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E.R.A.: A Red Herring at BestIn cleaning out my files, I discovered an excellent article on the Equal Rights Amendment that a much-valued friend, Charles Curley, had sent to me for consideration...in 1981. Oops!?
The issues Charles addresses are far broader than the E.R.A. and still as fresh as ever; in fact, the E.R.A. is only a sub-theme of more interesting issues (at least to me) -- e.g. the role of lawyers in our society, the origin of rights, whether libertarianism is reformist. And so, only 28 years late, I am delighted to accept Charles' article for publication herewith.
Background: the E.R.A was a proposed amendment to the United States Constitution which was intended to guarantee that equal rights under any federal, state or local law could not be denied on account of sex; it was not ratified. The E.R.A. became a crusade within feminism between 1972 - 1982, with the Association of Libertarian Feminists de facto endorsing the measure. In particular, Joan Kennedy Taylor wrote in defense of it; by contrast, I argued against it. Charles wrote the piece in rebuttal to a pro-E.R.A. discussion paper published by ALF. I would include a link back to Charles' inspiration but a search of the ALF site didn't produce results. Happily, Charles' piece stands alone.
E.R.A.: A Red Herring at Best
by Charles Curley
As a libertarian, I do not trust the good intentions of governments, and I have a concern about the possible future misuse of even the clearest of constitutional guarantees. But I feel this concern about all constitutional guarantees; I don't single out the issue of governmental discrimination. I do not trust government any farther than I can throw it.
If feminism is to be a libertarian concern, then the issue is not one of the superiority of (any) one sex over the other, but rather of the rational judgment of one sophont by another. Rational judgment carries with it the use of such criteria for judgment as are actually relevant to the issue to be judged. Thus, the libertarian judges the suitability of a person for a job by the person's ability to do the job. Questions of race or sex or age are generally irrelevant.
A libertarian finds the "buy American" campaign to be chauvinistic, because the libertarian sees no particular reason why he should buy a product from someone on the basis of which government is oppressing him. It is irrelevant to me whether those who built my car are oppressed by the American government or the Japanese; I am concerned with how good a job of car building and delivering they do and nothing else.
The job, then, of libertarian feminism is to deal with the impulse to judge by sex where sex is irrelevant, and to deal with the impulse by education and example. It would be most unlibertarian to presume to deal with that impulse by legislation because such legislation must, to be effective, be thought control.
Sexism is a thought process...
The issues Charles addresses are far broader than the E.R.A. and still as fresh as ever; in fact, the E.R.A. is only a sub-theme of more interesting issues (at least to me) -- e.g. the role of lawyers in our society, the origin of rights, whether libertarianism is reformist. And so, only 28 years late, I am delighted to accept Charles' article for publication herewith.
Background: the E.R.A was a proposed amendment to the United States Constitution which was intended to guarantee that equal rights under any federal, state or local law could not be denied on account of sex; it was not ratified. The E.R.A. became a crusade within feminism between 1972 - 1982, with the Association of Libertarian Feminists de facto endorsing the measure. In particular, Joan Kennedy Taylor wrote in defense of it; by contrast, I argued against it. Charles wrote the piece in rebuttal to a pro-E.R.A. discussion paper published by ALF. I would include a link back to Charles' inspiration but a search of the ALF site didn't produce results. Happily, Charles' piece stands alone.
E.R.A.: A Red Herring at Best
by Charles Curley
As a libertarian, I do not trust the good intentions of governments, and I have a concern about the possible future misuse of even the clearest of constitutional guarantees. But I feel this concern about all constitutional guarantees; I don't single out the issue of governmental discrimination. I do not trust government any farther than I can throw it.
If feminism is to be a libertarian concern, then the issue is not one of the superiority of (any) one sex over the other, but rather of the rational judgment of one sophont by another. Rational judgment carries with it the use of such criteria for judgment as are actually relevant to the issue to be judged. Thus, the libertarian judges the suitability of a person for a job by the person's ability to do the job. Questions of race or sex or age are generally irrelevant.
A libertarian finds the "buy American" campaign to be chauvinistic, because the libertarian sees no particular reason why he should buy a product from someone on the basis of which government is oppressing him. It is irrelevant to me whether those who built my car are oppressed by the American government or the Japanese; I am concerned with how good a job of car building and delivering they do and nothing else.
The job, then, of libertarian feminism is to deal with the impulse to judge by sex where sex is irrelevant, and to deal with the impulse by education and example. It would be most unlibertarian to presume to deal with that impulse by legislation because such legislation must, to be effective, be thought control.
Sexism is a thought process...
It is a pattern of thought used to deal with certain situations. Time and time again the history of man shows us that you cannot legislate what people think or how they think. Sexism can be ended. It will not be ended by passing another law, but by teaching, by example, by one-to-one discussion, argument and conversion. This is a long, hard, difficult procedure, especially in subcultures where sexism is heavily ingrained. But it is the only one available to a libertarian. Working to pass a law does nothing to further the goal of changing people's attitudes. Indeed, as libertarians should know, passing a law only makes people more adamant on a subject.
