Monthly Archives: March 2007

Do We Need An Equal Rights Amendment ?

There was a time when it looked like the Equal Rights Amendment, first proposed in the midst of the 1970s movement toward gender equality, would actually passed. It had garnered the support of 35 of the 38 states needed for ratification. And then it just died. A few states passed resolutions purporting to rescind their earlier ratification, a move which remains Constitutionally questionable, but the movement to get the three states needed to ratify the proposed amendment just stopped. And the ERA has effectively been dead ever since.

Now, Democrats in Congress are planning to reintroduce the legislation and start the process all over again:

Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures.

The amendment, which came three states short of enactment in 1982, has been introduced in five state legislatures since January. Yesterday, House and Senate Democrats reintroduced the measure under a new name — the Women’s Equality Amendment — and vowed to bring it to a vote in both chambers by the end of the session.

The renewed push to pass the ERA, which passed the House and Senate overwhelmingly in 1972 and was ratified by 35 states before skidding to a halt, highlights liberals’ renewed sense of power since November’s midterm elections. From Capitol Hill to Arkansas, legislators said they are seizing a political opportunity to enshrine women’s rights in the Constitution.

The text of the ERA is as follows:

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.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Though simple in language, the impact of the ERA would be significantly. With the Amendment as part of the Constitution, claims of gender discrimination would be subject to the same strict scrutiny as claims of racial discrimination. The question, though, is whether we really want that.

I don’t think that there is any disagreement with the argument that there is almost never a good reason for the government to discriminate among people based on race or ethnicity. Whether someone is white, or black, Asian, or Hispanic can almost never be said to be a relevant criteria for, say, school admission.

The same cannot be said, I would submit, when it comes to discrminiation based on gender. There are differences between men and women and sometimes the law needs to recognize those differences. Opponents of the ERA back in the 1970s argued that it would lead to unisex bathrooms and women in the military. Quite obviously, that argument is absurd. But what about a college athlete who doesn’t qualify for the men’s basketball team and wants to play for the women’s team, under a strict reading of the language of the ERA it would be unconstitutional for a state-run school to deny him that opportunity.

Or let’s take a more radical example. Marriage. Right now a man and marry a woman, but not another man. A woman, however, can marry a man (but, of course, not another woman). Does it really take all that much imagination to think that there will be a lawyer somewhere out there who will argue that the ERA prohibits the state from barring persons of the same gender from marrying each other merely because they are of the same gender ?

More importantly, though, it seems pretty clear that, given the state of the law and the state of society, the Equal Rights Amendment simply isn’t necessary. Under the law today, nearly all gender-based discrimination other than the examples I noted above that merely recognize the differences between men and women are considered unconstitutional thanks to a series of Supreme Court decisions based on the Equal Protection Clause of the Fourteenth Amendment. Eugene Volokh, who seems to favor the idea of an Equal Rights Amendment, puts it this way:

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it’s possible that judges will carve out some sensible exceptions from the ERA’s flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it’s better for judges to continue developing exceptions from this rule when it’s basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better — the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it’s not an open-and-shut matter, it seems to me.

Given the danger that judicial interpretation of the Equal Rights Amendment could lead to outcomes that even it’s supporters today wouldn’t support, I think staying with the status quo makes the most sense.

Finally, it should be noted that we are having this conversation in very interesting times. The frontrunner for the Democratic nomination for President is a woman. The Speaker of the House, second in line to succeed to the Presidency, is a woman. There are women serving as Cabinet Members, Senators, Congresswomen, Governors, and all over politics. This is not the same country it was in 1972 when the ERA was first sent to the states. Perhaps we need an idea more appropriate for our time and not one rooted in the 1970s.

Bob Barr: Medical Marijuana Lobbyist

Back when he was a Congressman, Bob Barr was at the forefront of a move in Congress to block a referendum in the District of Columbia that would have allowed the use of marijuana for medical purposes. The referendum went forward, but thanks to the Barr Amendment the public wasn’t even allowed to know what the results of the vote were, although it seemed clear that the referendum had passed.

Let’s just say that times have changed. Bob Barr is now retired from Congress, he’s joined the Libertarian Party, and he’s lobbying for the legalization of medical marijuana:

Bob Barr, who as a Georgia congressman authored a successful amendment that blocked D.C. from implementing a medical marijuana initiative, has switched sides and become a lobbyist for the Marijuana Policy Project.

