quote:ederal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures.
...
The amendment consists of 52 words and has one key line: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." That sentence would subject legal claims of gender discrimination to the same strict scrutiny given by courts to allegations of racial discrimination.
As it stands now, based on the way courts have already interpreted certain constitutional provisions, I am unwilling to support this without a statement such as "Nothing in this amendment shall be construed (i) to limit the power of the United States or any State to regulate the intentional termination of pregnancy by any person or (ii) to require the United States or any State to make any expenditure of funds or take any action to assist in the termination of a pregnancy."
Note that I'm not asking for an anti-abortion amendment as a condition of support (although it should be no secret I want one), but merely a positive statement that this amendment is not intended to affect the constitutional status of abortion. I'm not married to the wording, either, as long as changes preserve my intended meaning.
I quite simply do not trust the courts with regard to the construction of such general language.
Essentially I'm asking both sides of the abortion issue to punt with respect to this amendment's effect on abortion law.
Posted by Amanecer (Member # 4068) on :
I would think it would have a more immediate impact on the legality of same sex marraiges than on abortion.
Posted by mr_porteiro_head (Member # 4644) on :
"on account of sex": Could the ERA be interpreted in such a way to do away with whole swathes of sexual offenses, interpreting the word "sex" as referring to sexual acts, instead of the sex/gender of the person?
Posted by Krankykat (Member # 2410) on :
Mr_P:
LOL: That is what I was thinking when I read the "on account of sex" quote. It seems the term "gender" would help to clear that up.
K
Posted by KarlEd (Member # 571) on :
I'm hardly a rabid pro-choice proponent, but I'd be accepting of wording that could not be construed as weighing in on abortion either way.
Posted by Paul Goldner (Member # 1910) on :
I have a problem on two counts.
1) Tying a constitutional amendment to a particular political quesiton to me is a very dangerous thing to do.
2) Part of the abortion debate is about equal treatment for men and women under the law. The wording dagonee proposes effectively removes that part of the debate from the federal judicial arena, and I'm not willing to grant that.
Posted by Lyrhawn (Member # 7039) on :
I wonder, how might this effect custody battles? Right now, mothers are favored when custody of the children is considered. I wonder what this would do for fathers in custody battles.
Also, what rights might this give to men over their unborn children when women want to abort the pregnancies and they want their kids born?
Posted by Bokonon (Member # 480) on :
Same here, Karl. And I doubt "sex" could be construed as "sex acts", in any reasonable way.
-Bok
Posted by Dagonee (Member # 5818) on :
quote:"on account of sex": Could the ERA be interpreted in such a way to do away with whole swathes of sexual offenses, interpreting the word "sex" as referring to sexual acts, instead of the sex/gender of the person?
No. Someone could make the argument, but it wouldn't go anywhere.
quote:Tying a constitutional amendment to a particular political quesiton to me is a very dangerous thing to do.
This is specifically about NOT tying the amendment to a particular political question - in fact, it's about untying the amendment from that particular political question.
BTW, our Supreme Court has effectively made abortion much less of a political question - it's now mostly a judicial question.
quote:The wording dagonee proposes effectively removes that part of the debate from the federal judicial arena, and I'm not willing to grant that.
Could you illustrate how it does that? It removes this amendment from any such judicial consideration, but does not alter the existing judicial landscape regarding this issue one bit.
I really can't see how you interpret it that way, especially given the extreme care I took to make this clear ("a positive statement that this amendment is not intended to affect the constitutional status of abortion").
Posted by Dagonee (Member # 5818) on :
quote:I wonder, how might this effect custody battles? Right now, mothers are favored when custody of the children is considered. I wonder what this would do for fathers in custody battles.
There's very little - in most states, none - explicit legal favoring of mothers. A few states still have the "tender years" presumption, which grants mothers an advantage obtaining custody of young children.
If there is favoring of mothers, it's in the fact-finding by judges, and this is not easily addressed by constitutional challenges. You have to prove intent to discriminate, not merely that a discriminate result occurs.
So, in practice, I think it would have little effect.
Posted by Paul Goldner (Member # 1910) on :
"This is specifically about NOT tying the amendment to a particular political question - in fact, it's about untying the amendment from that particular political question."
Its about exactly the reverse. The amendment should stand or fall on its own grounds, not how it affects a particular political question. By putting language into the amendment, and language that is positive for only one side of the debate, you're making the amendment about abortion.
"Could you illustrate how it does that? It removes this amendment from any such judicial consideration, but does not alter the existing judicial landscape regarding this issue one bit."
If a judge were to accept an argument that making abortion illegal is unequal treatment under the law for men and women, this amendment, as you word it, would still allow the federal government to ban abortions, for example.
Also, access to family planning is restricted under your proposed amendment... but only for women. Again, you're trying to make it possible for states to do things that a judge could rule would violate this amendment. But the judge could no longer rule that violating the amendment in specific areas is invalid.
Posted by Dagonee (Member # 5818) on :
quote:ts about exactly the reverse. The amendment should stand or fall on its own grounds, not how it affects a particular political question. By putting language into the amendment, and language that is positive for only one side of the debate, you're making the amendment about abortion.
Yes, it should. I want those grounds to be explicit. If the supporters intend this amendment to alter current constitutional abortion jurisprudence, then they should be honest and explicit about it. Then I can work against it night and day instead of supporting it.
If they don't intend to alter current constitutional abortion jurisprudence, then my language does not change the intended effect of the amendment - except that prevents judges from directly subverting the intent of the people who drafted it.
quote:If a judge were to accept an argument that making abortion illegal is unequal treatment under the law for men and women, this amendment, as you word it, would still allow the federal government to ban abortions, for example.
I asked you to demonstrate how this amendment "effectively removes that part of the debate from the federal judicial arena." This is very very different from what you just stated in your last post.
Currently the abortion debate is in the federal judicial arena. The amendment with my addendum does not affect how the 14th amendment applies to the abortion debate in the federal judicial arena, nor does it remove the 14th amendment from that arena.
quote:Also, access to family planning is restricted under your proposed amendment... but only for women.
How does my amendment restrict access to family planning?
Would you PLEASE go back and read it. Every time you make a new post or add to an existing one it becomes clearer that you don't understand what I wrote.
As I said in my very first post, the addendum is intended to be "a positive statement that this amendment is not intended to affect the constitutional status of abortion."
Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot.
Posted by Paul Goldner (Member # 1910) on :
"I asked you to demonstrate how this amendment "effectively removes that part of the debate from the federal judicial arena." This is very very different from what you just stated in your last post.
Currently the abortion debate is in the federal judicial arena. The amendment with my addendum does not affect how the 14th amendment applies to the abortion debate in the federal judicial arena, nor does it remove the 14th amendment from that arena."
I did not, originally, say that the abortion debate would be removed from the federal judicial arena. I said that the nature of the abortion debate in the federal judicial arena would exclude equality of treatment of men and women under the law.
The ERA as you propose says that equal rights shall not be denied or abriged because of sex... BUT, this amendment shall not be construed to limit the ability of the federal government to regulate abortion.
Now, maybe I'm wrong about this because of how the judiciary works, and if I am please correct me, but I read that as meaning that, in a hypothetical case, a federal judge or the SC hears a case on abortion centering around equal protection, and rules that a ban/restrictions on abortion are not equal treatment under the law based on sex. Without your adendum, that ERA then states that bans on abortion have to pass strict scrutiny. With your addendum, that ruling has no affect.
"How does my amendment restrict access to family planning?"
""Nothing in this amendment shall be construed (i) to limit the power of the United States or any State to regulate the intentional termination of pregnancy by any person or (ii) to require the United States or any State to make any expenditure of funds or take any action to assist in the termination of a pregnancy.""
As it stands right now, most family planning measures are covered under most medical insurance plans, including state plans. What your addendum does is ensure that states do not have to cover abortion, even if not covering it discriminates on the grounds of sex.
Finally, do you think women should have equal rights as men under the law?
The answer is either yes, or no. If you think yes, then the amendment doesn't need adendums. If no, then you can say "Yes, but I have caveats." Or just say no. Or, what I see you as trying to do is say "Yes. But this issue that many people think is an equal rights issue, is not. And they don't get to debate it in the courts that way."
Posted by Paul Goldner (Member # 1910) on :
"Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot."
No. It shouldn't be in the amendment. It SHOULD be explicit in the debate. But a political question should not be in the amendment. That sets a ridiculously dangerous precedent. This was my first objection.
Posted by Dagonee (Member # 5818) on :
quote:Now, maybe I'm wrong about this because of how the judiciary works, and if I am please correct me, but I read that as meaning that, in a hypothetical case, a federal judge or the SC hears a case on abortion centering around equal protection, and rules that a ban/restrictions on abortion are not equal treatment under the law based on sex. Without your adendum, that ERA then states that bans on abortion have to pass strict scrutiny. With your addendum, that ruling has no affect.
