Supreme Court Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett claim to be originalists who interpret the Constitution according to the way it was originally understood by the people who ratified it. That understanding, they claim, can be discerned through historical analyses that uncover the meaning of the individual words in the Constitution as understood by its ratifiers.
Originalism ensures, they say, that cases will be decided according to the Constitution rather than according to the whims or desires of individual justices. Serving for life, the justices are only tenuously related to voter preferences. In a democratic republic, voter preferences should have sway unless the Constitution itself requires restraining them. So, it’s essential that the Constitution decides cases – not the moral, religious, or political views of the justices.
Looking at the words of the Constitution is called “textualism,” because it concentrates on the text of the document. But our originalist justices tend to use their supposedly neutral method more conveniently than consistently. None has yet to draw the obvious conclusion that Kamala Harris can’t legally be Vice-President of the United States, because she’s a woman.
Article II of the Constitution refers to the president in Section 2: “He shall hold his Office during the Term of four years….” The word “He” must have been originally understood by those who ratified the Constitution to refer to male members of the human species. Women couldn’t even vote, so it would be absurd to interpret “He” in Article II to include women, as the word was originally understood. And no constitutional amendment as originally understood by its ratifiers has changed the situation.
The Fourteenth Amendment’s Section 1 (1868) says this: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 2 guarantees the right to vote, but limits the right explicitly to “male inhabitants….” The original understanding of the Amendment doesn’t give women even the right to vote, much less the right to be president.
The Nineteenth Amendment (1919) gave women the right to vote. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” But this doesn’t confer a right to be president, because many citizens who have a right to vote have no right to be president. Article II Section 1 says: “No person except a natural born Citizen …, shall be eligible to the Office of the President.”
On the original understanding of Article II, the right to vote is separate from eligibility for the presidency. The Fourteenth and Nineteenth Amendments don’t explicitly address eligibility for the presidency. There are absolutely no words on this subject, and therefore no words which might allow originalists to find an original understanding of either or both of these amendments favoring the acceptability of women as presidents.
Unstated implications and penumbras read into the text from the vantage point of our more enlightened (less sexist) era are exactly what originalists oppose. Any deviation from the clear original understand of the text may reflect the predilections of particular justices, resulting in rule by justices instead of by elected representatives constrained only by the Constitution.
But couldn’t Harris still be the legal vice president? No. The Twelfth Amendment specifies that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
The Equal Rights Amendment would allow Kamala Harris to be vice-president. It says: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” But the ERA didn’t pass on the time specified for its ratification, so it’s not part of the Constitution.
If it’s this clear that on the originalist understanding of the Constitution Kamala Harris, because she’s a woman, has no right to be vice-president, why don’t originalists point this out and object to her serving in that capacity?
They avoid the topic because this implication of originalism is absurd, casting doubt on the method as a whole. Originalist justices avoid considering such cases so they can continue to use originalism when it yields results they prefer. Most originalists don’t seem to notice that they’re picking and choosing its application for ideological or political reasons, exactly what they say they’re trying to avoid. My guess is that they employ originalism with a clear conscience, but a brain befuddled by their own insufficiently acknowledged ideological commitments.
So either Kamala Harris isn’t legally vice-president, or textualism is a flawed guide to constitutional interpretation.
Please contact me about this post at wenz.peter@uis.edu and I’ll try to respond.
Well, I am sure you are writing a parody piece here, but let's face the fact that "originalists" as they exist in the US today, i.e. right wingers trying to cram their desires down the throats of the American people, care nothing about what the Constitution really says, only what suits their purpose. There is no better example of this than the endless garbage they have written about the second amendment, utterly ignoring the fact that the writers of the Constitution explained exactly what it meant, in the Federalist Papers. Originalism is just one more wingnut lie.