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Mr. KOVNER. That is a nice question. I would not want to answer positively on that, sir. There might be the likelihood that the law would create a legal right.
Mr. CHADWICK. My impression is that it is self-executing.
Mr. KOVNER. What I think of is, just drawing an analogy roughly, the Constitution says a man has a right to fair trial. Now true, that is self-executing in the sense that if a person is denied a fair trial in any criminal proceeding, he can take an appeal to the court and if necessary to the Supreme Court of the United States; and in reliance upon that constitutional provision he will be given the appropriate relief, but on the other hand, it is also necessary in setting up the machinery of the courts for specific legislation to be established which sets up a jury system.
There are laws which deal with the property rights of women in every State. Now, if this constitutional amendment is adopted, it is self-executing to the extent that the principle that all those laws must guarantee equal rights of women would have to go into effect.
Mr. CHADWICK. Enforceable by the courts.
Mr. KOVNER. Then enforceable by the courts, and that is exactly one of the objections of the American Civil Liberties Union to the amendment because it is self-executing, true, but the method of execution is by enforcement through litigation which is an expensive procedure and the burden of the litigation would be upon those who would be claiming the benefit of the amendment.
Mr. CHADWICK. I just do not agree with you that it is not selfexecuting. I think it is self-executing.
Mr. KOVNER. I agree in the conceptual sense it is self-executing. I agree to that; I do not want to be involved in a misunderstanding of terminology, but I think the process of self-execution involves an expensive and burdensome process of litigation.
Mr. CHADWICK. The enforcement of all rights requires that, sir.
Mr. KOVNER. Well, but that process can be facilitated if one has instead of a general constitutional principle specific statutory laws.
Mr. CHADWICK. I agree with that.
Mrs. STONE. I would like to call next Mr. Marvin Harrison representing the National Consumer's League. Mr. Harrison is here from Cleveland.
STATEMENT OF MARVIN C. HARRISON, ATTORNEY, REPRESENTING
THE NATIONAL CONSUMER'S LEAGUE, CLEVELAND, OHIO Mr. HARRISON. Mr. Chairman and members of the committee, I have prepared a rather long statement and I shall accede to the suggestion made by the chairman of asking that that be regarded as included in the record, and summarize a few of the things I want to say about it.
Mr. REED. The statement may be filed.
(The statement referred to is as follows:)
STATEMENT OF MARVIN C. HARRISON, ATTORNEY, CLEVELAND, OHIO, BEFORE THE
SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE, CONSIDERING THE WOMEN'S STATUS BILL AND THE EQUAL-RIGHTS AMENDMENT PRESENTED ON BEHALF OF THE NATIONAL CONSUMERS' LEAGUE, MARCH 12, 1948
Mr. Chairman and members of the committee, I am here to state my support of the women's status bill (H. R. 2007) and my opposition to the so-called equalrights amendment.
It seems to me that the women's status bill is a reasonable, sensible, and realistic approach to the problem of dealing with discriminations against women. It represents what can be done and should be done, and about all that can be done, or should be done by Congress on that matter.
On the other hand, the equal-rights amendment is about everything that a constitutional amendment should not be.
It is obvious that any discussion of the women's status bill or of the equalrights amendment should begin with a consideration of the grievances which underlie the agitation for these measures. It is obvious that these grievances must be very real and very bitter to have excited the intense enthusiasm of the women who have been fighting for an equal-rights amendment for the last 25 years.
But it cannot be safely assumed that either indignation or enthusiasm are adequate guides for constitutional amendments. Surely we will all agree to three simple propositions.
The Constitution should not be amended for trival reasons, or to solve trival problems.
It should not be so amended as to prohibit the various States from dealing with local or State matters; or so as to destroy the local or State protective legislation which has been enacted in the effort to deal with local or State matters.
It should not be amended if the text of the amendment is such as to create grave and insoluble doubts as to the effect and scope of the rights involved.
Measured by these simple tests, the equal-rights amendment is everything that a constitutional amendment should not be.
It is sponsored by a group of enthusiasts who wish to wipe out all discriminations against women. But it is obvious that it will not accomplish more than the very smallest part of these reforms that its sponsors seek to achieve.
It will, in all probability, wipe out all of the special laws for women, which are now on the statute books of all the States. And it will, with absolute certainty, create interminable and intolerable confusion in a vast field of the law and will result in almost unending litigation.
The advocates of the equal-rights amendment point out with almost tireless reiteration that the laws of some States discriminate unfairly against women. No doubt, this is true. And yet, when the list of these alleged discriminations is examined, it is obvious that many of them are trivial, as compared with the major discriminations which prevailed until recent times and under which women had very few independent civil rights, and married women had almost none at all.
In other words, most of the job of giving women equal rights has been accomplished ; and all that remains is to finish up the tag-ends of the business.
There are some States in which women may not sit as jurors. There are others in which married women suffer discrimination in the right to own or convey mortgage property, and to possess their own earnings. There are a few others in which women are not eligible to hold office on equal terms with men.
