jackofallgeeks | Laws, huh, what are they good for?

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Laws, huh, what are they good for?

So a friend of mine just sent out an email to 500 of her closest friends (yours truly included) announcing that Congress is currently set to vote on a bill to ammend the Constitution with 52 words -- called "The Women's Equality Amendment," the fifty two words allegedly read thus: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. The email goes on to encourage us to not "let what happened in 1982 happen again (only 35 states ratified the amendment cause it to fail)!"

Now, if I just came out and said, "I think this is a bad idea," I'm quite certain I'd be stoned, or at the very least glared at and snubbed as a misogynist. But I don't think this is a bad move to make because I hate women; I think it's a bad move to make because I hate government.

Or, at the very least, I don't trust government. Generally speaking, I think that we are best served by a government which meddles with our lives as little as possible and still maintain order. That is, unless there's something broken, I don't think we need to make laws governing it -- or, rather, I think we should not make laws governing it. Particularly national laws, and most especially ammendments to the consitiution! If the state of California makes a law, it applies only to Californians and, if all goes well, reflects what it is Californians value. If I find that California and I don't value the same things, it's not that difficult to move elsewhere, generally speaking. But when the national government makes a law, that law ought to rightly reflect the values that all Americans share in common as it applies to us all and, short of becoming Canadian, there's no way to avoid it. Additionally, it's so much more difficult to establish what Americans value as a whole compared to what Californians value as a whole, since it's a lergher population you're trying to track.

But, you might say, who *doesn't* value women's equality? And actually, that's part of my point. Women already have laws protecting their right to vote, the most fundamental of rights in our system of government, not to mention different laws regulating hiring practices and discrimination in education, so on ad nausium. My complaint is not that this law is wrong, but that it is unnecessary. And as I belueve every law is one more finger the government has in our lives, ever unnecessary law is an offense to me. Nevermind that vague or obscure laws can be tripwires for the unwary -- and I don't trust the government to not try and trip us up, and I certainly don't trust those who move in government not to do so. These fifty two words seem very innocuous, but if they're unneeded, they are unwarrented, and ought not be entered into law.

Now, I'll admit that I am a man and do not see a problem regarding this issue; particularly, I'll admit that I don't pay attention to this issue because (1) I'm a man and (2) I do not see a problem regarding this issue. So it's very possible that I've missed some key injustice suffered on women that requires an Ammendment to fix. In the absense of such an injustice, though, I feel this Ammendment ought not pass.

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Any unnecessary law is by definition a bad law.

So sez me.

My post in nine words.

Pretty much.

I'm hardly the walking soul of brevity, but I do value it.

I had the same concerns about the email, I wondered what rights we don't have that men do and I couldn't think of anything. On the other hand, I also wondered what rights women had that men didn't that the amendment would amend in a subtle way, and all I could think of were rape laws and custody laws.

I was actually thinking of the same thing, that women actually have a slight advantage in the law, except that I came up with sexual harassment, not custody. Good call there, though; isn't it by default that the mother retains custody?

I just assumed it was the popular view of the time that the mother would be the better caregiver, whether or not it's true.

As I learned it, sexual harassment goes both ways by law and it's just the social stigma which keeps men from reporting it. Although if men reported it then the same social stigma may cause his boss/police officers to laugh at him.

I think you're missing at least two very important things.

First, there are current problems that the ERA would give protection against. The most glaring is that there is a different standard of scrutiny for sex discrimination than racial discrimination, established by United States v. Virginia (see esp. §IV of the court's opinion). Racially discriminatory laws and rules require "strict scrutiny" and (IIRC) "compelling state interest." This makes it almost impossible for them to pass constitutional muster. Sex discrimination requires only "skeptical scrutiny" and "extremely persuasive justification." I'd note further that Scalia dissented in the case, in part on the grounds that sex discrimination is NOT expressly forbidden by the constitution, and so the court acted irresponsibly in giving it even the protection that it did (see §I of his dissent). So, if you like "strict constructionist" readings of the constitution, sex discrimination is not securely forbidden by the current text.

