The Volokh Conspiracy

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The Equal Rights Amendment: Back for an Encore Performance? Well…Performance, Yes, But Actual Constitution-Making, Probably Not.

The last thing left-leaning feminists want is a constitutional amendment that would jeopardize such things as preferential treatment for woman-owned businesses.


Who would have thought the Equal Rights Amendment would stage a comeback? Yet at least on the surface, that might seem to be happening. Nevada ratified the amendment in 2017. A few weeks ago the Illinois Senate did the same. Some of the ERA's cheerleaders argue that only two more states should be needed.

Still, appearances can be deceiving. Many readers may already know about the deadline issues: When Congress initially passed the ERA in 1972 it set a deadline for ratification of March 22, 1979. But only 35 of the needed 38 states had ratified by then (and of those 4 had voted to rescind their ratification). Arguably at least, the only way to move things along after that would have been to start from scratch. Instead, Congress purported to extend the deadline to June 30, 1982 (and the legal status of that extension has never been authoritatively resolved). In any event, no more states voted to ratify during the extension period. The legal status of ratifications beyond even the second deadline is, of course, subject to even more doubt.

I won't comment on those issues here. Instead, I want to ask this: Do left-leaning feminists really want the ERA to be ratified? Or is this just political theater? The safe bet is that, for most of these supporters, it's probably the latter.

Several years ago, in an essay entitled "The Equal Rights Amendment: Back for an Encore Performance?," I wrote that many of the same organizations that are pressing for the ERA's revival led the opposition to California's Proposition 209. That 1996 initiative's core provision (which is now part of California's Constitution) stated, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." It was, in part, a mini-ERA (although it covered only public employment, public education, and public contracting and like Title VII it had a bona fide qualification exception designed to make clear that such things as separate restrooms would remain permissible).

These left-leaning feminist organizations opposed it with a passion. Instead, they supported preferential treatment for women, particularly affirmative action preferences in state jobs and preferences for woman-owned businesses in public contracting. In the final days of the Proposition 209 campaign, California's television airwaves were blanketed with a spot featuring a woman being stripped by male hands of her stethoscope, medical lab coat, hard hat, police cap and finally her business suit until she was left in torn clothes and underwear, while men chanted "take it off, take it all off." The voice over asked, "Want to be a doctor? Police Officer? Hard Hat? Forget it!" At the end, a final male hand reaches in to stroke her face suggestively. Katherine Spillar, Executive Vice President of Feminist Majority—who headed the coalition that produced the spot—was only too happy to confirm what that final flourish was intended to convey. "The suggestion is that a woman can always sell her body," she told the press.

These left-leaning feminists opposed Proposition 209 because it required equal treatment, and they preferred preferential treatment. Yet many of them now claim to support a revival of the ERA, which calls for "[e]quality of rights" and not for special rights. Surely they are playing a dangerous game here. The ERA would very likely be interpreted to invalidate the many state-sponsored "affirmative action" programs that currently give preferential treatment to women and women-owned businesses. Equal rights means equal rights. Given these circumstances, it is difficult to take efforts by left-leaning feminists to revive the ERA seriously—unless it's just theater. If they can get together even a shadow of an argument that 38 states have ratified, it will then be up to Congress to declare the ERA part of the Constitution or not. If Congress balks on the ground the deadline expired long ago, it will, with great fanfare, be chalked up to the "War on Women."

By the way, if you are surprised to think that many of the best-informed, left-leaning feminists could in their hearts of hearts hope that the ERA will be defeated, don't be. They are simply returning to their Progressive roots. The ERA was around for decades before Congress approved it. For most of that period it was strongly opposed by Progressives, including feminist icons like Eleanor Roosevelt and Dorothy Kenyon (who chaired the ACLU's Committee on Women's Rights). In 1940s and '50s, the ACLU and other left-of-center organizations dubbed it the "Unequal Rights Amendment." It was also opposed by both women's and men's trade unions Why? For exactly the same reason that more recent left-leaning feminists have. They wanted to protect laws and policies that they thought helped women especially, such as laws that limited their working conditions and hours while not doing so for men. Plus ça change.

NEXT: Dumbest privacy issue of the decade?

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  1. This has now seriously embarrassing.

    Do we have all the usual hallmarks of a Heriot post? Let's see!
    Unsourced red meat? Check!
    Mind reading? Check!
    A lot of assumption about what "progressives" and "feminists" really, really want? YOU BETCHA!

    I love the whole unfalsifiable nature of this post, too. There's only two possibilities- either "feminists" are really opposing the ERA (source needed) because they hate equal rights, OR they are supporting it because they truly know it can't pass because of deadlines (source needed).

    I am embarrassed for the VC. If this is the highest-quality conservative/libertarian blogger you can attract, maybe it's time to hang it up.

    (PS- Prof. Kerr, if you're reading this, you might want to stick to guestposting on Lawfare and Sctousblog).

    1. The points made aren't exactly in dispute (can't link to it apparently, but check the Wikipedia article on ERA under the "Feminists Split" heading).

      Would you like to see the ERA passed and the two genders treated exactly the same?

      1. The points made aren't in dispute? Well, first off, we have the usual "mind reading" issues (aka, what feminists are thinking).

