He, She, and We the People

Last year a woman running (unsuccessfully) for the Republican nomination for a House seat from Florida tweeted, “There are no pronouns in the Constitution.”

Many people responded by pointing out that since that text begins, “We the People…,” its first word is a pronoun.

So many people pointed that out with such pleasure, in fact, that I expect the exchange will continue to circulate online like a fish in an aquarium, sliding back into view every so often.

Of course, we all know that everyone uses pronouns all the time. When today’s right-wingers complain about “pronouns,” they’re really complaining about social pressure to be considerate of other people, even expressing nostalgia for the freedom to express contempt for fellow citizens.

But what if we adopt the restrictive right-wing reference to “pronouns” as all about identifying individuals with a gendered pronoun that doesn’t accord with how their gender was listed at birth?

In that case, there are still “pronouns” in the Constitution.

Article 1, Section 2, states:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Article 1, Section 3, states:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

And:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Article 2, establishing the Presidency, has many more examples of “he/him” pronouns—dozens in all. Masculine pronouns describing officeholders who could be either male or female. 

But those references to elected officials as “he” all appear in the original Constitution. The Nineteenth Amendment guaranteed women the right to vote and, by extension, the right to serve in all elected offices. We have female Representatives, Senators, and presently a Vice President. So only after that milestone should we expect to see the Constitution’s pronouns reflect both genders, right?

No, the non-gendered “he” was still used in the 25th Amendment, adopted in 1967 decades past when women started to serve in the U.S. Congress and Cabinet. It says:

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, such powers and duties shall be discharged by the Vice President as Acting President.

As Dennis Baron pointed out at the Web of Language, there’s a long line of American legal precedents for interpreting “he/him” to cover both men and women. A lot of those cases came from women trying to argue that criminal laws written with “he” couldn’t apply to them. A rare example providing rights instead is how the Fifth Amendment famously guarantees any defendant, male or female, with protection against being “compelled in any criminal case to be a witness against himself.”

That means the U.S. Constitution uses “he/him” pronouns to refer to elected officials even if they were listed as female at birth. That was presumably the case for the Florida woman running to become a U.S. Representative and foolishly tweeting about “no pronouns in the Constitution.”