Today was the beginning of early voting in New York. In the past, I was wary of the concept, perhaps largely out of sentiment. Years back, I wrote something about saying heck with tradition, but I have some desires in that direction. I should not be too full of myself. Still, I think there is some value to a single special day (make it a national holiday) to vote. But, that ignores the inconvenience involved. So, yeah, more days is helpful.
Early voting was one of the reforms that full Democratic control of the state brought (so it came in 2019). I first had to walk about a half hour away to the public high school I would have went to if my parents didn't send me to a Catholic high school to avoid it. My sister now is a teacher there, having gone there herself years back. For the primary this year, there was a closer spot. Now, there is a spot about five minutes away.
This year we have local races, including a new mayor. Eric Adams won a close primary and is running against the Guardian Angels / talk show host guy who likes cats. Curtis Sliwa is not a serious candidate really, but since the Republican candidate would be a thankless role anyway, perhaps the party can do much worse. I'm not too gung ho for Adams, but he should do okay. I'm glad Marjorie Velázquez will be my city council person, after she lost to a more conservative guy who resigned his assemblyman slot to get the job. The comptroller will be a progressive who AOC likes.
[I was thinking of voting for some third party person on the mayor line since Eric Adams has nothing to worry about and he is a bit too moderate on certain issues for me. But, I by rote started filling in the Democratic line ovals, so voted for him. It's okay -- opposition to Biden and the Democrats warrants a reminder of the importance of supporting them. Net, he will likely be a good mayor, even if on a few issues, I will be upset.
There was also a lower court judicial election -- pick five of six, five being Democrats. Now, me, that is easy, but what if I was not a Democrat? Anyway, unlike some places, judicial elections are not really advertised much at all around here. Other than party, and their names, there really is no way to judge if you should vote for these people. The voting guides sent to us don't even provide information. My protest, ha, is to write in someone's name here. You do what you can.]
There are also five ballot measures, submitted by the legislature by the constitutional process in place. I covered this before. I decided to vote "yes" on all of them but the first, a catchall provision involving various redistricting measures. I decided that there was too many things to vote for at once and something like keeping the number of senators in place was not ideal anyhow. Why not leave that open to discretion?
As usual, I appreciate having the chance to vote, and doing my part. Thank You For Voting, the book I referenced, at one point spoke about people believing their voting "matters" is on some level a myth. On some level, since it does matter, but it isn't unclear how much. Still, it does matter, including on a personal level. Voting in part is a special act that is the center of our contribution as a citizen as a whole. I agree as a whole therefore with the book The Duty to Vote.
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This article shall take effect 2 years after the date of ratification.
I also briefly touched upon a House hearing regarding the ERA. Earlier this year, the House (basically by party line) voted to remove the deadline originally in place for its ratification. There is some debate, but I think it is the case that a simple majority is all that is needed to do this. The deadline was not part of the amendment itself. It is like the punishment vote after the supermajority vote passes in the case of impeachment.
I linked one of the various discussion threads in a blog over its ratification for which I added multiple comments. In the past, my druthers was that we really shouldn't pass the ERA. It seems a bit redundant and why should we focus on one category of equal protection? Voting is dealt piecemeal in the Constitution, and it leaves something to be desired. Also, I thought as a matter of norms, it dubious to finish the process forty years later, with so much having changed since the beginning of the process.
I do think Congress has the power to determine that contemporary needs warrants removing the deadline. The hearing had some assumptions that this was unnecessary, that the Constitution just provides for proposal and ratification. But, Supreme Court precedent recognizes some discretion there, discretion to recognize the understanding that the ratification process be contemporary. [Such issues are covered some here.]
The limited nature of the 27A alone suggests we should not put too much emphasis on it. I think they should have re-introduced it anyway. Its mostly symbolic reach made congressional passage in the 1980s pretty easy to imagine and ultimately enough states ratified to make up for the few old ratification from yore.
I still am wary at singling out "sex" here, though especially in the 21st Century, that has a broad reach (gender identity, sexual orientation, trans issues involved, while more debated in the 1970s). Perhaps, the ratification would encourage additional amendments. That might be a good thing, since things such as voting warrants attention.
But, I have changed my mind on the reach of the amendment. The amendment is not redundant. Moving past the specific textual statement of "sex" (Prof. Nourse warned us about Scalia there) and not needing to use the equal protection component of due process to address the federal government (the latter, a bit of nicety only a few care about), the language is clearly broader. How much is unclear. That warrants careful review.
The thing is -- and this isn't really new -- just what it means is not really dwelt upon too much. Yes, people are concerned -- as they were -- about its reach over such things like gay rights and abortion.
When the 14A was ratified, people saw it generally as a way to protect civil rights (and do specific partisan leaning things in the middle sections that soon became somewhat obsolete). The specifics were not dwelt upon, even if some now say things like "obviously" it incorporated the Bill of Rights (people were not really concerned about if grand juries now were thing for each state) or something.
Same here -- it was and is seen as a general matter of sexual equality. But, the text is important here all the same. What about the specifics of the text? "Equality of rights under the law shall not be denied or abridged by
the United States or by any State on account of sex." Here I move past a fairly obvious statement that the amendment provides more clarity for accepting a strong acceptance of sex as a "strict scrutiny" category.
Originalists might be concerned about how "on account of sex" has a broader meaning in 2021 than when it was proposed in the early 1970s. This might make them concerned about the length of the ratification process, leading to confusion on meaning. I'm not an originalist, but that does concern me to some degree when looking at what the people think they are ratifying. Congress does serve a legitimizing function here.
Due process now cannot be "deprived" while equal protection cannot be "denied." The language is not the same though it is unclear how much it matters. The federal government cannot deny equal protection (as a matter of due process). But, "abridged" is broader. The Privileges or Immunities Clause of the 14A says "make or abridge." It historically has had limited reach. This is an additional barrier to full understanding.
Still, the word "abridge" suggests that limiting is blocked as well with congressional enabling legislation providing even additional protections to make sure that doesn't happen. The word "abridge" is found in the First Amendment (speech) and we see how far that is taken these days.
And, there is this: "Equality of rights under the law." That is another interesting phrasing. What exactly does that mean? The 14A says states cannot deny equal protection of the laws. Is that the same thing as "equality of rights"? What does "under the law" add? The hearing spoke of equal pay and such. Prof. Nourse was part of the effort (Biden's baby) to pass the Violence Against Women Act. U.S. v. Morrison rejected that as applied to "private" action, including public accommodations.
There seems to be a general assumption that the amendment, especially the enforcement clause, would provide broad protection and powers to enforce equality here. If so, again, this does more than the current Constitution is generally understood to mean -- surely as applied by current doctrine.
The amendment would under this light be a sort of "modern" protection of equality. The language very well might warrant that. Let us be upfront about the change all the same. It would also make the opposition more understandable, perhaps, to those who wonder why sexual equality (even beyond hot button issues) is apparently controversial.
I support a wider view of equality, particularly regarding the reach of the federal government in its enforcement. Realistically, I do not see the ERA being ratification in the immediate future. But, discussing its reach is important. The hearing (which I did not watch all of, so maybe the textual nuances were covered more than I saw) was appreciated.
As with other constitutional matters, however, the true breadth of the question also should be covered.
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Thanks for your .02!