Here we go again? Now that the birther issue has finally been put to bed by Donald Trump, a new constitutional question arises concerning eligibility to serve as President of the United States. This election cycle the issue of eligibility does not center on citizenship, but on sex.
Albeit, this specter is raised only by this writer, but it is not too far-fetched to imagine that Donald Trump, should he lose the 2016 General Election, would raise this question. After all he spent six years and good money investigating where the first American president of African descent was born in an attempt, not to delegitimize the Barack Obama presidency, but to have cause to remove him from office.
If Trump is true to form, he may hire the best lawyers money can buy to dig into the records of the Constitutional Convention that in 1787 gave us our governing document seeking to find whether Secretary Hillary Clinton or Dr. Jill Stein are eligible to become president of the United States of America.
The constitution specifically refers to the president by use of the pronoun”he.”
This article will look at the following constitutional provisions that deal with the office of the president:
(1) Article I, Section 4 of the constitution as ratified in 1789,
(2) Article II, Section I of the constitution as ratified in 1789,
(3) Article II, Section III of the constitution as ratified in 1789,
(4) Article VII of the constitution as ratified in 1789,
(5) Amendment XII of the constitution as ratified in 1804,
(6) Amendment XX of the constitution as ratified in 1920,
(7) Amendment XXII of the constitution as ratified in 1951,
(8) Amendment XXV of the constitution as ratified in 1967,
The constitution as ratified in 1789, Article I, Section 4 required congress to convene each year on the First Monday in December. In presidential election years, Article I requires Congress to certify the new president by the first Monday in March. Also, in 1804 the 12th Amendment set the commencement of the term for the president as March 4th.
During the period that Articles I, II and VII were debated and voted upon by white men, women held legal status through their husbands or fathers. Thus they, perhaps, held rights equal to the rights of their husband’s or father’s African captives. These Articles do not specifically prohibit women from becoming president. There would not have been a need to do so, as it was understood by the white men fashioning out a document that would give them economic and political control over the colonies that women had no voice or right to govern the Republic or any of its states.
In 1932 the constitution was amended to change the date that congress convenes to January 3rd each year and set January 20th for the date that new presidents are sworn into office.
In each of these three constitutional provisions the constitution specifically speaks of the president in the masculine person, “He”. While on the other hand when the constitution references members of congress or members of the citizenry it uses the terms “person” or persons.”
For instance, Article II, Section 1 reads: “The executive ower [emphasis on the P is in the original document] shall be vested in a President of the United States of America. He shall hold Office during the Term of four years…”
Article II, Section 1, Paragraph 6 reads: “The President shall , at stated Times, receive for his services, a compensation,…, and he shall not receive any other Emolument from the United States, or any of them.”
Paragraphs 7 of Article II, Section 1 reads: “Before he enters on the Execution of his Office, he shall take the following Oath or Affirmation:…”
Article II, Section 2 says, “…and he shall have power to grant Reprieves and ardons for Offenses against the United States, except in cases of Impeachment.” While paragraph 2 of this section states, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties…”
The constitution states in Article II, Section III, “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may on extraordinary Occasions, convene both Houses,…he may adjourn them to such Time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take Care that the laws be faithfully executed…”
The framers of the Constitution went to great length to clarify the meaning of several words in their articles of incorporation. They codified the meaning of these terms in Article VII, which is the last Article of the original constitution. The thirty-nine men who approved these Articles on September 17, 1787 did not attempt to give any different meaning to the pronoun “he” than its common usage in the eighteenth century.
When the 12th Amendment was added to the constitution in 1804, it clarified the method for election of President and Vice-President,but it was silent on the question the president’s sex. Perhaps, there is no mention of it for one or two reasons.
Obviously, women were not considered a party to the Articles of Incorporation of the United States of America, and the assumed understanding of of the 18th century men drafting the legislation was that a woman could never become president of their political and business entity.
By 1920 woman had gained the right to vote. Eight years later, the constitution was amended for the 20th time as mentioned above. Women had just begun to flex their political muscle and correspondingly the 20th Amendment does not contain any language specifically allowing women to serve as president.
In 1951, the constitution was again amended to address the presidency. The 22nd amendment dealt with term limitations. In this amendment, the pronoun “he” does not appear. However, in Amendment 25, the Presidential disability and succession provision ratified in 1967 the pronoun “he” reappears. This was at the beginning of the “Women’s Liberation Movement.”
Amendment XXV, Section 3 states, “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary….”
If America is indeed a country ruled by law, then these examples point out how antiquated the constitution is in the 21st century. Women, kidnapped Africans and immigrants were not included in the founding document that our leaders purport to the world as a shining document on democracy. The harsh reality for both Hillary Clinton and Jill Stein is that the black letter of the law contained in the constitution could be used to prevent either of them from taking the oath of office should one of them win the presidential sweepstakes in November.
The ethos of America has changed greatly in the last 229 years when the constitution was debated and put forth to the 13 original colonies for a vote. Women had no voice or vote. Africans imported in chains had no personhood and were deemed to be worth 3/5th of a white man. White women who were powerless in 1787, now have the right to vote and serve in government. Enslaved Africans have been recognized as human beings. Immigrants continue to pour into the country, some legally, some illegally.
Perhaps, it is time to amend the constitution to reflect American life as it has evolved since 1787. David Cobb, a California lawyer is one American who believes it is an idea whose time has come. He is part of a group called, “Move to Amend.” The group is addressing the personhood status given to corporations by the Supreme Court of the United States in the Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
While the Supreme Court has defined a legal document as a person, thus entitled to freedom of expression protection granted to the people under the First Amendment to the Constitution, neither it or the constitution specifically states that a woman can take the oath of office for president. Additionally, any effort to amend the constitution should include outlawing the continued enslavement of African people via the 13th Amendment, Section I. This provision permits enslavement of Black people as a method to extract free labor in concentration camps called prisons, which in the 19th century were public facilities, but today are largely private run concentration centers.
Given the precarious position of women in Colonial America, the absence of language granting women the right to serve as President should be corrected. For more reasons than one, it is time to amend the Constitution and make it more inclusive of all hues who make up the mythical “melting pot.”
Harold Michael Harvey is an American novelist and essayist, the author of Paper puzzle and Justice in the Round; and the host of Beyond the Law with Harold Michael Harvey. He can be contacted at haroldmichaelharvey.com.
The Constitution of the United States of America, American Civil Liberties Union edition