ERA, 28th Amendment Possibly Ratified, now part of constitution

[MarkD]

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

I think there is some fear of a deeply conservative SCOTUS eventually gutting some of the existing 14th Amendment precedents.  There is also the situation where NM adopted ERA language in its state constitution and then the NM state supreme court used that language to strike down a state law against Medicaid funding of abortion, with the implication that the ERA language prevents the state from enacting any significant restrictions on abortion.

   

Well that would be an interesting turn in jurisprudence, to base abortion rights law on the ERA when, after all these years, abortion rights law had always been inferred from the Due Process Clause of the 14th Amendment, not the Equal Protection Clause of the 14th. On the other hand, the Justices seem to treat those two clauses as if they are both little Rohrshach tests anyway, and perhaps it just doesn't matter from which of the clauses the Court infers abortion rights.

To answer deadoman, I don't even think there is any significant difference in divorce laws between how the sexes are treated. Not according to SCOTUS precedents. The Court took care of one of the aspects of divorce inequality in Orr v. Orr, 1979, when it struck down a law that provided men with no alimony pay if they divorced a wife who was making more than the husband. See here. As it says in that article, the Court applies "intermediate scrutiny" to all gender discrimination cases, and perhaps proponents of the ERA want the courts to always apply "strict scrutiny" from now on instead. That way, even the gender discrimination in the example of the draft will eventually get struck down. See Rostker v. Goldberg. The draft is still one of the examples of sex inequality in US law, so far as I know.

[MarkD]

snip

Also, there is a long history of US law evolving in such a way that a previously proposed amendment is no longer necessary.  For example, the whole 18th and 21st Amendment saga of Prohibition would be unnecessary today as banning/heavily regulating alcohol sales (and repealing such a ban) could all be done through normal legislation as an exercise of congress's commerce powers.  The same thing happened with the Child Labor Amendment.  And a SCOTUS ruling using the 14th Amendment equal protection clause that long predated the 24th Amendment to strike down an even broader range of poll taxes followed just 2 years after the 24th Amendment was adopted.

Ugh. I am very much familiar with Harper v. Virginia State Board of Elections. I detest that opinion. And let me be clear: I am not saying that I like poll taxes and that I would detest any decision to strike them down. But the Court had once voted unanimously to uphold poll taxes (Breedlove v. Suttles, 1937) and that decision was supported by some of the greatest legal minds the Court has ever had (Hughes, Stone, Cardozo, Brandeis, Black). Then the Court unnecessarily overturns the precedent and does so with an awful opinion written by Justice William O. Douglas, one of the Court's worst judicial activists ever.

Poll taxes had previously been upheld because there was no evidence that anyone was treated any worse than anyone else by such taxes. The Harper opinion does not contain one word explaining who was being treated worse than whom else. Here is the paragraph which states that the precedent was going to be overturned:

It is argued that a State may exact fees from citizens for many different kinds of licenses; that, if it can demand from all an equal fee for a driver's license, it can demand from all an equal poll tax for voting. But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race (Korematsu v. United States, 323 U. S. 214, 323 U. S. 216), are traditionally disfavored. See Edwards v. California, 314 U. S. 160, 314 U. S. 184-185 (Jackson, J., concurring); Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353. To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant. In this context -- that is, as a condition of obtaining a ballot -- the requirement of fee paying causes an "invidious" discrimination (Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541) that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in Breedlove v. Suttles, is an old familiar form of taxation, and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v. Suttles sanctioned its use as "a prerequisite of voting." To that extent the Breedlove case is overruled.

So in the name of a tradition, we hereby overturn our precedent? Gotcha.

It seems to have not occurred to Justice Douglas that the state's only interest when it coms to issuing driver's licenses is also whether or not a driver is qualified to drive, and the ability to pay the license fee or not is just as capricious and irrelevant to whether they are qualified to drive. Using Justice Douglas's "reasoning" in that paragraph, it would not surprise me if Justice Douglas did come to the conclusion that expecting all prospective drivers to pay a fee to obtain a driver's license is unconstitutional "discrimination based on wealth," (no matter what the other members of the Harper majority may have to say about that).

