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From: trc@hou5a.UUCP (Tom Craver)
Newsgroups: net.politics
Subject: Vagueness, ERA, and the Constitution
Message-ID: <598@hou5a.UUCP>
Date: Thu, 27-Sep-84 10:24:32 EDT
Article-I.D.: hou5a.598
Posted: Thu Sep 27 10:24:32 1984
Date-Received: Sun, 30-Sep-84 02:29:14 EDT
Organization: AT&T Information Systems Laboratories, Holmdel, NJ
Lines: 80

Carl M. Mikkelson:
>I disagree.  The constitution and bill of rights are vague, and therein lies
>their strength and longevity.  

I disagree.  The Constitution is not really all that vague.  It uses 
terms without defining them, and this has provided some openings for 
"interpretation".  It is quite specific on most things, such as form
of government, and powers of government.

The Bill of Rights is somewhat vague.  EG it uses terms like "unreasonable
searches and seizures", "just compensation", "excessive bail", "cruel and
unusual punishment", etc.  These things are ultimately decided by the 
Supreme Court.  Sometimes they abuse this power.  I might support an 
amendment that clarifies such vague terminology.

In any case, it is not the vagueness of the Constitution that gives it its
strength - it is its clarity.  Your statement is akin to saying the cracks 
in a wall hold it up.  Dont confuse the fact that constitutional vagueness 
allows the federal government to gain *power*, with the strength of the
constitution.  The strength of the constitution is applied in *restraining*
the power of government to govern by whim, and in inhibiting changes to
itself by requiring a hard process of deliberation on the merits of an
amendment.  It is this latter process which was applied to ERA.  Regardless 
of its objective merit or lack thereof, it has been *considered* to lack 
sufficient merit by those considering its inclusion in the constitution.  

>By leaving the law imprecise, it can be 
>interpretted based on the values and conditions of the future.  

This is true - and a horrifying prospect!  Do you really *want* a govt
by whim?  If men were in a huge majority, would you want them to legislate
women as property on the basis of a "vague" anti-slavery amendment?

>Of course, I
>am favoring vagueness that maximizes the legal basis for challenging
>discriminatory behavior.  

How can vagueness favor something?  Vagueness only allows re-interpretation
of the author's intent.  If the authors dont know what they really intend,
or know but dont want others to know, I'd say they should get out of the
business of writing law, or be put out.  Only to the extent that a law is 
*not* vague can it be used as a solid basis for anything.  Otherwise, it 
is simply up to the whim of whoever has power - be it a majority, or be 
it a very popular leader who secretly wants to be a dictator.

>Even though the current social context may be so
>restrictive as to define women as being only slightly equal, over time, with
>the increased oppurtunities derived from even that small decrease in
>discrimination pressure, women will have more impact, become more visible, and
>eventually everyone will "of course" know that women are totally equal.  

Slightly equal?  Do you mean "nearly equal"?  Or "very unequal but not 
totally out of the ball park".  If your goal is vagueness, you seem to 
have achieved it admirably.  In fact, I could interpret it in a way that 
would mean that ERA is unnecessary, because women arent heavily oppressed 
without ERA, they already have a chance to "have more impact..." and so 
"eventually everyone will...know that women are totally equal".  A little 
vagueness can go a long way - you can use it to support ERA, I can use it 
to oppose ERA - everyone is happy - right???

My remarks are meant solely in opposition to the idea that vagueness in 
law is good,  and are not meant to imply I am opposed to women having 
rights equal with men's, as citizens of the United States.  I do oppose
the creation of vaguely defined "rights", which can be interpreted to
cover anything enough people want to call a right.  I dont have the text
of ERA in front of me, but I would say that a proper form for ERA would
be so similar to the 14th amendment that in fact, the 14th amendment
would seem to cover whatever ERA might properly propose (right down to 
using the non-sexist "persons" instead of "men" in its text!).

Could someone post the text of ERA, and explain what they think is gained 
by this amendment?  If it is "no private discrimination allowed", I would 
oppose it.  While I dont like bigotry, until that bigotry leads the bigot 
to violate the moral rights of another, I dont want the govt to interfere.  
(By "moral rights" I mean those rights that a government *should* legally 
enforce.  Now, we could debate what "moral rights" are...)  For example, 
I would not want to force an anti-black bigot to go to a black doctor, 
but I would want to force him to refrain from assaulting that doctor.

Tom Craver	hou5a!trc