I mean, obviously, the Founders never expected a slave to be President, and I don’t know that I could support the notion that they expected a woman to be President. But that doesn’t change the plain reading of Article 2, Section 1:
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. [emphasis mine]
And if that we’re it, it’d be a short look into the question, because it clearly says “No person”. What’s nagging at me is this passage, at the beginning:
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows
There are two ways to take these male pronouns:
- Formality – Traditional English uses “he” when the gender is unknown and is understood to represent either male or female.
- Implication – It should be a man.
It’s our job to figure out which this one is. How do we do this? Well, first, let’s see what passages in this section use he vs. person:
- He shall hold his office during the term of four years…
- And they shall make a list of all the persons voted for…
- The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of…
- No person except a natural born citizen…
- …neither shall any person be eligible to that office…
- In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers
- The President shall, at stated times, receive for his services
- …during the period for which he shall have been elected, and he shall not receive within that period…
- Before he enter on the execution of his office, he shall take the following oath or affirmation…
- …he may require the opinion, in writing, of the principal officer in each of the executive departments…
- He shall have power…
- He shall from time to time give to the Congress information of the state of the union
- he shall judge necessary and expedient
- he may, on extraordinary occasions, convene both Houses, or either of them
So, in the entire Article 2, He/Him/His is used 14 times, Person used 4 times.
Does that help? Yes and no. I think that if we’re looking historically, slaves were 2/3 person, women may not have been considered a person, and that goes back to the last discussion.
However, I’m fairly certain that it could be argued (successfully) that the 14th Amendment made women persons:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Of course, I could easily get sucked down the rabbit trail that is the foundation of the IRS and whether people believe that the 14th Amendment was ratified correctly, etc. Let’s not go there right now.
What would make the answer of “no” to our question stronger would be if there were no other usages of “he” in terms of Representatives and Senators. Since we have female senators and house members it would at least differentiate the two. However, in Article 1, Section 2 we find:
- No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
- 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.
- The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.
- No Senator or Representative shall, during the time for which he was elected
- …shall be a member of either House during his continuance in office.
So, there are some. The total absence of “his” would have made the point. That they are there means that this point doesn’t hold as much weight. Obviously, given our last topic, the Founders didn’t expect a woman in any of these offices. It’s a modern construct that they are allowed into them.
So, right now, there’s no reason that I can see that there would be any legal problem with a female President– unless there’s a legal problem with female Speaker’s of the House, female Senators and female congressmen– er, congresswomen.
Remember, we started this dialog not to see if it was something culturally acceptable, nor whether a woman should be, but whether a woman could be. So far, the only thing I’ve got to say that she couldn’t is culturally based in the Founders– which I don’t think holds enough weight to say “no”.