The Originalist Conundrum
Over the past few years, the Equal Rights Amendment has been kept alive mostly through the efforts of a relatively left-wing band of scholars and activists. It is their work that has laid the foundations for the contemporary meaning and understanding of the ERA we may now pass. Now that it’s back on the table, this will present quite a dilemma for the mostly-conservative judges who call themselves “originalists.”
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Ok, first, everyone who thinks that “Original Intent” (i.e. that the constitution should be interpreted according to the norms and social mores of the 18th century) is anything more that a cover for present day conservatives to impose their will on 21st century America, please raise your hands.
That being the case, I foresee no conundrum. Conservative judges will interpret any constitutional amendment according to present day conservative standards, using whatever justifications they see fit.
Personally, I have no problem, given the ongoing bigotry still so problematic here in the US (Don Imus anyone?), with establishing as literal, not implied doctrine, that women should stand as equal citizens of the US.
Schrab you’re wrong. A “relatively left-wing band of scholars and activists” are NOT the ones who have kept the ERA alive. The people who have kept the ERA alive are those “diehards” and ERA purists made up primarily of older women who were involved in the previous ERA campaign and who became disgusted with the radical turn the National Organization for Women took after the ERA’s failure in 1982. When NOW dropped its support for the ERA in 1995, these women continued soldiering on.
The Business and Professional Women has kept the ERA as its number one policy issue since 1937–this multipartisan organization is hardly a radical group.
As for scholars, its difficult to find much being written or discussed about the ERA in academic circles. That’s one reason why young women don’t know anything about the ERA and think it’s already in the Constitution.
The vast majority of people who are involved in the current campaign to ratify the ERA (using the three state strategy) are ordinary citizen advocates who represent all political parties and age groups.
> “Original Intent� (i.e. that the constitution
> should be interpreted according to the
> norms and social mores of the 18th century)
BZZZZZZZZZZZZZZZZZZZZZZZT
1. Various parts of the Constitution were ratified at different times.
2. You deserve to have your will creatively re-interpreted after your death.
Oh spare me. The majority of the clauses we interpret to day were drafted in the 18th century–the only exception is the reconstruction amendments, mid-19th century. You know what he meant, stop being an obnoxious prat.
And I fully support rendering a clause of a 100 year old will that, say, gives money to a museum “on the condition it stay segregated and for the use of Whites only” inoperable and void.
> Oh spare me.
No, you spare those of us that know and are better.
> The vast majority of people who are involved
> in the current campaign to ratify the ERA (using
> the three state strategy) are ordinary citizen
> advocates who represent all political parties and
> age groups.
Let’s see what a President Hillary Clinton can do with it after 2008.
> The majority of the clauses we interpret
> [today] were drafted in the 18th century
The typical losers have no respect for the Second Amendment on just that worthless argument, but are strangely silent about the equally “old” First Amendment, that they even seize to defend what it really doesn’t protect…hypocrisy among a number of other faults…
* sigh *
And if it’s obsolete, then remedy it the correct way — CHANGE THE DOCUMENT ITSELF through the legitimate process of amendment, not through an activist court ruling that says “green” now means red ’cause it should mean red these days, that’s what want rather than icky old green.
The second amendment was ratified in 1791, which is indeed part of the 18th century. That doesn’t make it obsolete, any more than the 1st or 4th or 6th or 8th amendments are obsolete. But it’s entirely possible that the understanding of concepts has changed in the interminent time–what constitutes “speech”, what types of punishments are “cruel”, etc..
Ironically, the “collective right” theory of the 2nd Amendment that conservatives loath so much actually gains strength from an originalist interpretation (the Militia Act of 1792 is crucial here). It may be too much to ask the casual originalist to be aware of the actual history surrounding the adoptation of their amendments. Or it may be that we ought defer to the contemporary understanding of the 2nd amendment as establishing an invididual right to bear arms, recognizing that state militias hardly are the institutional pillar of American society that they were at the framing. Regardless, I don’t feel too guilty asking them to either know their facts or know basic elements of interpretative theory (one or the other) before prattling on about how they’re “better” than other people.
Once again, spare me.