When the 19th amendment was ratified in 1920, it was the first time women’s legal rights were specifically addressed in the U.S. Constitution. Women played no role in the document’s ratification in 1787. And when former slaves got the right to vote in 1870, it was a severe blow to the women’s movement. In later years, the Supreme Court has interpreted the Constitution in ways that include and protect women. But the battle for an Equal Rights Amendment continues. As part of our ongoing “Constitution Today” series, we delve into how the document addresses women and the role they’ve played in its history.

Guests

  • Barbara Perry Senior fellow and associate professor at the University of Virginia’s Miller Center for Public Affairs.
  • Michael Quinn President and CEO, American Revolution Center
  • Marcia Greenberger founder and co-president of the National Women's Law Center.

Transcript

  • 11:06:55

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. While John Adams was helping to write the Declaration of Independence, his wife Abigail sent him a letter. She wrote, remember the ladies. But Abigail wasn't necessarily asking for political rights and by the time the U.S. constitution was written, the sentiment had been forgotten.

  • 11:07:26

    MS. DIANE REHMIt wasn't until the 19th amendment that women's rights were actually addressed. Today, as part of our "Constitution Today" series, we look at the role of women and the constitution from colonial times to recent court decisions. Joining me in the studio is Barbara Perry of the University of Virginia's Miller Center, Michael Quinn of James Madison's Montpelier and Marcia Greenberger of the National Women's Law Center. I do invite your calls, questions, comments. Join us on 800-433-8850. Send us your e-mail to drshow@wamu.org Feel free to join us on Facebook or send us a tweet. Good morning to all of you.

  • 11:08:32

    MR. MICHAEL QUINNGood morning.

  • 11:08:32

    MS. MARCIA GREENBERGERGood morning.

  • 11:08:33

    MS. BARBARA PERRYGood morning, Diane.

  • 11:08:33

    REHMMichael, I wonder if I could start with you. Did women have any input in the constitution way back then?

  • 11:08:44

    QUINNNo, I don't think you could say they had input into it, although it would be wrong to say that they're not part of the constitution. Clearly, you know, the point of the constitution was to help frame a society and women were regarded as part of society and citizens of America at the time, although they did not have the rights that men did.

  • 11:09:14

    REHMWere they actually prohibited from participating?

  • 11:09:21

    QUINNThe conventions of the time, just the social practices of the time, would have made it impossible for any woman to have taken part in that kind of deliberative body or any legislative body of the era. They did have their influence. I mean, you mentioned Abigail Adams' letter. You know, Dolly Madison was a strong influence on James Madison and in many ways that was thought to be the proper role for women to have their influence, which was through their role in the family.

  • 11:09:51

    REHMMichael Quinn, he's president of James Madison's Montpelier. Barbara Perry, turning to you. Are women, in your view, a part of the constitution?

  • 11:10:07

    PERRYNot at the founding, certainly. And you quoted from, rather, Abigail Adams and her letter to her husband and I came upon his response. In part was, as to your extraordinary code of laws, I cannot but laugh. So...

  • 11:10:23

    REHMWhoa.

  • 11:10:23

    PERRY...even they who had, I think, a fairly equal marriage one might say. I think that says where women were at the founding in the constitution and that is conspicuous by their absence.

  • 11:10:35

    REHMAnd how do you see it now?

  • 11:10:37

    PERRYWell, thank goodness, thanks to the Supreme Court eventually starting in the 1970s and to Congress starting in the 1960s, women have been brought into the polity, but it was not much before that most recent time that they were.

  • 11:10:55

    REHMMarcia Greenberger, how do you see it? The constitution uses the term persons throughout. How does that apply to women?

  • 11:11:08

    GREENBERGERWell, the argument really I think comes down to the fact that the constitution was set out largely in very sweeping broad terms and talked about broad principles. And the term all persons was obviously covering women as well as men. But the understanding at the time the constitution was first adopted about what equality of laws would mean for women and men was very different than the understanding now.

