This week commemorates the 231st anniversary of the signing of the Constitution, a governing document that resulted in the most stable, republican political order the world has ever seen. Yet many within the modern feminist movement would have us believe that the world’s longest lasting Constitution was and remains an impediment to women’s political and legal equality.
This charge has been widely promulgated in recent feminist campaigns to revive the previously moribund Equal Rights Amendment. “Women were intentionally left out of the Constitution,” proclaimed Jessica Neuwirth, founder and director of the ERA Coalition, adding, “Women still don’t have constitutional equality.” ERA advocates have even hyperbolically asserted the Constitution does less to guarantee women’s equality than the constitutions of politically oppressive and unstable regimes, including Rwanda, Vietnam, Iraq, and Afghanistan.
The seemingly innocuous language of the proposed amendment states, “Equality of rights under the law shall not be abridged … by the United States or by any state on account of sex,” allowing feminist supporters to tell the public that they merely aim to ensure that men and women enjoy equal opportunity and treatment under the law — a concept most Americans support. The campaign is deceptive, however, on two fronts.
First, it masks the fact that the Constitution has never distinguished between the sexes in its political rights and legal protections. While the generic pronoun “he” is used occasionally to refer to persons in general, the Constitution does not classify human beings on the basis of sex with regard to individual rights.
The Constitution’s guarantee of privileges to individuals, for example — such as the prohibition against the impairment of contracts, ex post facto laws, bills of attainder, and arbitrary seizure, arrest, and prosecution — are clearly guaranteed to all citizens, not just men. Furthermore, contrary to popular belief, the Constitution of 1787 was never in principle a barrier to female suffrage; Article I, Section 4, Clause 1 simply left the issue up to the states.
It is true that because of variations in state law, women did not immediately enjoy the same political and legal rights throughout the nation that men enjoyed. Nevertheless, far from being hostile to such rights, the Constitution and the principles of the Declaration of Independence in which it is rooted inspired the movement for women’s equal rights — such as the right to vote, to own property, and to pursue profitable employment on an equal basis with men — and provided the foundation for their expansion.
Secondly, ERA advocates disingenuously portray themselves as merely seeking to improve upon America’s tradition of limited constitutionalism by extending existing constitutional protections to women. In reality, however, feminist supporters of the ERA favor a far more ambitious and radical agenda that is overtly hostile to the American constitutional system.
In contrast to those who fought to gain recognition of women’s equal status by securing their legal right to participate in the political process and pursue happiness through the free use of their faculties, feminist supporters of the ERA are motivated by a different understanding of equality and freedom. No longer do these ideals refer to the right to receive equal protection of the law and make decisions for oneself. Rather, they have been construed by many within the feminist movement as qualities that are achieved only when women fully develop their social and intellectual faculties and become autonomous of constraints and desires imposed by gender.
This understanding of freedom and equality has culminated in the view that, aside from anatomy, there are essentially no innate differences between men and women and that women can achieve self-actualization only by pursuing parity with men in public life. Practically speaking, this perception has led most contemporary feminists to gauge equality in terms of outcome uniformity (at least in desirable pursuits typically dominated by males) rather than equal protection of individual rights and opportunity.
Because contemporary feminists generally deny that physical, neurological, and hormonal differences between the sexes, in addition to women’s unique role in bearing children, might lead a significant percentage of women to engage willingly and rationally in different behaviors and pursue different priorities, college majors, or career paths than those most men pursue, they tend to interpret observable differences in outcomes between males and females as evidence of systemic discrimination and debilitating social conditioning. Having adopted gender parity as the criterion for equality, feminists now almost universally support policies that aim to secure group achievement rather than equal protection of individual rights.
ERA proponents likewise seek to redefine the bounds of constitutional authority to secure a specific outcome for women as a historically oppressed group. As Neuwirth explains in her book calling for ERA’s immediate passage, “The entrenched historical inequality between the sexes cannot be erased by the creation of a level playing field because the players themselves are at two different levels.” Thus, Neuwirth tellingly reveals that feminist policy objectives, including the ERA, should be used to lay the foundation for unequal legal treatment with the goal of promoting “equality in an affirmative sense.”
In other words, the Constitution, which limits the reach of government authority with a view to impartially protecting individual rights and equal opportunity without regard to sex, must be restructured to allow for the state intervention, regulation of liberty, and preferential treatment that feminists believe are necessary for women as a class to escape gendered patterns of socialization and deeply embedded sexism.
To oppose restructuring the American constitutional system by ratifying the ERA is not to assert that women never face discrimination or even that they enjoy perfect equality of opportunity in all instances. However, by seeking to balance the scales of past and current inequities by removing the limits on state power and the blindfold of justice, the feminist ideology animating support for the ERA poses a serious threat to our constitutional system, which is intended to protect individuals regardless of group membership. Only in a regime that limits the law to protecting individuals in the free use of their faculties, regardless of whether their choices lead to different outcomes, can men and women ever come close to enjoying true social, political, and legal equality and freedom.