schafly-era

Phyllis Schlafly’s Good Fight Against Equal Rights Amendment

Whatever one thinks of traditional gender roles and, for that matter, abortion, Schlafly’s basic argument was right. Most of the point of the amendment was to put into law language that judges could use to enact policies that could not get through the democratic process by themselves. By the time Schlafly was debating the ERA, the Supreme Court was using what it had described as the Constitution’s “majestic generalities” as a license to fill in the blanks.

It was even using fairly specific constitutional language, like that of the due-process clauses, to impose its preferred policies on the country.

In this context, ratifying a constitutional amendment with the sweeping abstract language would have been equivalent to giving the federal courts vast new powers and saying, “Surprise us!” It’s hard to think of a good argument for doing that — as opposed to passing legislation piecemeal to open up combat roles for women, and so on.

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