        Second, we have the usual "group attribution" issues ("progressives" "feminists") that dog her posts.

        Finally, these facts are presented in a misleading way. Yes, it is true (for example) that Dorothy Kenyon (and the ACLU) had to be convinced to support the ERA; but they did support it. They originally had a different conception as to the best way to achieve equality; please note that the opposition to the ERA was not from "progressives" (which did not exist at that time) or from the ACLU, or from Kenyon, etc.

        It's an example of (very bad) law office history used for no other purpose than to score "red meat" points with those who don't know any better.

        (BTW- this is just a continuing series for her; her last article, on Maine, was execrable. I shouldn't expect better at this point. I was just really hopeful when I heard they brought on someone who would address labor and employment law. I didn't realize that they were bringing on someone who would only reiterate the same crud you might read in the comments of FR.)

      2. In case you aren't perfectly clear on why this for of argument doesn't work (although I do appreciate that you looked at wikipedia, which I guess is like staying at Holiday Inn Express?)-

        Think in these terms:
        Two different members of the NAACP disagree about litigation strategy to achieve equality.

        See the problem there?

        No? How about this-
        Two different libertarians disagree about the best way to achieve less government regulation.

        It's such a transparently bad argument, that it is obvious that it only works on those who are predisposed to want to believe it (with "it" being "progressives and feminists are evil"). Like I said, it's just red meat, and there is no legal analysis about the ERA in this.

        1. I love this little bit of idiocy: "Two different members of the NAACP disagree about litigation strategy to achieve equality." When you are the member of the NAACP who thinks skin tone should be taken into consideration to alter outcomes, YOU ARE NOT IN FAVOR OF ACHIEVING EQUALITY. You are openly advocating for inequality, where the law applies differently and preferentially based on the skin tones you find preferential.

      3. Genders will be TREATED EQUALLY--female and Male. Privacy will be maintained per the existing Constitution. Sex Discrimination of either will be guaranteed a violation of US Constitution.
        Wouldn't you yearn to see Rape treated as the soul-searing crime it is , instead of by a slap on the wrist?
        Quality of life improves; divorce rates decline, as shown by the 23 states that enacted similar to their state constitutions.

        You know the GDP, don't you? The Gross Domestic Product soars by 15%, according to respected economists when women are treated equally with our fine males. And, the 1 in 7 elderly women retired workers who then fall into Poverty will not have to endure that. AND, TAXPAYERS WILL GET A BREAK when TAXES NO LONGER BE COLLECTED TO PAY $O MUCH FOR Public Assistance, Medicaid, food stamps, etc. Hooray on yet another count!
        Besides, this Amendment Requires NO FUNDING! Get with the program: It's a WIN-WIN for all. Even you who belly-ache.

    2. Wow. There's nothing that gins up leftist vitriol like women or minoriities who go off the reservation.

      1. Wrong. Right-wing bigotry riles the leftists more.

        1. That's what TwelveInchPianist said. Whenever someone on the right says something lefists don't like, the left labels that right wing person a bigot,k without regard to fact that's not true, as a means to silence the opposition.

          Pro-tip: when you base your ideology on the idea women and non-whites cannot compete with white men, thus require preferential treatment from government to hold white men down to "promote" women and non-whites, an idea forming part of the foundation of leftwing ideology, YOU are the bigot.

          1. Yup. Once again, Loki and Arthur prove that those on the left are the real racists/sexists.

            1. Was it (1) the race-targeting voter suppression; (2) the Muslim ban; (3) the slurs directed toward a 'Mexican' judge, the parents of a slain Muslim soldier, and immigrants; or (4) the description of violent racists as "very fine people" that convinced you who the real bigots are, TwelveInchPianist.

              You guys should really stop voluntarily talking about your diffuse intolerance and generally low character. You know that younger Americans are able to read this stuff, and that their lifetime voting patterns are being influenced by your old-timey bigotry, right?

              1. 1) Restricting votes to only legally eligible voters, excluding people such as illegals, as well as restricting one vote per person is the only morally correct action to take. Naturally, democrats are against it,using the racist rhetoric that non-whites don't know how to get an ID.
                2) There was no Muslim ban, which is why immigration from countries with the highest muslim populations, both absolutely and as a percent of the population, were NOT restricted.
                3) After slurs were hurled at Trump. In your mind, Trump isn't allowed to fight back against those who pick fights with him.
                4) He didn't describe "violent racists as 'very fine people'". In true democrat fashion dishonestly invoke the logical fallacy of composition.

                I am grateful you comment and comment so prolifically. You are a shining example of just who dishonest and vile democrats are, as well as a shining example of why you guys can't win elections.

          2. Sorry, you're not well thought-out: "Equal" is NOT preferential; Nobody is held down when women and little girls are launched the dignity and respect that all humans deserve which isn't now the way.
            What you are missing is that the last word in this Amendment which you've apparently not bothered even to read, says:
            "sex". Last time I looked males were designated their anatomies, too.

            THAT'S WHY IN ALL FAIRNESS, OUR FINE MEN AND BOYS BENEFIT FROM OUR STRUGGLES FOR EQUAL TREATMENT! Why are you methodically dissing America's fine males?
            You remind me of the men who do not know that and issue me public death threats and run me off the road because I seem to break some kind of male god or something. Let's try to live Together in peace. We all benefit.

