Under the equal protection clause of the 14th Amendment, the Supreme Court is already able to create new constitutional rights for women. The effect of the Equal Rights Amendment (for which a renewed campaign is taking place) presumably would be to encourage the justices to do so more aggressively than in the past, but with no specific guidance about what legal changes should be made.
Why is this necessary? The Star Tribune Editorial Board (“The ERA is back, and it’s still needed,” March 10) claims that women’s rights are “insecure.” But that is equally or more true for many other groups of Americans — for example, the elderly, the poor and the mentally ill. Does it follow that we should amend the Constitution to guarantee “equal rights” for them? What about a right to “equal educational opportunities”? The Supreme Court has created such a right in cases involving racial discrimination. Why not extend that right to other causes of poor public education?
Every new constitutional right transfers decisional power over a social problem from democratically elected and accountable politicians to the nine lawyers on the Supreme Court, who serve for life and are not accountable to voters, not experts about most issues of public policy and not free of the occupational, class and political biases that affect the rest of us. The most pervasive problem in constitutional jurisprudence is to fashion criteria for distinguishing between those exceptional problems concerning which the Supreme Court should have the last word and the great majority that should be left to private actors or politicians. In our democracy, the judicial role generally has been relatively peripheral, confined for the most part to matters concerning which judges are considered to be experts — the rights of criminal defendants, for example — or the political system is extraordinarily disabled — as it was in the South in the Jim Crow era when many African-Americans were unable even to vote.
Like most things, this is a question of degree. Proponents of every political cause suffer delays and defeats that they can attribute, often with some plausibility, to systemic defects in our political system: Their adversaries have more money; the costs of the adversary’s programs are hidden from the voters (or will be borne by future generations); the media are biased in their favor, and so on. By stressing these sometimes genuine handicaps, one can make a superficial case for a transfer of political power from the sordid world of democratic politics to the supposedly purer world of the Supreme Court. But I have never encountered a constitutional scholar who approved of such transfers except when that scholar expected the justices to be biased in favor of their own favorite causes.
At its best, the Supreme Court has protected the rights of disfavored minorities who lack political power — African-Americans in the segregated South, criminal defendants, political and religious dissidents. Women, by contrast, are a majority of Americans. To the extent that they are united, they have great political power. This has been demonstrated in many contexts, including even opportunities to serve in combat units of the armed forces, historically the ultimate bastion of male power.
To be sure, women continue to face problems that are both serious and distinctive. But the political system has responded at least as well to these problems as it has to those of other groups in our society. As I have implied, one problem is that on some matters women are not united: What are called “women’s rights” are often positions of feminist activists that are opposed — rightly or wrongly — by many other women, including not just homemakers and religious fundamentalists but also, for instance, some female judges and professors who are concerned about the rights of men who have been accused of rape. Such diversity is, of course, inherent in democratic politics. Another problem is that legal rights are often grossly inadequate to remedy social realities. Thus, the problem of sexual violence persists; the Star Tribune editorial claims that the ERA might help to reduce that problem. Perhaps, but if the law reforms that have been created so far or are now pending in state legislatures are inadequate, why should we suppose that reforms mandated by the Supreme Court would be wiser or more effective?
Far from being a failure of a disabled political system, the response to sexual violence exemplifies the responsiveness of politicians to women’s anti-rape campaign. Responding to feminist reformers, legislatures and courts have made many important changes in rape law, and many women now serve as police detectives in rape cases. Unlike the situation in, say, the 1960s, many judges in rape (and other) cases are now women. Rape-shield laws now forbid most questions about an alleged victim’s sexual history. Prominent prosecutors and rape scholars report that convictions in acquaintance-rape cases are now easier to obtain than they used to be and that the rape-law reforms, coupled with massive publicity and cultural changes, are responsible for a decline in sexual violence since the post-World War II era. That rape is still a serious problem, and more legal reforms are desirable, is typical of major social problems, not a reason for a constitutional amendment containing a vague instruction to treat women as “equal.”
David P. Bryden is the Gray, Plant, Mooty, Mooty and Bennett Professor of Law Emeritus at the University of Minnesota and has published a number of scholarly articles on constitutional jurisprudence and rape.