Women\'s Rights and the Decline of Democracy, Part Two


In yesterday’s blog I argued that the attitude that the rights of women’s were negotiable should be viewed as the crack in the apparently solid wall of democracy into which the wedge of the anti-democratic movement was being inserted. 
It may have appeared to the reader that I was engaged in hyperbole in order to make my point. Unfortunately I was, if anything, underplaying the lack of support for the basic rights of women that can be found among many in the political chattering class of America.
Consider, for example, Justice Antonin Scalia\’s statement:
  Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn\’t. Nobody ever thought that that\’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don\’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. [California Lawyer]
 Scalia was arguing that since the rights of women not to be discriminated against were not specifically mentioned in the text of the 14th Amendment and since it is doubtful that those who framed that the amendment envisioned it as forbidding sexual discrimination then the amendment itself should not be read as constitutionally prohibiting sexual discrimination.

For those who are not familiar with the amendment in question the relevant text is
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Notice that the words used in this amendment are \”persons\” and \”citizens\” rather than the sometimes contentious word \”man.\” One might argue as to whether the word \”man\” actually means \”person\” but not whether the word \”person\” means \”person.\”

Would I argue against Scalia\’s claim that those who wrote, and voted for, this amendment did not envision it as an effort to prevent laws discriminating against women? 
No. 
But neither would I claim that when the founding fathers referred to \”inalienable rights\” they considered those rights to apply to people who happened to be female or African-American. That political thinkers in the past were incapable (or unwilling) to consider women and African-Americans people should not give a modern politician latitude to call into question the personhood of members of either group.

How fragile are the rights of women of women in the United States? Scalia\’s comments did not result in a firestorm of criticism and demands that he be impeached and removed from the bench. A member of the Supreme Court of the United States publicly stated that his reading of the 14th amendment allowed him not to consider women people unless it was clear that the original framers of that amendment considered its protections to extend to women and he is not publicly excoriated by politicians across the political spectrum.

Given Scalia\’s method of constitutional interpretation nothing short of a constitutional amendment clarifying that women will henceforward be considered \”people\” will prevent Scalia, other judges and politicians from chipping away at women\’s rights. Given the realities of American political life that passage of such an amendment both needs to happen to ensure the rights of American women and will not happen because so few powerful political figures consider those rights important.
Some insight into the legal importance of the argument as whether the writers of a constitutional document meant the word \”person\” to include women can be seen in a series of court cases and rulings in Canada. These give some idea as to the importance for the women\’s rights movement of arguments about legislative intent and strict constructionism.
In the British North America Act (the act of British Parliament that created the Dominion of Canada) the word \”he\” is used when referring to an individual and \”person\” when referring to more than one individual. The question was whether the word \”he\” was generic and if \”persons\” included women. In 1917 the Supreme Court of Alberta held that the word \”person\” did include women but that court\’s rulings only applied to the province of Alberta.

Prime Minister Robert Borden actually stated that a woman could not be named to the Canadian Senate since she did not fulfill the legal requirement of being a person. In 1927 five women appealed to the Supreme Court of Canada whether women were, for legal purposes, persons. In 1928 the Supreme Court of Canada ruled that women were not legally persons. The court\’s reasons, that at the time the  BNA Act was written women could not vote and would not have been considered for political office, sound very like Scalia\’s argument about  the 14th Amendment.

With the support of Mackenzie King, then Prime Minister of Canada, the women appealed the Supreme Court\’s ruling to the Judicial Committee of the Privy Council in England which was at the time the highest court of appeal for Canada. In 1929 the Lord Chancellor of the Privy Council announced that \”yes, women are person.\” Lord Sankey further wrote, 

that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word \”persons\” should include females, the obvious answer is, why should it not?\”
The idea that Lord Sankey\’s question still needs to be asked almost a century later indicates just how fragile are the rights women have won in the intervening years.


8 thoughts on “Women\'s Rights and the Decline of Democracy, Part Two

  1. And yet today, most people (okay, most USians) take it for granted that children are not … quite … persons. (Unless they are \”unborn\”, in which case they are more persons than the pregnant woman*.)So perhaps it's not surprising that woman, the perpetual child, is left without full personhood either.*hee. Now I would love to ask Scalia if he thought the framers of the Fourteenth Amendment thought it applied to persons-in-utero.

  2. Good point about children. Isn't the American right quite against any protections of children that limit what they see as the parents rights over the children?And I would very much like to ask Scalia the question about persons-in-utero since he and his ilk seem to be inventing new rights for the \”preborn\” as long as those rights come at the cost of already born women.

  3. I think it's also a matter of womens' rights being treated like a canary in a coal mine. The fragility of the gains that we've made you have well described. But if the miners, to overuse my analogy, are seeking out the foul air, the death of the canary is an event to be celebrated rather than avoided.I do not like thinking of myself as someone who would wish harm on other people, but Scalia gets me right in the guts. Very good point about children. I need to do some serious thinking re: children and human rights, because I have a very hard time in that particular arena, but I think you're on to something.

