A New ERA.

The Democrats are talking about the Equal Rights Amendment again.  From George Will:

WASHINGTON - Liberals, dolled up in love beads and bell-bottom trousers, have had another bright idea, one as fresh as other 1970s fads. Sens. Ted Kennedy and Barbara Boxer and Reps. Carolyn Maloney and Jerrold Nadler, high-octane liberals all, have asked Congress to improve the Constitution by adding the Women's Equality Amendment, which, like the Equal Rights Amendment before it, says: ''Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.''

Opponents of the old ERA used to fight with scary stories about unisex bathrooms in public schools.  Most of the stories were nonsense.  The ERA was nonetheless a bad proposition then, and it hasn't improved anymore than have bell bottom jeans. 

The problem with the language is that it is either redundant or meaningless.  It is impossible to know which without knowing what "equality of rights" means.  Does it mean, for example, that no state can discriminate against women and in favor of  men in hiring, or in public school admissions?  If so, that is already covered by such things as the due process clause and equal protection clause of the 14th Amendment.  Almost any case of discrimination on the basis of sex would trigger strict scrutiny by the courts, and almost nothing ever survives that exacting degree of review.  Anything that would survive strict scrutiny in light of due process would survive an ERA, pardon me, WEA, challenge as well.

If the language doesn't mean what is already in the Constitution, then it either means nothing or, much worse, means whatever any five Supreme Court Justices decide they are in favor of.  Does it mean that the presumption of innocence for men must be surrendered in cases of rape or sexual harassment?  Does it mean that affirmative action policies in favor of women (and therefore against men) are unconstitutional?  There is no way to tell from the wording.   The only way to get anything new out of the amendment would be to creatively interpret it without any guide from historical usage or the text itself.  That is a bad piece of work.