This brings me to the second point. I'd agree that we shouldn't enshrine all sorts of random rules in the constitution. But what it IS for is to be a basic charter of the national social contract. There aren't currently any states permitting slavery or establishing state religions, but I wouldn't say that that means we could do without the 1st and 14th amendments. I'd say that even if we'd never had slavery, say. Sure, the whole point of a federalized system is to allow states significant room to tweak the rules in a way that their populations see fit. But the constitution is there to set some basic parameters, because no one should have to leave a state because their fundamental rights are being violated. If you don't like the way California sets the income tax rate, then it's appropriate to say, "well, if it's that important to you, you can leave." But it's not appropriate to say, "well, if you don't like being denied full protection of the laws, then you should move."

Now, you may agree with other bits of Scalia's dissent, which essentially boil down to, "anyway, sex discrimination isn't that bad." But that's a whole different argument.

Also:
- Sexual harassment laws are not gender-specific, nor are rape laws. Sure, they are used to protect women in a large number of cases, but the more plausible explanation is that, well, women get harassed and raped more often. Harassment generally requires a showing of "quid pro quo" (I don't think that's the legal term used in the law, but it's early) (e.g., someone said, "sleep with me or you're fired") or a "hostile work environment." The latter is somewhat subjective, and has to do with cases where, e.g., there's lots of sexist sexual banter in the workplace, etc. It is more subjective, but it's also fairly difficult to win a case on, in part because the employer is only liable for taking "reasonable precautions" against it, like telling employees that they can't leave their Playboys lying around, etc. (and, as written, a guy who worked somewhere where the women had copies of Playgirl lying around everywhere, would have every bit as good a shot at proving it).
- Custody rules are also not (at least any that I've seen) explicitly gender-specific. They're set by state, but the rule is generally "best interests of the child." Family court judges actually have a tremendous amount of leeway, and I'm sure that many do in fact think that mothers are by "default" the better caregivers. Anyway, the ERA isn't gender-specific either, so if custody rules are genuinely discriminatory against men - well, now you'd have a constitutional cause of action.

For the record, I do not think "anyway, sex discrimination isn't that bad," but I also don't think that's the point. You're right that the 1st and 14th Amendments ought not be called down simply because Slavery and State-mandated Religions aren't a modern problem, but that's completely different than saying we should add an amendment for a problem which does not currently exist, even if it could potentially. In both cases, the Amendments addressed a problem that existed at their inception -- we had the 1st Amendment because the Colonists weren't appreciative of the Church of England, and the 14th because Slavery was rampant in the South. They were effectively reactionary, and while I don't think a government should ever and always be reactionary, I do think it's safer for the legislature to act thus.

Further, it seems to me that one of the basic tenets of the Constitution was that any right not explicitly given to the Federal Government was implicitly reserved for the States. Logically speaking, this does not mean that barring the National Government from some act likewise bars the States; I'm not sure that's how things work in practice, what with this and that State law being declared unconstitutional, but I think that's a failing in itself. This said, saying that the Federal Government won't make such rules doesn't mean that California won't.

As a final point, if we want to use the Constitution to knock down sexually-discriminative laws, it seems to me we need not look further than "all men are created equal." Unless one thinks it's the intent of the Constitution itself to discriminate against women.

I still hold that it's an unnecessary amendment. I'd rather a legislature that's reactive rather than a proactive one which tries always to predict every way one might wrong another, and prescribe enforcement and punishment against each.

Re: Constitution -- just re-read the part about "denied by the United States or any State". So that point falls out.

I wasn't saying that you thought sex discrimination was OK. I was just pointing out that Scalia's argument had two points - 1. it's not prevented by the constitution (which makes it worthwhile to, you know, fix that) and 2. anyway, it's not so bad. To my mind, 2 would be the only reasonable grounds to resist the amendment.

OK, first, you totally ignored the point that the current legal regime DOES in fact provide less protection against sex discrimination than other forms. And that it's only a relatively non-strict reading of the Constitution that makes the case law not even MORE permissive of sex discrimination. If you want more, well, there're currently folks trying to undo Title IX education equality protections. I don't see why it's necessary to let them do it before addressing the problem that the constitution currently allows discrimination on the basis of sex.

