Should New Hampshire Constitution be amended to use Gender Neutral Terms? What about the US Constitution?

February 6th, 2010

From, A move to strike ‘all men’ from N.H. constitution (H/T How Appealing):

New Hampshire penned the nation’s first constitution in 1776, binding until the end of the Revolutionary War. With the war won, the state in 1783 ratified a new one that opens with the words, “All men are born equally free and independent.’’

“It’s a very simple thing in my mind,’’ said state Senator Kathy Sgambati, a Democrat and chief sponsor of the legislation, which has 18 cosponsors. “The constitution should reflect our government, and that includes women.’’

But beyond mere aims of inclusiveness and political correctness, what about textualist implications? If read literally, would the New Hampshire Constitutions protect only men? Seems absurd, but if we aim to interpret provisions in constitutions according to their original public meaning, why should gender terms be any different?

The Constitution frequently uses male pronouns. For example:

Article I, Section 2: 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.

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.

Article II, Section 1: 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:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

From a strictly textualist perspective, which I do not think any jurist adheres to, could a female serve in Congress or as President?  Could Hillary Clinton have Constitutionally taken the Oath of the Presidency? From an originalist perspective, in 1789, a female could never have obtained such an office. Should we not interpret these provisions based on their original public meaning?

I once brought this question up in Legislation class, and my female Professor gave me a look (though, I usually got odd looks from said Professor).

Many statutes dealing with women’s inability to vote were nullified by the 19th Amendment. But the 19th Amendment did not control statutes limiting  jury service to men. Women challenged statutes limiting jury service to men, and sought to sit on juries. The question presented, was whether in the absence of a modified statute, the Court would allow women to be seated. modifying the statute. There was a split, with some courts saying yes, ignore the text, and other courts, following the text, denied the women a seat on juries.

The bottom line is when textualism or originalism runs up against a public policy that everyone agrees is absurd in modern times, the text is ignored.  I suppose this may be an instance of the absurdity doctrine, that is when the interpretation of a statute/constitution is absurd, courts are free to ignore it. Though that canon always troubled me, due to its inherent subjectivity.