With my addendum, the ruling would not be made, because my addendum says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed."
quote:As it stands right now, most family planning measures are covered under most medical insurance plans, including state plans. What your addendum does is ensure that states do not have to cover abortion, even if not covering it discriminates on the grounds of sex.
No. It says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed."
If states have to cover it now, then they don't have to cover it after the amendment passes. If they do have to cover it now, then they do have to cover it after the amendment passes.
quote:Finally, do you think women should have equal rights as men under the law?
The answer is either yes, or no. If you think yes, then the amendment doesn't need adendums. If no, then you can say "Yes, but I have caveats." Or just say no.
Yes, men and women should have equal rights under the law. People wildly disagree about whether "equal rights" includes the right to abortion.
The purpose of an amendment is for the entire country to decide what should be so basic that government must obey it. The courts serve the people in interpreting amendments. If the people decide, "This contentious issue is not one on which the entire country is able to speak in a unified voice," then it is perfectly feasible to say, "Hey! Courts! The people did not speak on this topic when we came together and agreed on this amendment!"
quote:Or, what I see you as trying to do is say "Yes. But this issue that many people think is an equal rights issue, is not. And they don't get to debate it in the courts that way."
Tt's the people - not judges - who decide what we mean by equal treatment under the law. In the context of a constitutional amendment, the people are absolutely supreme. If the people, as represented by elected officials in 3/4 the states, agree that the courts should not apply this amendment to the issue of abortion, then they shouldn't. It's really that simple.
Beyond that is the honesty issue. Is this amendment intended to affect the current constitutional interpretation of abortion? Yes or no.
If your answer is "yes," I bet a TON of money that the ERA will not pass.
If your answer is "no," then I consider it dishonest to try to keep language out of the amendment that makes this intent explicit. Put in language stating that there is a right to abortion and then try to garner support for it.
Without this language, people will be debating whether or not the amendment will affect abortion. An no one will have a valid opinion on the subject - it's simply too unpredictable.
Posted by Dagonee (Member # 5818) on :
quote:Originally posted by Paul Goldner: "Again, if it is intended that the ERA affect the constitutional status of abortion, then simple honesty and decency demands that the intended change to the constitutional status of abortion be explicit in the amendment. If it is not so intended, then all your arguments are moot."
No. It shouldn't be in the amendment. It SHOULD be explicit in the debate. But a political question should not be in the amendment. That sets a ridiculously dangerous precedent. This was my first objection.
It's not a political question. It's a question about the constitutional extent of a particular right. The only political aspect is the passing of the amendment - something that should be done with full knowledge of the effect of the amendment on the rights of both women and the unborn.
There's no dangerous precedent here. In fact, careful attention to unintended side effects would be a good thing to get Congress to start considering both with laws and constitutional amendments.
If people disagree about what the amendment means, no meaningful vote for or against it can be passed.
Posted by Paul Goldner (Member # 1910) on :
"With my addendum, the ruling would not be made, because my addendum says "Whenever the courts consider abortion in any way, shape, or form, they should pretend the ERA was never passed.""
Right. Similar enough to what I am thinking could happen that I don't see a meaningful distinction.
So, the point I am making then, stands exactly as it stood at the beginning of this. With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.
Thats not a question that should be tied to whether or not women are equal to men.
Posted by Paul Goldner (Member # 1910) on :
"The only political aspect is the passing of the amendment - something that should be done with full knowledge of the effect of the amendment on the rights of both women and the unborn."
And you are putting a specific effect of the amendment on the rights of women and the unborn into the amendment.
How in the heck is this not a political answer to a specific question?
Now, I might be able to get on board with something that is politically neutral. But I don't see your addedum as neutral at all. You think abortion has nothing to do with equality under the law. I do. Your amendment passes, and your idea on abortion is now enshrined in the constitution. The unaltered version passes, and neither of our ideas are in the constitution.
I still think its a bad idea to put a specific political question in the constitution, on general principle, (see: prohibition), but with something politically neutral, its at least feasible.
Posted by The Pixiest (Member # 1863) on :
This would allow for women to be drafted and serve in front line combat. This would lead to unisex bathrooms in government buildings.
There is no guarantee we would get SSM out of this.
I don't see it as effecting the abortion debate as any pregnant man :eyeroll: would have the same rights as any pregnant woman.
Posted by Rakeesh (Member # 2001) on :
quote:With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.
It doesn't seem that way to me...Dagonee has repeated several times now that the language he includes would very spefically have no impact on abortion in terms of it being a judicial question. Unless you want that sort of opening in the amendmant...
Posted by Paul Goldner (Member # 1910) on :
"Dagonee has repeated several times now that the language he includes would very spefically have no impact on abortion in terms of it being a judicial question."
And I am disagreeing with him.
No impact compared to NOW? Perhaps. No impact compared to the unaltered version of the amendment? No. Not at all. And thats part of my point. Dagonee wants this amendment, but he doesn't want one possible consequence to the amendment, so he wants to put in an addendum that says that abortion is not about equal protection for men and women under the law. But, pro-choice people would argue that it IS in fact about equal rights. Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law... thus removing an angle of attack from the debate.
Posted by Rakeesh (Member # 2001) on :
quote:Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law... thus removing an angle of attack from the debate.
How? I don't understand...I may seem to be snarky, but I really don't. If the law is specifically passed stating, "This law shall have no impact whatsoever on questions before the judiciary related to abortion," how could it possibly remove anything that actually exists?
Now, if your point is that it removes something that could exist...well then, Dagonee is right. You do want an ERA to be applied to abortion in the future. Why should lawmakers who disagree sign on for something like that, exactly?
Posted by Dagonee (Member # 5818) on :
quote:So, the point I am making then, stands exactly as it stood at the beginning of this. With your language, an angle of attack against anti-abortion laws, that angle of attack being that such laws are discriminatory, is removed from the debate entirely.
Nothing is removed. Its' just not added.
quote:No impact compared to NOW? Perhaps.
Not perhaps. Absolutely.
quote:No impact compared to the unaltered version of the amendment? No. Not at all.
Of course. After all, I stated in my very first post that this is what I want.
quote:Dagonee wants this amendment, but he doesn't want one possible consequence to the amendment, so he wants to put in an addendum that says that abortion is not about equal protection for men and women under the law.
Wrong. I want an amendment that provides for equal treatment under the law and that does not affect the abortion debate in any way, shape or form.
quote:But, pro-choice people would argue that it IS in fact about equal rights. Passing this amendment in dagonee's form says that pro-choice people are wrong about that...and that would be constitutional law...
No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed.
quote:thus removing an angle of attack from the debate.
No, it wouldn't be removing anything. It would be making it clear that such an angle would not be added.
You want know why there's so little compromise in this country? Reasoning like yours in this thread.
I have proposed admitting - on both sides of the issue - that we as a country haven't reached enough of a consensus to alter the way our founding document addresses abortion. You won't agree to it because it wouldn't give you something new that you don't have now.
And, just to clarify:
No angle of attack that exists now would be removed by the addition of my language to the amendment. The constitutional state of abortion would be EXACTLY EXACTLY EXACTLY the same as it is now. Posted by Dagonee (Member # 5818) on :
quote:Your amendment passes, and your idea on abortion is now enshrined in the constitution.
No, it's not. As of right now, banning abortion would still be unconstitutional.
Posted by Paul Goldner (Member # 1910) on :
"No, it's not"
Yes it is. Your idea that abortion is not related to equal protection for men and women under the law would be enshrined in the constitution.
Posted by Paul Goldner (Member # 1910) on :
"No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed."
Dagonee, I'm fairly certain your proposed wording doesn't say this at ALL. In fact, I'm fairly certain it says exactly the opposite. Which is why I'm objecting so strenuously.
Posted by Dagonee (Member # 5818) on :
quote:Yes it is. Your idea that abortion is not related to equal protection for men and women under the law would be enshrined in the constitution.
No it wouldn't. My idea that the people haven't decided that it is would be enshrined into the constitution. That's not how this works. A deliberate choice by the people not to affect the status quo would be in the constitution.
How is it neutral to have an amendment that can only be interpreted in favor of one group or neutral toward the other?
It's an untenable position.
Without this type of language, the amendment will fail. And it will be the fault of people like you who won't accept anything less than something advantageous to their side.
Posted by Paul Goldner (Member # 1910) on :
Edited out
I wrote this, obviously in anger... and totally didn't mean to post it. I hit the post button, and then hit stop on my browser before it showed it had started loading, and then reloaded the page and did not see the post and so assumed it never made it. otherwise I would have deleted. Since people obviously saw it, I don't want to delete it.
I truly apologize that this got out there.