And yeah, if you take Scalia/Thomas-style strict-ish-ism and fill in the text with the practice in 1789, then the original intent of the constitution probably IS sex-discriminatory.

And with all due respect, trying to say that we don't need any amendment because it's covered under "all men are created equal" - oh, please. It's also covered by the 9th Amendment, which says that we all have other unenumerated rights. Sure, in some sense, but the strict constructionists are the ones who make it necessary to specify everything. You can't tell me you prefer a narrow reading of the constitutional text and then act all innocent when it comes time to try to specify something. This isn't even a much maligned end run through the courts - it's a legislative initiative to change the constitution, exactly what the strict types say you SHOULD do if you want to change the law of the land.

It's not as if people are making up a random category to protect, either. If you wanted the "red-headed persons' rights amendment," I'd ask to see some evidence that this was a problem. But most sex-discriminatory laws have only been repealed in recent memory, and there are folks actively working to undo them, so, yeah, I'd say there's plenty of evidence of a problem. Plus, I don't think the principle goes through that we should always wait for actual problems to fix them - did we need to wait to see if anyone stole anything before deciding that property rights were a good idea? No, we knew stealing was the sort of thing people were likely to do if there wasn't a rule against it.

Yes, the 10th amendment reserves unspecified powers to the states. But that in itself can't be a reason not to specify powers. You may not want to specify THIS power, but to argue that it's against the constitution to do so is straightforwardly circular. Also, and I know I've mentioned this to you specifically once before, the 14th amendment incorporates individual rights protections onto the states. So, yes, adding an ERA would preclude sex-discriminatory state laws, just like the 14th amendment itself precludes not only federal but state slavery.

The pure doctrine of "state's rights" is no more or less a part of the constitution than is privacy or the wall of separation between church and state - it's a presumed conceptual principle underlying the extant text. To that extent, it's disputable, and the way to change it is to change the text (unless you prefer to believe in the living constitution when its suitable to you).

Personally, I don't think states have any more rights than nation-states do. I care about individual rights, and the ERA would protect those.

Point for point, I have been smited.

Well, smiting wasn't really the point... but I'm glad at least you see my points.

I apologize for what were really somewhat angry responses. At the end of the day, part of what motivates me is the law's expressive function here as much as anything else - frankly, I'm ashamed that my government is one of the few advanced democracies that doesn't see enshrining sex equality as a matter of law as an "of course" sort of thing.

I wouldn't want to impute any overt sexism to you; I'm sure where we disagree about gender roles, you have the best of intentions. But part of what got my ire up about this discussion (to bring it to a bit of a more abstract level) is that I felt as if there were *real* human problems at stake - educational access, job discrimination, medical care (e.g., even many gov't-employee health plans cover viagra but not birth control... and I know you're anti-BC, but I'm sure you can see how that might strike many folks as deeply unfair), etc. And it's being opposed to a very thin and abstract principle of minimizing laws. I'm too much of a pragmatist to be comfortable with that, and I'm also suspicious of the way that such libertarian impulses often play out into systems where the privileged are protected and the less privileged left vulnerable (even though no one "meant it") - e.g., the way that property rights are a no-brainer but sex and race equality are matters of dispute.

Anyway, just by way of explanation. And, no I didn't catch your comment about state laws (I responded from the email notification), so, yeah, sorry to sound extra-pedantic. As my comment showed, I didn't think about it initially either.

Yes, no harm, no foul, no hard feelings. As I noted above, this isn't something I pay much attention to, and that feeds into my simply not being aware of any real issues on the matter. And in the absence of that it's my tendency to pull the reigns on legislation.

In retrospect, I suppose that presumes that government can or will act based on common sense (of course women get equal rights; why wouldn't they?), and that's something I don't trust to happen much.

I think I had more to say, but I can't think of any of it at the moment.

Well, if the government could always be trusted to act with common sense, you'd probably be a heckuva lot less interested in limiting it, eh?

Nah, even if it always acted with common sense, I'd still rather it just left me alone.
:p

Also, ::smacks forehead:: "all men are created equal" is in the Declaration of Independence, not the Constitution.

