For the first time in American history, a woman will lead a major party into a presidential election. Polls suggest that Democratic nominee Hilary Clinton may well win the race. Yet the US Constitution speaks only of male eligibility for the presidency, referring to “he” or “his” but never to “she” or “her.”
Most glaring of all, the Constitution requires that “before he enter on the Execution of his Office, he shall take” an oath or affirmation.
If Clinton is elected, will the chief justice of the United States run afoul of the Constitution when he administers the oath of office to her? No one will sue the chief justice for violating the Constitution. Clinton is eligible for the presidency, and, if she wins, there will be no constitutional problem with her becoming the country’s 45th president — no matter what the Constitution says.
Lawyers and judges have frequently resorted to interpretive workarounds to overcome the antiquated written constitution. The 19th Amendment — protecting a woman’s right to vote — is taken to prohibit gender discrimination not only in voting but also in running for office. Generations of victories for gender equality in courts and politics have translated “he” and “his” into neutral pronouns.
But why didn’t the authors of the 19th Amendment update the Constitution with gender neutral pronouns? For the same reason a black man has become president despite the Constitution today still declaring, in writing for all to read, that slaves do not count as full persons, that escaped slaves are property to be returned to their owners, and that the international slave trade is legal.
All 27 amendments to the US Constitution are appended sequentially to the end of the text. They are not interwoven into the original Constitution. They do not revise its text with each new amendment. Constitutional amendments in the United States instead leave the original text untouched.
What results is a Constitution full of obsolete rules and practices: The president is no longer elected the way the original Constitution required, nor are senators chosen in the same manner as before, nor are Americans prohibited from selling alcoholic beverages as they once were. In the case of race and gender — the two most important battlegrounds in American history for rights and liberties — the Constitution remains stained with painful reminders of a hateful and inequitable past.
Perhaps there is a hidden virtue in how the Constitution remembers history. Reading the Constitution from start to finish exposes the bad and the good about America. As we read the original Constitution and its subsequent amendments, we can track the country’s collective progress toward a more perfect union: We see an expansion in rights and improvements in democratic government. The Constitution is a living history of the people, their struggles, their triumphs, and the challenges that remain ahead.
On the other hand, imagine being black or a woman in America today.
The law of the Constitution treats you as a full person with equal rights. But the language of the Constitution excludes you, diminishes you, and makes you feel less than whole. No wonder you might not see the Constitution as others do — because the Constitution does not see you as you are: a fully valued person worthy of the dignity of equal status under the rules of law and in the language of law as well.
There is no easy fix to this problem.
One route is to update the text of the Constitution to reflect today’s social and political realities. Remove references to slavery, introduce gender neutral pronouns, rewrite the text to reflect the modern values that the law already protects. But this unlikely path would require a constitutional amendment, a virtual impossibility for one of the hardest constitutions in the world to amend.
The better route is even more difficult. It is to start from scratch by writing a new constitution for the United States. A constitution rooted in an infrastructure of equality, not of slavery. A constitution with public institutions designed for the 21st century, not the 18th. A constitution for all of the peoples of the United States, not just for the few who ruled when it was written.
Writing a new American constitution would not be unprecedented. The states have written and rewritten their constitutions many times over.
And the framers of the Constitution did the same when they abandoned the Articles of Confederation, America’s first constitution. So why not do it again?
Richard Albert, a constitutional law professor at Boston College Law School, is the author of the forthcoming book “The Democratic Values of Constitutional Amendment.”