[ March 28, 2007, 07:02 PM: Message edited by: Paul Goldner ]
Posted by Dagonee (Member # 5818) on :
quote:Originally posted by Paul Goldner: "No, it wouldn't. It would say that whether or not abortion is about equal rights has not been addressed by this amendment, but that every other thing in the Constitution that has been applied to abortion has not changed."
Dagonee, I'm fairly certain your proposed wording doesn't say this at ALL. In fact, I'm fairly certain it says exactly the opposite. Which is why I'm objecting so strenuously.
I've asked you to explain, and you haven't - not in any way that addresses the language.
My language specifically says this amendment won't be construed to prohibit regulation of abortion.
This is an absolutely common legal construct. It says one particular construction that some people might make is not the one intended. That's all it says.
Posted by Dagonee (Member # 5818) on :
Deleted.
[ March 28, 2007, 06:58 PM: Message edited by: Dagonee ]
Posted by Rakeesh (Member # 2001) on :
quote:Quotation deleted
Wow.
[ March 28, 2007, 07:01 PM: Message edited by: Rakeesh ]
Posted by Paul Goldner (Member # 1910) on :
"And it will be the fault of people like you who won't accept anything less than something advantageous to their side."
Fighting agains tsomething that is advantageous to your side is not accepting anything less then something advantageous to my side?
Here, let me make this explicit, quoting myself earlier in the thread
"Now, I might be able to get on board with something that is politically neutral. "
I do not agree that your addendum is politically neutral. I disagree with your statement about what your addendum means, i.e. "My idea that the people haven't decided that it is would be enshrined into the constitution"
"How is it neutral to have an amendment that can only be interpreted in favor of one group or neutral toward the other?"
I don't know, so why don't you tell me, using your wording as an example of an amendment that can only be interpreted in favor of one group and that is also poltiically neutral, since you are claiming it is politically neutral, but is advantageous towards your political side?
You want to put that into the constitution? let me suggest something that would actually be neutral.
"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."
Posted by Rakeesh (Member # 2001) on :
quote:"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."
Why not just say that this law shall have no impact, in any way, on the question of abortion? That's neutral. No impact means no impact. Zero.
Posted by Dagonee (Member # 5818) on :
quote:I don't know, so why don't you tell me, using your wording as an example of an amendment that can only be interpreted in favor of one group and that is also poltiically neutral, since you are claiming it is politically neutral, but is advantageous towards your political side?
The amendment without my wording can only be interpreted in favor of abortion rights. With it, it cannot limit abortion rights at all from what they are now.
quote:You want to put that into the constitution? let me suggest something that would actually be neutral.
"This amendment shall not be construed to affirm or deny that abortion is a question of equal rights."
With a little cleanup to strengthen "affirm or deny" I could accept that. Which is why, in the opening post I said "I'm not married to the wording, either, as long as changes preserve my intended meaning."
And, in that same very first post, I made my intended meaning crystal clear: "merely a positive statement that this amendment is not intended to affect the constitutional status of abortion."
And I restated it again, same post: "Essentially I'm asking both sides of the abortion issue to punt with respect to this amendment's effect on abortion law."
Everything you needed to know about my intent was there. My willingness to change the wording to reflect that intent was there. From the very beginning.
If I didn't care about the actual issue and wasn't afraid someone might buy into your interpretation, I wouldn't have addressed you at all. You are exactly 1/3 the reason I left Ornery.
Posted by Paul Goldner (Member # 1910) on :
I edited my offensive post with an explanation and apology. I'm leaving it there because I don't like to edit out things that have affected the thread.
Again, and here, I apologize for that remark dagonee.
Truly, I do.
Posted by Dagonee (Member # 5818) on :
Deleted. Rak, please delete your quote of P.G.'s, if you're willing. P.G., feel free to delete yours as well. No need for a permanent record of it, and thank you for apologizing.
Posted by Paul Goldner (Member # 1910) on :
you'll note, dagonee, in my opening post, I also said "dagonee's wording."
Later when it became apparent you thought I couldn't get on board with any language, I said I could get on board with politically neutral language.
Posted by Paul Goldner (Member # 1910) on :
offensive remark above deleted
Posted by The Rabbit (Member # 671) on :
I recognize that Dagonee's original question relates specifically only to the question of abortion, but I think that there is a broader underlying question which needs to be addressed.
There are real physiological/biological differences between men and women. How should "equality" under the law be treated on issues where "equality" does not exist biologically?
Examples: Prostrate Cancer, Pregnancy
Posted by stihl1 (Member # 1562) on :
I would not support it at all.
Posted by JennaDean (Member # 8816) on :
quote: This would lead to unisex bathrooms in government buildings.
When I was very young I remember my parents disagreeing with the ERA ... I asked them what it meant, and this was the argument they used to explain it. I'm sure they had more concerns in mind than that, but having to share a public bathroom with a BOY was horrible enough for me to contemplate.
I still don't like it. There are some things that should be for women, and some things that should be for men. That sounds archaic ... but what about actors? Could they sue because they were turned down for a role for which they were simply the wrong gender? Could a religion be sued for not extending the same ministering opportunities to men and women? Could the NFL be sued? Or Hooters?
There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".
As much as I hate to use this term, there are rare occasions when "separate but equal" really does apply to the different sexes.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Originally posted by Dagonee: Without this language, people will be debating whether or not the amendment will affect abortion. An no one will have a valid opinion on the subject - it's simply too unpredictable.
Are you absolutely sure of this, or are you going solely on the article's one-sentence quotation? I mean, have you seen the other 24 words to be sure of the whole thing? If so, could you link that?
People still debate whether amendments apply to certain things, especially the first and second. However, from reading the article, it looks more to me like Greenberg is trying to turn it into an abortion debate specifically to prevent any such amendment. He goes as far as to state that "equal-rights amendments in state constitutions justify state funding for abortion." Do you feel this way as well, that equal-rights amendments justify funding for abortion? Is that really what you think the intention or one of the intentions are behind this? Would it not simply take one instance of being taken before the judiciary to clear that argument up?
Posted by Jim-Me (Member # 6426) on :
quote:Originally posted by JennaDean: Could the NFL be sued? Or Hooters?
I'm pretty sure "Hooters" has been, though I don;t know if it was successful. I do know that Southwest Airlines used to have all female stewardesses until a man sued them successfully.
Posted by Dagonee (Member # 5818) on :
quote:I recognize that Dagonee's original question relates specifically only to the question of abortion, but I think that there is a broader underlying question which needs to be addressed.
There are real physiological/biological differences between men and women. How should "equality" under the law be treated on issues where "equality" does not exist biologically?
Pregnancy is the basis for the SCOTUS decision in Michael M. v. Superior Court. In this case, the court reviewed a California law that criminalized "act[s] of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The state interest at issue was the prevention of teen pregnancy, and the plurality accepted the rationale that the possibility of pregnancy already serves to deter females somewhat. Coupled with the difficulty of prosecuting if both participants are guilty of a crime, the means were held to be an acceptable way to serve that interest.
My best prediction of the effect of the amendment would be to raise the level of scrutiny of gender distinctions from intermediate to strict. This would mean that a distinction based on sex would have to serve a compelling state interest and be narrowly tailored. It's likely that pregnancy would be enough of a distinction to justify some legal distinctions. For example, mandating coverage of pregnancy while allowing insurance plans not to cover some men-only disease might be allowed if the state interest in children is compelling enough.
It would take a long time to settle out. I know this doesn't really answer your question, but I hope it introduces the kind of thinking that will be involved.
quote:Could they sue because they were turned down for a role for which they were simply the wrong gender? Could a religion be sued for not extending the same ministering opportunities to men and women? Could the NFL be sued? Or Hooters?
Constitutional amendments generally don't restrict private action (the 13th is an exception). So the ERA wouldn't make these things an issue. Suits against such places happen now under federal and state statutes.
quote:There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".
There's little chance it would be interpreted that way. For example, separate bathrooms would most likely still be ok. In fact, the building codes that require more female stalls then male stalls+urinals would likely be found to be OK based on several studies about the disparity between the number of people served per minute in a men's and women's bathrooms.
quote:Are you absolutely sure of this, or are you going solely on the article's one-sentence quotation? I mean, have you seen the other 24 words to be sure of the whole thing? If so, could you link that?
quote:bullet 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. bullet Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. bullet Section 3. This amendment shall take effect two years after the date of ratification.
quote:Would it not simply take one instance of being taken before the judiciary to clear that argument up?
Yes, but I won't vote for it with that uncertainty. I agree some people would be bringing up the abortion issue to defeat it - my proposal is designed to defang that argument. Because, even if that's the motivation for bringing it up, it's true that the amendment could be interpreted so as to expand abortion rights by courts.
quote:Do you feel this way as well, that equal-rights amendments justify funding for abortion?
