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So that I start out with my first major premise that this amendment will not reach the discriminations which are real, which are disturbing, and which are far-reaching and which are wrong; but what will it accomplish?
Well, it will accomplish the trivialities of a few things which are not too important.
Now, let me go back to this same chart, if you will, Mr. Chairman. For example, the second item on that chart, the famous 1,101 discriminations, was with reference to the right to serve on juries. Now, I try quite a lot of lawsuits and, as far as I am concerned, I believe in women being called on juries and we have it in Ohio. But mark you, it has been the implied argument that we cannot get rid of these discriminations without a constitutional amendment.
When this chart was prepared, and it was put in the record as recently as 2 years and 6 months ago, of course it was long since out of date then, as of that date they listed 43 States in which women could not serve on juries. Of course that is not true any longer. I do not know how many are left, but it certainly must be less than half that many. At least, just by the process of orderly procedure a direct remedy for a direct evil, we have already accomplished, I suspect, half if not more than half of that problem.
Does anyone here have the exact figures ?
Thirteen are left. There were 43 left when this chart was prepared to illustrate the need of a constitutional amendment and of the 43, I am now told by these ladies sitting behind them, that 30 of them have already met that problem.
Now of course there are a few things that will be solved by a constitutional amendment; but most of the real discriminations have been done away with or are rapidly being solved and those that remain are trivial.
Then I go to the rest of them. Here is their chart again, and I go down the list and find they complain bitterly of the question of domicile. Now those of you are lawyers on this committee, and I assume you all are, know that the problem of domicile
Mr. CHADWICK. Members of the bar, sir.
Mr. HARRISON. Well, Your Honor, we have always assumed that a man who is licensed to practice by the supreme authority of his State is qualified. That is a violent assumption, I realize, sometimes; but I am sure it is not any violent assumption in the case of this committee.
When a family has a domicile, how in the world can we have a law which gives equal rights to two different people? I see you look with some concern on that question. I submit that in Ohio at any rate, I suspect it is true in your State, that the head of the house is the man. I know there are women who say that is an outrageous situation. But after all, unless we are prepared—and I listened with a great deal of interest and attention to one of the preceding ladies, unless we are prepared to abandon the concept of the family as a social or sociological unit in our civilization, unless we are prepared to admit, then there has got to be one domicile for that family and not two.
Now, you are familiar, I am sure, with the old story about the law that was introduced in the Kansas Legislature. I have seen it quoted many times—the famous statute which was introduced and passed in the lower house and then turned down in the senate—the statute which said that whenever two trains approach a crossing at the same time, each of them must stop and neither may proceed until the other has gone.
Now the logical predicament of that situation is exactly the logic here. You cannot have domicile in two different places for the family; and it must be a choice by one. In a matriarchal state it might well be that this responsibility might be put on the woman. As things now stand, the breadwinner is the man, so tagged by law and justly so, and shall we be told in all seriousness that that statute in Ohio which says that it is the duty of the husband to support his wife and children shall be rendered nugatory by a Kansas statute that says that each of them has the duty to support the other?
After all, we cannot expect too much common sense in our Ohio statutes but I hope we never get the point where we do not have that much. So long as we have a family as a sociological unit, the duty of support should be on the breadwinner and that under our theory of life is on the man.
Now of course, we have another statute, that if the man cannot support his family then the duty devolves upon the wife. And I am sure no one will complain about that. But I do object to this counterfeit logic that because sometimes the husband cannot support his family, then the law should never place it upon him as a primary duty, and that it is a violation of equal rights to do so.
And then I want to call your attention to this: Among the things which they complain of, and are listed in here, although veiled—they do not use the term-are the special rights that are created for widows.
Now I think it is true that in the Code of Hammurabi—which is perhaps the oldest civilized code of law-in the Code of Hammurabi there was special attention given to the problem of widows and that is true in the Bible, too, and it is true right this moment in every civilized country in the world.
I am not prepared to say whether it is true in Russia or not; but whether true there, it is still true that it is the law in every civilized community, that the implied plight and predicament of widows should receive the special care of legislators. Yet if we accept the equalrights amendment at its face value, we cannot have special rights and special protection for widows as such, even though it is one of the facts of life that a widow is a lot less capable of taking care of herself and her children than a man who is a widower in the same predicament.
