Friday, November 18, 2011

Linda Kerber’s ASLH Address: A Challenge to Con Law Profs

Courtesy of Univ of Iowa
Linda Kerber (Iowa--History) challenged constitutional law professors to do a better job talking about sex at the annual meeting of the American Society for Legal History. The distinguished professor’s plenary address surveyed the multitudinous ways in which the law has drawn distinctions between men and women, to the detriment of the “second sex.” Kerber also had suggestions for teaching about this history.  The U.S. Constitution’s Fourteenth Amendment and the Court's “intermediate” scrutiny of sex-based classifications should not be the sole frame of reference when constitutional law professors teach about gender and the law, Kerber admonished. Scholars also should emphasize the Equal Rights Amendment and its affirmative vision of sex equality. If ERA is a topic of discussion, students will have the opportunity to think critically about constitutional law and its conceptualizations of women's equality rights. 

Even as I welcomed Kerber’s challenge, I imagined that it might seem daunting; already, it's difficult to incorporate the many topics stuffed into the introductory constitutional law course. On closer consideration, however, it’s probably not that difficult at all to have a substantive discussion of ERA in even an intro con law course. One approach might be to merge a discussion of the ERA with the ever-present topics of federalism/separation of powers. It might be quite pedagogically useful, for instance, to ponder the impact of the equal rights amendments enacted in several states after the failure of the ERA campaign at the federal level. One might consider whether and how these amendments have affected the level of scrutiny to which sex-based classifications are subject in state courts. Whatever the impact of state ERAs, one could then consider what the outcomes indicate about the relative importance of doctrine to judicial decision making, as opposed to factors external to the law. In short, one might contemplate whether the equal rights amendments delivered the affirmative results that proponents imagined, and if not, why not.
What sources might scholars consult if they wished to provide the more comprehensive and critical perspective on sex discrimination law and the ERA that Kerber suggests? In the legal literature, Reva Siegel’s articles on the “de facto ERA” and her synthetic account of Nineteenth and Fourteenth Amendment history, “She the People,” are critical contributions (find links to these publications here). Scholarship on the effectiveness of the ERA also is an important resource. Some scholars argue that state ERAs have yielded disappointing results for litigators; other vehemently disagree. Compare Paul B. Linton, "State Equal Rights Amendments: Making a Difference or Making a Statement," 70 Temp. L. Rev. 907 (1997) to Linda J. Wharton, "State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination," 36 Rutgers L.J. 1201 (2005). In the historical literature, see Sex, Gender, and the Politics of ERA: A State and the Nation, an important case study by Donald Mathews & Jane S. de Hart. See also the short and useful, Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution by Mary Frances Berry.

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