I don't think equal rights amendments justify such state requirements, mainly because I see preservation of life for the unborn as a compelling state interest. But, as of now, the courts don't agree that a state interest significant enough to allow prohibition of abortion exists until viability. So I think at least some courts would find that.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:My best prediction of the effect of the amendment would be to raise the level of scrutiny of gender distinctions from intermediate to strict. This would mean that a distinction based on sex would have to serve a compelling state interest and be narrowly tailored. It's likely that pregnancy would be enough of a distinction to justify some legal distinctions. For example, mandating coverage of pregnancy while allowing insurance plans not to cover some men-only disease might be allowed if the state interest in children is compelling enough.
It would take a long time to settle out. I know this doesn't really answer your question, but I hope it introduces the kind of thinking that will be involved.
That's more along the lines of how I saw this being applicable, with the comments of unisex bathrooms and the like being diversionary arguments that tend to appeal to visceral reaction.
Thanks for the link. I can see how the wording seems uncertain to you. The thing is, it looks to me like it is intentionally vague. I don't see how it is significantly less vague in its wording than roughly half of the Bill of Rights. I think that implications like abortion and same-sex marriage with regard to the wording are baggage carried over from political issue debates. Maybe it's just me, but when I read it ignoring the abortion and gay marriage debate it looks sufficiently and possibly specifically avoiding holding any pertinence to any issues in particular. I would hesitate in adding wording to a Constitutional amendment that will carry with it stipulations regarding any modern political issue on either side of the argument. That is one of the arguments (I have many) I have against proposals of a gay marriage ban amendment, for example. Prohibition, as another example, is one way in how using current political issues to frame a Constitutional amendment can end in disaster. Does that mean this would wind up that way? No, probably not, but just because the mistake wouldn't be as bad, should we risk making such a mistake?
quote:Section 3 is meaningless to the discussion, and 2 is likely to be considered well-settled law (that is, the only open area involved in interpreting section 2 would be the extent of section 1). See this case for a brief overview interpreting the analog section in the 14th.
I pretty much agree as far as that is concerned. Indeed, section 1) is really the only wording that has anything to do with something not already explcitly or implicitly covered in the Constitution.
quote:
quote:Would it not simply take one instance of being taken before the judiciary to clear that argument up?
Yes, but I won't vote for it with that uncertainty. I agree some people would be bringing up the abortion issue to defeat it - my proposal is designed to defang that argument. Because, even if that's the motivation for bringing it up, it's true that the amendment could be interpreted so as to expand abortion rights by courts.
But it's equally true that, theoretically, a given amendment could be interpreted in a manner that is opposed to another issue you feel strongly on, too. To me, it's more of a trust issue to count on the judiciary to carefully weigh current and past precedent before making any changes that could be considered radical in an interpretation of an Amendment. Regardless of ideological majority in the SCOTUS, they don't have a track record of being prone to such judgments. I could even posit that, in its current state, SCOTUS would be more likely to limit rather than extend, but I just couldn't see Roberts or Alito being overly eager to create such a precedent within the institution, even if the others were so inclined (and outside of Thomas I don't see it being likely, but that's a different conversation).
quote:I don't think equal rights amendments justify such state requirements, mainly because I see preservation of life for the unborn as a compelling state interest. But, as of now, the courts don't agree that a state interest significant enough to allow prohibition of abortion exists until viability. So I think at least some courts would find that.
I think at least an equal number of state courts would find the opposite. States that had strong support for their abortion bans (whether successful or not), for example.
Posted by Kwea (Member # 2199) on :
I think I see a problem...
Dag, I understood where you are coming from on this, but I think this is the problem
If, in the future, a challenge is brought against anti-abortion legislation on the basis that it is discriminatory, your language would make such discrimination a moot point, because right or wrong such discrimination would not be allowed as basis for a ruling.
That IS conceding a point that has not been argued yet. At least not in a court of law.
Posted by Juxtapose (Member # 8837) on :
quote:posted by Dagonee:
quote:There are lots of ways in our society where men and women are not exactly the same. They should have equal rights, in the sense that most of us mean when we talk about equal rights ... but "equal" does not mean "exactly alike".
There's little chance it would be interpreted that way. For example, separate bathrooms would most likely still be ok. In fact, the building codes that require more female stalls then male stalls+urinals would likely be found to be OK based on several studies about the disparity between the number of people served per minute in a men's and women's bathrooms.
This may be obvious to everyone else since no one has mentioned it, but how could Brown v. Board of Education of Topeka not apply here? As I recall, SCOTUS ruled that seperate facilities inherently led to inequality.
I share Paul Goldner's concern that Dag's additional wording might preempt a valid and conceivably convincing pro-choice argument. I just don't think such a thing happening is very likely, so I don't have a big problem with it.
I'd still support the amendment as-is first, but with Dag's wording as necessary.
Posted by Xaposert (Member # 1612) on :
I don't think this is a good amendment. It appears that it could have many many unintended consequences, and it also doesn't seem to solve any specific pressing problem. Modern gender discrimination is mostly not driven by unfair laws. Rather it is generally driven by the prejudices of individual people and the attitudes of society in general.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Originally posted by Xaposert: I don't think this is a good amendment. It appears that it could have many many unintended consequences, and it also doesn't seem to solve any specific pressing problem.
No, it doesn't seem to address any specific hot-button issue. That is a good thing. We don't want Constitutional Amendments created that specifically address the hot-button of the day. We want the Amendment to extend the definition of liberties outlined by the rest of the Constitution. The last time an Amendment was added to address the current issue we had Prohibition. The 13th, 15th, and 19th Amendments all extended rights defined in the Articles and other Amendments (voting, citizenship, and representation). This proposed amendment seems to be of that same type of wording.
quote:Amendment 15 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
2. The Congress shall have power to enforce this article by appropriate legislation.
quote:Amendment 19 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
The Bill of Rights contains Amendments that are terse, that can (and do) get interpreted differently by different people:
quote:Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
45 words
quote:Amendment 2 A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
27 words, and "militia" and "arms" are regularly debated with regard to legislature.
quote:Amendment No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
32 words. On top of that, the Amendment explicitly states that laws can be made to change the applicability of this Amendment in times of war.
quote:Amendment 4 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
54 words, and probably the most regularly invoked Amendment within the justice system (to meet warrant requirements).
I could go on.
I do not think Dagonee's proposed addendum should be added to the proposed amendment, but not because of his intentions or the alleged implications behind his wording. In fact, his intentions are admirable. However, I just think that there is already too much hot-button baggage attached to it in the debates and public statements regarding the proposal. Adding wording meant to defuse that baggage lends those arguments undue credence, in my opinion. The proposed wording is sufficiently succinct in that it defines equality of rights regardless of gender. All the rest of the stuff is placed firmly back into the hands of the living representative lawmakers to work out, because the wording seems to be built on the assumption that those other issues are incidental, subject to change over the course of history, and ultimately something by which the People should judge the ability of their representatives to fully represent them.
In other words, I think Dagonee's wording for the addition, while not being something I feel needs to be added to the amendment, is attempting to diffuse exactly what is being borne out in a lot of the reactions regarding the amendment. That's why I think it is admirable. I just also happen to think that such an amendment should intentionally be devoid of any reference to such subject matter, with the full intention of having the American People and their elected representatives hold the responsibility to handle those unincluded issues under the standards of rights and freedoms defined within the Constitution.
Basically, I could have probably paraphrased all of that with "the Constitutional Amendments do not exist to define every specific law of the nation, they are the foundation upon which all our legislation and representation are to be based."
Posted by Lyrhawn (Member # 7039) on :
I don't really think that unisex bathrooms and many of the other things mentioned here would become a reality becuase of this bill.
We don't have separate bathrooms right now because we're trying to oppress anyone. Hell, women's bathroom's are often nicer than men's. They get those nice comfy couches in there, and it's all decorated nicely. I don't think they'd want to be in the same bathroom as a man.
And if the military changed it's policy, women could be drafted and serve in front line combat now. This wouldn't FORCE the military to draft women. It wouldn't force them to be put on the front lines. There are good reasons women aren't frontline combat troops, and those reasons don't go away if this were to be enacted.
If the law said "everything between men and women must be made uniform and equal" then I'd be afraid of the consequences, but this isn't going to restructure the foundations of gender inequalities in America, at least not the ones that exist for biological reasons.
Posted by Dagonee (Member # 5818) on :
quote:The thing is, it looks to me like it is intentionally vague. I don't see how it is significantly less vague in its wording than roughly half of the Bill of Rights.
It is intentionally vague. Because it is intentionally vague about an issue I care deeply about, and because the vagueness can only be negative (from my perspective), I will not support such an amendment.