  • 11:11:43

    GREENBERGERSo I think that in many respects, I would say women have been included in the constitution from the very beginning. But society has evolved in its understanding of the role of women, what's fair, what isn't fair. So that by the early 1970s, when the Supreme Court for the first time began to say that equal protection of the laws means that you can't have laws that simply exclude women from certain spheres or in the name of protecting them don't allow them to hold jobs. That is denial of equal protection of the laws. Whereas in the founding time, while I think that the drafters of the constitution saw women as entitled to equal protection, they thought equal protection was protecting them out of some of these jobs.

  • 11:12:38

    REHMInteresting. Barbara?

  • 11:12:39

    PERRYWell, picking up on Marcia's last point about protective legislation for women, which was considered very progressive back in the early part of the 1900s. And one of the greatest progressive Supreme Court justices ever, Louis Brandeis, became a Supreme Court justice by being a very prominent labor lawyer. And he wrote a brief to the Supreme Court telling the Supreme Court why women should be protected from abuse in the workplace, for example.

  • 11:13:06

    PERRYSo again, that seemed progressive at the time. When I would talk to my women students at Sweet Briar College about that, they would gasp, though, and say, we don't need that kind of protection.

  • 11:13:16

    REHMInteresting. What about the pronoun he used throughout the constitution?

  • 11:13:24

    QUINNWell, as Marcia said, you do see the pronoun, you see the word person and there's no question that the record of the constitution clearly shows that that did include women. And, in fact, the constitution also uses the word he so in writing it, they understood the difference between he and person and they picked person, especially when you get to the section talking about representation.

  • 11:13:53

    QUINNYou know, this is the infamous section where slaves are counted as three fifths of a person. But what that also tells you is that all persons, and actually even slaves, were being represented in Congress in a way that we would not. We don't today recognize as appropriate or in keeping with justice, but they are represented. And in the discussions, James Wilson of Pennsylvania even elaborated what was meant by persons and they made it very clear that it is free citizens and inhabitants of every age, sex and condition...

  • 11:14:29

    REHMHmm.

  • 11:14:29

    QUINN...so he included the word sex.

  • 11:14:30

    REHMWhat about James Madison's surviving documents? Are women specifically mentioned there?

  • 11:14:41

    QUINNI cannot -- no, I don't believe there is any specific mention.

  • 11:14:46

    REHMWhat about diaries? Does he talk about women there?

  • 11:14:51

    QUINNNot in his diaries. Where you probably see his most telling attitude is his relationship with Dolly. It is a relationship where the few letters that survive between them they do discuss political affairs. You know, we always think of Dolly as the one who held the great dinner parties and receptions. But in her letters to her friends, she almost never talks about the social life in the White House. She talks about politics and she clearly knows and is advancing her husband's political agenda.

  • 11:15:23

    REHMMichael Quinn, he's president of James Madison's Montpelier. Marcia Greenberger, founder and co-president of the National Women's Law Center. Barbara Perry, senior fellow and associate professor at the University of Virginia's Miller Center for Public Affairs. Do join us 800-433-8850. Send us your e-mail to drshow@wamu.org and you can join us on Twitter or Facebook. Barbara you mentioned James Madison -- sorry, John Adams' response to his wife when she wrote, remember the ladies. Give us a fuller sense of the text of that letter.

  • 11:16:22

    PERRYWell, I have to say I'm not an Adams' scholar, but my understanding is that they had a similar type of marriage to the James Madisons, to Dolly and James Madison, in that they wrote back and forth. They wrote on political issues of the day and that those women were so strong and were not viewed as one might say, the little woman who just stayed behind and did only domestic chores or raised the children. But that those women were very bright and very much a part of their husband's political careers. Having said that, though, there is not much space for them in the constitutional public realm.

  • 11:17:00

    REHMHere is the quote of the letter and I find it absolutely fascinating. She writes, "I long to hear that you have declared an independency. And by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember all men would be tyrants if they could." Marcia, how do you react to that?