            American thoughts were ugly, different in its early days. No point in trying to make them fit some kind of moldy template is there?

            1. "Sorry, you're not well thought-out: "Equal" is NOT preferential"

              Exactly. Writing laws that accord preferential treatment to politically favored groups, non-whites and women, you clearly do NOT favor equality.

  2. So, here are some things that would be interesting to read about on a legal blog, as opposed to pondering the motivations of "feminists."

    What are the legal arguments for and against the deadline and delayed passage? Instead of writing that things are "arguable," or "doubtful," why not articulate the legal arguments ... on a legal blog?

    What would the legal impact of the passage today be? Given that the landscape (legal, statutory) is quite different than when it was originally proposed, has Prof. Heriot done a survey, and if so, what are her normative views?

    What is the opinion of the Gail Heriot on the ERA? Does Prof. Heriot want the ERA to be a constitutional amendment? If she does, what is the purpose of this article?
    If not, isn't the purpose of this article abundantly clear, and not in a good way?

    1. You are en fuego, Loki.

      Everything you say here is right.

      And let's emphasize, for Heriot's benefit, since she seems to be unaware of it, that the opposition to the ERA when it was being considered in the 1970's came from conservatives, not feminists.

      1. She lists opposition from feminists. Are you saying they weren't feminists, because by definition feminists have your point of view?

        1. As one who has 6 filing cabinets-full of hatred of women's history, let me please interject that making irrationally-conceived blanket statements concerning whole groups of people is preposterous. There was plenty of hate-women vigor and plenty of yearning-for equal treatment women.
          Now the tide had turned as sexual mistreatment of girls and women are seen as rife examples of sex harassment, we are Standing Up Against Sexual Harassment in all its forms, female OR MALE. Equal does mean Equal.

      2. bernard shifting into trainwreck mode once again, apparently

    2. It's not just feminists. Spend any time in the MRA portion of the Manosphere, and they strongly support the ERA and believe the passage of an ERA would be an eventual end to might take awhile, but equality is equality.

      1. "Spend any time in the MRA portion of the Manosphere"

        Thank you, but no, I will pass on that invitation.

        1. It wasn't an invitation, merely a statement of fact.

          Frankly, on the topic of intellectual cloistering that you seem to be engaging in, I find my regular forays to Alternet, Jezebel, and Balkanization serve as a good reminder of how we are all watching the same movie but coming to separate conclusions. It might do you well to check out A Voice For Men.

          1. I spent a bit of time slumming on We Were Kings or whatever that site was about a year ago. Enough to know they're about as outside social thought as Full Communism Now folks or incals are.

            I don't think it's intellectual cloistering to worry about the MRA when it becomes more than a small disaffected subgroup that's smaller even than the alt-right wanna-be Nazis.

            Individual issues (custody), perhaps. But their general mien was as familiar, tribal, and dumb as witch trials. I don't think anyone is less for not bothering.

            1. That's "Return of Kings," and that site I walked away from after the quality of the articles took a nosedive. The worst was an article advocating for polygamy with all seriousness. These guys thought that they would, come the revolution, be the ones with three wives. As as bad as commies who think that, come the revolution, they would be the new elite and not the first ones in the gulags.

            2. "incals "

              People who can't get into California?

          2. No.

            I have had the misfortune to encounter MRA-types before. I put them, along with "sovereign citizens," in the category of either "funny because so stupid" or "not funny because, oh, wow, they really believe this and geez I might need to call someone."

            There's nothing wrong with being all, "Yay, guys." I like my poker nights with the best of 'em. But that's a toxic cesspool I have no interest in seeing spread.

            1. Meh. Methinks the loki doth protest to much.

              Aggrieved minority to be sure, it feels like that the divorce-industrial complex chewed them up and spit them out. Don't think stupid, as much as sad.

              Still, at base, all they want is equality, which to the post by Heriot notes, makes them anti-feminists by default. Ironically while wanting equality is the dictionary definition of feminism, which is "Belief in the social, political, and economic equality of the sexes" but in reality equality is NOT what feminists actually want in practice.

              1. "Still, at base, all they want is equality"

                Yeah. That's totally the vibe I get from them. Just a bunch of normal, perfectly adjusted dudes getting together to promote equality of the sexes.


                1. Well to be fair, equality of opportunity between men and women would naturally lead to women not having equality of outcomes.

                  And didn't I say that they all read like guys that have been chewed up and spit out by the divorce system. The lawyer commentators on this blog have attested time and again to how viscous family court can be.

                  1. " The lawyer commentators on this blog have attested time and again to how viscous family court can be."

                    By "this blog[,]" I assume you mean reason, and not the VC.

                    There has been a long history on the VC of rejecting the unwarranted beliefs of MRA-types, both by the posters (EV has a history of posting about family law) and in the comments.

              2. Still, at base, all they want is equality,

                That devotion to equality must be the reason they label their aspiration "return of kings."

                1. Return of Kings is "red pill" pick up artists trading trips/tricks and advocating for a return to a social-cultural patriarchy. I think that they think they are all alpha males in their own minds. Meanwhile, MRAs like the ones on A Voice for Men, deride pick up artists as "pussy beggars," reject gynocentrism, and want full legal, political, and social equality as their policy goals (which will result in a natural patriarchy). The end result is the same, the policy on how to get there is different.