We're in the drafting stage of this amendment right now. We don't have to be vague if we don't want to. A lot of vagueness I'm willing to support. Vagueness about what is - to me - a life and death issue, I'm not.
quote:If, in the future, a challenge is brought against anti-abortion legislation on the basis that it is discriminatory, your language would make such discrimination a moot point, because right or wrong such discrimination would not be allowed as basis for a ruling.
That IS conceding a point that has not been argued yet. At least not in a court of law.
It's not conceding a point. Right now, this amendment is not available to anyone arguing abortion in a court of law. After the amendment, it will not be available in a court of law. That's not conceding the issue - it's saying we haven't addressed the issue via amendment.
quote:This may be obvious to everyone else since no one has mentioned it, but how could Brown v. Board of Education of Topeka not apply here? As I recall, SCOTUS ruled that seperate facilities inherently led to inequality.
Even so, it allows for such separation when there is a compelling state interest. Also, equality in facilities such as bathroom is much more easily measurable and correctable.
quote:Basically, I could have probably paraphrased all of that with "the Constitutional Amendments do not exist to define every specific law of the nation, they are the foundation upon which all our legislation and representation are to be based."
I agree. What I don't want is some unelected official deciding that we, the people, through our very long and very complex amendment process, decided to make our framework prohibit protection for the unborn when it's clear that the people will have made no such decision.
Posted by Lyrhawn (Member # 7039) on :
I wonder what segregationists said about those damned unelected officials after Brown v Topeka Board of Education.
Posted by AvidReader (Member # 6007) on :
I live in Florida, and we just had a city manager down in Largo get fired because he is planing a sex change operation. Link Would something like the ERA ammendment prevent that, or would transexual rights need to be addressed by a seperate law? (It's a confusing subject. I heard that Floria only goes by birth gender when giving marriage liscences, but this says we consider them the new gender.)
Posted by Dagonee (Member # 5818) on :
quote:I wonder what segregationists said about those damned unelected officials after Brown v Topeka Board of Education.
I wonder what abolitionists said about those damned unelected officials after Dred Scott. Or those who wanted to set maximum hours for laborers said about those damned unelected officials after Lochner.
Was there some reason other than attempting to equate me with Klan members that you posted that Lyrhawn? If so, expansion might be in order.
In this case, of course, there's not even a question about the proper role of judges, because, whatever that role, it is our elected officials' role to draft amendments to the constitution. We're not usurping judicial authority by being clear in our wishes.
And, again, if we're not clear that we don't intend this amendment to affect abortion - if people do want to preserve the ambiguity specifically so it can be used to advance abortion rights - tell me so I can drop this and get to opposing the amendment.
Posted by Lyrhawn (Member # 7039) on :
quote:I wonder what abolitionists said about those damned unelected officials after Dred Scott. Or those who wanted to set maximum hours for laborers said about those damned unelected officials after Lochner.
I wonder that too.
quote:Was there some reason other than attempting to equate me with Klan members that you posted that Lyrhawn? If so, expansion might be in order.
That wasn't my reason at all. Your wording just set off an alarm bell in my head. I hear so much complaining about the courts these days, I wonder why people think we should have a higher court system at all. Someone always seems to be unhappy with what they do.
In any case, I'm actually on your side, I think. I think if this amendment were to be used, one way or the other, to support or attack abortion, it should be made explicitly clear, so it isn't passed into law under false pretenses, and people will know where to stand on it. I don't think it should deal at all with abortion, and I'd have no problem having wording specifically put into the amendment to remove the question entirely from the debate on the amendment.
It wasn't meant to be a specific attack on you, it's something I really, honestly wonder. I think when we don't like their decisions, it's our job to change the law, and thus change their decisions. If it's changed at the constitutional level, they can't overturn in. I believe they are there to protect us from our demons, after a fashion. But lately all I ever hear, mostly from the Right, is how "unelected judges" are "legislating from the bench." To me that sounds like a cop out for people making bad laws.
My comment wasn't personal Dag, your words just reminded me of something that's been especially bothering me lately and I tossed it out there. I now return you to your regularly scheduled thread programming.
Posted by Dagonee (Member # 5818) on :
Thank you for expanding on that. It makes a lot of sense.
I do think it is imperative to remember the unelected status of the judges when evaluating their effect on the law. It's not a cop-out, but a recognition that the power of judicial review is in tension with the concept of government by the people.
I think it's necessary to have unelected review, and I'm generally satisfied with it structurally. And I do agree that it is used as a criticism in cases where it's not appropriate. But the misuse of the point shouldn't prevent the point from being raised in appropriate circumstances.
Posted by JennaDean (Member # 8816) on :
quote: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."
I'm trying to understand this line. Does this mean that anyone OTHER than the United States or any state could deny or abridge someone's rights just because of their sex? A state could not require someone to be a specific gender to fulfill a certain role, nor could they pass laws that affect one sex and not the other - but private parties such as businesses, churches, clubs, etc, could still deny participation based on sex? Boy Scouts wouldn't be forced to start including girls, for example? What about those schools who are trying to have boys-only or girls-only classes because (they say) the students learn better that way? Could they be forced to integrate?
I don't know ... this sounds a lot like the laws that were passed that prohibited discrimination based on race, and yet now don't we have lawsuits when private groups discriminate based on race? (Not that I'm saying that discrimination based on race should be okay ... just that if we're saying this applies to public institutions only, I have a hard time seeing it kept at that level.) And I do not equate equal rights among the races with equal rights among the genders. Men and women are different.
Posted by mr_porteiro_head (Member # 4644) on :
Not bothering to follow everything that has happened in this thread, and responding to the initial post:
It seems very sensible to me. I don't see how any amendment on anything could be passed today if it was thought that it might affect the balance of power concerning abortion, in either direction.
So, if this amendment is worth having (something which I haven't thought enough about to have an opinion one way or another), this is the only way I can see it actually happening.
Posted by Dagonee (Member # 5818) on :
quote:I'm trying to understand this line. Does this mean that anyone OTHER than the United States or any state could deny or abridge someone's rights just because of their sex? A state could not require someone to be a specific gender to fulfill a certain role, nor could they pass laws that affect one sex and not the other - but private parties such as businesses, churches, clubs, etc, could still deny participation based on sex? Boy Scouts wouldn't be forced to start including girls, for example? What about those schools who are trying to have boys-only or girls-only classes because (they say) the students learn better that way? Could they be forced to integrate?
It doesn't mean that others can, it just means that this amendment doesn't prohibit it. There are many laws preventing discrimination based on sex already. This amendment would not affect those. It might grant Congress the power to prohibit some private action in order to remedy past state discrimination, but that would be very case specific and I can't think of a good example right now.
Posted by pH (Member # 1350) on :
Jenna, I think that if certain jobs have requirements such as, say, being a certain small size in order to be able to perform repairs or being able to lift at least X lbs., it wouldn't be gender discrimination even with this ammendment. I don't think it would require lingerie stores to start hiring men to work on the sales floor, either. I guess I could be wrong, but...
-pH
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Dagonee said: It is intentionally vague. Because it is intentionally vague about an issue I care deeply about, and because the vagueness can only be negative (from my perspective), I will not support such an amendment.
We're in the drafting stage of this amendment right now. We don't have to be vague if we don't want to. A lot of vagueness I'm willing to support. Vagueness about what is - to me - a life and death issue, I'm not.
I understand how you feel, and I'm not trying to marginalize it. I'm saying that it looks to me like the proposed amendment is worded specifically to leave out issues like that, leaving it for the living legistlators and judiciary to work out. This is good no matter which stance you take on abortion or any other issue that one might think this could affect, because it is far less difficult to have a federal law changed or amended than it is to have a Constitutional Amendment changed or removed. The wording is allowing the People to still have the debates over things like abortion and other issues. I believe that is important and necessary for the foundational document for the nation.
quote:JennaDean said: I'm trying to understand this line. Does this mean that anyone OTHER than the United States or any state could deny or abridge someone's rights just because of their sex? A state could not require someone to be a specific gender to fulfill a certain role, nor could they pass laws that affect one sex and not the other - but private parties such as businesses, churches, clubs, etc, could still deny participation based on sex? Boy Scouts wouldn't be forced to start including girls, for example? What about those schools who are trying to have boys-only or girls-only classes because (they say) the students learn better that way? Could they be forced to integrate?
As Dagonee said, it wouldn't affect those things. Worrying that things like that would be affected is unnecessary overreaction, because (as Dagonee said) there are laws to prevent discrimination in most of those cases already. What this amendment proposes is that state and federal institutions cannot deny equal rights. It is worded to be a Constitutional backing for laws that are already present.
Dagonee, did you see my previous post regarding the wording of other Amendments? I'm curious about what you feel are the differences in vagaries or wording between this proposed amendment and already established ones.
Posted by katharina (Member # 827) on :
I think it is a response to the gay marriage amendment that was tried.
