[From Eugene Volokh: Following up on Professor Robert Natelson's series of posts last week on the Constitution's original meaning, here's one more, though dealing with qualifications for office rather than financial matters.]

Indeed, the argument is made that under originalism it would be unconstitutional to elect a woman as president or vice president because the Constitution refers to these officeholders as "he," and the framers clearly intended that they be male. — Erwin Chemerinsky, Constitutional Law: Principles and Policies (3d ed. 2006) (citing Richard B. Saphire, Judicial Review in the Name of the Constitution, 8 U. Dayton L. Rev. 745, 796-97 (1983) Although I have not undertaken an independent analysis of this issue, it would be quite surprising to learn that the framers had a specific "intention" that women would be qualified for the presidency. — Richard B. Saphire, op. cit.

Although Professor Saphire's use of this issue was principally a way of elucidating problems in constitutional interpretation, Professor Chemerinsky's treatise cites his article as an illustration of what he calls "The Basic Arguments for Nonoriginalism." At a time in which there are highly creditable female candidates for president in both major political parties, perhaps it is time to address how the framers intended the Constitution to handle the issue. (By "framers," I mean specifically the Constitution's drafters.)

At the outset, we should be clear that the Constitution's use of "he" and its variants to refer to the president is of little evidentiary weight, since during the Founding Era, as in all modern history before the 1970s, those words served as standard pronouns of indefinite gender. Of much more weight is other evidence that Professor Saphire would fine "quite surprising," because it points firmly to the conclusion that the framers did indeed intend to allow women to be elected president.

In other words, just as the framers consciously omitted the religious tests for office-holding that appeared in all state constitutions and the racial tests that appeared in some, they also omitted the gender restrictions featured in nearly all.

For most of the state constitutions in force in 1787 contemplated that officeholders would be male. By way of illustration, the Virginia constitution provided for the election to the state Senate of "the man who shall have the greatest number of votes in the whole district," and the New York constitution described the state legislature as consisting of "two separate and distinct bodies of men." Although it is true that contemporaneous usage encompassed a generic meaning of "man" to signify a human being, the context strongly suggests that these documents meant "man" in the narrower, male sense. The Virginia constitution's repeated use of the word "man," for example, seems to have been interpreted in practice to limit voting to men. Other constitutions expressly limited voting to "male inhabitants" (New York, Massachusetts) or "freemen" (New Hampshire, Pennsylvania).

Contrasting with this approach was the New Jersey constitution. In that instrument, the words "man" and "men" nowhere appeared. It explicitly granted both suffrage and the right to hold office to "all inhabitants" who met certain property requirements, and it uniformly referred to officeholders as "persons." This was not empty form: In the real world, New Jersey women voted. In fact, they voted in sufficient numbers that New Jersey political operatives routinely included appeals for the female vote. See Judith Apter Klinghoffer & Lois Elks, "The Petticoat Electors": Women's Suffrage in New Jersey, 1776–1807, 12 J. Early Republic 159 (1992). The New Jersey constitution did resort to the pronoun "he" in describing officeholders, but the context shows the meaning to have been generic.

The framers of the federal Constitution sought to draft an instrument that would last for the ages. They certainly were aware of female voting in New Jersey, and they probably knew of sporadic female voting (in defiance of law) in states such as Massachusetts. Indeed, the trends of the time favored female political involvement generally — probably to a greater extent than half a century later. The historical records show women as active participants in the ratification debates on both sides of the issue. In addition to voting for convention delegates in New Jersey and perhaps elsewhere, women organized parties, parades and rallies, mostly for the federalist cause. Presumably both sides, but certainly federalists, made written appeals to women for political support. Mercy Otis Warren of Massachusetts, later a distinguished historian, contributed essays for the anti-federalist side.

For all the framers knew, the near future might bring female suffrage in states other than New Jersey. On such matters, the framers favored deferring to the states.

The records of the 1787 Constitutional Convention show that gender neutrality was the prevailing approach from the beginning, although