  • 11:17:51

    GREENBERGERIt's so interesting. Of course, I think both in her recognition of the importance of women having independent rights that they can rely on, but at the same time appealing for generosity and asking for protection. And I think that that reflects where women were at that time and where a strong woman was pressing on the one hand for rights, but had to do it in a way that was asking for a male protector to provide them.

  • 11:18:31

    REHMShe's not asking for protection here. She says, "if particular care and attention is not paid to the ladies, we're determined to foment a rebellion."

  • 11:20:03

    REHMI do feel committed to read a little more of that letter from Abigail Adams to her husband. She says, "If particular care and attention is not paid to the ladies, we're determined to foment a rebellion. We'll not hold ourselves bound by any laws in which we have no voice or representation." She goes on to say that, "Your sex are naturally tyrannical is a true so thoroughly established as to admit of no dispute. But such of you as wish to be happy, willingly give up the harsh title of master for the more tender and endearing one of friend." Barbara.

  • 11:21:00

    PERRYYes. And I just wanted to have another quote from John Adams in response to his wife's letter, and that is as follows, "We know better than to repeal our masculine systems."

  • 11:21:10

    QUINNBut, you know, there's a very interesting dynamic that we continually see in the American political system is when we write something down, whether it's a constitution, a Declaration of Independence or a law, we're trying to express a principle. And then, we tend to look at it and say, gee, now that we've done this, it may mean a little bit more than we originally intended and, in fact, it should. Because what you see in the record of our history is having established ideals that really far transcended where society was at the time. We tend to have worked very hard to make those ideals come true and I think you're seeing that in the dynamic of Abigail responding to her husband. And you certainly saw that in race relations in American history as well.

  • 11:22:03

    REHMBarbara, explain the idea of Republican Motherhood.

  • 11:22:09

    PERRYAs I understand it, this is a concept that was given a name as recently as the 1980s, but that goes back to the founding and even pre-founding of our country. And that is that a very domestic, yet public role for women was as follows, that women would become educated as best they could in the times in order to educate their sons to take part in the new government -- in the new republic.

  • 11:22:39

    REHMSo there was a sense that women had a role in constitutional democracy by raising these engaged patriotic sons.

  • 11:22:51

    PERRYYes, indeed. And I would point out, I'm writing a biography of Rose Kennedy, John Kennedy's mother. And she had that very view of her role that she would not participate -- her daughters wouldn't necessarily participate and run for office, but that she was training her sons to become office holders.

  • 11:23:08

    REHMBut now, Marcia, bringing this up to the current discussion about women, men, here's an e-mail from Bobby in Syracuse, N.Y. who says, "Please ask your panel what they think of Justice Scalia's assertion that the equal protection clause of the Fourteenth Amendment does not protect against discrimination on the basis of gender or sexual orientation."

  • 11:23:43

    GREENBERGERWell, I think that that view has -- Justice Scalia's view has been articulated by a number of legal scholars and judges certainly. It has been, by far, the minority view since the early '70s when a great majority of justices looked at the words all persons in the equal protection clause to include women.

  • 11:24:19

    REHMWhat would it mean, in practical terms, if his view were, in fact, the law of the land?

  • 11:24:26

    GREENBERGERWell, we actually don't have to speculate. We know what it has meant in the past and we know what it would mean if his view had prevailed in the Supreme Court cases since the 1970s. So let me be specific with a couple examples. One had to do with the -- a law that had been passed that said women could only work in bars if they were the female relatives of a male bar...

  • 11:24:56

    REHMOwner.

  • 11:24:56

    GREENBERGER...owner. So that was upheld based on what was then viewed as the special nature of women who -- that would not allow them to be able to properly serve in that kind of a setting without their male relative protecting them. A second concrete example in the past was a woman who was convicted for murder by an all male jury. And this was in 1961, not that long ago. There were different rules where women did not have to serve on juries unless they volunteered to, whereas men had to serve on juries. And the Supreme Court upheld that distinction, which led to largely male juries, on the grounds that women had special duties. And that, of course, meant their duties at home.

