Responding to scholars who have suggested that, under an originalist interpretation, the Constitution bars women from high office including the Presidency, Robert Natelson provides an interesting historical analysis of the question in the Washington Post. He finds, perhaps surprisingly, that the evidence “points firmly to the conclusion that the framers did indeed intend to allow women to be elected president”:

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….

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….

During the ratification debates, the Constitution’s gender neutrality, like its religious and racial neutrality, provoked some controversy. That controversy was more muted over gender and race than over religion (anti-federalists argued strenuously for a requirement that federal officeholders be Christians), but traces of it remain in the historical record….

Hugh Henry Brackenridge, later a justice on the Pennsylvania Supreme Court, preserved some of their content in an essay satirizing anti-federalist arguments:

The first thing that strikes a diligent observer is the want of precaution with respect to the sex of the president. Is it provided that he shall be of the male gender? … Without [such an] exclusion what shall we think if in progress of time we should come to have an old woman at the head of our affairs[?]

In the event, anti-federalists did not prevail, and our choice of credible presidential candidates happily includes some who are female. Contrary to claims of some critics, originalist interpretation does not question their legitimacy.

 

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