And yet, when all of this is said, it is doubtful if these discriminations—unfair as they are-are the source of more than a very small part of the bitterness or the indignant enthusiasm which underlies the campaign for the equal-rights amendment. The real source or that bitterness and that enthusiasm is to be found in the discriminations which exist by custom and convention in the professions and in the world of arts and science and business and industry.
These discriminations which are based on custom and prejudice are not trivial at all. They are very real. They are vast and far-reaching, and invade almost every field of activity in which women work. For example, in many branches of industry women receive much less pay for exactly the same work than men. many public school systems, women not only receive less pay for the same work, but find it impossible to receive any consideration for advancement to the positions of principal or superintendent. The jobs go to men who may be less well trained and less competent.
In most hospitals a woman physician or surgeon finds it extremely difficult to secure appointment as an interne or as a resident, or as a member of the staff, no matter how competent her training, or how adequate her professional achievements.
These are the kinds of discriminations which, in one form or another, operate almost everywhere against equality for women; and it is these discriminations which have caused many of them to say impatiently, bitterly, belligerently, "Let us make an end of all this outrageously unfair discrimination. Let us amend the Constitution and once and for all have equality between the sexes written into the basic law of the land."
Every fair-minded person must sympathize with the determination to end these discriminations and to do it as quickly as possible.
But will the proposed amendment do the job?
The short answer is obviously "No." This can be demonstrated by dividing the question into two parts.
(a) What the amendment will not accomplish. (b) What the amendment will accomplish.
First of all, it is plain that the amendment will not accomplish anything at all in eliminating the serious discriminations—the real discriminations which underlie the agitation for the amendment. These discrimnations depend for the most part upon socal customs and prejudices, and will not be and cannot be affected by passage of the amendment. Businessmen will continue to hire men and to promote men. Hospitals will continue to hire and to promote men. In the public schools and colleges, women will still see men who are their inferiors in training and experience advance to the positions of greater responsibility and higher pay. The adoption of the amendment will not affect these real discriminations in the least.
The amendment will, if adopted, probably do the job so far as ending the few trivial discriminations which are still written in the law. One must say probably even as to these, because of the great ambiguity latent in the amendment, as will be pointed out later.
But even assuming that it will, to this degree, wipe out the small existing legal discriminations, it will also, in all probability have the further and outrageous result of wiping from the statute books all laws for the special protection of women.
In other words, this amendment is an excellent illustration of the classic fable of the Chinese exploit of burning down the house-a very large and fine old house-to roast a pig, and a very small one at that.
At the outset it is important to examine carefully the exact language of the proposed amendment. It reads as follows:
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Congress and the several States shall have power within their respective jurisdictions to enforce this article by appropriate legislation."
"Equality" is, of course, a word to conjure with. It is one of our sacred words, and everybody is for it, just as everybody is for freedom, and for democracy and for liberty.
But what does it mean in this first sentence: "Equality of rights under the law shall not be denied or abridged * * * on account of sex”?
It is important to note that it promises equality only "under the law." That does not mean that any employer must hire women if he prefers men. Nor does it mean that he must pay women equally with men for the same work. All that is guaranteed is "equality"; "under the law." What does that mean?
That means, plainly enough, that women cannot be “denied" an "equality of rights" with men under any law, because of "sex.” But if that is true, it must be equally true that men cannot be "denied" an "equality of rights” with women under any law because of their sex. Or to put it another way, men cannot have any rights under the law that women do not have, and women cannot have any rights under the law which men do not have.
Or to put it still more bluntly, it means that the law can make no distinction whatever between men and women.
No act of Congress-no act of a State legislature-no ordinance of any city, can make any distinction-not even the smallest-between men and women, so far as their legal rights, duties, or responsibilities are concerned.
Stated in that blunt, bald manner the proposed amendment sounds preposterous and absurd. And yet that is exactly what it says and exactly what it appears to mean.
"Equality of rights under the law shall not be denied or abridged on account of sex.” A man may not have any legal right that a woman does not have. A woman may not have any legal right that a man does not have.
A good many of the proponents of this equal-rights amendment have thought of it as merely prohibiting discriminations against women. But it will also by equal logic exclude and prohibit discrimination in favor of women.
In answer to the obyious absurdity of this apparent meaning of the proposed amendment that the law would not if it were adopted permit any discriminations whatever as between men and women, some of its proponents assert that the amendment is only intended to guarantee an equality of rights; and that such an equality of rights will not prevent the law from making necessary and sensible distinctions between men and women,
This claim flies straight in the face of the plain language of the proposed amendment. But for the sake of argument, let us assume that it is sound.
What is our situation then?
Worse, if possible, than before. That is true for the reason that we will then be faced with the most hopelessly confused situation imaginable.
Whatever else it may accomplish, the amendment can be guaranteed to make many lawsuits grow where none grew before.
Surely a constitutional amendment ought to be drawn so as to avoid all possible uncertainty regarding the meaning of its terms. This proposed amendment is so badly drawn that it will with absolute certainty provoke endless confusion and endless litigation.