Posted by mr_porteiro_head (Member # 4644) on :
What affect would this amendment be likely to have on the issue of same-sex marriage?
Posted by Dagonee (Member # 5818) on :
quote:This is good no matter which stance you take on abortion or any other issue that one might think this could affect, because it is far less difficult to have a federal law changed or amended than it is to have a Constitutional Amendment changed or removed. The wording is allowing the People to still have the debates over things like abortion and other issues. I believe that is important and necessary for the foundational document for the nation.
I don't see it that way. There is no way for the amendment to be used to restrict abortion or reduce its constitutional protection. There are clearly articulated (IMO incorrect, but they have been successful in similar situations) legal arguments for the amendment to be used to expand constitutional protection for abortion.
Further, once passed, the People cannot do anything about it, short of passing another amendment. The courts will be the ones having the discussion.
With an addendum that makes it clear this amendment is not intended to affect abortion, the People have the exact same scope to discuss it as they do now. Without such an addendum, the people have less scope for discussion outside the context of a new amendment.
quote:Dagonee, did you see my previous post regarding the wording of other Amendments? I'm curious about what you feel are the differences in vagaries or wording between this proposed amendment and already established ones.
Briefly, I don't think it's very different. It is the similarity to the 14th in particular that makes me think this amendment would eventually be used to further restrict government power to protect the unborn.
quote:What affect would this amendment be likely to have on the issue of same-sex marriage?
My guess: the most likely outcome would be a requirement for equal civil unions (as Vermont's court decided) or same sex marriages (as Massachusetts's court decided). Haven't decided which of these two outcomes is more likely.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Originally posted by mr_porteiro_head: What affect would this amendment be likely to have on the issue of same-sex marriage?
None, that would still be something that the People, through representatives and judiciary, need to work out themselves.
quote:I don't see it that way. There is no way for the amendment to be used to restrict abortion or reduce its constitutional protection. There are clearly articulated (IMO incorrect, but they have been successful in similar situations) legal arguments for the amendment to be used to expand constitutional protection for abortion.
But I don't see it articulated even close to as clearly as you seem to regarding abortion. The wording seems to me to be intentionally ambivalent.
quote:Further, once passed, the People cannot do anything about it, short of passing another amendment. The courts will be the ones having the discussion.
The last time I checked, the courts were there at the service of the People and to interpret the Constitution with regard to laws. Has something changed?
quote:
quote:Dagonee, did you see my previous post regarding the wording of other Amendments? I'm curious about what you feel are the differences in vagaries or wording between this proposed amendment and already established ones.
Briefly, I don't think it's very different. It is the similarity to the 14th in particular that makes me think this amendment would eventually be used to further restrict government power to protect the unborn.
But hasn't the 14th already been used as such in congressional argument?
What I am saying is I reject setting the precedent of attaching current hot-button issues that our elected politicians should be working on to a Constitutional Amendment. That just feels too much to me like trying to get our foundational document to do the job our elected officials should be doing. I would reject any proposal that had any mention of issues like abortion, gay marriage, immigration reform, or even fighting terror. Such wording would weaken our Constitution in the long run, in my opinion.
Posted by The Pixiest (Member # 1863) on :
Dag: I'd like to think you're right, we would get SSM or at least SSU but I don't have that much faith in the courts.
By necessity an ERA would start getting exceptions. We've talked about them right here in this thread. And if we can make an exception for bathrooms or the draft, we can certainly make exceptions to keep a sinful minority from getting married.
Posted by Dagonee (Member # 5818) on :
quote:The wording seems to me to be intentionally ambivalent.
It's intentionally ambiguous about whether it will apply to abortion, but it's crystal clear that if it does apply, it will only apply in one direction.
The ambiguity is why I don't like it.
quote:The last time I checked, the courts were there at the service of the People and to interpret the Constitution with regard to laws. Has something changed?
The People have tried time and time again, through their elected representatives, to restrict abortion, and the courts have overridden them.
quote:What I am saying is I reject setting the precedent of attaching current hot-button issues that our elected politicians should be working on to a Constitutional Amendment. That just feels too much to me like trying to get our foundational document to do the job our elected officials should be doing. I would reject any proposal that had any mention of issues like abortion, gay marriage, immigration reform, or even fighting terror. Such wording would weaken our Constitution in the long run, in my opinion.
Elected officials cannot do anything (ok, almost anything) with respect to abortion because of how the foundational document is interpreted. Right now, the Constitution as interpreted by the courts, might as well say, "Neither the United States nor any of the several States may place an undue burden on the right of a woman to obtain an abortion."
The ONLY way to change this is via constitutional amendment or a decades-long run of pro-life presidents who do a better job selecting justices than Bush I did.
It's not accurate to say that "abortion is left up to the people" right now.
Posted by ClaudiaTherese (Member # 923) on :
I understand your point, Dagonee, I really do. I don't mean this question as a challenge, but as a clarification: Are there any other constitutional amendments that specifically proscribe or limit their own interpretation?
(I am probably wording this incorrectly, so feel free to respond to the question the way it should have been asked. I mean to ask whether this sort of amendment, with your addition, would be a new thing. Not that that would rule it out, just curious.)
---
Edited to add: My apologies if this was discussed specifically before -- I skimmed and didn't see it, but I could have easily missed it.
Posted by Dagonee (Member # 5818) on :
quote:I understand your point, Dagonee, I really do. I don't mean this question as a challenge, but as a clarification: Are there any other constitutional amendments that specifically proscribe or limit their own interpretation?
Yes: "This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution." Amendment XVII.
Several other places affect how other sections of the Constitution are to be construed:
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." Article IV, Section 3.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Amendment IX.
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Amendment XI (regarding construction of "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." in Article III).
All of these are qualitatively different than what I'm proposing in some ways, but they represent the same legal idea: "Someone could reasonably interpret X as meaning Y, but we didn't mean Y when we wrote it."
Edit: and that's a very good question, one I didn't know the answer to until you asked. The legal concept is one I use almost every single day, and I've seen it in dozens of statutes, but I hadn't checked to see if it was used in the Constitution.
Posted by ClaudiaTherese (Member # 923) on :
quote:Originally posted by Dagonee: Yes [example] ... Several other places affect how other sections of the Constitution are to be construed: [examples] ... All of these are qualitatively different than what I'm proposing in some ways, but they represent the same legal idea: "Someone could reasonably interpret X as meaning Y, but we didn't mean Y when we wrote it."
You and I differ in our opinions on some of these matter of content (how is that for gentle hand wave? ), but my main concern about this additional wording was if it were to be a new standard for constitutional amendments. Not that this would rule it out, but that I'd have to think about it more carefully.
Given the precedence, I don't have that concern. And since I want the amendment to be put forth and have no real quibble to the amendment you put forth, then you get it by me.
Of note, I also want intent to be straightforward and clear as possible in these matters. The debates are onerous and wearying, but that's where the work gets done.
quote:Edit: and that's a very good question, one I didn't know the answer to until you asked. The legal concept is one I use almost every single day, and I've seen it in dozens of statutes, but I hadn't checked to see if it was used in the Constitution.
Thanks. Appreciate the work.
Posted by Jutsa Notha Name (Member # 4485) on :
I like your arguments, Dagonee, even though I think we're reaching a fundemental difference in the interpretation that isn't likely to be reconciled just by us talking about it.
quote:Dagonee said: Elected officials cannot do anything (ok, almost anything) with respect to abortion because of how the foundational document is interpreted. Right now, the Constitution as interpreted by the courts, might as well say, "Neither the United States nor any of the several States may place an undue burden on the right of a woman to obtain an abortion."
The ONLY way to change this is via constitutional amendment or a decades-long run of pro-life presidents who do a better job selecting justices than Bush I did.
It's not accurate to say that "abortion is left up to the people" right now.
I don't think it is accurate to say that "abortion would be left up to the people" even with your wording added to the proposed amendment, though. Of course it is up to the legislators to vote on laws and the courts to interpret them. That's one of the things I like about much of the wording within the Constitution and how it applies to the separate branches of government. It covers the very broad, and leaves the detail-ridden issues to the responsibility of the people- through their elected and appointed branches of government.
Basically, I'm saying I would be resistant to abortion being mentioned in any capacity in any Amendment. There is simply too much risk and a poor precedent set with it, in my opinion.
Posted by Dagonee (Member # 5818) on :
quote:I like your arguments, Dagonee, even though I think we're reaching a fundemental difference in the interpretation that isn't likely to be reconciled just by us talking about it.
I agree.
quote:Basically, I'm saying I would be resistant to abortion being mentioned in any capacity in any Amendment. There is simply too much risk and a poor precedent set with it, in my opinion.
I'm pretty sure we each understand where the other is coming from and have simply reached the center of disagreement here.