I do not argue that the so-called Equal Rights Amendment is an attempt at thought control. Rather, it is at best a waste of time and at worst counter-productive. That it is a waste of time may be seen by the existence of this broadside; if the E.R.A. did not exist, I would not argue against it. (I distinguish between productive action and defensive action, and strictly speaking defensive action is not productive.)
Even if one grants for a moment that a piece of legislation can, by some magic process, protect one's rights, the E.R.A. would still be a mistake. It is an example of the failure of the "more is better" philosophy; if a little legislation will protect some of our rights, then a lot of it will protect even more of our rights. This is patent humbug: how much better would our rights be protected had the so-called Bill of Rights been restricted to its first five words! [Congress shall make no law...]
It is evident on reading that the Equal Rights Amendment is intended to deal only with the policies of government in its internal affairs. That is, it is evident on a reading by a non-lawyers. Lawyers have created a theocracy out of law, with themselves as its priests and with legalese as its language; a language designed to be both technical (and hence potentially obscuring) and obsfucating. A word does not mean the same in English as it does in legalese. Thus, all the protestations of its proponents that the ERA will apply only to governmental internal policy are irrelevant. What the ERA will mean should it be ratified will be determined by the courts -- the lawyers -- after it is too late for us to say, "wait a minute." What the Equal Rights Amendment will actually mean God only knows, and neither He nor the priesthood are saying.
An examination of legal precedent will show quickly that American courts are quick to leap to any justification to support the decision the judge wishes to make. For example, in one case, a Federal postal monopoly was based on the argument that the Constitution guaranttees to each of the states a republican form of government, and if some of the several states wished to prohibit anti-slavery literature, then a Federal postal monopoly was necessary to enforce the ban. This decision was considerably before the New Deal court packing, which was nothing new; simply the maintenance of a tradition.
In one New Deal case, it was ruled that an elevator is engaged in interstate commerce. Similarly, in the infamous Sick Chicken case, the Supreme Court also ruled that a farmer who raised his own chicken, and his own chicken feed, for his own consumption, was engaged in interstate commerce. The Supreme Court Reporter is up to its gills in such judicial squirming. Would anyone care to take bets as to what idiocies the Supreme Court will fit the Equal Rights Amendment on its procrustean logic? I prefer not to, so I will not support the E.R.A.
These are all tactical objections to the E.R.A. While interesting, they are not as important as the moral arguments.
The Equal Rights Amendment carries with it a subtle and dangerous error. Rights are not given in legislation; not even in changes to the Constitution. Libertarians differ on where they do come from but on one point at least libertarians are agreed; rights are not granted by the rulers. An Equal "Rights" Amendment is no such thing. Perhaps a better name for it would be the Equal Oppression Amendment.
If the Equal Rights Amendment is passed, and it is used to justify more State idiocies, then indeed it will be an Equal Oppression Amendment. Specific case: if a law suit were to be brought on the basis of the E.R.A. that the draft was unconstitutional, who is to say that the result would not be the drafting of women? Here we have a clear cut danger that the E.R.A. will result in an expansion of the State, not a reduction. Of course, it is possible that the Supreme Court will abolish the draft rather than see women drafted for combat duty. It is also possible, I suppose, that the entire government will resign en masse and go home....
The Equal Rights Amendment is at best a red herring. If it is ratified, and even if the judges and lawyers do not warp it into another statutory engine of statism, then it will rule on government policy. To a libertarian, this is meaningless for how could a libertarian benefit from it? Is it of great concern whether the State drafts only one sex, or both, or is it more important to see to it that the State drafts neither -- which passage of the E.R.A. will not prevent. Is it of great moment that the State should plunder men more than women, or would we uphold the banner of the abolition of taxation! The object of libertarian activism is not equal oppression but liberty. To this goal, a piece of legislation is irrelevant.
The Equal Rights Amendment is a proposed piece of legislation. It is a further attempt to use the State toward a goal. That the goal is laudable may be true but it is irrelevant; the ends do not justify the means. The means, in this case, is to appeal to legislation, to the State for help. It is libertarian to seek the repeal of existing legislation for tactical or strategic reasons; to ask for a new law is to become a beneficiary of the means of plunder, the State.
The libertarian solution to the problem of brutality by KGB guards is not to reform the KGB but to abolish it. The libertarian solution of inflation is not to reform the Federal Reserve System but to abolish it. Libertarianism is not reformist, it is abolitionist. The E.R.A. is reformist. The proper libertarian response to discrimination on the part of government agencies is not to reform them but to abolish them.
This is not an argument that a libertarian ought to actively oppose the E.R.A. Rather, it is an argument to ignore what is at best a red herring. Let us get on with the important business of libertarianism and feminism; let us live our lives as freely as we can, without leaning on the State, and defend ourselves where appropriate from it. Let us provide by education and by example to those around us a glimpse of what the libertarian society can be and will be. Let the profession of politician die the most ignoble and horrible death that a politician can imagine: death by being ignored.
