Antioch Law Journal


Many people here this evening have worked diligently to add to the Constitution an explicit guarantee of the equality of men and women before the law. I would like to present a few preliminary comments on that subject, and to tie it to the main line of my remarks about the constitutional status of human rights here and abroad. It is a disappointment, of course, that the ERA ratification effort has not succeeded this time around, but ours is a Constitution that is hard to amend and hardly ever amended. It is also a Constitution enforced in courts; and therefore, laws inconsistent with it may be invalidated by judicial decree. Many constitutions in our world include equal rights guarantees. A typical example from a faraway place is Afghanistan's 1976 Constitution. It provides: All people of Afghanistan, both women and men, without discrimination or privilege, have equal rights and obligations before the law. But without constitutional review by courts, such provisions state goals, not positive law. That is why equal rights for men and women as stated in modem international human rights declarations and conventions tends to be noncontroversial. It is one thing to agree "in principle," quite another to agree that the principle should have immediate, comprehensive application.