  • 11:25:58

    GREENBERGERLet me talk about some of those cases that were struck down under the equal protection clause starting in the '70s. First of all, there were -- there was the very first one in 1971, a law that said if someone dies without having named an executor of an estate that they will automatically favor the male relative over the female relative, so the father over the mother, the brother over the sister, regardless of the relationship to the decedent or the individual abilities to serve as an executor. That was struck down as a denial of equal protection on the basis of sex. Another situation, women in the military. They were not able, when they were in the military, to have their dependence be covered for certain benefits...

  • 11:26:53

    REHMInteresting.

  • 11:26:54

    GREENBERGER...in the same way as male members of the military were. That was struck down.

  • 11:27:01

    REHMMichael.

  • 11:27:02

    QUINNWell, we have to say, though, that historically speaking, Scalia's correct. At the time those amendments were passed, it was widely understood that they didn't extend any protection to women. In fact, Elizabeth Cady Stanton, one of the leading suffragists in our history initially opposed -- she actually opposed those amendments on that ground. She wasn't against extending rights to the emancipated slaves. She felt it was wrong not to extend universal suffrage to women as well. Interestingly though, within a year or two of the amendments having been passed she looked at it and said, you know something? These amendments actually do protect women. And she kind of -- so then she started articulating that position.

  • 11:27:47

    REHMBarbara.

  • 11:27:48

    PERRYAnd just a word about Justice Scalia, he prides himself on his so-called originalism and that he believes in the original intent of the framers of the constitution amendments to follow. So as Michael has said, that would indicate that the framers of the Fourteenth Amendment didn't intend to include women in the word persons. And yet someone like a Justice Hugo Black, who believed in literalism, would say, we must take the words at their literal value. Persons would mean women.

  • 11:28:16

    REHMAs well.

  • 11:28:16

    GREENBERGERAnd I do want to disagree a bit and go back to what I had said earlier about how you frame the question of what the framers intent really was. They saw women as playing a very limited role. That and they thought they were giving women equal protection of the laws potentially by -- and that there was a reason that was justifiable for setting out boundaries that were different for women then they were for men.

  • 11:28:50

    GREENBERGERThat is different than saying women were not included in the equal protection clause and that difference, I think, is a very important one. So I would say Justice Scalia is wrong, in fact, that women had no role in the Fourteenth Amendment, while it is true that the framers of the Fourteenth Amendment were accepting very limited roles for women. Of course, the Fourteenth Amendment was around the Civil War and that was certainly a motivating force, but in the equal protection section of the Fourteenth Amendment, they were not using the word male the way they did with respect to voting.

  • 11:29:30

    REHMMichael, do you have a copy of The Constitution with you?

  • 11:29:33

    QUINNI do.

  • 11:29:34

    REHMRead for us that portion of the Fourteenth Amendment.

  • 11:29:40

    QUINNThis is the first section of the Fourteenth Amendment. First, it says, "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." And that clearly made blacks born in slavery citizens. But they consciously chose the word person. It goes on to say, "No state shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person"-- the word person again -- "of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

  • 11:30:26

    REHMNow, it's interesting. Didn't some states like New Jersey inadvertently or otherwise, because of that word property, give rights to some women right from the beginning because they were widows or they owned property or something like that?

  • 11:30:51

    QUINNThat was occurring -- had been occurring throughout our history because women were inheriting their husband's estates. But they very clearly -- I think they would've -- the way this historically would've been viewed at the time is women were included in the protections, but this was not intended to really expand the role of women in the political system. Now, as I said, you know, someone like Elizabeth Cady Stanton looked at this and although she opposed it, because she understood those limitations, she also understood that the language -- the principle behind it, in fact, did expand rights. And she started making that argument.