Question: If such an addendum were put in the amendment over your objection (and assuming you support the amendment in general) would you vote for the amendment or against it? In other words, is this principle you are articulating more or less important than the amendment itself?
quote:Given the precedence, I don't have that concern. And since I want the amendment to be put forth and have no real quibble to the amendment you put forth, then you get it by me.
Hurrah!
quote:The debates are onerous and wearying, but that's where the work gets done.
I agree. Certain issues can cause a standstill on related matters - that's what motivated me to post this thread. I think there's great value in saying "We disagree about this very important issue. We are not minimizing the importance of this disagreement nor altering our views concerning it. Instead, we are putting it aside briefly to accomplish this other important thing on which we can agree."
It also allows more precise defining of the areas of disagreement, which I am always in favor of.
I think this may all be moot, because I suspect those opposed to same sex civil marriage will make the opposition to this amendment insurmountable.
Edit: Very nice hand wave, by the way. Posted by mr_porteiro_head (Member # 4644) on :
quote:I think this may all be moot, because I suspect those opposed to same sex civil marriage will make the opposition to this amendment insurmountable.
I suspect you are correct.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Dagonee: Question: If such an addendum were put in the amendment over your objection (and assuming you support the amendment in general) would you vote for the amendment or against it? In other words, is this principle you are articulating more or less important than the amendment itself?
That's a very good question, and one I find very difficult to answer. I think the importance of the amendment is greater, but the principle behind the extra wording makes me leery of it being the best option to vote it in now and get such an important amendment in place. I wouldn't want to rush it and have something lesser than what the Constitution deserves.
Posted by Dagonee (Member # 5818) on :
quote:
quote:I think this may all be moot, because I suspect those opposed to same sex civil marriage will make the opposition to this amendment insurmountable.
I suspect you are correct.
I understand this - I disagree with Pixiest that courts are unlikely to interpret it to require at least totally equal civil unions. So I think those who think the same sex civil marriage issue very important pretty much have to oppose it.
quote:That's a very good question, and one I find very difficult to answer. I think the importance of the amendment is greater, but the principle behind the extra wording makes me leery of it being the best option to vote it in now and get such an important amendment in place. I wouldn't want to rush it and have something lesser than what the Constitution deserves.
I understand this, too. I see a gaping wound in the Constitution right now regarding fetal protection and hate the thought of doing something else to it without fixing it.
****
I've been thinking about public funds going to women-only domestic violence shelters. Many of them don't even let men know where they are located - they are truly all-women operations. I wonder how they would fair.
Protecting people from abuse is clearly a compelling state interest. The question would be if the means are narrowly tailored.
Haven't reached a conclusion on this one and would love to hear thoughts.
Posted by Qaz (Member # 10298) on :
If the court can rule without regard to the language of the Constitution in Roe, and against the language of the Constitution in Kelo, it doesn't really matter much what that language is on issues they care about. And they care about abortion.
The point about women's shelters is interesting. We already discriminate on race in order to fight race discrimination. You could probably discriminate on sex to fight sex discrimination too. So if ERA passes we get women's shelters and government contracts for women-owned business, like now, and attempts at equal money spent on school sports like we have now from Title IX.
Posted by Jutsa Notha Name (Member # 4485) on :
Hey Dagonee, what if we wrote it in a way that limited abortion but allowed civil unions? (kidding. mostly.)
Posted by Xaposert (Member # 1612) on :
quote:The last time an Amendment was added to address the current issue we had Prohibition.
This is false. Almost every amendment was created to address a specific issue at the time. Much of the Bill of Rights was created to address specific fears associated with America's former British rulers. The British forced Americans to house soldiers, so they made an amendment against that. They punished people for their religious views, so Americans made an amendment against that. And so on.
Similarly, almost every amendment since then was a reaction to some specific problem. The most recent amendment (27th) was created very specifically to address how Congress was giving itself raises. The one before that (26th) was an answer to the question of why soldiers being sent to war could not vote.
The Equal Rights Amendment appears to be aimed at the hot button issue of gender equality, but it doesn't seem able to solve it in any real way. The law is not the big discriminator against women. It is individuals and private organizations that appear to be most guilty of that - and they would not be changed by this amendment.
Posted by Dagonee (Member # 5818) on :
quote:Originally posted by Jutsa Notha Name: Hey Dagonee, what if we wrote it in a way that limited abortion but allowed civil unions? (kidding. mostly.)
You mean, what if it gave me what I wanted on two separate issues?
Posted by Rakeesh (Member # 2001) on :
Ha!
Posted by Dagonee (Member # 5818) on :
quote:The most recent amendment (27th) was created very specifically to address how Congress was giving itself raises.
Technically it was created in 1789 when the bill of rights was drafted - it was the second ever submitted to state legislatures for ratification.
quote:The Equal Rights Amendment appears to be aimed at the hot button issue of gender equality, but it doesn't seem able to solve it in any real way. The law is not the big discriminator against women. It is individuals and private organizations that appear to be most guilty of that - and they would not be changed by this amendment.
I tend to agree it would have little practical effect outside of the same sex civil marriage issue. If the legal result is changing sex from an intermediate scrutiny to a strict scrutiny distinction, there are only a few areas that will change. It will make it harder to justify affirmative action for women; the VMI case would have been easier to decide; the statutory rape distinction I mentioned on the previous page might have to change.
Physical requirements for jobs would have to be better justified to survive constitutional scrutiny, but that standard is already in place (in general) in the statutes. It would be harder (or impossible) to use sex as a proxy for those physical requirements.
Race is currently a strict scrutiny distinction, but the Supreme Court has acknowledged very few instances of genuine differences between races that can justify legal distinctions (only the history of past discrimination, basically). There will be more distinctions between the sexes that justify legal distinctions arising out of the undeniable differences of biology/reproduction. They will simply receive tighter scrutiny than in the past.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Originally posted by Dagonee:
quote:Originally posted by Jutsa Notha Name: Hey Dagonee, what if we wrote it in a way that limited abortion but allowed civil unions? (kidding. mostly.)
You mean, what if it gave me what I wanted on two separate issues?
Good answer! Still, you have to see how this would go over in Congress and the public at large, which is where I was aiming it. The debate over both issues in the public sphere seem to be focused on a "one way or the other" approach that is ridiculously reduced to the point of sound bytes. Do you think an amendment proposal like that would challenge such debates?
quote:Xaposert posted: This is false. Almost every amendment was created to address a specific issue at the time. Much of the Bill of Rights was created to address specific fears associated with America's former British rulers. The British forced Americans to house soldiers, so they made an amendment against that. They punished people for their religious views, so Americans made an amendment against that. And so on.
That would be a very loose and frankly revisionist interpretation of how those other amendments made it into the Constitution. As for the Bill of Rights, I never said they didn't address specific issues, but you are apparently unaware that the Constitution came long after the Revolutionary War was over. The Constitution and Bill of Rights were written that way precisely because the first draft, the Articles of Confederation, were too knee-jerk in their implementation and eventually caused divisiveness in the nation, not unity. You are aware that the Constitution was adopted nearly ten years after the United States was officially formed, right? I'd say that your sermon falls a little short when looked at with an honest look at the document itself.
quote:Similarly, almost every amendment since then was a reaction to some specific problem.
I never said otherwise. I said they weren't adopted when an issue was a heated debate in the public and political sphere, like abortion, like gay marriage, and so on. Prohibition was the last instance of that.
quote:The most recent amendment (27th) was created very specifically to address how Congress was giving itself raises.
And what? "The 27th Amendment was originally proposed on September 25, 1789, as an article in the original Bill of Rights. It did not pass the required number of states with the articles we now know as the first ten amendments. It sat, unratified and with no expiration date, in constitutional limbo, for more than 80 years when Ohio ratified it to protest a congressional pay hike; no other states followed Ohio's lead, however. Again it languished, for more than 100 years.
In 1978, Wyoming ratified the amendment, but there was again, no follow-up by the remaining states. Then, in the early 1980's, Gregory Watson, an aide to a Texas legislator, took up the proposed amendment's cause. From 1983 to 1992, the requisite number of states ratified the amendment, and it was declared ratified on May 7, 1992 (74,003 days)."
It took nearly 10 years to ratify most recently, and sat as a proposed amendment for a century. Yeah, I can see how that one was just rushed through Congress.
quote:The one before that (26th) was an answer to the question of why soldiers being sent to war could not vote.
Indeed: "The United States was in the throes of the Vietnam War and protests were underway throughout the nation. Draftees into the armed services were any male over the age of 18. There was a seeming dichotomy, however: these young men were allowed, even forced, to fight and die for their country, but they were unable to vote. The 14th Amendment only guaranteed the vote, in a roundabout way, to those over twenty-one.