I do not argue that the so-called Equal Rights Amendment is an attempt at thought control. Rather, it is at best a waste of time and at worst counter-productive. That it is a waste of time may be seen by the existence of this broadside; if the E.R.A. did not exist, I would not argue against it. (I distinguish between productive action and defensive action, and strictly speaking defensive action is not productive.)
Even if one grants for a moment that a piece of legislation can, by some magic process, protect one's rights, the E.R.A. would still be a mistake. It is an example of the failure of the "more is better" philosophy; if a little legislation will protect some of our rights, then a lot of it will protect even more of our rights. This is patent humbug: how much better would our rights be protected had the so-called Bill of Rights been restricted to its first five words! [Congress shall make no law...]
It is evident on reading that the Equal Rights Amendment is intended to deal only with the policies of government in its internal affairs. That is, it is evident on a reading by a non-lawyers. Lawyers have created a theocracy out of law, with themselves as its priests and with legalese as its language; a language designed to be both technical (and hence potentially obscuring) and obsfucating. A word does not mean the same in English as it does in legalese. Thus, all the protestations of its proponents that the ERA will apply only to governmental internal policy are irrelevant. What the ERA will mean should it be ratified will be determined by the courts -- the lawyers -- after it is too late for us to say, "wait a minute." What the Equal Rights Amendment will actually mean God only knows, and neither He nor the priesthood are saying.
An examination of legal precedent will show quickly that American courts are quick to leap to any justification to support the decision the judge wishes to make. For example, in one case, a Federal postal monopoly was based on the argument that the Constitution guaranttees to each of the states a republican form of government, and if some of the several states wished to prohibit anti-slavery literature, then a Federal postal monopoly was necessary to enforce the ban. This decision was considerably before the New Deal court packing, which was nothing new; simply the maintenance of a tradition.
In one New Deal case, it was ruled that an elevator is engaged in interstate commerce. Similarly, in the infamous Sick Chicken case, the Supreme Court also ruled that a farmer who raised his own chicken, and his own chicken feed, for his own consumption, was engaged in interstate commerce. The Supreme Court Reporter is up to its gills in such judicial squirming. Would anyone care to take bets as to what idiocies the Supreme Court will fit the Equal Rights Amendment on its procrustean logic? I prefer not to, so I will not support the E.R.A.
These are all tactical objections to the E.R.A. While interesting, they are not as important as the moral arguments.
The Equal Rights Amendment carries with it a subtle and dangerous error. Rights are not given in legislation; not even in changes to the Constitution. Libertarians differ on where they do come from but on one point at least libertarians are agreed; rights are not granted by the rulers. An Equal "Rights" Amendment is no such thing. Perhaps a better name for it would be the Equal Oppression Amendment.
If the Equal Rights Amendment is passed, and it is used to justify more State idiocies, then indeed it will be an Equal Oppression Amendment. Specific case: if a law suit were to be brought on the basis of the E.R.A. that the draft was unconstitutional, who is to say that the result would not be the drafting of women? Here we have a clear cut danger that the E.R.A. will result in an expansion of the State, not a reduction. Of course, it is possible that the Supreme Court will abolish the draft rather than see women drafted for combat duty. It is also possible, I suppose, that the entire government will resign en masse and go home....
The Equal Rights Amendment is at best a red herring. If it is ratified, and even if the judges and lawyers do not warp it into another statutory engine of statism, then it will rule on government policy. To a libertarian, this is meaningless for how could a libertarian benefit from it? Is it of great concern whether the State drafts only one sex, or both, or is it more important to see to it that the State drafts neither -- which passage of the E.R.A. will not prevent. Is it of great moment that the State should plunder men more than women, or would we uphold the banner of the abolition of taxation! The object of libertarian activism is not equal oppression but liberty. To this goal, a piece of legislation is irrelevant.
The Equal Rights Amendment is a proposed piece of legislation. It is a further attempt to use the State toward a goal. That the goal is laudable may be true but it is irrelevant; the ends do not justify the means. The means, in this case, is to appeal to legislation, to the State for help. It is libertarian to seek the repeal of existing legislation for tactical or strategic reasons; to ask for a new law is to become a beneficiary of the means of plunder, the State.
The libertarian solution to the problem of brutality by KGB guards is not to reform the KGB but to abolish it. The libertarian solution of inflation is not to reform the Federal Reserve System but to abolish it. Libertarianism is not reformist, it is abolitionist. The E.R.A. is reformist. The proper libertarian response to discrimination on the part of government agencies is not to reform them but to abolish them.
This is not an argument that a libertarian ought to actively oppose the E.R.A. Rather, it is an argument to ignore what is at best a red herring. Let us get on with the important business of libertarianism and feminism; let us live our lives as freely as we can, without leaning on the State, and defend ourselves where appropriate from it. Let us provide by education and by example to those around us a glimpse of what the libertarian society can be and will be. Let the profession of politician die the most ignoble and horrible death that a politician can imagine: death by being ignored.
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