                  Loki, I mean VC, not Reason. Lots of comments at the VC over the years. I lurked since at least 2008 at the VC, and by the time I felt comfortable enough to comment, it went to the WAPO, where I refused to become a member. I guess I am not so different from you, in that I refused to pay a red cent for product from the WAPO.

                  1. Fair enough.

                    I'll just say that my impression re: the "lawyer commenters" on the family law system on the VC (a membership that includes me) differs from you.

                    FWIW, family law is a terrible way for people to sort out their family issues, which is why I always advise people to try and sort things out amicably (and/or try ADR, mediation, and the like). But I have usually found that while individual stories can be terrible, they can be terrible for the participants regardless of the gender.

                    1. Fair enough. Though I would say bargaining and rational discourse doesn't work in matter of the heart, never has and never will. Thanks!

                  2. Return of Kings is "red pill" pick up artists trading trips/tricks and advocating for a return to a social-cultural patriarchy. I think that they think they are all alpha males in their own minds.

                    Are any of them Trump supporters? Republicans? Conservatives?

            2. Exactly. Believing men have the same rights as women is "funny because so stupid". Thank you for showing us all what a tremendously sexist bigot you are loki.

      2. Actually, many young men, especially, are actually teaching women what they know: Equal Treatment of all is JUSTICE not to be denied.
        Only shame is that needs badly a legal document to prove what is just a humane thesis.

    3. Indeed, it is desperately important that you change the subject as quickly as possible and avoid the embarrassment of having a spotlight shined on the foolishness of your allies.

  3. Leftists never want legal equality. They want to bring white, heterosexual, Christian men down, and to bring everyone else up. It's a single standard.

    1. As a white, heterosexual Christian Leftist, I'm always grateful to ActualRightWingPatriot for explaining to me what I want and what I believe. The lack of any nuance or subtlety in his world is refreshing!


    2. Labels such as "leftists" for all of us is an oxymoron and brings you only discredit.


      PS I am 83 years old and have been working 18/7 for 18 solid pro-bono years for men's and women's needs for equal treatment and for sexual harassment/violence/indignities to be guaranteed Constitutional violations.

      Dear Husband and I have been married 65 years and are grateful for our love and mutual respect thru good and notsogood times. We consider ourselves very lucky as we are equals in every sense, tho not The Same. It is Good. We'd like this Amendment added to US Constitution so it guides us all away from blaming, cursing, hating, hitting and killing and TO a serentity that is Incredible. Try it. You'll Like it.

  4. Apparently Prof. Heriot runs into problems when she addresses affirmative action issues.

    remove gail heriot from the united states commission on civil rights

    1. Link with spaces: https:// united-states-remove-gail-heriot-from-the-united- states-commission-on-civil-rights

      1. This is the first thing that comes up when using your link.

        Apparently she doesn't think that you can change your sex by wishing very hard.

        She's also against discrimination, even if the discrimination is against appropriate targets (white males, Asians). And she even suggests that - gasp! - the supposed beneficiaries of affirmative action wouldn't die in the streets if they had to compete on a level playing field. What racism!

        1. (But OMG alumni preferences and institutional racism and bigoted cops!)

        2. /1

          "wouldn't die in the streets if they had to compete on a level playing field. "

          I know you don't care about these issues (because I did try to explain this before), but the issues is whether or not the playing field is level - or, in terms that occupied the legal community, are we concerned with equality of opportunity, or equality of outcome, and how that matters.

          The simplest and easiest way to illustrate this is as follows: you have a rule that every student gets the exact same book (equality of opportunity). If you have a blind child in the class, they have to have the EXACT SAME BOOK, because that is what a level playing field is really about.

          I use this absurd example (at least, I hope it is absurd?) because most people can easily see the problem in this case; it isn't equal. The blind child will need different material for things to be equal. Materials that might cost more. The better way to measure equality, in that particular circumstance, is equality of outcome (will all students be able to read, not just are all given the ability to learn to read).

          This is the point that most people try to fight the hypothetical; this doesn't apply in all cases! Being blind isn't the same as different races! And so on .... cont.

          1. /2

            And that's true- which is why we usually think about both factors (opportunity and outcome) in a more holistic way. But this goes back to the whole issue of a level playing field.

            It is well-known, for example, that colleges/Ivies de-emphasized the "hard factors" (SATs) in favor of "soft factors" (interviews, athletics, extra-curriculars) in order to increase the number of Wasps and decrease the number of Jews at their schools. That admissions process is one that we still use today- many of the soft factors that help people (membership in clubs, grades, etc.) are things that can be gamed by students and families from wealthy, often white, backgrounds. The "level playing field" doesn't erase these issues; it reinforces and entrenches issues that already exist.

            Now, I write all of this despite the fact that I remain somewhat on the fence overall. But thinking that these issues are easy ... well, they aren't. They are hard, and not susceptible to the partisan wishmongering of Bob.

            1. "It is well-known, for example, that colleges/Ivies de-emphasized the "hard factors" (SATs) in favor of "soft factors" (interviews, athletics, extra-curriculars) in order to increase the number of Wasps and decrease the number of Jews at their schools. That admissions process is one that we still use today"

              ...and that worked out so well!