This is obvious both from the terms of the proposed amendment and by an examination of the literature of its proponents and the confusion in the claims made for it. On the one simple issue which we have stated above, the proponents are in complete divergence as to what the amendment will accomplish.
Will the amendment immediately and completely expunge from the statute books of all States all protective laws for women?
Some of the proponents say yes. Of course, yes.
What excuse can be found for the adoption of a constitutional amendment in which there is such amazing difference of opinion on the part of its proponents as to its effect?
The confusion and uncertainty which is inherent in the equal-rights amendment results from two phrases: (a) the phrase, “equality of rights" and (b) the provision that “Congress and the several States shall have power within their respective jurisdictions to enforce this article.”
What is meant by "equality of rights" ?
Undoubtedly many of the proponents of the amendment assume that this phrase merely means that women shall have equal rights with men.
But what distinction—if any--will be created between duties and obligations, on the one hand-and rights or privileges on the other?
This ambiguity is illustrated by the question of jury duty. Is jury service a right or is it a duty?
And if it is a duty rather than a right, would the amendment guarantee it for women on equal terms with men?
There are many other troublesome fields in which this question of the distinction between duties and rights must inevitably arise. Is military service a duty or a right? Obviously if it is a right, then the law could make no distinction whatever in creating an army as between men and women.
But we have no doubt that it will be said and said correctly-that the law would rebel against the preposterous claim that women must have an equality of rights to carry a gun and to carry a 60-pound pack on long marches.
And yet the necessity of making a distinction in all matters as between rights and duties makes it obvious that every new law involving the rights or duties of either men or women would have to run the gauntlet of interminable litigation to determine whether or not it was inside or outside of the constitutional limits.
Even if the law were so written as to deal with the duties of one sex, would it not involve reciprocal rights of the other? How could any law which involved distinctions between men and women escape attack as being a violation of this constitutional amendment?
This would be true not only for the acts of Congress, but would be equally true for all of the acts of State legislatures and ordinances of every city council.
Furthermore, the confusion which is inherent in the phrase "equality of rights" is worse confounded by the strange language employed in the second paragraph
that "Congress and the several States shall have power within their respective jurisdictions to enforce this article by appropriate legislation." What is meant by "their respective jurisdictions"? Does this language mean that within each separate State its own State action would be final? And how and when and where would Congress act within its own "jurisdiction"?
Would any act of Congress override all differing acts of a separate State even with reference to matters of local or only State-wide concern?
For example, could Congress require that the grounds for divorce should be equal and reciprocal as between men and women if the State legislature had decided otherwise?
Would an act of Congress override a State law which declined to compel married women to serve as jurors in State courts?
These illustrations which could be multiplied endlessly, serve to point up the obvious fact that lawyers and legislators and judges are sure to disagree and disagree widely and endlessly as to what is meant by the words "equality of rights" and to disagree also as to the legal significance of the phrase giving to "Congress and the several States” the power to enforce the provisions of the amendment within their respective jurisdictions."
It is difficult to conceive any provision which could be written into the Constitution which would create more doubt and confusion in legislatures and in courts than will infallibly result from the few words and phrases of this "equal rights” amendment.
Surely, it is not the way of progress, to place within the basic law of our land, an amendment which is so vague, so confusing, so badly drawn, that it will inevitably result in grave uncertainties, endless disputes, and interminable litigation.
But as a further reason to oppose this proposed amendment, it is necessary to consider its probable effect in wiping off the statute books of all of the States, the special protective laws for women,
As we have already pointed out, if the Constitution is so amended as to prohibit all legal discrimination against women, it would seem plain that it must also prohibit all discrimination in their favor.
When such an amendment is adopted, therefore, it would appear that all of the laws which have been passed to provide the special protection which it has been supposed they need, will be automatically wiped from the books, because they are obviously intended to discriminate, and do discriminate in favor of women.
Without attempting to make an exhaustive list of the laws which would be thus expunged, the following are some of the types of legislation which would probably be prohibited under the equal-rights amendment.
1. Protection of widows.
(a) With reference to minimum wages.
(c) With reference to occupational hazards. Throughout all recorded history, the predicament of the widow has been a problem that has received constant attention of lawmakers.
In one of the oldest codes of law extant (the Code of Hammurabi) there were special laws for the protection of widows. Thus in Johns' treatise on Babylonian and Assyrian Laws, we find the following reference (p. 145): "The code (of Hammurabi) makes clear what was the position of the widow. She had a right to stay on in her husband's house until she died.
The children had no power to turn her out."
This right of the widow to remain for a limited period at least-in the mansion house is recognized by the law of almost every civilized country in the world.
Shall the United States be the first to write it down in its basic law that no law is valid if it extends to widows any special and discriminatory aid?
Our laws are filled with special provisions for the help and protection of widows.
When the Social Security Act was adopted a few years ago, Congress included (title 42, sec. 402 U. S. C. A.) special provisions for the protection of widows of men who die while insured under the provisions of the act.
Under the laws of most States the rights of creditors to levy upon the property of widows are considerably limited. Upon the death of their husbands, allowance is generally made for the support of widows from the estate, for a period of at least 1 year.