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The ERA and the empty idea of equality


Susan Matthews and Mark Joseph Stern point out a couple of glaring absurdities in the current campaign to get the Equal Rights Amendment ratified:

The entire mess has been laid at the feet of the archivist of the United States, a position Shogan will soon take over (pending confirmation), hence the lobbying. Proponents of the amendment are also upset that the Biden Administration is taking the same slightly technical position that Donald Trump’s did: The archivist cannot certify the ERA without confirmation from either a federal court or Congress. The disappointment is, on some level, understandable: Those supporting the ERA’s resuscitation argue that it is the solution to our current political horrors—that the amendment could protect a national right to abortion and contraception, enshrine LGBTQ equality (including same-sex marriage and trans rights), and justify federal legislation protecting women from domestic violence, wage discrimination, and more. Once the archivist certifies the ERA, they argue, the federal judiciary can finally implement a full guarantee of sex equality under law. That’s why they sued the last archivist for refusing to act, and it’s why they’re pressuring the next one already.

This argument has strong emotional appeal. It is also absurd. There is nothing wrong with the ERA itself; obviously a constitutional right to sex equality would be an improvement. But the campaign to revive the ERA reveals a baffling misunderstanding about the actual contours of the ongoing fight over who has legal rights in this country. It is like bringing a butter knife to a gunfight.

We understand why those supporting the ERA are annoyed right now. The process of amending the constitution is inherently political, and politicians have previously bent the rules to push amendments through: After the Civil War, for instance, Congress forced southern states to approve the 14th amendment as a condition for rejoining the union—while simultaneously rejecting the legitimacy of these state governments, denying them congressional representation. Moreover, two northern states rescinded their approval, depriving the 14th Amendment of the necessary support from three-fourths of the state. Yet Secretary of State William Seward chose to ignore their actions and certified the amendment anyway. So anyone who claims states could withdraw their support for the ERA has to explain why they could not withdraw support for the 14th Amendment.

Due to all this, there are obvious reasons to be frustrated by conservative efforts to scorn ERA revival as a brazenly unconstitutional joke—but reasonable people can disagree about whether there’s a lawful path forward for the amendment right now. What we find befuddling is the fact that any progressive in 2022 could still believe that the current federal judiciary would greenlight ratification—or that the ERA’s ratification would matter to the federal judiciary.

Matthews and Stern are of course right that there’s no way the current SCOTUS would recognize the ratification of the ERA; and indeed the formalistic arguments against recognizing it are strong. The deadline for ratification is long past, and a couple of state legislatures that ratified it have since tried to rescind that ratification. (The whole bizarre story of how the ERA, which seemed like it was going to sail through the ratification process back when it was introduced in the early 1970s, was suddenly derailed by Phyllis Schlafly’s anti-feminist backlash campaign, is told well in Rick Perlstein’s Reaganland among other places). They’re also right that even if it were somehow adopted it would mean basically nothing as a practical matter, given the current composition of the federal courts.

But they miss the biggest reason why the latter fact is the case, which is that the idea of “equality” is inherently empty. A legal rule that says that people should be treated “equally” tells you exactly nothing about how any actual legal or social dispute ought to come out. For example, does a legal rule that says that people should be treated equally as a matter of employment problematize the fact that recently 25 hedge fund managers made more money in one year than all of America’s 150,000+ kindergarten teachers combined? The answer is that this totally depends on what you mean by treating workers “equally.” To a worshiper of The Market ™, blessed be its name, this outcome simply is a product of equal treatment, because The Market has decided that the work performed by each of these hedge fund managers is thousands of times more socially valuable than the work performed by the average kindergarten teacher, so these people are all being treated equally, when you consider their compensation in light of the appropriate baseline.

Every dispute about equal treatment under the law is exactly like this. Reactionary worshipers of the patriarchy absolutely deny that they engage in gender discrimination, because the “fact” that society should be run by men, according to God or Darwin depending on the variety of patriarchal reaction, is just like the fact that the economic value of the work performed by hedge fund managers is thousands of times more valuable than that performed by kindergarten teachers: that is, it’s dictated by the appropriate interpretive baseline regarding what “equal” treatment means (In a stunning coincidence all the hedge fund managers in the above example were men, while 98% of the kindergarten teachers were women).

None of this is subject to empirical verification or refutation, because these beliefs are based on ideological first principles that aren’t amenable to that kind of critique, which is simply to say they’re ideological first principles.

In other words, the whole enterprise of demanding equal rights as matter of political principles — as opposed to a matter of political power — is a waste of time.

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