A *REAL* Equal Rights Amendment (Part 1 of 2)
- The Equal Rights Amendment as written and proposed is shallow and does not resolve underlying concerns.
- Every minority group has to have the same fight because the rights of the minority are not protected, no matter what that minority may be.
- The Constitution and federal law have given States great leeway to create discrimination, and this must be corrected.
While we have spent a great deal of time making sure all people within the United States have equal rights, representation, and access to the law, we have not defined what those rights are. It may seem that it is quite clear and intuitive what a personal right is, yet those do not have a definition. All the Constitution says about it via the 9th and 10th Amendments is that whatever the Federal Government does not control vis-a-vis the Constitution and related Federal Law is up to the States; and then the States if they do not have a particular law against an act are given and assumed by the people.
What does this actually mean? What types of laws are States/Territories allowed to create to control their population? And what happens when the laws in one State/Territory are significantly different than another neighboring area?
Marriage and the Post Office (Part 2 of 2)
No, you should ask what your country can do for you!
This has and continues to happen all the time, yet these governments live in some type of homeostasis with each other. In the year 2019, one of the key headlines was around States that have legalized recreational marijuana and opened stores on the border with States where it was not legal. But this is hardly extraordinary as there are many minor refractions of these issues. Where one State has a higher minimum wage than another State, if a worker lives on the border and crosses State lines, how should they be paid? They are supposed to pay taxes in their home State, so should their wage laws apply, too? Another example might be that one State has more stringent requirements in a home for the physically or mentally disabled, yet their higher standards do not apply just a mile away. On the other end of existence, a State like California can create emission standards for cars that must be met and because they are so large and control so much of the population and economy that the State effectively sets the minimum policy for the rest of the country, even if federal standards are lower.
These are a few examples of how States/Territories can differ from each other in significant and minor ways, and from a Constitutional perspective these variances are guaranteed. On the other end, States have been given carte blanche to decide what is right for their own people. The Supreme Court has had to step in on many occasions to say that a law is discriminatory or contradictory to federal law; but as discussed above, it has also failed in this role and not only allowed but actually enforced horribly inequitable and bigoted laws for sometimes over a century at end. Part of the reason for this is that there is no clear direction in the Constitution to determine what it is States can do and the Federal Law that has built up over time is extremely situation specific.
Take for instance Title VII of the Civil Rights Acts. All throughout and even via later amendments the classes that have protection are listed as an “individual’s race, color, religion, sex, or national origin”. Because it is so specific to these five categories of people, the Civil Rights Act has been used to discriminate against other groups such as age, sexuality, gender identity, citizenship status, economic situation, and more. Other parts of the law are similar, such as Title IX of the Higher Education Act that only protects gender access in education. Every time there is a problem due to discrimination, laws that are intensely specific are written and give rise to future abuses. Something much broader and simpler is needed to protect people from the various governments creating restrictions on them.
It would seem, then, that what we need is an “Equal Rights Amendment”.
As many readers may be aware, there has been a potential Equal Rights Amendment available for the better part of a century, though the reader may believe that the term “equal rights” means that all were given equality of rights under the law. As will become clear, that is far from the case. This particular Equal Rights Amendment (updated from earlier drafts) that was proposed in 1943, passed Congress in 1972, and was — by the time it expired — ratified by 35 of the necessary 38 States was written as:
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.
2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
3: This amendment shall take effect two years after the date of ratification.
This exact same Amendment has been re-proposed in every new Congress since originally expiring its time limit but has not moved ahead. There have also been many slight variations to the same theme, but this Amendment has been the main one since replacing the version first written in 1923.
Despite Congress putting an original expiration date of 1979 — and extending it to 1982 — for the Amendment to be ratified, debate has still continued in the State legislatures over the original text. Nevada passed the Amendment in 2017, Illinois in 2018, and Virginia in January 2020. With that, the necessary 38 States would seem to have been reached. However, four States rescinded their ratifications during the original ratification timeline (although it is a Constitutional question if they could even do that) and it is well past the expiration timeframe set by Congress. Virginia and others have argued that since the expiration is not in the text of the proposed Amendment that it is not binding. Meanwhile, the Office of Legal Counsel has directed the Archives to not add the ERA to the Constitution and some States have sued to enforce this idea. It seems that this case is destined to make its way to the Supreme Court, but it may be years before it is resolved.
Thus, in the year 2020 — almost a century removed — an Amendment guaranteeing equal protections based on gender has still not been able to pass. And frankly, it should not.
The reason that this Amendment should be abandoned is that it does not go far enough. Lest we forget, women had just achieved the right to vote 3 years before the first version of this Amendment was written. At the time, the beginnings of women’s rights was just coming to the forefront and the idea of the rights of other groups (non-whites, foreigners, other gender identities, etcetera) were barely in consideration in the conscious of the mass populace (Of course, those groups were well aware of their own lack of rights and desperately desired to achieve equality. There was a lot of discrimination within the Suffragette movement against people of color, poorer women, homosexuals, and others that was often not successfully fought back against.). The focus became intense on just making sure this one group of people had equal protections and it has become an obsession to get something called the “Equal Rights Amendment” passed because it sounds noble and it is believed that it will even out the disparities between the two main genders.
In the proceeding century, we have learned a lot about discrimination in this county and how to unjustly apply it to groups of people. Unfortunately, the reality is that we have not found the bottom of this barrel and will continue to deny rights to groups of people, perhaps groups we do not even recognize on a mass scale today. An amendment that is to give equal rights to all people and be applicable now and in the future must be much broader and offer protections not just within the law, but within all parts of society. How can women, minorities, and all other designations of people reach parity in pay, opportunities, protections, and access if there are still loopholes to exploit and each group needs to individually fight their own battle? It is the same battle time after time, and it should not be. The United States and all public and private institutions within should treat people the same without having to always argue the point.
As such, a different Equal Rights Amendment should be added to the Constitution…
TO BE CONTINUED…