I insist it is true that a man who is left as a widower with children can much more easily fight his way in the world than a widow with the same number of children, and if that is not so, then I am willing to concede the whole case because that just is one of the facts of life and it seems to me if we cannot assume that as a starting point for welfare legislation, then we have certain premises on which we completely disagree.
Mr. CHADWICK. My observation has been just the opposite. [Applause.]
Mr. Harrison. That applause did not come from anyone who is left a widow with five little children because I have clients of that kind. I have clients who are left as young women with little children and because they did not go out into the world and have no profession, they have some special privilege and some special protection from the Social Security Act which will be done away with if this equal rights amendment is adopted.
They have some special privileges and protection under the law of Ohio which will be done away with if the law is passed; of course it is not true where there is a substantial lot of money left; women who are left a large jackpot of money by their former husbands may be able to take very good care of themselves and their children.
I am talking about the widow who has nothing left but the roof over her head on which she pays rent and nothing left but her eyes to weep with and if anyone can tell me how that woman without any profession and without any earning power is to go out into the world and support those little kids on an equal-pay basis with a man who has a profession and a craft and a trade, it seems to me nothing less than retreat from all common sense to pretend that there is equality between them.
Mr. CHADWICK. Mr. Harrison, let me have just a minute.
Mr. CHADWICK. My observation goes to factors far deeper than any you have mentioned. We all recognize the tremendous burden which is imposed upon a woman under those circumstances but by the same token I should think we should all recognize the almost miraculous ability of women to rise to that situation in which particular I think they have the better of the man.
But that is not an argument against giving special protection to widows, with which I am in full accord.
Mr. Harrison. I appreciate your position. I should like to say in addition to that, and to my applauding audience here, that there are plenty of statistics on the percentages of boys and girls who arrive in delinquent homes from broken homes whether by death or otherwise, that can be traced to poverty where the widow had to try to raise her children without anything but miracles to work on. The figures show what happens in those cases. I must add, I no longer am much of a believer in miracles. If a widow has no money which she has inherited and nothing to do but go out and scrub floors, the only profession she knows, the chances that her children will grow up and be good law-abiding citizens is, on a statistical basis, demonstrably less than if their situation had been otherwise.
Mr. CHADWICK. You remember 3 years ago a national award was given to a colored woman who being left a widow had raised a group of about seven extraordinary, outstanding citizens?
Mr. HARRISON. That is right; I do. But I have also seen the figures in Cleveland of what happens to her sister and her second cousin and all the rest of them in Cleveland. If you want to come with me, we can go through the houses of delinquency in Cleveland and trace where those children came from.
It is quite true there are miracles. Abraham Lincoln did not have much opportunity, but most of us do not want to put our children to that harsh test. It is true, it is possible to achieve miracles, but is not wise to count on it as a basis for our legislation.
Now, I said in the second place, the Constitution should not be amended unless the terms are so clear and simple that everyone will agree on what it means. That should go without saying, and yet, Mr. Chairman, if you or the members of your committee will put directly to the sponsors of this amendment: In your opinion, do you claim that this will make impossible any legal discrimination or
distinction whatever of any kind by Congress or State legislatures or city councils, of any sexual distinction whatever-you will hear a divided voice.
On the other hand, although some of the sponsors agree with that statement, a great many of them dispute it and say it will still be within the function of the States to pass legislation which obviously and necessarily draws distinctions.
It seems to me if that be true, we are starting out to adopt an amendment and every law that is passed by this Congress, by any State legislature, or by a city council anywhere in this country will have to run the gantlet to decide whether or not it is within or without that amendment. The fact of the matter is that this is drawn in such a loose maner that the sponsors themselves do not agree. If that be so now, what about what will be the situation after it is adopted?
Take for example the problem between rights and duties. Actually, there are some laws which create rights and as Mr. Justice Holmes said, there is nothing quite so treacherous as this word “right.” What is a right and what is a duty? We ordinarily speak of jury service not as a right. If that were true, a man would have a right to go down to the jury commission and say, my name has not been called for 9 years; I insist on my right. It is not a right at all; it is a duty.