  4. So what the US needs is an Equal Rights Amendment. Wait a minute, they proposed one back in 1972. That was a long time ago. And it failed in 1982. I guess it was such a new idea . . . Wait a minute. Alice Paul, an early feminist, first proposed an ERA back in 1923! She called it The Lucretia Mott Amendment. We're just a dozen years from the 100th anniversary of that first proposal and it still isn't law. The history of the ERA and all of its manifestations is a long and convoluted one but the passage of such an amendment is long overdue. Well, it's not like the rest of the developed world considers women to be people, is it? Wait a minute . . . The Kidd

  5. Another wonder to come out of that \”Persons Case\” is the Living Tree Doctrine:\”The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.\”Contrast with Scalia's brand of originalism, wherein the framers constructed a gallows from which we are all obligated to hang.

  6. Another wonder to come out of that \”Persons Case\” is the Living Tree Doctrine:Very interesting. Most of my polisci training is in American Studies and so I didn't immediately make that connection.It does much to explain, does it not, the comparative ease with which the Canadian legal system embraced same-sex marriage.

  7. @AnonSo what the US needs is an Equal Rights Amendment.Logically, the ERA is redundant, in that women are considered almost universally (what a shame that I need to include the qualifier) to be \”persons\” in the United States, and that the 14th Amendment states that all persons who qualify are citizens, and that the \”privileges and immunities\” (i.e. what we today call \”rights\”) of citizens shall not be abridged, and that all persons shall be granted due process of law and equal protection of the law. If we were logical about this, we would conclude that what the writers of the amendment believed about who was and was not a person is not relevant. What matters is who we consider to be a person today. If the definition of person changes significantly in the future, I don't want those people to have to argue their personhood under the 14th amendment.On the other hand, I also realize that most likely that's exactly what would happen when the definition of \”person\” next happens to expand. Whether its direction of expansion is to genetically engineered humans (e.g. R.A.H.'s Friday), artificial intelligences (e.g. Asimov's Robot series), non-human aliens (take your pick), or genetically engineered semi-human artificial intelligences from another universe that bear a striking resemblance to \”furries\” and also happen to be gay hermaphrodites… err, what were we discussing? Oh yes. These new \”persons\” will almost certainly have to fight tooth and nail (if they happen to have teeth and/or nails) for recognition under the 14th amendment or any other system of laws that applies when this comes to pass. There will almost certainly be discrimination. There will be X-ism where X defines whatever group these new persons fall into. They will be proclaimed to be devils, angels, the natural slaves of \”normal\” persons, animals, soulless \”things\” and simply as \”others\”, with that last being enough for many to exclude them. So, an Equal Rights Amendment is probably needed, if we can't get people to recognize simply on the basis of common decency that there is no sense in which women are not persons, and that they are every bit as much a person as any man. There are still people who doubt that women are people. There are those who insist that, because of a shifting goalpost definition of \”equality\” that feminism is an impossible fantasy and a lie being promulgated by the \”Lesbian/Marxist\” anti-family radicals. (I found this claim on a site, which I will not give linkage to, and ask you not to google for, which also claims to not be anti-lesbian or anti-gay, while at the same time insisting that encouraging same-sex relationships is destroying the closeness between men and women and children.)

  8. \”Whether its direction of expansion is to genetically engineered humans (e.g. R.A.H.'s Friday), artificial intelligences (e.g. Asimov's Robot series), non-human aliens (take your pick), or genetically engineered semi-human artificial intelligences from another universe that bear a striking resemblance to \”furries\” and also happen to be gay hermaphrodites\”For artificial intelligences and some genetically engineered intelligences, 'personhood' might well have a valid argument to it. Intelligence doesn't neccessarily correlate with sapience, it's possible to imagine an incredible intelligence that still isn't capable of independent initiative. It's smarter than a human, it can reasonably imitate one, but is it really a 'person?'For non-human aliens… I suspect the 'being on the upside of the gravity well'/FTL/crazy awesome alien tech (because you need something crazy to reach Earth from an alien world… will make that argument for them. The real problem is convincing them that we're actually people.Also, how can you have gay hermaphrodites? Are they only attracted to other hermaphrodites (and if their entire species is that way, that's referred to as 'normal')? Or are they only attracted to non-hermaphrodites? In which case, on the species question, how does that work again?\”So, an Equal Rights Amendment is probably needed, if we can't get people to recognize simply on the basis of common decency that there is no sense in which women are not persons, and that they are every bit as much a person as any man. There are still people who doubt that women are people.\”Or, perhaps, an Amendment defining a 'person'? Either in a perhaps overly loose way (wherein the 'minor' precedent could be used to prevent the polls being flooded with trained chimpanzees/self-replicating semi-sapient computer viruses or something), or with some sort of system for *establishing* personhood?\”There are those who insist that, because of a shifting goalpost definition of \”equality\” that feminism is an impossible fantasy and a lie being promulgated by the \”Lesbian/Marxist\” anti-family radicals. (I found this claim on a site, which I will not give linkage to, and ask you not to google for, which also claims to not be anti-lesbian or anti-gay, while at the same time insisting that encouraging same-sex relationships is destroying the closeness between men and women and children.)\”If 'equality' really is an impossible fantasy, why is 'closeness' neccessarily a good thing? Oil and water are not equal, and trying to mix them is a fool's errand. These people don't really think their lunatic arguments all the way out…– Base Delta Zero

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