Not wise for the Constitution
Posted on Sunday, March 18, 2007
Although many political
activists (and a few constituents )
have asked me to support the Equal Rights Amendment, I have sometimes found that ERA advocates are stopped cold when I ask them a simple question: Why ? And, more particularly, what is the case for the ERA, and what are the actual policy consequences that this constitutional amendment would produce ? Many ERA advocates respond that amending our federal constitution is just a matter of public relations—a symbolic method of showing we care about equality of the sexes. One ERAsupporting Arkansas legislator argued earlier this year: “What we needed to realize is, that amendment had nothing to do with anything but making a statement that we wanted to have equal rights for women.” But using a constitutional amendment just to make a statement has dangerous consequences, especially when constitutional amendments have important, real-life effects.
As long as we are in the business of making statements, though, let me make one: The ERA has little or nothing to do with its advocates’ promises of establishing equal rights for women, but those advocates often stay notably quiet about the ERA’s real-world con- sequences. I have told Representative Lindsley Smith, the chief ERA sponsor in the House, that I would be privileged to work with her on any legislation that treats women more equally or more fairly. We already have a large body of federal law that deters sex discrimination and permits successful lawsuits for sex discrimination, and I support those laws (and those lawsuits ). But passing legislation that considers concrete circumstances, that is open to modification and public comment, and that is approved democratically is very different from supporting a constitutional amendment with uncertain policy consequences.
Courts often use the general language of constitutions to make policy decisions. In five different states, state courts made use of the ERAs in their state constitutions to arrive at decisions about abortion law. In two of those five states, the courts found that the state ERA required the provision of taxpayer-funded abortion on demand. Whether you are pro-life or pro-choice, I hope you’d agree that these complex decisions ought to be made by democratically accountable legislators, not courts — which lack the resources and institutional powers needed to make the best decisions about social policy.
There is always a temptation to discuss the dangers of judicial policymaking in terms of hot-button issues like abortion. But consider something simpler: the state House considered a “right-to-breastfeed” law. I voted for that bill, but believe it or not even such simple legislation can raise complex questions. An earlier version of the law made it an offense to interfere with breastfeeders, provided that some interference can be grounds for a lawsuit, and permitted the shifting of attorney fees if the lawsuit was successful. Were these measures good policy ? That’s a tougher question, but I would hope you would agree that these significant policy questions lack obvious answers and really should be decided legislatively, not judicially. Regrettably, the ERA would invite many judicial responses to social problems that I think are best addressed legislatively.
In my view, the phenomenon of courts making social policy raises questions about self-government that most people just don’t like to think about. It’s very serious business to amend the Constitution, a document composed of broad and general statements whose implications are not always obvious. We must anticipate future consequences when we consider constitutional amendments. Our current political system increasingly punts decisions on controversial social policies to the courts. These policies include taxpayer-funded abortion, affirmative action, gay marriage, the rights of criminal defendants, and (most recently and most notoriously in Arkansas ) the appropriate level of funding for public education. It is simply a fact that, in each one of these policy areas, courts have created broad social policies. In my opinion, these questions should generally be decided by legislatures that are democratically accountable.
It is dangerous for politically powerful courts to make broad social policy. It is important to consider the likelihood of serious consequences of the loss of democratic self-government when looking at constitutional amendments. This trend of the erosion of legislative power to set social policy is dangerous for self-government, social stability, the preservation of our rights to democratically determine the rules we live by, and public respect for the neutrality and fairness of our legal system.
ERA advocates have a history of insisting that people who are concerned about the possibility of bad consequences of constitutional amendments are just alarmists. But history shows that the alarmists were right. ERA clauses in state constitutions really have led to court rulings mandating taxpayer-funded abortion on demand and the right to gay marriage. ERA opponents were widely ridiculed for predicting such judicial outcomes decades ago. This ridicule, however, didn’t make those predictions any less correct.
In short, there are legitimate questions about whether courts are behaving appropriately when their constitutional rulings have the effect of creating broad social policy. Our Constitution, in my opinion, is something like a roadmap: it says to our government “If you want to go here, you must do it by taking this route. And you absolutely can’t go there unless you’ve done this first.” The structural requirements of the Constitution are designed to preserve our liberties, and its structure has often performed well under pressure. But I fear that some judges use the Constitution as less of a roadmap and more of a mirror. Sometimes it looks as if judges look into the broad language of the Constitution and say “What a brilliantly written document this is, and what a marvelous coincidence that, when I look into it, I see an endorsement of precisely the social policies that I favor !”
I fear that the addition of a new constitutional amendment containing broad and general language will worsen this trend, and move us closer to judicial supremacy and farther away from self-government—all in the name of an equal rights amendment that accomplishes little or nothing for equal rights.
This article is based on a presentation that State Representative Dan Greenberg, R-Little Rock, recently gave at the UALR Bowen School of Law.
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