Libertarians and the ERA


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. Congress and the several states shall have power, within their respective jurisdictions, to enforce this article by appropriate legislation.

SECTION 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states.

SECTION 3. This amendment shall take effect one year after the date of ratification.

The above is the proposed Equal Rights Amendment (ERA) to the U.S. Constitution, an object of much earnest effort, both pro and con. At the moment 33 out of the required 38 states have ratified it, but its ultimate passage is still problematical—anti-ERA groups have been active lately in defeating the measure in several states. Surprisingly, libertarians' reaction to the ERA is mixed; to some extent, it is like the "I'm not a women's libber but…" rhetoric one so often hears from women pioneers in traditionally masculine fields—they approve the substance but not the form. For example, delegates to the 1974 Libertarian Party Convention declined to endorse the ERA, while voting for a platform plank that said "Equality of the rights under the law should not be denied or abridged by the United States, or any political subdivision thereof, on account of sex…" Yet the ERA is profoundly libertarian and badly needed in the Constitution—libertarians should support it in fact as well as sentiment!

Now of course it is possible that many of the LP delegates were uneasy about the enabling clause of the ERA which allows Congress and the States to enforce the amendment by appropriate legislation and some of the anarchists might even have been concerned about endorsing anything that requires governmental action. But all the enabling clause implies is that Congress and state legislatures can repeal or amend existing laws that discriminate on the basis of sex (and the LP platform is full of calls for repeal or change of this or that law). The enabling clause does not give Congress any power it doesn't already have; in fact, the ERA clause is unique among Constitutional enabling clauses in that it includes "the several states"—which may not set well with ardent federalists, but does please decentralists.

And most definitely the ERA does not imply an expansion of government control into private employment practices and the like, if that is what people were (and are) worried about. The Equal Rights Amendment specifically enjoins governments from discriminating—it does not say a word about individuals and private groups (true, the Supreme Court could conceivably misinterpret it sometime—they haven't done spectacularly well on the rest of the Constitution—but if so then the Court is the problem, not the amendment). And when you get right down to it, the Federal government doesn't need an excuse to expand into the private sector—it already has, and uses, all the power it needs as a consequence of the 1964 Civil Rights Act.

On the other hand, the skeptic asks, what positive reasons are there for the Libertarian Party and libertarians in general to support the ERA and actively work for its passage?

For one thing the ERA deserves the support of libertarians because it will remove some of the present governmental intrusions into the employer-employee relationship, specifically by nullifying most of the "protective" labor laws women and their employers are subject to. These are state laws that provide sanctions against requiring a woman to work more than some minimum number of hours, usually 48 to 50 per week; that provide sanctions against requiring a woman employee to lift more than a maximum weight, usually 35 to 50 pounds; that forbid a woman to work at certain occupations, e.g., as a bellhop, bartender, meter-reader, etc. Without the ERA the government will continue to fine and/or jail employers who violate these laws, and women will continue to be paid less than their free market worth because they are forbidden to compete for employment on the same terms as men.

The ERA also deserves the support of libertarians because it will help to set free a major class of slaves, namely husbands (in fact, this appears to be the reason that many conservatives, such as Phyllis Schlafly, oppose the ERA). At this point many, if not most, state laws require a husband to support his wife, quite aside from her independent means, and he can be fined and even jailed for nonsupport. Under the ERA the support laws are most likely to be removed or will apply equally to both marriage partners (this would be particularly true in the case of child support). The ERA will further serve to raise wives to the status of full and responsible citizens, legally able to buy and sell their own property, to start their own business without their husbands' permission, to be responsible for their own debts, and to generally have full property rights. In short, the ERA, by removing or modifying laws which impose a single state-sanctioned marriage contract, will be a big step towards getting the government out of people's homes and economic lives.

But the ERA has an even deeper reason to recommend it to libertarians: it is most basically an attack on governmental collectivism. As laws stand now, Federal and state governments have singled out approximately 100 million people who had the "misfortune" of being born with an XX rather than an XY chromosomal pattern and solely on that basis have deprived them of many of their rights, particularly property rights. Yet, as many libertarian theorists have pointed out, rights—or nonrights, as the case may be—can only accrue to individuals, not groups. It is no more moral for a government to legislate either for or against Women than it is for a government to legislate for or against The Rich, The Jews, The Proletariat, etc. If one holds, as libertarians do, that the government exists to defend individual rights, then one must insist that the government treat its citizens as individuals, not as members of some collective, if one wishes to be consistent. That is what the Equal Rights Amendment does—it insists that the government treat people as individuals rather than as members of a sex.

The ERA only has to be ratified by five more states (among those which have not yet ratified it: Utah, Louisiana, Arizona, Georgia, Indiana, Mississippi, Missouri, Oklahoma, and Virginia) and its fate must be decided by 1979. Either we then "celebrate" a continuation of collectivism or—we make it one for our side!