IS A WOMAN PRESIDENT UNCONSTITUTIONAL ? - THE SUNDAY COMMENTARY
For the first time in our history we are facing the possibility of a women becoming President of The United States. From a personal stand point the gender of the candidate for President is not something that troubles me. In fact if a women or a man stand for the values and have the same political ideology as I, it is upon that bases alone that I would consider them as worthy of my vote and not their gender.
I disagree with everything that the current female candidate for President believes, that is when she actually takes a stand and does no waffle according to the political winds, which is not very often. The question that I raise about the Constitutionality of a women becoming President is not based on my dislike of Senator Clinton but only in looking at the Constitution as an originalist who believes that the Constitution is THE foundational principle of our nation and as such does not bend or give to sociatal whims or liberal interpretation and can ONLY be adapted to the same through the ponderous process of amendments.
The Constitution as written, which is also how as an originalist I believe it should be interpreted, is gender neutral. Meaning that throughout this tremendous founding document when reference is made to people it is without reference to the gender, with one very distinctive exception. Article II which defines the Executive Branch or the office of the President is NOT gender neutral but in every instance throughout the definition of the responsibilities and powers of the President, the Constitution refers to the President as HE, HIM or HIS.
In the first Article which deals with the Legislative Branch all referals are either as Representative, Senator or the pronouns they and them. Never once is gender stated. Article III, the Judicial Branch is similar except that the title Judge is used along with the same pronouns.
In every definition of the office of President, the holder of that office is refered to as a HE. For example Section 1. " The Executive Power shall be vested in a President of The United States of America. HE shall hold HIS office during a term of four years....."
Concerning the oath of Office - " Before HE enter on the Execution of HIS office HE shall take the following Oath or Affirmation: - I do solemnly swear...."
These are but two of numerous examples from Article two where the President is referred to as HE or HIS. Now one may argue at this point that referring to the President as HE was a custom of the time since in the eighteenth century men were much more dominant than women who were not allowed to hold public office or responsibility. While this is true, if custom were the reason for the President referred to as HE then why were Judges, Representatives and Senators not written into the Constitution in like manner ?
Additionally if this were based on custom then why was it necessary to amend the Constitution to allow women to vote ? After all the same custom and domination of men is the reason women could not vote. I argue here that if the reference of HE was just a custom that the need to amend the Constitution for women to vote would not have been necessary since the change in society to allow better equality for women would have made voting possible as time and society allowed.
Therefore since an amendment was necessary to allow women to vote customs of the eighteenth century are NOT the criteria for referring to the President by the male gender. One may also argue that the XX Amendment which deals with the term and the inaugural of the President and the succession of Vice President refers to the office holder as , "person." But this argument is weak since the XX Amendment is not defining the power and responsibilities of the President only the succession of office were the President die while in office.
Could it then be that the Framers of the Constitution intended for the holder of the office of President of The United States to only be a man unless otherwise amended by a vote of the Senate and the States to change the Constitution in accordance to Constitutional law ?
While I am not in the remotest sense conceding the election to Senator Clinton, it does stand to reason that if she were elected there would be a very strong case in claiming that her election was not Constitutional based on an origionalist interpretation of the Constitution and understanding how Article II differs in reference and writing in reference to the male gender from any other Article, Amendment or definition found in the Constitution.