Laws, huh, what are they good for?

[jackofallgeeks]

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.

Comments

[dikaiosunh.livejournal.com]

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.

[jackofallgeeks.livejournal.com]

Point for point, I have been smited.

[dikaiosunh.livejournal.com]

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.

[jackofallgeeks.livejournal.com]

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.

[dikaiosunh.livejournal.com]

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?

[jackofallgeeks.livejournal.com]

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