From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: Constitution
Organization: University of Colorado, Boulder
Distribution: co
Date: Thu, 12 Nov 1992 00:11:26 GMT

In article <1992Nov11.193323.5416@craycos.com> sog@craycos.com (Steve Gombosi) writes:
>When the Supreme Court ruled that the 14th Amendment was not sufficient to
>grant women suffrage, it *EXPLICITLY* stated that women were not "persons"
>(yes, they used the word) within the meaning of the Amendment. 

Do you have a cite on this case? It sounds quite different from the 
other tricks and questionable logic the Supreme Court used in other,
similar cases during the same period. (By the way, if the 14th Amendment
implied suffrage, why was a seperate Amendment, the 15th, added at
roughly the same time to extend suffrage to blacks?)

>>The Court
>>was playing games with the meaning of "privilages or immunities" or
>>"due process of law" or "equal protection of the law." 

>Nope, they were playing games with the meaning of the word "person." ;-)

I'm not familiar with the women's suffrage case, so they might have
been doing _both_, but they definitely made some creative interpertations
of the above phrases. (I assume we are both talking about the rulings
between 1865 and ~1890, where the Court was trying to ignore the Civil
War Amendments...)

>>>Denial of any chance of protection seems to me
>>>to be the same as legalization of discrimination.

>>I think a court would see it differently: They are not denied any
>>chance of legal protection. Amendment 2 can be legally repealed so
>>_some_ chance does exist (The Supreme Court consistantly avoids
>>questions of easy such things might be, calling them "political
>>questions" beyond the scope of the Court's jurisdiction.) 

>"This law doesn't discriminate unconstitutionally because it can be 
>repealed?" 

The law itself doesn't impose any discriminatory measures. Any 
discrimination that results from it would come from private
citiznes, not the government. Since repeal is possible, it does
not, as you suggested, "deny any chance of protection." The result
is a law that does not _stop_ discrimination, but neither does it
impose any of itself. (E.g. the law is a negative, rather than a
positive, act. That might be a fine point, but it is one the
Court would worry about.)

The Court generally trys to stay out of things, until all reasonable
political solutions have been exhausted. Amendment 2 didn't pass
be a landslide and opposition to it has been, if anything, energized
by its passage. That makes repeal a very real possibility, and something
the Court would prefer to their overturning part of a State Constitution.

>Frank, that has to be the most inane line of reasoning 
>I've ever heard. By that argument, Jim Crow laws in the South weren't
>discriminatory because they could be repealed, too. You don't really
>believe that, do you?

These laws directly imposed discirminatory measures. They did not
simply and passively allow others do discriminate. Further, they
directly effected the political process to prevent change (e.g.
repeal of discriminatory laws.) The existance of the laws made
their repeal unrealistic. These two distinctions are
important to the Court...

>But laws which protect against racial discrimination don't specifically
>exclude women from protection. Amendment 2 singles out one particular 
>group of people and states that they cannot seek protection under
>state law. That's denial of equal protection.

Consider Katzenbach v. Morgan (382 US 641): The Court considered
a federal law concerning literacy tests for voting. It required
that anyone with a sixth-grade education, from a Spanish language
school in Puerto Rico, be exempt from the literacy test. One of
the objections was that it denied equal protection of the law to
well-educated speakers of Spanish, solely because they went to 
school in (say) Mexico instead of Puerto Rico. The Court ruled
that, despite singling out a specific group from many who suffer
from exactly the same kind of discrimination, the law did not
deny equal protection. The Court held that a government did not 
have to solve _all_ problems of discrimination (even discrimination
for identicle reasons) at once. It is Constitutional to protect
one group and not another from the same form of discrimination.
The only opening that that opponents of Amendment 2 really have
(in this respect) is the fact that this doctorine has only been
applied to the _addition_ of anti-discrimination laws not their
removal. Further, the tone of the ruling _implies_ (although
such implications have no binding force on future Court rulings...)
that governments should be increasing not decreasing these protections.

                                            Frank Crary
                                            CU Boulder