The ERA's long, strained trip News Type: Event — Tue Aug 10, 2010 9:01 PM EDT By Will Femia http://maddowblog.msnbc.msn.com/_news/2010/08/10/4864599-the-eras-long-strained-trip
At the very end of the segment with Yale Law School professor Healther Gerken on Monday night's show, Rachel suggested that all big (empty) political talk about changing the Constitution is actually a form of working the refs - that you may not actually change the Constitution but you may change how it's treated and interpreted: MADDOW: Does threatening to change the Constitution, even if you can`t pull it off, even if you can`t actually amend it - historically, has that had an effect on our laws or even constitutional interpretation even if the amendment itself hasn`t actually worked? GERKEN: Well, this is what is so interesting. They said sometimes, you can amend the Constitution without amending the Constitution. So you just talked about the ERA. It`s a great example as my colleague, Reva Siegel, has pointed out. The people who worked for the ERA actually got everything they wanted by moving for the ERA. They never actually got it into the texts of the Constitution. But everything that was embodied in that amendment was eventually given to them by the Supreme Court. So why did that happen? Well, they used the ERA as an organizing tool. They changed people`s minds about the place of women in society. And nine of the people whose minds were changed were sitting on the Supreme Court. And those justices eventually began to read the broad part of the Constitution in a way that was perfectly consistent with the ERA. So they got the constitutional amendment. It just isn`t in the text. MADDOW: And it just took 85 years, roughly. GERKEN: It did take a little while. What they're talking about after the jump... -------------------------------------------------------------------------------- I didn't realize it when I was watching it live, but I'm pretty sure Rachel knew Reva Siegel was going to come up in the answer to that question. In fact, while I'd never heard of Reva Siegel, the sheer quantity of references to her - especially the "de facto ERA" paper - that came up when I googled her this afternoon made me embarrassed that I didn't understand the reference when Professor Gerken brought it up, and cements my certainty that her paper is exactly what Rachel was getting at. The paper's full title is "Constutitional Culture, Social Movement Conflict and Constitutional Change: The Case of the defacto ERA" and you can download the 97 page pdf of it here. I'm sure there's no shortage of fascinating material to read on the subject, but if you're looking for looking for something a little more manageable than 97 pages, I'll add that in the course of searching for a free link to the Siegel paper (no small task) I ended up reading these closing remarks by Lani Guinier at this year's Money, Politics & the Constitution Symposium at the Brennan Center for Justice. I only skimmed the panel remarks but it sets a broader context for the idea of influencing the courts and American discourse that makes for a great virtual TRMS spin-off segment. :) Permalink9 comments Back To Top | Front Page rams9 85 years what's the big deal. we all got 85 years. #1 - Tue Aug 10, 2010 9:10 PM EDT Lesman The fact that the ERA has not been ratified is a national travesty. Period............ 3 votes#2 - Tue Aug 10, 2010 9:35 PM EDT Mickey Mouser Didn't the ERA fail because 2 states thought that if it was passed men and women would have to share public bathrooms? 1 vote#3 - Tue Aug 10, 2010 10:41 PM EDT pensword Bring it Back! Rewrite the ERA but include gay and lesbian civil rights issues. (In fact why not write in text that is intended to prevent every travesty of justice of which we can think). We might not get the amendment, but in 85 years maybe we'll all get to marry. (I'm likely to be dead.) #4 - Tue Aug 10, 2010 11:15 PM EDT GrrrlRomeo I don't think the Prop 8 trial will take 85 years. #4.1 - Wed Aug 11, 2010 1:45 AM EDT WBEng Here, here - maybe a seasonal adjustment - give, or take...it's all good. #4.2 - Wed Aug 11, 2010 5:24 AM EDT pensword Here, Here... If we win, hopefully we will. #4.3 - Wed Aug 11, 2010 11:20 AM EDT hatenomor Wasn't it the democratic party that was the primary opposition to the all of the civil rights legislation that has ever been proposed? #5 - Wed Aug 11, 2010 12:04 PM EDT hatenomor Many of the wonderful-sounding ideas that have been tried as government policies have failed disastrously. Because so few people bother to study history, often the same ideas and policies have been tried again, either in another country or in the same country at a later time-- and with the same disastrous results. One of the ideas that has proved to be almost impervious to evidence is the idea that wise and far-sighted people need to take control and plan economic and social policies so that there will be a rational and just order, rather than chaos resulting from things being allowed to take their own course. It sounds so logical and plausible that demanding hard evidence would seem almost like nit-picking. In one form or another, this idea goes back at least as far as the French Revolution in the 18th century. As J.A. Schumpeter later wrote of that era, "general well-being ought to have been the consequence," but "instead we find misery, shame and, at the end of it all, a stream of blood." The same could be said of the Bolshevik Revolution and other revolutions of the 20th century. The idea that the wise and knowledgeable few need to take control of the less wise and less knowledgeable many has taken milder forms-- and repeatedly with bad results as well. One of the most easily documented examples has been economic central planning, which was tried in countries around the world at various times during the 20th century, among people of differing races and cultures, and under government ranging from democracies to dictatorships. The people who ran central planning agencies usually had more advanced education than the population at large, and probably higher IQs as well. The central planners also had far more statistics and other facts at their disposal than the average person had. Moreover, there were usually specialized experts such as economists and statisticians on the staffs of the central planners, and outside consultants were available when needed. Finally, the central planners had the power of government behind them, to enforce the plans they created. It is hardly surprising that conservatives, such as Prime Minister Margaret Thatcher in Britain and President Ronald Reagan in the United States, opposed this approach. What is remarkable is that, after a few decades of experience with central planning in some countries, or a few generations in others, even communists and socialists began to repudiate this approach. As they replaced central planning with more reliance on markets, their countries' economic growth rate almost invariably increased, often dramatically. In the largest and most recent examples-- China and India-- people by the millions have risen above these countries' official poverty rates, after they freed their economies from many of their suffocating government controls. China, where famines have repeatedly ravaged the country, now has a problem of obesity-- not a good thing in itself, but a big improvement over famines. This has implications far beyond economics. Think about it: How was it even possible that transferring decisions from elites with more education, intellect, data and power to ordinary people could lead consistently to demonstrably better results? One implication is that no one is smart enough to carry out social engineering, whether in the economy or in other areas where the results may not always be so easily quantifiable. We learn, not from our initial brilliance, but from trial and error adjustments to events as they unfold. Science tells us that the human brain reaches its maximum potential in early adulthood. Why then are young adults so seldom capable of doing what people with more years of experience can do? Because experience trumps brilliance. Elites may have more brilliance, but those who make decisions for society as a whole cannot possibly have as much experience as the millions of people whose decisions they preempt. The education and intellects of the elites may lead them to have more sweeping presumptions, but that just makes them more dangerous to the freedom, as well as the well-being, of the people as a whole. #6 - Wed Aug 11, 2010 1:05 PM EDT Leave a Comment: Name: Email Address (will be verified, but never shown): You're in Easy Mode. If you prefer, you can use XHTML Mode instead. You're in XHTML Mode. If you prefer, you can use Easy Mode instead. (XHTML tags allowed - a,b,blockquote,br,code,dd,dl,dt,del,em,h2,h3,h4,i,ins,li,ol,p,pre,q,strong,ul) You are posting this comment to a publicly viewable discussion. Newsvine Privacy Statement As a new user, you may notice a few temporary content restrictions. Click here for more info. Start TrackingStop TrackingBack To Top | Front Pageadvertisement Get Updates Daily Email:You are subscribed.change this Daily Email:Subscribe()Daily Email:Subscribe Saving... 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