Lawsuit: Women Can't be President

Also via Language Log: A Nevada man files a lawsuit arguing that a woman can't be president because Article II of the Constitution uses masculine pronouns.

Is there any merit? And as a separate question, is there any chance it will succeed? [Bush v. Gore should demonstrate the importance of asking these questions separately.]

According to Jonathan Turley, the law professor quoted in the article in the Reno Gazette-Journal, the answer to both questions is no. The claim is meritless because "[t]he use of the masculine pronoun is a relic of the period" and "[t]he constitution has been amended to expressly incorporate women into the political system," and it won't succeed because "[n]o court would subscribe to this meritless argument."

Is he right? The Constitution has not been specifically amended to allow women to be president. Of course, anyone interpreting the Constitution sensibly would recognize that the intent behind the Constitution includes allowing women to run for president. But there are many judges, including US Supreme Court justices, who are committed to formulaic rather than sensible interpretations of the Constitution.

There's another issue: there is no provision which says a woman can't be president. The use of the masculine pronoun is presuppositional rather than assertive. One would think that a procedure should not be restricted by the use of presuppositions alone, without any indication of the intent to restrict. I'm not aware of this as a principle of interpretation, but it's sensible enough that a good judge would pick up on it.