Chemerinsky Is Wrong: A Woman Can Be President

As a law student, the predominant theory of constitutional interpretation was the “living Constitution.” That’s what we were taught. That’s what we believed to be right. It made sense, as the document ratified in 1789 couldn’t possibly account for all that would follow, and the only way it could survive was to evolve to address the needs of a nation over time. Frankly, I never thought all that hard about it at the time. All the prawfs said so, and so it was.

As the word “originalism” began to emerge as an alternative to interpretation, I was forced to give it some thought. I didn’t want to, as thinking was hard and could lead to unpleasant things, like headaches. Who needed that? But then, emanations and penumbras never really made a lot of sense, even when the outcome was something with which I agreed. As a principled approach, it was essentially, “we want to get there and, well, we got nothing, so emanations and penumbras, baby.” Sure, I would take it when it worked in my favor, but that nagging idea that it would eventually turn on me, bite me in the butt, was disturbing.

Not knowing much about originalism, a notion from Bryan Garner’s and Nino Scalia’s book, Reading Law, gave me some insight. Originalism was less mystical diving of what the founding fathers had in mind at the time of signing, but rather a textual basis for the interpretation of a document. Back then, words had fairly specific definitions; the dictionary definition of “gender,” for example, was not yet “whatever.” And they were constrained to use words to express the parameters of the Constitution. No gifs. No emojis. Just words.

So the question isn’t what the “real” intent of the founders was, as expressed by the words used in the Constitution, but the definitions of those words at the time it was ratified. It’s always possible, indeed likely, that signors and legislatures that ratified the Constitution, had disparate understandings of what was meant, of how it would play out. There were vagaries that left room for dispute, whether intentionally or to get beyond disputes and get it ratified. It’s likely they understood that vagaries would be worked out in time, and that circumstances would change over time necessitating fitting the Constitution to the nation as it developed.

But that’s not my understanding of the core concept of originalism/textualism. I hasten to add, I’m hardly an authority on the subject, as other are, and thus defer to others, both pro and con, for its definitions and parameters. Rather, this is just a working lawyer’s two cents, so take it for what it’s worth. If you want nuance and depth, there are plenty of originalism scholars. I’m not one of them.

If the Constitution said that every person has a right to a banana, and in 1789, the word “banana” was understood to mean plantains rather than the delicious fruit that could end up in your cornflakes or Foster, then every person would have a right to a plantain. Bananas, as we understand them today, weren’t included. Why? Because words have meanings, and when those meanings change from what they meant in 1789 to what they mean today, the constitutional application of those words didn’t.

The Constitution isn’t amended because somebody at Funk and Wagnalls decided to update the definition. Nor is it amended because we, the public, have commonly agreed that the meaning of a word, once fixed, has since changed in its use. There is a way to amend the Constitution. This just isn’t it. This is a hard concept for a lot of people to accept. After all, banana means banana, duh. It seems almost idiotic to suggest that a word could have a specific definition that isn’t the definition commonly accepted today. That’s the part that pisses people off.

But UC Berkeley law dean Erwin Chemerinsky has done a great service by writing an op-ed that exemplifies the point.

If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable, if not absurd. The world of today is so radically different from that of 1787, when the Constitution was drafted, or 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment guaranteeing equal protection under the law was adopted.

For example, Article II refers to the president and vice president as “he.” The framers undoubtedly intended that those holding these offices would be men. From an originalist philosophy, it would be unconstitutional to elect a woman as president or vice President until the document is amended.

Chemerinsky is an “emanations and punumbras” kind of guy. I get it. If the Constitution is a “living document,” the Supreme Court is free to extend, invent and reinterpret what might be best described as the “values” of the Constitution to adjust to modern times. And I agree that there are inferences that can, and must, be drawn from broad values in the Constitution, as the founding fathers couldn’t possible have incorporated every potential nuanced application of the document to address every issue and cockamamie problem people could come up with.

But without parameters, the Constitution is meaningless. So what about “he”?

Up until a few years ago, as was the case when the Constitution was written, use of the male pronoun, “he,” was the accepted protocol for both gender inclusive and indefinite writing. If you knew that the pronoun only referred to a woman, then “she” would be used. But if the pronoun was to include both men and women, or people of unknown sex, then the word “he” was the proper usage. Today, this might outrage some, but that was the protocol, like it or not.

If Chemerinsky was made a Supreme Court justice (hey, it could happen), and felt any constraint by the actual text of the document, he would apparently rule it unconstitutional for a woman to be president based upon the inclusion of the pronoun “he” as understood by a certain group of people today. Yet, few would want that to be his ruling, as it’s wrong to hold that a woman can’t be president, and fewer still wouldn’t question Chemerinsky’s intellect for so ruling.

This is why notions of originalism, of textualism, are valuable in interpreting the Constitution. If we ignore the meaning of the words used, as Chemerinsky would have us do, then we end up precluding women from being president. That’s just not right, Erwin. It’s not at all unconstitutional for women to be president, and I’ll be damned if I’m going to sit idly by as Justice Chemerinsky so rules.

Chemerinsky Is Wrong: A Woman Can Be President curated from Simple Justice