Now, I agree that it ought to be a duty equally imposed on men and women. But we are dealing with very treacherous words and I assure you from what I can gather from the proponents and the sponsors of this, we are simply proposing an amendment from which there will be no recourse at all except to test every statute, every ordinance, every act of Congress by court decisions to find out whether or not the distinctions sought to be made are valid or not.
Can the Army make a distinction in its soldiers between men and women and require every weak woman to lug a 60-pound pack on her back and carry a bayonet? I would not think so, even if this was passed, and yet how would you find any underlying decision which would justify the distinction.
Finally, it seems to me, that this amendment does not comply with the third category which I suggested: the problem that it will create more evils than it will solve. It will, I should think, end those few tag ends of discrimination which can still be reached. But along with that there will go incessant, interminable litigation. It would not solve the real discriminations and it will give rise to an unnecessary amount of debate, doubts, and uncertainty that will prolong and postpone and hinder all good, wise, and valid legislation.
Mr. REED. May I ask you a question there?
Mr. REED. You mentioned something about the Army. In your opinion, what would be the effect of the equal-rights amendment so far as the administration of the Army is concerned ?
Mr. HARRISON. Well, of course, Mr. Chairman, I have to say this: I just do not believe any court would ever say, this amendment to the contrary and notwithstanding, that military service is a right. I think it would be said that is probably a duty, and being a duty, I think they could make any valid distinctions they want and still call up men for combat duty. My observation is that courts can usually find a way around annoying, disturbing, or self-defeating legislation or even amendments. God knows that the record shows that for 50 years after the fourteenth and fifteenth amendments were adopted, there were 100 devices for defeating what seemed on the face of it to be pretty clear language, and I would think that the courts would say the equal rights amendment to the contrary notwithstanding, we still are not going to be so silly as to have girls carrying bayonets and attempting to lug a 60-pound pack on 25- or 30-mile marches. It must be that it does not mean that.
Mr. REED. Don't you think that the actual way in which that would take place would be that a conscription law might be passed and possibly would have to be passed that would conscript men as well as women, and that then as now the officers of the Army would assign persons disregarding sex to the place in the Army where they could be best fitted to serve their country.
Mr. HARRISON. I expect that is true.
Mr. REED. The probabilities are that they will assign the women to stenographic work or to nursing or something that they were more capable of performing.
Mr. HARRISON. Quite so.
Mr. REED. The same as they discriminate now between men that the Army knows that are more capable of carrying a musket are placed there.
Mr. HARRISON. The interesting thing would happen, however, Mr. Chairman, when under conscription the young girl with three children was drafted as her husband; then the law would not be able to say that if one went, obviously both would have to go. You could not make any distinction between a woman who was a mother and a man who was a father because that would be paying some attention to the sex distinction and they would both have to go.
Well now, of course, neither the Army, nor the law, nor the courts can pretend such utter incredible nonsense; the Army would rebel from it and the courts would support them in their rebellion from such obvious tommyrot.
The fact is that there are distinctions. As Mr. Justice Holmes said, it will take more than the Supreme Court decision to convince him that there are no distinctions between men and women which the law can deal with, or, as Mr. Justice Frankfurter has said, it is not possible for the Woman's Party to amend nature.
Now, I suspect that in the long run one of two things will happen: Either this amendment will be so whittled away that it will amount to nothing but a pious expression of hope or else, if passed, it will create such intolerable conditions, as the eighteenth amendment did, from which we will have eventually to recede, having confessed our sins in public and admitted that we were carried away by the force of intemperate proponents when we did not have the courage to resist them as we should. In conclusion, may I just say this one thing: The greatest thing in the world is a catch word. The only persuasive thing about this amendment is a wonderful catch line—everybody is for equality; no one dares say he is opposed to democracy; everybody believes in these wonderful words; and so, having armed themselves with this catchword, “equality,” equal rights for women, many of us are carried away by the plausibility of the sham slogan. There are a lot of people who are willing to barter away real rights rights that have been slaved for for scores of years to protect people who need protecting; and so, when we get this equality of rights, it will be an equality under which