  • 11:31:27

    REHMSo we come to 1848 when Elizabeth Cady Stanton and Lucretia Mott organized the first women's rights convention in Seneca Falls. And that really, Barbara, launched the women's suffrage movement.

  • 11:31:48

    PERRYIt does and it launches the women's movement large and in general in addition to the suffrage movement. And they declare at the Seneca Falls convention that we hold these truths to be self evident that all men and women are created equal.

  • 11:32:04

    REHMSo when does the Supreme Court first begin to hear cases involving women?

  • 11:32:12

    PERRYWell, immediately after the passage and adding to The Constitution of the Fourteenth Amendment so as early as 1873 and the Fourteenth Amendment was added in 1868. The court rules that Illinois may bar women from the law profession. A woman named Mrs. Bradwell had studied the law, she had passed the proper exams and the state of Illinois would not allow her to practice her profession of the law and the U.S. Supreme Court agreed with Illinois.

  • 11:32:44

    REHMBarbara Perry, senior fellow, associate professor at the University of Virginia's Miller Center for Public Affairs. And you're listening to "The Diane Rehm Show." Marcia, do you want to add to that?

  • 11:33:03

    GREENBERGERWell, it is interesting. The Bradwell decision was actually brought under the privileges and immunities clause of citizenship, which was also applicable to all persons. And what the Supreme Court said in that case wasn't that women had no rights under the privileges and immunities clause, but that privileges and immunities didn't extend to the ability to practice law.

  • 11:33:37

    PERRYBecause those were not part of federal...

  • 11:33:39

    GREENBERGERRight.

  • 11:33:40

    PERRY...national rights.

  • 11:33:41

    GREENBERGERSo they never were...

  • 11:33:42

    PERRYAnd states could make that determination.

  • 11:33:44

    GREENBERGERYes. So to get us back to what the Supreme Court was holding at the time and the current views of Justice Scalia, that is an important distinction. It's true that as a practical matter the women were getting no protection under the law. But the legal reasoning wasn't that they weren't included. The legal reasoning was yes, all persons includes women but we see women from a lens in the 1848 that colors the way we apply our notions of equal protection.

  • 11:34:23

    REHMSo what happened once 1870 came, the Fifteenth Amendment gave voting rights to African Americans? What did that mean for women, Michael?

  • 11:34:37

    QUINNWell, it didn't help women at all. And, in fact, the women...

  • 11:34:42

    REHMThere was a big argument.

  • 11:34:43

    QUINNYeah, the women's movement was very unhappy that here rights were being extended without including women. Unfortunately, that took on a little bit of racial overtones, which is one of the strange twists of history. Because the women at that time were actually advocating a far more open society than we can imagine.

  • 11:35:07

    REHMAnd the women have to wait 50 years for ratification of the Nineteenth Amendment. Marcia.

  • 11:35:17

    GREENBERGERAnd, of course, so did the African American women, as well. And that was one of the arguments being addressed at the time, that half of that population -- and that's of course Sojourner Truth's plea, as well, the "Ain't I a woman?" She is both African American and a woman. She was suffering the discrimination on the basis of her race and her gender. So it wasn't until the Nineteenth Amendment that women of color...

  • 11:35:53

    REHMAnd...

  • 11:35:53

    GREENBERGER...and women -- all women had the right to vote.

  • 11:35:58

    PERRYAnd, of course, harkening back to that extraordinary Abigail Adams' letter, the revolution, the rebellion really did take place in -- on the streets to get that right to vote.

  • 11:36:13

    REHMExactly. And the fascinating part is that the Nineteenth Amendment doesn't even use the word women. Michael.

  • 11:36:24

    QUINNNo, it doesn't. I mean, it -- and I think that was intentional.

  • 11:36:27

    REHMIt just says the right of citizens of the U.S. to vote shall not be denied or abridged by the United States or by any state on account of sex.

  • 11:36:43

    QUINNAnd, you know, that's in a similar vein of why the word person was chosen in The Constitution. It reminds me of Madison's concern about writing the Bill of Rights. He was worried that if you enumerate your rights, then that means that if you've left something out accidentally, you...