              "thinking that these issues are easy"

              is what leads to attempted easy fixes like affirmative action.

              1. Or I should say "racial preferences," because "affirmative action" is a broad term which includes advertising positions as widely as possible, etc., doing perfectly legal things in order to increase the likelihood that you get good applicants from many groups. Conflating that with racial preferences under an umbrella term like "affirmative action" is a rhetorical victory for racial preferences.

                1. These soft admissions policies are, as far as I know, not being administered by the same people who fight against racial preferences (even if the targets are white or Asian).

                  If the racial-preference supporters actually want to put some political muscle into requiring state institutions to rely on numerically-measurable test scores in real academic subjects for their admissions policies...that would be a great initiative.

                  Of course, what would happen to racial preferences (of all kinds) if such a policy were to be adopted?

              2. "...and that worked out so well!"

                This is why serious people don't engage with you. You articulated your point for a level playing field; I explained why (at least in terms of college admissions) the playing field is not, in fact, level and has been a product of prior "affirmative action" in favor of WASPs. And you have ... no real response?

                But yes, I would love to see a long-term, comprehensive program that would address from the beginning the structural inequalities in our society.* These can't be done because of profound opposition; so not only can we not have "attempted easy fixes," but the same individuals who are usually spearheading efforts against "easy fixes," are also against the difficult fixes as well.

                *Which are both race- and class-based; with race and class often overlapping.

                1. Racial preferences help us *avoid* coming to grips with structural inequalities.

                  "the same individuals who (etc.)"

                  I thought you were *against* mindreading?

                  It would be one thing to say that you've considered conservative proposals re school choice, more freedom for entrepreneurship, criminal justice reform, etc., etc., and found them all wanting, but to ignore the existence of such proposals and simply repeat that they've never proposed anything complex or helpful shows that you maybe haven't been looking very closely.

                  1. And of course not all conservatives are behind all of the reform proposals I've alluded to, that's because they're not all the same.

                  2. I have been looking closely, Eidde. That's why I wrote, and I quote myself accurately since you are unable to, "the same individuals who are [WAIT FOR IT] usually spearheading efforts ..."

                    Usually. Often. There was a time when certain, more intellectual parts of the GOP really believed in their program and tried to sell it as such. The so-called ELITES of the GOP.

                    Something tells me that of the two of us, you are the person who hasn't really looked at these issues closely, or really at all. And given your dishonest inability to engage, I'm done with you.


                    1. Strictly speaking, your full quote is "the same individuals who are usually spearheading efforts against "easy fixes," are also against the difficult fixes as well."

                      What could be more difficult than implementing school choice? Even some impeccable progressives have had trouble implementing it.

            2. "Equality of outcome" is a wretched communist concept, illogical and furthering enslavement -- not something to be placed on equal footing and "balanced" with liberty and freedom (equality of opportunity).

              With that said, I am strongly in favor of the private efforts to create diverse and representative institutions, which of course entails racial discrimination (i.e. distinguishing). But to have government go down that road is simply unwise. There's a reason we did the 14th amendment.

              1. "in order to increase the number of Wasps and decrease the number of Jews at their schools"

                That's funny because now it may be the reverse, if I recall that now years-old Ron Unz article correctly.

                1. The Unz article was totally debunked by Nurit Baytch and Andrew Gelman.



                  1. Looks more like raising some nits about statistics than totally debunking. Looks like there was some back and forth responses, too. Unz's article was pretty widely credited.

                    1. Raising statistical problems with an argument foundationally based on statistics undermines the argument.

                    2. Nurit Baytch is an ex-physicist from MIT, and Gelman is a statistician at Columbia.Unz's argument was credited by David Brooks, who is not a statistician.

                    3. Undermining is not the same as totally debunking, and any statistical reasoning and the whole of social science can be so undermined at least to some degree. Perhaps you are right and the weaknesses and limitations of Unz's reasoning are more serious than mere qualifications, but I doubt it based on the voluminous back and forth including Unz's responses.

                    4. Unz admitted his statistics were dodgy in those exchanges, which you would know if you actually engaged with the material by reading it.

            3. It is well-known, for example, that colleges/Ivies de-emphasized the "hard factors" (SATs) in favor of "soft factors" (interviews, athletics, extra-curriculars) in order to increase the number of Wasps and decrease the number of Jews at their schools. That admissions process is one that we still use today-

              Really? because the percentage of Jews in Ivies has been really high since SATs became particularly important. What those factors have kept down significantly is the number of Asians.

          2. You haven't given this enough thought:

            "Equal does NOT MEAN "the same". Never did. Read the 10th Amendment to US Constitution. Keep a more open mind, please.

        3. Apparently she doesn't think that you can change your sex by wishing very hard.

          But she seems to think you can change your eligibility for a federal commission by lying about your political affiliation.

          Carry on, clingers.

      2. Well, your link convinced me that its author Jenji Learn, whoever that is, is an incompetent arguer. So it did do something.

        Holy hell, it's a philosophy professor? How can it be that bad at writing?

    2. Yes, by all means remove any dissenting opinions.

      Fuck off, slaver.

