Hillary Clinton is the odds on favorite to be the next President of the United States. From a reporter this weekend, I learned that her possible victory has offered an occasion for Dean Erwin Chemerinsky to argue that the original meaning of the Constitution would prevent her from being President. His primary contention is that women are excluded form the highest office because the original Constitution refers in many places to the President as “he.” Of course, Dean Chemerinsky does not believe that the Constitution correctly interpreted actually prevents Clinton from becoming President nor is he predicting that any court will so hold. He just wants to score points against originalism.
But his argument shows that he understands little about originalism and seemingly less about the plain text of the Constitution. First, the language of the Constitution has to be interpreted against the linguistic convention that existed at that time (and indeed despite its political incorrectness may exist even now) that the masculine reference can include females. Lest there be any doubt that this was a convention at the Framing, one just has to consult the King James Bible, surely the book best known in the United States in 1789.