  • 11:37:01

    REHMYou were limiting.

  • 11:37:02

    QUINN...you were limiting your rights. And I think you're seeing the same thought process here, is trying to use words that don't inadvertently limit the intent of the law.

  • 11:37:10

    REHMI'm not sure Marcia wholly agrees with that interpretation.

  • 11:37:15

    GREENBERGERActually, I do think that that is true. And the Equal Rights Amendment and the way the equal protection clause has been interpreted on the basis of sex has actually eliminated discrimination against men as well as women, and that's to the good.

  • 11:37:34

    REHMMarcia Greenberger, founder and co-president of the National Women's Law Center. Short break. When we come back, calls from Detroit and elsewhere. Stay with us.

  • 11:40:03

    REHMWelcome back. We're going to open the phones now as we bring you another in our series, "The Constitution Today." And on this day we're focusing on women and the Constitution. Let's go first to Tom in Detroit, Mich., good morning to you.

  • 11:40:30

    TOMGood morning, Diane, I guess. I just wanted to call in defense of the founding fathers and the Constitution they wrote. I think they really pushed the envelope as far as you could at that time period. And, as an aside, I had just read a book about a Dutchman who had come to this country in 1895 and he talked about his life and I didn't realize just how oppressive societies in Europe were as recently as the 1900 period. He talked about being employed as an 11-year-old in the textile factories and his wife as an eight-year-old. They had no voting rights, even when they were adults. They worked under incredibly oppressive conditions and, you know, I think we just take it for granted that in the 1700's a lot of the people lived like we do nowadays and that's probably not the case.

  • 11:41:26

    REHMAll right. Thanks for calling, Tom Berber.

  • 11:41:30

    PERRYWell, the caller has a point. I remember getting on my high horse again and speaking to an all women's college and saying, can you believe that women in this country did not get the vote until 1920? And a student from France said, but, Dr. Perry, we didn't get the vote in France until 1948. And most recently, I was teaching a student, an Afghan student, who thinks that we have so many rights. And, of course, we do by contrast to what she faces in her country.

  • 11:41:58

    REHMBut here's an e-mail from Donna who says, "Currently, women make up approximately 17 percent of the U.S. Congress. The Constitution of Afghanistan requires that 25 percent of their elected officials be female, 28 percent of Afghani seats are held by women. How is this possible?" Donna says. "How is it that women in elected positions in the U.S. are still so far behind their counterparts in Afghanistan? Do U.S. women need constitutional guarantees of equal representation to make up for the persistent discrimination still present in this country?" Marcia Greenberger.

  • 11:42:57

    GREENBERGERWell, there has been enormous frustration absolutely and anger at the limitations in the barriers that confront women. In fact, it's down to 16 percent. One women member of the House of Representatives, Jane Harmon just left and now we have -- we've fallen back down to 16 percent of women in the House of Representatives and not much progress, if anything, really less --a little bit of falling back nationally in the last election for women. And it is a very serious matter because it -- and many complicated reasons as to why it's been so difficult, including women's access to raising funds.

  • 11:43:45

    REHMFifty percent of the population, or more, is female.

  • 11:43:52

    GREENBERGERBut the ability to raise funds and to be put into a position where you -- your party is behind you and supporting your candidacy seems to have disadvantaged women quite seriously.

  • 11:44:05

    REHMAll right.

  • 11:44:06

    GREENBERGERAnd that has, I think, on the part of many women and men, changed the nature of the way legislature has seen laws, the priorities that they have given, whether it's funding matters or laws that prohibit discrimination in pay. For example, a fight that's been going on in Congress just over the last couple years to get rid of some of the pay gap that affects women to this day so I think it is a very fair criticism that the United States falls behind many countries in the number of women that are elected to office.

  • 11:44:45

    REHMTo Judy in Phoenix, Arizona, good morning to you.

