ERA

ERA:

I am looking for reports of Justice Scalia's remarks that cite the never-ratified 'Equal Rights Amendment' (ERA). Here's what Scalia said:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Here's what the ERA said:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Obviously the 14th Amendment was followed by the 19th. Therefore, in the early 20th century, the 14th's equal protection clause clearly was not taken to have the force to set aside the power of the law to distinguish between men and women.

I have noticed that both the Washington Post and the New York Times have published opinion pieces that cite 'a slew of rulings since 1971' that interpret the 14th as protecting against sex discrimination. That's fine, but the question acknowledged the existence of that tradition: it was asking whether the tradition was mistaken as a point of Constitutional interpretation.

Meanwhile, the ERA was passed by Congress in 1972. The ratification debate progressed through the several states, with 35 states voting for ratification (although some rescinded their ratification: based on the 14th Amendment's own ratification process, though, I think the precedent is that Congress can accept or reject a state's right to change its mind at Congress' own pleasure).

What I take from all this is that:

1) Scalia was right about the original intent of the 14th.

2) In spite of the competing judicial tradition starting in 1971, even feminist activists believed in 1972 that the Constitution needed to be amended on just this point.

3) Thus, it is right for an originalist to say that the Constitution does not currently prohibit discrimination based on sex.

That is entirely different from the question of whether the Constitution should prohibit discrimination based on sex. I think it should, with a Constitutional exception for the military -- we've discussed why I think the military is a special case re: civil rights often enough that I won't rehearse it again at this time.

The remedy here is not to pretend that the ERA had actually been ratified; nor is it to pretend that it was never needed. It's to put the thing back up again. I think the left is correct to argue that society's thoughts and feelings have changed on this subject quite a bit over the last forty years. Probably there would be no problem about passing and ratifying the amendment (or a variation of it) today.

That's the right approach to this problem. A Supreme Court that is judged competent to create rights with a wave of its hand can wave those same rights away. That isn't what the Court is for, as Scalia correctly asserts.