In email, someone wrote:
Yes, because it’s a fundamental right. The Constitution is the appropriate place to spell out fundamental rights.
It’s true that the ERA was redundant (to a great extent) by the time it failed. However, that’s largely because the fight for the ERA led directly to a lot of good legislation being passed, which led to the ERA being redundant. That stuff might not have happened, or might not have happened as soon, without the ERA fight. Plus, legislation can be revoked far more easily than a Constitutional amendment.
Finally, I think that an explicit, spelled-out Constitutional right to sex equality would form a better basis for abortion rights than the non-explicit, non-spelled-out right to privacy that Roe rests on. (Of course, a constitutional right to privacy – or, better yet, to reproductive freedom for women – would also do the job. But the ERA actually came close to happening, unlike those other two)..
Yes.
the non-explicit, non-spelled-out right to privacy that Roe rests on
Quibble: The lack of an explicit right to privacy in the constitution is… somewhat overstated. The problem is the word “privacy” as we understand it was not in common use in 1789.
Back then, “privacy” was what you sought when you went to the “privy”. It didn’t take on its modern, non-excretory meaning until considerably later.
To describe what we now call “privacy” in 1789, you would most likely have used the word “security”. As in, “the right of the people to be secure in their persons, houses, papers and effects”.
It is, perhaps, unfortunate that the court justified Griswold and Roe with a sort of airy-fairy (though IMHO *also* entirely correct) “penumbra” argument based on the first, fourth, fifth, ninth and fourteenth amendments, when all they really needed was the fifth amendment and an OED.
Very illuminating, Evan. And quite funny. Thanks!
And, er, ditto, Barry. I have nothing to add. Because saying things like “women are just as human as men” seems ridiculously obvious. And if you are in a room where you feel the need to point that out, ya might as well walk out and find someplace with more enlightened clientel. Like, say, the chimpanzee cage at the zoo.
One of the best reasons for the passing the ERA is because of how these kinds of things work on culture and identity over time.
We Americans seem to have inculcated our Consitution into our psyche in a profound way, maybe rivaled only by the French in that regard. So I think that giving the fundamental assumption of equality between the sexes Constitutional status, and thereby marking it in American culture as an inalienable right, works over time because it becomes part of the bedrock of American identity. And it does so in a way that a right cobbled together from pieces of legislation here or there does not.
Of course we may not always live up to the ideals of that identity, so to speak. But at least we always compare ourselves to it to see how we’re doing.
The failure of the ERA is one of my examples of the problems with liberal judicial activis. Roe and other decisions undermined the popular support for the ERA.
In fact, by acting preemptively, the Court may have short-circuited more comprehensive legislation and the Equal Rights Amendment. In Reed v. Reed and Frontiero v. Richardson, the Court used the Due Process clause to make sex a “suspect classification.” Yet even Justices concurring in the decisions noted the danger of these decisions. As Justice Powell argued in his Frontiero concurrence:
“The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States…By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.”
The irony is that if the Court liberals had wanted to advance women’s rights most comprehensively, they would have joined Rehnquist’s dissent. The resulting reaction probably would have sped passage of the ERA before opposition was gathered to defeat it in the critical last states.
The idea that judicial restraint in such areas encourage comprehensive responses is not just rhetoric, but shown in the area of gender equality in the Court decisions on discrimination based on pregnancy. In key decisions, the Court found that women had neither constitutional nor statutory protection against discrimination based on pregnancy. The result was a political mobilization that resulted in the Pregnancy Discrimination Act (PDA) which comprehensively banned discrimination on the basis of pregnancy, childbirth, and related medical conditions.
Compare this to abortion rights, that despite popular support, have seen stronger counter-mobilization by the rightwing as liberals cling to court protection, rather than building grassroots power.
I’m not a great enthusiast of the “making a problem worse so that it can get better” approach to public policy.
Evan’s post is amusing, but he means the Fourth Amendment, not the Fifth, and it says what the security is for: “against unreasonable search and seizure.” That is part of a privacy argument, but only part, which is why the Court had to build it up in other ways as well.
The rise of the Republican Party is largely due to racism.
Extrapolating the logic of Nathan Newman, a return to Jim Crow would be good for the Democratic Party.
I have always supported the ERA. I also support the right of a woman to choose whether or not to have a baby: to choose whether to have sex, to choose whether to use contraception, and to choose abortion. But.
What does sex equality have to do with abortion rights? I am not being silly, Barry. I know that the effect of having the right to abortion and other ways of controlling our fertility is essential to women’s equality. But I don’t understand how the argument that women are equal persons will have any bearing or weight on the counter-argument, that the fetus is a person. Please elaborate.
I’m not as well-versed on the issue, but I can give it a shot:
People who believe a fetus is a person will always believe that a fetus is a person, and those people won’t have abortions anyway. But for the purposes of law, stating Constitutionally that women and men must be treated equally means that since a man cannot be forced to carry a fetus to term, or indeed even to stick around while it happens, then a woman also cannot be forced, by law, to carry a fetus to term.
As I understand it, that’s how it all relates, but I’m not satisfied with the way I phrased it.
I tend (probably naively) to think that the fourteenth amendment’s “nor deny to any person within its jurisdiction the equal protection of the laws” would (in an ideal world) make the ERA redundant (it would essentially just say “you remember that XIVth Amendment? we really meant that.”). But of course this isn’t the ideal world in any case…
An argument against judicial activism is NOT a “worse the better” argument. It says that court action MAKES THING WORSE; it undermines popular support for action that is more comprehensive than what the court rules on. It demobilizes progressive supporters and makes them defenders of the status quo elite judges, rather than forcing them to keep mobilizing at the grassroots to hold majorities.
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