That's not the only awful paragraph in Harper. You talked about how the law "evolves" sometimes. Douglas did the same thing. (I positively HATE what I am about to quote.)

We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment "does not enact Mr. Herbert Spencer's Social Statics" (Lochner v. New York, 198 U. S. 45, 198 U. S. 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. ... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.

Yeah, that's "evolution" for ya. The "notions" of what the 14th Amendment protects can and will constantly change. Yippee. And there was much rejoicing; yay. I suspect that Justice Holmes would have wanted to slap Justice Douglas silly for taking his famous quip about Herbert Spencer out of context like that and using the quote to justify a line of thinking that would make Holmes's stomach churn. Holmes had said what he did in order to address what the 14th Amendment was not intended to mean. Douglas twists the statement in order to justify an argument that the Court has freedom to transcend what the 14th Amendment was intended to mean. Dissenting Justice Black had an appropriately angry reaction to the above paragraph.

The Court's justification for consulting its own notions, rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that, to save the country from the original Constitution, the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself, but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a "political theory" embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power, but are far less qualified, to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V.

And to top it all off, Justice Douglas, after letting loose with his "notions ... do change" argument, also claimed, "Our conclusion ... is founded, not on what we think governmental policy should be, but on what the Equal Protection Clause requires." Dissenting Justice Black said he doesn't believe it. An author, John C. Hughes, in a book called "The Federal Courts, Politics, and the Rule of Law," published in 1995, said "Douglas's formalist rhetoric should not be taken seriously." Judge Robert Bork wrote, "Douglas must have enjoyed that line, ... stating emphatically that the Court was not doing precisely what the Court was doing."

I don't want to go back to the days of poll taxes, but I do want to understand that the 24th Amendment was a better way to get rid of them than having the Court hand down such a ludicrous opinion that lamely overturned a sound precedent.

[MarkD]

No, I don't agree with that interpretation of the Petition Clause of the First Amendment. Petitioning and voting are different things. It's often said that your vote is your voice in government, but that expression does not mean that voting can be inferred from the Free Speech Clause of the First either.

To me, the fact that the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments were adopted makes it clear that the Fourteenth Amendment was not intended to grant general voting rights to its citizens. Nonetheless, the SCOTUS has been inferring general voting rights are protected anyway by the Equal Protection Clause of the Fourteenth, as seen in cases such as Reynolds v. Sims, Harper v. Virginia State Board of Elections, Kramer v. Union Free School District, Dunn v. Blumstein, and so on and so forth, including, most tragically, Bush v. Gore. I don't agree with any of it, but who am I? What can I do? I decided to propose a constitutional amendment that rewrites the Fourteenth Amendment to make its meaning narrower, more precise, and clearer. My first thoughts in that direction was to propose something that would restore the original, Nineteenth Century meaning of the Fourteenth. But when I thought about how unpopular that idea would be with today's lefties, I decided to compromise with them and include clauses that embrace and preserve many of the Twentieth Century's and Twenty-First Century's interpretations of the Equal Protection Clause. If, by some miracle, my proposal does get adopted, then we won't have to worry about inferring voting rights from the First Amendment.

[MarkD]

The ball is now in the hands of the Achivist of the U.S.

Under 1 USC 102b he has the responsibility of announcing when Amendments have been ratified.

If he doesn't, I expect someone who would benefit from the amendment being in place to eventually sue for a writ of mandamus to compel such an announcement.

If he does, eventually someone who is adversely affected by the amendment will sue seeking to have his announcement overturned.

Either way, because of the two year time delay in the amendment taking effect once ratified, I find it extremely unlikely the courts will find that anyone has standing to sue until January 15, 2022, the earliest date it could possibly come into effect.

The difficulty will be in finding someone with standing. Already most Federal and State laws are gender neutral. Because of the 19th Century Civil Rights Cases, it's clear that passage of the amendment, if it is deemed to have happened, won't be considered to affect private actions in any way.

(The CRA of 1964 is deemed a use of Congress' power under the Commerce Clause.)