But that doesn’t mean he has become a bong-ripping hippie. He isn’t pro-drug, he said, just against government intrusion.

“I, over the years, have taken a very strong stand on drug issues, but in light of the tremendous growth of government power since 9/11, it has forced me and other conservatives to go back and take a renewed look at how big and powerful we want the government to be in people’s lives,” Barr said.


Ironically, Barr said he will help lead the fight to give District residents a say on whether to allow medical marijuana — the very thing the “Barr Amendment” denied them in 1998. He will lobby for the rights of states to set their own medical marijuana policy without federal interference.

The four-term former Republican congressman will also work to unplug a youth anti-drug campaign which a recent study showed actually increased the likelihood that all teens would smoke pot.

Some of the commentors over at Hit & Run are accusing Barr of “flip-flopping”, but, like Radley Balko said, I think it’s clear that this is a genuine change of mind on Barr’s part, not a change in position designed to gain votes or political support. If anything this is likely to make him even less welcome among his former allies. However, like Glenn Reynolds, I think it would’ve been nice if Barr had had this change of heart when he actually had the power to do something about the insanity that is the War on Drugs.

What Is 17 Years In Prison Worth ?

Virginia is proposing to pay $ 1.9 million to Earl Washington, Jr., who spent 17 years in prison, including time on death row, for a rape and murder that he did not commit:

Virginia officials have agreed to pay $1.9 million to a man who spent 17 years in prison — including more than nine on death row — for a rape and murder he did not commit, officials said yesterday.

If the settlement is approved by the court, it will bring an end to years of legal battles that arose from one of the nation’s most troubling instances of a wrongful conviction. Earl Washington Jr., a farmworker who is mildly mentally retarded, once came within days of execution. He was exonerated in 2000 by DNA tests.[

The story of how Washington ended up nearly being executed for a murder he didn’t commit is particularly outrageous:

Washington’s conviction in the 1982 rape and murder of 19-year-old Rebecca Williams, a young mother from Culpeper, was largely the result of a false confession in which he got several key details wrong. Last year, a federal jury in Charlottesville ruled that a now-deceased Virginia State Police investigator fabricated parts of that confession. The jury awarded Washington $2.5 million.

The proposed $1.9 million settlement calls for the court to dismiss the verdict against the estate of investigator Curtis Reese Wilmore, who died in 1994, according to court papers. It also would mean that all appeals in the case, including one by Wilmore’s estate, would be dropped. The state funded the defense against Washington’s lawsuit because Wilmore was a state employee when he interrogated Washington.

It makes sense for Washington to settle the claim at this point. The appeals would be costly, and there’s always a risk that the jury verdict would be overturned.

The case does raise a question, though, what is appropriate compensation for being held in prison for 17 years and nearly being executed due to a falsified confession ? The jury said it was $ 2.5 million dollars, but that seems paltry compared to the damage that was done to Washington over the years. And, quite honestly, it’s unfortunate the man responsible for all this never spent a day in jail for what he did.

Are CEO’s Accountable To Shareholders?

Over in the comments to this post at Cafe Hayek, a debate is brewing over whether compensation for bad CEO’s is the fault of the shareholders or not.

In this debate, you constantly see people of the libertarian mindset blaming the shareholders for not exercising enough control over the CEO compensation process. This, I think, is hypocritical.

In any big organization, there is a facade of democratic decision-making. In the United States, we pick our President through primaries and a general election process. But since the process is completely driven by money and influence, we have a very limited number of choices to take into account, largely limited to who the RNC and the DNC put their money and weight behind. Yet when we complain and people say “well you elected them!”, we get angry.

What’s different with the shareholders? Often the selection of CEO is limited to a small number of candidates selected by the Board of Directors, who are also often selected by a very limited number of candidates.

When I look at the idiocy in the United States government, I can at least say that because the system of electing those idiots is completely screwed up, that I have very little meaningful control over who ends up in power and what they do with that power. I’m doing everything I can to change that system (including posting to this blog), but I still have almost zero influence over what they’re doing.

Wouldn’t it be consistent to apply the same argument to shareholders? The only advantage that shareholders have over citizens of the US is that the cost of exit from owning a company has a much lower transaction cost than leaving the United States. But the argument still holds. Do shareholders really exert meaningful control over the inner workings of a Board of Directors and CEO? Do they exert much more control than voters exert over our government?

I say no. In both cases, the system is broken. Blaming the peons in a system doesn’t accomplish anything if those peons can only change who runs the broken system, not the system itself.

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