal profession. One Justice wrote:

“The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.”

About 100 years later, the U.S. Supreme Court changed its position somewhat. In the 1970s the Court applied the 14th Amendment’s equal protection clause to sex discrimination cases, finding it prohibited unequal treatment based on gender. In 1976, the Supreme Court ruled that the Amendment allowed men and women to be treated differently only if it served an “important governmental objective.”

But courts assess cases of sex discrimination under the “intermediate” standard of review rather than the “strict scrutiny” standard that is applied to cases of race discrimination. That means people who have sex discrimination claims need more evidence to win. So, while the 14th Amendment sometimes has been interpreted to benefit women, thus far, it is no guarantee. The Amendment says nothing about who can or cannot be president in Article II of the Constitution.

In 2010 Supreme Court Justice Antonin Scalia stated that the 14th Amendment does not prohibit sex discrimination.

On March 22, 1972, the Equal Rights Amendment was approved by the U.S. Senate and sent to the 50 states for ratification. First proposed by the National Woman’s political party in 1923, the Equal Rights Amendment was to provide for the legal equality of the sexes and prohibit discrimination based on sex. About 5 decades later in the late 1960s pushed by U.S. Representative Bella Abzug of New York and feminists Betty Friedan and Gloria Steinem, it received the mandatory two-thirds vote from the House of Representatives in October 1971. In March 1972, it was approved by the Senate and sent to the 50 states for ratification.

Hawaii was the first state to ratify what would have been the 27th Amendment, followed by 30 other states. But, during the mid-1970s, feminism support for the Amendment wavered and the Amendment failed to achieve ratification by the required three-fourths of the states.

The Equal Rights Amendment would have probably permitted women to hold the Office of President. It was two sentences long and stated:

“Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation. ”The opponents claimed it would not have granted women any more rights than they already had; and its passage would have had negative impact on women, damaging their traditional relationship with men and their role in society. Opponents feared women could be eligible for the draft like men and be compelled to go to war. The critics also claimed the ERA would have voided legislation protecting women in the workplace. Many women feared the ERA would cause them to lose their favored status, in the courts, when it came to alimony, child support and child custody.

Other Relevant Supreme Court Case:

In re Lockwood, 1894
Belva Lockwood filed a lawsuit to force Virginia to allow her to practice law. She was a member of the bar in the District of Columbia. But the Supreme Court found that it was acceptable to read the word “CITIZEN” in the 14th Amendment to include ONLY male citizens.
Hoyt v. Florida, 1961

The Supreme Court heard this case challenging a conviction on the basis that the female defendant faced an all-male jury because jury duty was not mandatory for women. The Supreme Court denied that the state statute exempting women from jury duty was discriminatory, finding that women needed protection from the atmosphere of the courtroom and that it was reasonable to assume women were needed in the home.

Are there other articles or amendments in the Constitution that say women can be president?

The 12th (1803) and 22nd (1951) Amendments deal with the Office of President and are written in gender-neutral language.

The 12TH establishes procedures for electing the president and vice president.

The 22nd deals with term limits for the President and VP. Neither changed any other existing language in Article II.

The 25th Amendment (1967) is written in gender-neutral language. It deals with succession to the office of president by the vice president and others should the President be unable to perform the duties of the office. There is however, one male-specific pronoun, “his”, in the amendment.

So, can a woman legally be president? Those who are constitutional originalists will argue, “No, she cannot.” The Constitution must be lawfully changed to allow women to be President. But those who view the Constitution as a living, breathing, progressive document, containing rights that aren’t articulated within it, will argue this is the 21st century and it’s only fair that women be president, just like men, and to heck with legally changing that troublesome 18th century racist, chauvinist, White men only, Constitution.