by publius
I need some help. I’m having trouble discerning a thesis in George Will’s tirade today against the ERA. The argument seems to go like this: (1) Liberals like bell bottoms and love beads [cue Stayin’ Alive bass line]. (2) The ERA is bad because it duplicates the equal protection clause (Will’s favorite constitutional provision no doubt). (3) Hairy, bell-bottomed, love-beaded ERA-supporting hippies cheated back in the 70s. [Well, you can tell by the way I use my walk . . .] (4) The ERA is bad because it’s an end run around the legislative process. As #4 is the most ridiculous part of a fairly ridiculous op-ed, let’s start with that one.
The Will column is a textbook example of how conceptual narratives can harden to the point where facts become irrelevant. Remember that one of the central (and sometimes accurate) arguments of modern conservative jurisprudence is that post-World War II liberals use vague constitutional doctrine to do an end run around the legislative process. Inevitably, conservatives argue that if liberals want to change the Constitution, they need to do so through the proper channels – i.e., the Article V amendment process.
Funny thing, though. That’s exactly what the renewed effort to pass the ERA is trying to do. But to Will, these efforts are merely an even-more-cleverer way to avoid legislatures:
All amendments generate litigation, but the ERA’s purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot persuade legislatures to enact. ERA — now WEA — supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.
If Kennedy and like-minded legislators think that the condition of American women needs improvements, they should try to legislate them. Instead, they prefer to hope that liberal judges will regard the ERA’s language as a license to legislate.
To sum up, commanding legislative supermajorities at the federal and state level in the manner explicitly provided for by Article V is a “politically lazy” “shortcut.” What legislators who want to help women should really do, Will explains, is to “try to legislate” rather than, you know, legislating.