And, BTW, the issue about incorporation is moot in the case of the ERA. It specifically incorporates itself onto the states.

Re: Also -- Eh-heh. You're right. Now I really look like a fool.

Re: BTW -- yeah, I aught that and replied to myself above, which you may or may not have seen.

Did I miss something? We're exhuming the ERA?

Apparently so. What's the ERA?

While I mostly agree with dikaiosunh, I have a few comments to add. First off some rape laws can be gender specific. It's a greater offense for a man to rape a minor female than a male. And this is justified by Rehnquist on the fact it's a great hardship for woman because they can get pregnant from the rape.

But the only thing covering women right now (unlike in race cases) is the equal protection clause. However, I must differ from your friend in the fact that under Crag v. Boren (1976), the Court adopted intermediate scrutiny for sex classifications. So it's rational basis scrutiny for most classifications, intermediate scrutiny for sex classifications, and strict scrutiny for race classifications. In United States v. Virginia, this test gets a bit redefined but not overruled so that is the standard.

However, I gotta say, I support the amendment and I worry what it will mean on the Constitution. A higher level of scrutiny for laws that discriminate against sex (and yes, they are still out there, we are not that progressive yet) would be great. And I don't disagree with you entirely. I coincidently argued on Monday that I didn't think it was necessary to make gender discriminate laws for maximum hours in factories cause I hope that the conditions that existed 100 years ago in factories for both men and women did not still exist. But at the same time I do see a value in the amendment the more I study the Constitution, though I have not thoroughly researched it myself. I suggest before opposing it, you read a little more current event surrounding it and what cases it might affect.

And your journal makes me talk about the stupid law way more than I do in daily life...

Truth be told, whenever I post something like this, I'm always anxious to hear what you and Daniel have to say; you each know more about, and presumably pay better attention to, these sorts of things than I do. Daniel works in Philosophy and public policy (mostly foreign-relations type stuff?), and you're but a few steps short of actually being a Lawyer, ne?

In fact, I think everyone has something to offer regarding the different talking points I post, personal or otherwise, and so the more people say what they think, the happier I am.

It strikes me that US v. Virginia does in fact modify the intermediate scrutiny standard significantly, but I'd have to go look at Craig v. Boren again. That said, my point was that sex discrimination is held to a lower standard than the strict scrutiny applied to, e.g., racial discrimination - so, so much the better for my argument if intermediate scrutiny is still the law of the land!

...
Does anyone else think this may be a very subtle attempt to introduce into the constitution an amendment to give equal rights to gays?
I mean, look at the wording.. that equal rights under the law cannot be denied on the basis of sex. So marriage, a right, couldn't be denied to two men because they are men. Even if it isn't purely intended for that purpose, I'm sure it could be used as a pretty convincing argument.

Leaving aside the issue of whether or not this amendment should pass (which I won't get into because all systems of government are a complete sham and I won't be satisfied until I see the Constitution burn while I dance around it naked), if this bill really is a springboard for gay rights, then damn well approve it.

Just a thought.

Unless marriage is defined as a union between a man and a woman. Then both gay men are free to exercise their right to join with a woman and we're not discriminating based on sex. At worst we're discriminating based on orientation. We'd be defining marriage to be something which is impossible between two men or two women.

As to you dancing naked around a burning Constitution: wow. That's more vitriol than I've ever heard before, ever. I'd have to say I disagree with that stance on a fundamental level, but I'm not sure, exactly, what stance it is that would find satisfaction in that way.

I'm an anarchist. I have accepted that my political philosophy will probably never work in a real world scenario, but the principles are solid and it could work in a microcosm. That is the stance that would find satisfaction in watching the Constitution burn. To water it down a bit, Libertarianism is the closest thing to anarchism that could possibly work, so I'm all for that as well. Libertarians are more agreeable to working within the system to change the system. Personally, I think we should tear the whole thing down and live as Darwin intended. :)

Much like Locke, I prefer to live without constantly fearing for my life.

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Laws, huh, what are they good for?

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Huh?

Re: Huh?

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