When the ERA was written, the status of women in American society was often considered secondary to that of men. Legal restrictions – such as bans on voting and property – combined with long-standing stereotypes about women`s roles meant that women were relegated to certain defined spaces and not treated as full citizens. In particular, many women of color were further limited by the worsening effects of deep-rooted racial, ethnic, and gender bias, reinforcing a social hierarchy in which they had a lower status than white women. Although the ERA is still not included in the Constitution, many of the attitudes and practices that led to its original proposal have long since been rejected. The broader push for gender equality has gained momentum over the decades, and even without the ERA, women and people across the gender spectrum have made tremendous strides in improving their status, securing important legal protections and opportunities across society. But much more needs to be done to ensure that women and people of all genders are treated equally and equitably, and have the opportunity to live their lives the way they want. The absence of an explicit prohibition of gender discrimination in the Constitution remains a major obstacle to the fight for gender equality and the advancement of women as a whole, and the ERA is an important tool for achieving this progress. I will now address these objections. The uncontrollable objection of public reason is resolved when there are realistic social orders which satisfy public reason, but which are nevertheless unjust. To see that they exist, consider that the (weak) version of public reason on which I rely depends on the social significance of the laws in a particular social context, while justice is (presumably) universal.
In fact, I propose a social factual thesis on the rule of law, similar to the social factual thesis advanced by positivists on law itself: whether a legal-social agreement is compatible with seeing everyone in society as equal is a social fact, not a metaphysical or moral fact. If, in a given society, an unjust social order can be accepted by all citizens which is compatible with considering themselves equal, then the order in question will suffice for public reason. This is a theoretical problem at the heart of liberal democracy. The rule of law is generally understood as a prerequisite for the legitimacy of liberal states.9 Their demands are articulated in U.S. regulations. Constitution such as due process and equal protection clauses.10 And their ideals are deeply rooted in the Anglo-American legal tradition, from Magna Carta to common law.11 Indeed, West proposed that the “formal equality” model of reasoning over law, the practice of categorizing cases in terms of similarity and dissimilarity for the purpose of dealing with “like cases, ” is only part of what makes legal reasoning legal argument, as opposed to another type of argument.12 If the rule of law is hostile to true equality, then that hostility is at the heart of our constitutional order.13 Diplomatic immunity is another controversial area concerning equal treatment before the law. Because this privilege allows diplomats to: operate completely without legal consequences for their actions. Even their families can take advantage of the benefits originally introduced to ensure the safe passage of emissaries between other countries. Finally, weak and strong versions of the rule of law appeal to the same overarching normative idea of reason respecting equals. The weak version requires officials to give legal reasons—that is, reasons that can be found in the law—for their use of state power.163 And I have argued that giving legal reasons amounts to a kind of respect for the general public.164 The strong version requires that the law itself be consistent with the indication of reasons that respectfully address the general public. The strong and weak versions of the rule of law thus express the same basic idea in its most abstract form: no use of coercive state force without giving the right (respectful) reasons for its use. Ratification of the ERA would confirm that gender discrimination is incompatible with the nation`s fundamental value of equal protection of the law and send a clear message of a national commitment to the inherent equality of all.
The amendment also supports the argument that judicial review of cases alleging discrimination on the basis of sex should apply the highest level of judicial review, which requires a compelling state interest in considering a particular gender-specific law or practice to be constitutional.8 Increased scrutiny would make it more difficult to directly dismiss claims and protections for sex discrimination. Thus, the ERA has the potential to make decisive progress with an impact on a number of areas. If we look at the laws, they grant equal justice to all in their private differences; where the social position of advancement in public life rests on the call of ability, class considerations must not affect merit; Poverty does not stand in the way either. [8] Nor should we criticize them solely because of their racial effects. Not all laws that discriminate against one group within society are morally reprehensible – progressive taxes, for example, discriminate against the rich, but are not subject to moral criticism because of this disadvantage. We should appeal to deeper ideas from political philosophy to criticize literacy tests for their effects – to say, for example, that they were false, because they violated democratic principles, or because they violated the principle of equal treatment of citizens.99 It is an expressive standard of behavior in Anderson`s sense57: it establishes an evaluation (an evaluative attitude towards an object (“equal” to the rational taker), and creates a requirement to behave appropriately for that assessment (giving only the reasons that are consistent with it). The correspondence between the appropriate reasons and the assessments stems from the social importance of these reasons and from this evaluation. And, as Anderson explains, an appropriate judgmental attitude toward something means, in part, acting as one acts in one`s social world, if one adopts that attitude.58 The ERA is a crucial step forward, but it is important to recognize that its adoption alone will not end discrimination overnight or lead to immediate equality. The ERA, like other constitutional amendments, would explicitly cover state and government policies, but would not directly address the private sector.
The amendment should only be understood as a fundamental element in the fight for gender equality, providing an additional level of protection that could make a difference in reversing long-standing discriminatory practices. Therefore, it does not replace the crucial role of policymakers to take strong action to combat all forms of discrimination in order to ensure equality and adequate protection for women and people across the gender spectrum. This work must be done with a deep understanding of the intersectional experiences of women of color and gender minorities to recognize how a combination of factors such as racial and gender bias can erect unique discriminatory barriers.21 These include, at least: At Students For Liberty, we believe that equal treatment before the law is a crucial principle that must be universally respected.