  • 11:44:51

    JUDYGood morning, hi. And I should say just so that the panel knows, my daughter clerked for Scalia so any time his name is mentioned I listen very carefully. And my question is if, indeed, the panel now feels that the 19th Amendment does guarantee and ensure rights to women, why, oh, why, did we go through the Equal Rights Amendment.

  • 11:45:13

    GREENBERGERWell, the 19th Amendment actually talks about the right to vote. So in that sense, it really has addressed the issue of voting rights, but it is limited to voting rights. And so there is the question of all of the other rights under law that – and here there is a dispute about whether under the Constitution, as now written, women have full protections. Justice Scalia believes that it would require a constitutional amendment like the Equal Rights Amendment in order to afford women that kind of, excuse me, protection outside of the right to vote where we now have it because of the 19th Amendment.

  • 11:45:59

    GREENBERGERSo that is really the debate whether under our Constitution, as it is now, the equal protection clause can be read and interpreted to provide full protection to women or whether there needs to be an amendment like the Equal Rights Amendment to ensure that that -- that access and bedrock principle is enshrined in the Constitution.

  • 11:46:21

    REHMBarbara, how difficult was the process to achieve the 19th Amendment, which finally allowed all persons to vote?

  • 11:46:33

    PERRYWell, very difficult in that we talked about the Seneca Falls convention beginning in the late 1840s and that we know that the 19th Amendment was not ratified until 1920 so just that, alone, you can see how many years that took and the protests that had to be launched and the marches that had to be undertaken. It was a tremendously hard process, as it was for the ultimate defeat of the Equal Rights Amendment. For ten years that battle took place and, ultimately, it fell three states short of the necessary required to ratify.

  • 11:47:03

    REHMDo we still need an Equal Rights Amendment?

  • 11:47:07

    PERRYI would agree with Marcia, absolutely, that we do and particularly if you think back to the Lilly Ledbetter Act, the first act of Congress that President Obama signed into law in 2009, that we had to have that in order to have -- give something to women to allow them to bring cases that indicated that they had been discriminated against in salaries and wages.

  • 11:47:31

    REHMTo Rochester, N.Y., good morning, Nora.

  • 11:47:35

    NORAGood morning. Thank you very much. I enjoy your program.

  • 11:47:38

    REHMThank you.

  • 11:47:38

    NORAI'm fascinated by the topic. I'm at the University of Rochester and often use "The Feminist Papers", which is a compilation of historical materials developed by Alice Rossi in the early 1970s. And I think it's important to recognize that those letters between Abigail and John were between them, but they then also wrote to friends commenting on the letters they'd written to each other. And John Adams to James Sullivan remarks about the danger of opening the floodgates of voting privileges to any unqualified voter. He says, "New claims will arise. Women will demand a vote. Lads from 12 to 21 will think their rights not enough tended to and every man who has not a farthing will demand an equal voice with any other in all acts of state. It tends to confound and destroy all distinctions and prostrate all ranks to one common level."

  • 11:48:38

    NORAThey were not about the common level at that time, even in 1776, so the prohibition of a vote for women was really linked to making sure that the only people who could were white propertied men.

  • 11:48:54

    REHMMichael.

  • 11:48:55

    QUINNYour caller is absolutely right. And this gets a little bit back to the idea of the Republican virtue and the Republican motherhood. We have to remember that our founders were really sort of making this up as they went along. And I don't mean that in a negative sense, but they were trying to put together a coherent political theory at the same time they were trying to keep a whole society from just collapsing. And they had a feeling that as you move from a king to a democracy you need a certain sense of -- they used the term virtue. They also talked about -- we would talk about altruism and public service because you really want people making decisions who are striving to serve the public good, not their own interest.

  • 11:49:42

    QUINNAt the time it looks -- when we look back, we think, my word, only property-owning white men, how wrong. In fact, we open the franchise to -- at far greater than any other society in history at that time. And there was a concern that you needed people voting to be true stakeholders, to have that sense of Republican public service and that that might not exist among all classes of people. We may be horrified about that, but it really shows the advance of our political thinking in science.