      1. Actually, the appointment of Ms. Heriot was an effort to avoid having some opinions heard.

        Please acquaint yourself with the facts.

        1. Help me out here - whose opinions were being avoided?

          1. Don't you know? She murdered all the left-wing members and has spoken for the entire thing since then.

      2. Yes, by all means remove any dissenting opinions.

        Her appointment to the commission was a scheme by right-wingers to remove dissenting opinions from a commission whose statutory design was to promote diversity of opinion.

        Other than that, great comment.

        Are all disaffected right-wingers this dense, or merely the ones who comment here?

      3. It is healthy for a Supreme Court to accept dissention. It is healthy for all Americans too. Everyone is entitled to make up their own Opinions. They just CANNOT MAKE UP THE FACTS. Therein lies the rub.

  5. Good lord, this is just the worst. It's like a broken record, with the same argument being put forth with different anecdotes to bolster it.

    Once again: being against Republican efforts to get rid of affirmative action doesn't mean you're against civil rights.
    And it also doesn't mean liberals are arguing in bad faith!

    I'm beginning to wonder about this Conspirator, though.

    1. It's fine to argue affirmative action isn't the best way to get equality. But to argue that anyone who is for affirmative action secretly hates equality is the kind of 'the other side isn't wrong they are evil' I come to this blog to get less of.

    2. "I'm beginning to wonder about this Conspirator, though."

      Any benefit of the doubt that I extended as my normal courtesy to Prof. Volokh's choices has long since departed.

      This is making Kontorovich look good.

      1. Those criticizing Prof. Volokh's choices with respect to new (or old) Conspirators should keep in mind that you don't get to populate a right-wing blog with the academics you wish you had,

    3. Once again: being against Republican efforts to get rid of affirmative action means you're in favor of racial discrimination.

      1. Only in the most narrow and formalistic sense.

        For (some) people this looks more like acknowledging problems with our traditional metrics of merit.

        You can disagree with that assertion, but to argue that all who disagree with you are racist and/or hypocrites is not problem solving, it's just partisanshipmongering.

        1. Some supporters of racial preferences sincerely believe that they're doing what's best for everyone. And making the world a better place.

          If Heriot denies this, she is mistaken.

          1. Thank you for this.

        2. "Only in the most narrow and formalistic sense."

          The best kind of sense.

      2. Prof. Heriot and the Republicans enjoyed and arranged affirmative action -- came back for seconds! -- when it was time to stack the commission deck.

        Carry on, clingers.

    4. Once again: If you support affirmative action, you are BY DEFINITION against equal civil rights.

    5. Being pro-AA does, in fact, mean you're against civil rights.

  6. You're making the mistake of assuming that the people pushing to declare the ERA ratified in defiance of deadlines and both rescinded and expired ratification votes, actually want "the ERA".

    No, what they want is some fresh constitutional language that the courts can shape like clay to achieve whatever is wanted.

  7. By the way, if you are surprised to think that many of the best-informed, left-leaning feminists could in their hearts of hearts hope that the ERA will be defeated, don't be. They are simply returning to their Progressive roots.

    Awesome to see this one return.
    Do Liberal Fascism next! Or maybe 'the party of slavery!'

  8. I concur with loki's comments but it is a bit of an "Easter Egg" that the ERA isn't quite dead.

    I think too long has passed for new ratifications to pass but current law appears to leave it to Congress. Who knows what they will do? You'd think current Republicans would say "hell no," at least enough of them to block it, but who knows?

    1. "I concur with loki's comments but it is a bit of an "Easter Egg" that the ERA isn't quite dead."

      I am reminded of the Black Knight in Holy Grail- the ERA just has a flesh wound?

      TBH, I haven't really thought of the ERA in forever (though I have seen a few mentions recently because of this renewed effort). I would have like to see a good post about the possible legal issues. While I had always assumed it was dead, I am also inclined to think that Congress can do what it wants.

      Anyone have a good link to the legal issues?

      1. Okay, I went through the CRS (Congressional Research Service) article on it, and it pretty much said the exact things I would have assumed.

        I think that the whole Art. V combined with past Congress's inability to bind future Congress is the compelling point. Which would put it back to Congress to decide.

        That said, for purposes of legitimacy it might be better to have it vetted again, and voted on again. It's a little more ... controversial than the 27th Amendment.

        If anyone else wants an overview, google the CRS article by Thomas H. Neale.

        1. The real problem is not the Congressional deadline and its purported extension. If they'd put that in the amendment itself, as has been done, it would have been binding, simply because if ratified after the deadline the amendment would have self destructed: The states would have been ratifying an amendment which was expired according to its own language. The expiration would have been as binding as any other part of it.

          But they didn't include it in the amendment's actual language. Whether this was a badly thought out effort at neatness or an effort to be tricky, it left the door open to claiming an extension was valid, or even redundant.

          No, the real problem is that multiple states either rescinded or placed time limits on their ratifications. At this point to count as ratifying states that are on record as rejecting the amendment would be beyond dodgy, it would be an open invitation to a constitutional crisis.

          I think anybody who doesn't want to bring the country to the brink of civil war would have to agree that, at the least, the minimum number of states would have to currently be in favor of ratification, and it would be best to just start from scratch.