To some scholars, the ERA is already dead. But one or two scholars do not have the authority to settle this, so I think you're right, TF. Does the Achivist (sp?) have two years to figure this out?

[MarkD]

The House has voted to abolish the deadline, 232-183: http://clerk.house.gov/evs/2020/roll070.xml


Five Republicans: Curtis (?), Fitzpatrick, Rodney Davis, Reed, and Van Drew joined all Democrats Present in passing this.

Nowhere near the two-thirds margin; they didn't pass an abolishment of the deadline. Amendments have to be proposed by a two-thirds margin; you can't tinker with the proposal afterwards by a simple majority.

[MarkD]

Wulfric and Ernest:

Whatta cockamamie way to run a government! Even though it is clear that when we propose a constitutional amendment, we have to propose it with a two-third majority in both chambers, we will "consider" ourselves capable of subsequently tinkering with the proposed amendment by simple majorities if we want to, for example, extend the deadline for ratification. As far as I'm concerned, no they can't! As far as I'm concerned, the ERA is dead as a doornail.

So I have included a mini-ERA in my proposal for rewriting the 14th Amendment. although I have explicitly written my proposal to state that it does not authorize the federal government to treat abortion rights as protected by the ERA clause within the proposal.

Remember that is a major reason why so many states have refused to ratify the ERA and some even subsequently rescinded their ratification: because those states oppose abortion and they fear that the ERA will effectively codify Roe v. Wade into the Constitution.

[MarkD]

Given Equal Rights Amendment advocates have to start over from scratch, then whatever replaces it should be quite different and more expansive, as the LGBTQ community will be demanding that they too be included in it (and rightfully so) -and not just women.  So instead of the current wording:

"ARTICLE —

"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.

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

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

Section 1 could instead be worded like this (best to keep it simple):

ARTICLE -

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, gender, or sexual orientation."

The other two sections would remain unchanged.  

I am including this idea in my proposal to rewrite the second sentence of the Fourteenth Amendment. Here is Section 3(b) of my proposed amendment:
"Just as it is important to clearly explain what rights states cannot violate, it is important that the states know which kinds of discrimination they may not engage in. The original Equal Protection Clause was too broadly worded because no classifications were listed. In its place will be this rule: no state shall, directly or indirectly, discriminate against any person within its jurisdiction on the basis of one’s race, national origin, sex, gender identity, sexual orientation, or disability status. Discrimination based on race and national origin shall continue to be scrutinized most strictly; discrimination based on sex, gender identity, and sexual orientation shall be subjected to heightened scrutiny – the sex rule here shall not be interpreted in such a way as to revive abortion rights doctrine -- and discrimination based on disability status shall be subjected to a balancing test: do the social benefits from the law outweigh the harm to the disadvantaged class. Obergefell v. Hodges, was correctly decided with the heightened scrutiny standard and so shall remain good law. But henceforward there shall be no rational basis scrutiny (except as would be needed to uncover constitutionally unacceptable goals; see e.g. Guinn v. United States), and the judiciary shall exercise no power to determine which classes of people are “discrete and insular minorities.” The following precedents, and others using similar reasoning, shall be recognized as wrongly decided and void: F.S. Royster Guano Co. v. Virginia, Louisville Gas & Elec. Co. v. Coleman, Levy v. Louisiana (and its progeny, e.g., Weber v. Aetna Casualty & Surety and Trimble v. Gordon), Sugarman v. Dougall, and Plyler v. Doe. If needed, Romer v. Evans shall be reconsidered under the heightened scrutiny standard; it was wrongly decided under the rational basis test. Truax v. Raich and Graham v. Richardson, shall be understood as having been based only on a state’s lack of power to interfere with federal immigration policy."

And, in Section 1 of my proposal, I provide that the federal government has to treat all people equally too, per the same rules as the states do in Section 3(b).

Race and national origin: strictest scrutiny (legislation must be narrowly tailored to achieve compelling governmental purpose)
Sex, sexual orientation, gender identity: intermediate scrutiny (legislation must be substantially related to important governmental purpose)
Disability: balancing test (weigh harms to the disabled against the benefits to society)