The Congress attempted to right this wrong in 1970 by passing an extension to the 1965 Voting Rights Act (which itself is enforcement legislation based on prior suffrage amendments) that gave the vote to all persons 18 or older, in all elections, on all levels. Oregon objected to the 18-year-old limit, as well as other provisions of the 1970 Act (it also objected to a prohibition on literacy tests for the franchise). In Oregon v Mitchell (400 U.S. 112), a sharply divided Supreme Court ruled that the Congress had the power to lower the voting age to 18 for national elections, but not for state and local elections. The case was decided on December 1, 1970. Within months, on March 23, 1971, the Congress passed the text of the 26th Amendment, specifically setting a national voting age, in both state and national elections, to 18. In just 100 days, on July 1, 1971, the amendment was ratified."
Six years, at least one SCOTUS case, and in case you missed my wording previously this Amendment extended already defined rights that existed in the Constitution, it didn't add any.
quote:The Equal Rights Amendment appears to be aimed at the hot button issue of gender equality, but it doesn't seem able to solve it in any real way. The law is not the big discriminator against women. It is individuals and private organizations that appear to be most guilty of that - and they would not be changed by this amendment.
The Amendments aren't supposed to be an answer to problems in the same way laws are. They are meant to establish and define our rights as citizens of this nation, not set legal boundaries. A law can potentially deny you something, but only under the interpretation that it does not conflict with the rights and freedoms defined in the Constitution. Laws from the Legislative Branch work top-down from the government to the people in establishing ground rules. The Constitution works bottom-up guaranteeing rights and freedoms that cannot be denied by any branch of government, and defines how government is to operate.
Care to try again?
Posted by katharina (Member # 827) on :
quote:Care to try again?
Such a snotty phrase does not belong in polite or intelligent conversation. If you have a point, you don't need to act like a nine-year-old for that to be apparent.
Posted by Jutsa Notha Name (Member # 4485) on :
Are you my karma police now?
Posted by katharina (Member # 827) on :
That's not helping.
Posted by Rakeesh (Member # 2001) on :
Perhaps, as Dagonee has illustrated, you should not make predetermined assumptions about what other people believe on a variety of issues, Jutsa.
Just a thought.
Posted by Jutsa Notha Name (Member # 4485) on :
You're not contributing to the conversation. You are playing nanny. You can stop now.
Posted by Rakeesh (Member # 2001) on :
Whether or not she's playing nanny is an entirely subjective thing. And in any case, you're the boss of nothing and no one around here.
Why would you tell her she can stop now? You must know it would have no power to compel it...
Posted by mr_porteiro_head (Member # 4644) on :
quote:Such a snotty phrase does not belong in polite or intelligent conversation.
Posted by Jutsa Notha Name (Member # 4485) on :
This is getting a little ridiculous.
Posted by katharina (Member # 827) on :
If you have a cogent point, you don't need to throw a pie at the end of your post.
Trust your argument! Posted by Will B (Member # 7931) on :
The only way to win is not to play. [Edit: I mean pie-throwing, not argument.]
Posted by Jutsa Notha Name (Member # 4485) on :
If you have nothing to add to the thread, coming in and playing nanny makes you look petty. And hypocritical.
Perhaps Will B is correct. I won't feed this odd nanny-trolling.
Posted by BaoQingTian (Member # 8775) on :
Frankly, I haven't participated in many of the threads that you have because you seem determined to turn each discussion into a pissing contest. Perhaps you could take some pointers from 'nanny-trolls' on your posting style. You occasionally make good points. However, they are often hard to see since they are mixed in with insults and a lack of willingness to concede points that you were wrong on, especially in your discussion with Iran with Rakeesh.
As an observer, not a participant, you come across as having a chip on your shoulder and trying to pick a fight, FWIW.
Posted by Xaposert (Member # 1612) on :
quote:You are aware that the Constitution was adopted nearly ten years after the United States was officially formed, right? I'd say that your sermon falls a little short when looked at with an honest look at the document itself.
quote:It took nearly 10 years to ratify most recently, and sat as a proposed amendment for a century. Yeah, I can see how that one was just rushed through Congress.
quote:Six years, at least one SCOTUS case, and in case you missed my wording previously this Amendment extended already defined rights that existed in the Constitution, it didn't add any.
quote:Care to try again?
Yes, I will try again to explain my point. All of your points seem to show only that previous amendments weren't rushed into law - which doesn't go against anything I've said. My point was NOT that amendments should be rushed into law quickly. My point was that there is no good reason to put an amendment in the Constitution unless it is likely to solve some current or potential future problem. Even the 200-year-old amendment solved a specific problem, even if it did take so very long to be ratified into law.
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Originally posted by Xaposert: Yes, I will try again to explain my point. All of your points seem to show only that previous amendments weren't rushed into law - which doesn't go against anything I've said. My point was NOT that amendments should be rushed into law quickly. My point was that there is no good reason to put an amendment in the Constitution unless it is likely to solve some current or potential future problem. Even the 200-year-old amendment solved a specific problem, even if it did take so very long to be ratified into law.
Amendments are not there to solve problems, they establish and define. I've pointed this out. Dagonee has pointed this out, and his original proposed addition to the text is meant to keep it from being used to solve a problem. Much of the discussion between others seems to have this as a foregone conclusion. You are the one talking about it solving problems. The only way that applies is as an effect, not a cause.
An effect, not a cause. The last Amendment to be introduced to solve a specific problem was Prohibition. You have yet to provide an argument proving otherwise. The examples you attempted to use did not solve problems, they extended and defined things already in place.
Posted by Dagonee (Member # 5818) on :
quote:Dagonee has pointed this out, and his original proposed addition to the text is meant to keep it from being used to solve a problem.
Let me be very clear about something: I want a constitutional amendment granting states and the federal government the power to protect the unborn. I can see this being classified as solving a current problem or about defining and extending rights to a class of people* explicitly denied such protection by SCOTUS decisions. The 14th amendment was actually aimed at very specific problems - Dred Scott, discriminatory laws, etc. If you look at each sentence, it's very easy to identify the specific actual harm being addressed.
It did so by providing a framework, and I would consider a protection of the unborn amendment to be a very similar amendment. But it seems to me that it would also be addressing an existing problem. Can you clarify whether it's the motive of correcting a specific problem via amendment that you find objectionable or the whether an amendment that addresses such a motive through frame-work-driven means would avoid your objection?
Posted by Jutsa Notha Name (Member # 4485) on :
quote:Can you clarify whether it's the motive of correcting a specific problem via amendment that you find objectionable or the whether an amendment that addresses such a motive through frame-work-driven means would avoid your objection?
It is similar to my preference for ambivalence in wording to specific issues, like abortion as an example. Definition and extension as a framework make the document and the separate amendments able to last, to withstand obvious social changes that are inevitable. Adding politics-driven issue statements into the document lessens the probability that the document will remain as equally socially applicable 50, 100, or 200 years from now because it assumes a specific stance on an issue. Providing a basis or a framework in the document, however, leaves the ability for interpreting and possibly further deciding the limits to those issues to the people for whom the document is written, most often through their representatives and sometimes through the judiciary.
For example, during the writing of the Constitution blacks and women did not have equal voting rights, but the wording they used at the time was such that the 15th and 19th Amendments were extensions rather than establishment of rights in each case. This is not to say that all of the individuals who contributed to or ratified the Constitution would have agreed at the time that such an interpretation should be viable. They probably didn't, or at least there were probably some who didn't.
Basically, I would be highly suspicious of any proposal to add anything to the Constitution that doesn't leave within its wording sufficient open-ness to extension and definition in subsequent generations. So far, they look to have worked like that, with one exception that was eventually repealed (Prohibition). My concern with a women's rights amendment that had language regarding abortion, marriage, or similar issue is that it would be setting that amendment up to be repealed if social tides change one way or the other significantly enough. That would not have to happen if the extra language is not attached, and the issues could still be debated and their interpretations with regard to the Constitution reviewed.
Posted by Dagonee (Member # 5818) on :
I'm not sure how my addendum could ever lead to repeal of the amendment if social tides change.
The language states that this amendment is not about abortion. It'd be like repealing the eleventh amendment because views on abortion changed - something that would make no sense, because the 11th has nothing to do with abortion.
Posted by Jutsa Notha Name (Member # 4485) on :
But the 11th Amendment also doesn't need to state it isn't about abortion.
![[Smile]](smile.gif)
), but my main concern about this additional wording was if it were to be a new standard for constitutional amendments. Not that this would rule it out, but that I'd have to think about it more carefully.![[Big Grin]](biggrin.gif)
Good answer! Still, you have to see how this would go over in Congress and the public at large, which is where I was aiming it. The debate over both issues in the public sphere seem to be focused on a "one way or the other" approach that is ridiculously reduced to the point of sound bytes. Do you think an amendment proposal like that would challenge such debates?![[Roll Eyes]](rolleyes.gif)