          Too many people are willing to win dirty, if they can get a win, but the costs of that could be terribly high.

          1. "At this point to count as ratifying states that are on record as rejecting the amendment would be beyond dodgy, it would be an open invitation to a constitutional crisis.

            I think anybody who doesn't want to bring the country to the brink of civil war would have to agree that, at the least, the minimum number of states would have to currently be in favor of ratification, and it would be best to just start from scratch."

            Brett- I'm just going to point out that everything you don't like it a "constitutional crisis" that will lead to "civil war," whereas things you like is just good ol' politics.

            Quit yer whining.

        2. Gerald Magliocca (basically an Orin Kerr type) at Concurring Opinions had a series of posts & he referenced an article he is working on. Me and your friend BB went back/forth there on the subject.

          1. Thanks. I'll check it out. 🙂

    2. Actually, it's not just Congress that has a say in ratification of the ERA after all this time.

      One of the original bill of rights amendments that failed to be ratified at the time of the founding (there were like 12 or 15 proposed) was ratified in the latter half of the 20th century. At the time Congress didn't bother putting any limiters in the bill that kicked off the ratification process.

      The specific amendment in question mandates that congressional pay raises can't take effect for any congressional seat until that seat has been trough an intervening election.

      Someone noticed that there were no time limiters on the original BOR bill and started pushing for additional states to ratify the amendment. They actually got enough states to ratify for it to pass.

      SCOTUS, not congress said no, all the ratifications aren't contemporaneous enough to each other for the ratification to be valid. However, the group pushing the amendment went back and got enough of the original 13 states to re-ratify the amendment now to get a valid ratification.

  9. Of *course* every feminist who currently supports ratifying the ERA after the deadline is acting in good faith, how could you read their minds and say otherwise?

    Seriously, though, the lesson of the ERA is that any constitutional amendment should have the ratification deadline in the text, as with the 18th, 20th, 21st and 22nd amendments, and the abortive DC representation amendment.

    Also, why do we even need the ERA, since the US Supreme Court already ratified it, sparing the states the need to do so!

    1. It's a weapon that would invalidate affirmative action programs for women.

  10. What would be nice is a Congressional declaration that all pending amendments predating, say, 2011 are expired and it's to late to ratify them.

    I think that would cover

    the Congressional apportionment amendment submitted along with the Bill of rights

    the amendment to denaturalize those citizens who receive foreign titles, etc.

    the amendment to protect slavery

    the amendment to let Congress ban child labor

    The ERA

    The DC voting amendment (though by its own terms it would be "inoperative" if ratified today, thanks to helpful self-destruct-after-seven-years clause)

    1. Not really necessary every bill to come out of Congress sending proposed amendments to the states for ratification has had a built in time limit, except for the bill for the original Bill of Rights.

      And in the one of those that was ratified in the latter half of the 20th century, SCOTUS stepped in and said that ratifications by the original 13 states that were sitting out there since the 1790s couldn't count towards a modern ratification.

      It's quite likely that SCOTUS will enforce any time limits that were originally built into the bills that sent proposed amendments to the states for ratification unless Congress acts explicitly to extend it. And even then if enough time has passed SCOTUS may require that they go back and start the state ratification process over from zero.

      1. "And in the one of those that was ratified in the latter half of the 20th century, SCOTUS stepped in and said that ratifications by the original 13 states that were sitting out there since the 1790s couldn't count towards a modern ratification."

        Care to cite the case? For real?

        Care to contrast with Coleman v. Miller (1939)?

        Seriously, dude, what are you talking about?

  11. Currently libertarian, but I grew up conservative in a conservative household in a convervative area during the time the ERA was trying to get ratified. But I always thought it was conservatives who opposed the ERA. I remember raging arguments about unisex bathrooms (really) and the duty to oppose bra burning feminism.

    But reading this, then going to check it out on Wikipedia. It turns out that a sizable number of feminists really did oppose it. The reasons may have varied a bit over time, but many feminists were not willing to give up on existing or potential privilege in exchange for equality. Crazy.

    If it were put to a vote today, the ERA would overwhelmingly win the popular or congressional or state votes. We pretty much have the ERA in effect today. There are no legal impediments for women in place, only the last vestiges of social impediments.

    1. " but many feminists were not willing to give up on existing or potential privilege in exchange for equality. Crazy."

      Not all that crazy. Early on, feminism was about equality, but movements tend to get captured by their most extreme members, because those are the people willing to devote serious time to the movement.

      Today, and for a long while, feminism has been about imposing matriarchy in place of patriarchy, not equality. Thus, for example, the efforts to continue pushing increased female college enrollment even though women are now the majority of all college students!

      And, seriously, if the ERA were that popular, why don't they just ask Congress to pass the amendment again, and get it ratified? Maybe because they don't think they'd win that vote?

      1. I think you are right, Brett, that the wouldn't win that vote. But let me ask you who the "no" voters would be. Democrats, do you think, or Republicans?

        And if the latter, what does that say about Heriot's post?

  12. Let's think about this.

    Suppose we start the ratification process over from scratch. Previous ratifications, rescissions, whatever, are dead.

    So here is a list of twenty not randomly chosen states:

    South Dakota
    North Dakota
    New York
    Rhode Island
    New Jersey

    Which of these states are likely to ratify the new ERA, and which are unlikely?

