Some More On ERA

I found a little book (2015) entitled Equal Means Equal: Why The Time For An Equal Amendment Is Now. Gloria Steinem's foreword manages to leave out two words from the first section of the amendment and miscount the number of words. I know.  I couldn't believe it and counted them multiple times.  

The section has very limited endnotes including a comparison to antebellum women's legal status to slaves.  The reference to "millions" of witches allegedly killed is both absurd and not a one-off claim.  I also couldn't find a reference to two Native American guests of Ben Franklin at the Constitution Convention asking "Where are the women," though did find other instances of that being said.  Might be a mix-up there.  

The Supreme Court in the 1970s followed the suggestions of people like Pauli Murray and Ruth Bader Ginsburg to add teeth to sex equality.  An argument by Murray lead me to learn about an interesting character, Dr. Louis Lasagna, and his updated Hippocratic Oath.  The original oath's apparent anti-abortion quality is overrated.

We are reminded that Justice Scalia once argued that the original understanding of the Fourteenth Amendment holds that it does not apply to gender discrimination.  Such a complete gloss on a general text was not even fully accepted in the early 20th Century (the dissent here is a broad case, but women had some rights even beyond that).  

I originally said more but I will condense.  I am interested in the wording of the ERA that is different than the Equal Protection Clause.  But, the discussions I have found do not seem to be as concerned by the wording.  The general sentiment is about what the amendment would do, which is an expansive view of sex equality that goes beyond what the Supreme Court deemed the current Constitution does even before the Dobbs travesty.  

I think the text does matter -- discussions of constitutional provisions include some analysis of the text, including how specific text was chosen.  We can go too far there.  The general understanding of the Fourteenth Amendment involved general principles, not even such things as worrying about specifically what Bill of Rights provisions would be applied to the states.  

ERA supporters (and this is covered in the book) also are not usually concerned about textual nuances.  The amendment basically is understood to say "women should be treated equally."  And, this is understood in the 1970s and later understanding, one that supports open-ended protection that allows for broad federal legislation to support it.

So, yes, U.S. v. Morrison turns on state action.  But, ERA supporters think it would be more likely to result in the dissent winning out.  The book repeatedly appeals to what the amendment means and such things as legislative history.  OTOH, one source from the 1970s also assures us the ERA doesn't protect abortion or same-sex marriage.  And, that is at least half honest for the era -- state ERAs existed long before any state protected SSM.

The text might help here -- though again the supporters really don't dwell on this -- but it is not the main focus.  This very well might cause problems if the ERA actually was passed.  Many of the same people (and judges) who narrowly apply the Constitution might strictly apply it.  It would be rather interesting to see how much "original understanding" factors in.

Originalism is a dubious Calvinball-esque exercise, so I am wary there.  Anyway, for the time being, that is academic.