Alice Paul was right!

Alice Paul believed that to have freedom from legal sex discrimination requires an Equal Rights Amendment that affirms the equal application of the Constitution to all citizens. This is despite the Fourteenth Amendment beginning:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

This is the man who wrote an opinion that ended the DC gun ban--spot the conflict.


The problem is that some people didn’t get the message about that, in particular one who has shown that he can find Constitutional language “is mere surplusage — is entirely without meaning”. This is despite Marbury v. Madison saying that “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.” The even more frightening aspect is that this is a view held by the majority of the US Supreme Court that it can rewrite the Constitution, rather than interpret laws.

Alex Pareene in Salon states that:

Ok, well, all the Amendment says is that equal protection under the laws will be afforded to citizens, not “straight male citizens,” or whatever distinction Scalia’s making here. Scalia can be very literal-minded sometimes, like when he explains that the Eighth Amendment doesn’t forbid torture because interrogations aren’t “punishment.” Other times, he gets fuzzier with the language; despite the fact that the government is not allowed to establish or promote religion, Scalia is OK with “under God” in the Pledge of Allegiance. The Constitution always happens to only mean whatever an ultra-conservative Republican asshole thinks it means, isn’t that funny?

Alas, Alex, Scalia has gotten away with twisting the Constitution without too much of a peep from the legal community, let alone the general populace. In fact, Scalia’s Heller decision was held as the “correct” interpretation by many who should know much better.

The real problem is that there is no Constitutional means for telling the Supreme Court that it has it wrong: Short of a hue and cry for Scalia to be impeached. The problem is that Scalia’s bad decisions and poor judgement have gone without comment.

Which gets us back to Alice Paul, The Equal Rights Amendment is needed in order to prevent a rollback of women’s rights by conservative/reactionary political votes, and to promote laws and court decisions that fairly take into account women’s as well as men’s experiences. We now have a concrete example of a Supreme Court Justice who is more than willing to rewrite the Constitution rather than interpret it using precedent (e.g. DC v. Heller). Scalia is kind enough to point out that the political arena is the one place where we can send idiots like him a message (Impeachment and removal from office would be nice). Instead, the right is using the Court system to attack our rights. Judges, such as Scalia and Silverman, are all too willing to ignore precedent and the statute’s wording in order to trash the Constitution.

Thus, something such as this:

The Equal Rights Amendment
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.

Which makes it clear that discrimination because of Sex, rather than mere reliance upon the 14th Amendment’s equal protection clause is needed. Some people are too stupid to realise that women are persons.

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