    Reconcile your answer with Heriot's theory.

  13. Why makes conservatives impervious to self-awareness?

    Prof. Heriot rants against preferences and questions others' motives, perhaps hoping the audience is not aware that she was an engineer and beneficiary of a disingenuous affirmative action program for Republicans and conservatives. Prof. Heriot became a civil rights commissioner by switching her party registration and masquerading as someone eligible for a position in a system designed to arrange partisan balance. The second Bush administration needed someone willing to participate in stacking the deck by gaming the system, and Prof. Heriot was their girl.

    A party that would place Prof. Heriot on a civil rights commission deserves the political irrelevance that awaits the Republican Party as America's electorate improves in a manner disfavoring conservative preferences.

    Carry on, clingers . . . while awaiting that demographic wave that will continue America's liberal-libertarian progress. Until that wave hits, Prof. Heriot can continue to rage, rage against all of this damned progress, education, inclusivity, science, tolerance, reason, and modernity.

  14. Prof. Heriot's emergence as a Conspirator makes me miss Artie Ray Lee Wayne Jim-Bob Kirkland.

    I recall that Artie Ray had some fine observations about Prof. Heriot, but that was before the Volokh Conspiracy's Censorship Committee banned poor Artie Ray for poking fun at certain targets.

    Artie Ray was the Stephen Colbert or Michelle Wolf of his time.

    To honor the important work of censors and other petty authoritarians, here is a playlist of songs banned or censored by the ideological ancestors of today's Volokh Conspiracy Censorship Committee.

    Bonus track

  15. A comment noted:

    "That said, for purposes of legitimacy it might be better to have it vetted again, and voted on again. It's a little more ... controversial than the 27th Amendment."

    I basically agree though I think they should have re-submitted the 27A. Looking at the ratification in the states of that amendment, which continued after it was formally accepted as part of the Constitution, there is a good case to be made that starting from scratch would have had the same result as counting various states with ratifications from the 18th and 19th Century and so forth. Anyone working on a report on the Nobility Amendment?

    1. If you think Congressional enforcement of the ERA's deadline would be misunderstood ("war on women!") imagine if Congress rejected the 27th Amendment, which affects their own pay.

      The Nobility Amendment might get a boost with the current Russia talk, then Congress would be faced with whether it wants to side with Real 'Merkins, or with shady bribe-dispensing furriners.

      1. Congress wouldn't have to "reject" it.

        Once the stream of states started to be more than a trickle in the 1980s, it could have re-submitted it and the states would then continue to vote and a few would re-vote to show a contemporary acceptance is in place. Even re-submitting it in 1992 just would require the states to re-vote & given the nature of the amendment, hard to see not enough states doing it to ratify.

        1. That would be such a sensible idea that I wonder if Congress would actually do it?

    2. IIRC, it was only a few months after Congress accepted that it had been ratified, that enough states ratified in the modern era to put it over the top. So the whole question shortly became moot.

      1. The eighth state was 1873.

        The ninth was 1978. I guess 14 years isn't too long for the sake of argument.

        Missouri was 38. States ratifying after it was already officially ratified is not quite the same thing as votes that are not what amounts to being symbolic. Anyway, taking away the eight, you would need to go to the 46th state to count 38 in the "modern era."

        Nebraska was that state. In 2016.

  16. I have a very different worldview than loki or sarcastr0 but I agree with them here. These posts have not been of a quality worthy of permanency on the VC.

    1. Please stop that "I agree with the other side' stuff, tkamenick!

      Without the reflexive partisanship and low-grade polemics, there would be nothing left of the Volokh Conspiracy.

  17. This would be a good opp

    1. (oops)

      ... opportunity for Heriot to say whether she would support a new Equal Rights Amendment.

  18. Laughably, here's another fantastical set of myths right out of Phyllis Schlafley's antiquated closet. Seems to be more of the neo-medieval women-hate that died during the 70s.This clap-trap is a scam faded years ago,acts as sex harassment.
    Things move faster these days, and more folks these days can sniff out lies especially when delivered by the truckload, as here.
    This article actually should be bronzed as an historical copy of frippery...for saying there was a "deadline" that's passed when everyone else knows now that the time limit was listed only in the nonvotable / impotent Introductory Clause that is not part of the authorized body of the Equal Rights Amendment.
    All states that officially ratified, no matter later frivolous attempts to deny those votes, know full well now that "Once ratified, no ratifications can be deleted".

    Anyhow, thanks for the opportunity for hearty laughs from all nationwide 300 000 of us, not counting the other, matching huge organizations that work hard for men and women's better lives. America is the dullened stick-in-the mud--the Only one in 179 nations already changed for equal treatment of the majority, us females.

    Kindly suggesting here that the author and any tag-alongs "should try to 'get out more'.

    We will pass the Equal Rights Amendment for sure. Absolutely. Come along if you like.

    1. I thought the Supreme Court already ratified the ERA.

      Don't you believe in democracy?

  19. I agree the expiration of the ratification deadline resets everything to square one.

    But I would rather have an explicit constitutional amendment addressing desired social change than have it imposed by the courts. An amendment would bring legitimacy.

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