  • 11:50:16

    REHMMichael Quinn, President of James Madison's Montpelier, Marcia Greenberger, Barbara Perry and you're listening to "The Diane Rehm Show." We'll go now to St. Louis, Mo. Reynold, you're on the air.

  • 11:50:37

    REYNOLDYeah, hey, I'm kind of interested in the whole idea of the fact that our founding fathers were very, very, biblical-minded men, which also goes back to some of the things that developed in the common law days that started our educational system with the requirement for schools to be brought into society for the explicit reason to educate our children to read the Bible. And it's interesting how as more rights were given to women they took on this role of education to our children, which has been very important in our society. But I'm just interested in the fact that we did definitely need equal rights to our women but as your guest there said they didn't realize how much or how far this would go by allowing them what they deserved.

  • 11:51:47

    REYNOLDAnd, I think, in society, we see what has happened because the role of the mother has completely switched over to being -- having these dual-income families and leaving the children behind now to the mercy of our public education, which...

  • 11:52:10

    REHMMarcia.

  • 11:52:11

    REYNOLD...teaching them to read the Bible anymore.

  • 11:52:14

    GREENBERGERWell, it's -- you know, there is certainly a major challenge that our country is facing now, because economically there is no doubt that families are struggling more than they ever did before on being able to support themselves on one salary. And that has been a trend that has happened -- that economic trend over a number of years that has required not only husbands and wives in many families to work, but sometimes more than one job. And so those economic forces, which we are confronting and struggling with today, you know, we certainly know, have left families with terrible dilemmas about how to deal with their family responsibilities, which include the ability to support their families and to have bread on the table.

  • 11:53:27

    GREENBERGERAnd so the ability to find quality childcare, to get good paying jobs that have benefits, to deal with those responsibilities in a way that allows for a healthy and a whole community, those are some of the most important challenges, I think, we all face.

  • 11:53:46

    REHMBarbara.

  • 11:53:47

    PERRYAnd just to piggyback on that point, perhaps, if we had more than 17 percent of those in Congress to be women, we might have more of a national debate about these very issues that do have such a direct impact on women and families.

  • 11:54:01

    REHMAnd finally, back to Scalia and Mike in Orlando, Fla., you're on the air.

  • 11:54:10

    MIKEGood morning, Diane, thank you for taking my call.

  • 11:54:12

    REHMSurely.

  • 11:54:13

    MIKEI get upset every time I hear Scalia talking about original intent and I hear it again in the argument this morning, that the original intent was not to include women and he reads that very clearly. Yet, when you take into account his analysis on the Fourth Amendment search and seizure issues, he finds exceptions everywhere he needs to for the police to do things that they would not allowed to do if you read the original intent, unreasonable search and seizure. And I find it amazing that he can then come back and find, well, here's the original intent on this issue and we'll keep it limited to this to the strict words and the original intent of the framers.

  • 11:54:55

    REHMBarbara.

  • 11:54:56

    PERRYWell, I think, perhaps, even the more fascinating contrast would be Justice Scalia's view of the Second Amendment and very broad interpretation of that in today's society.

  • 11:55:06

    REHMMarcia, what would an equal rights amendment do?

  • 11:55:12

    GREENBERGERWell, it would certainly end the debate about whether the views of Justice Scalia or other justices, and we really don't know at this point where Justice Alito and Justice Roberts are. They have yet to rule on an equal protection challenge involving women. Justice Thomas has never voted in favor of striking down a law that disadvantages women on the basis of sex. So it may be that we have even as many as four justices on the Supreme Court right now. We don't know who share Justice Scalia's view.

  • 11:55:53

    REHMHum.

  • 11:55:55

    GREENBERGERI think whether he is right or wrong, and I happen to think he is wrong, an equal rights amendment gives the core protection, especially to women; although, it provides protection for men as well as women over time.

  • 11:56:12

    REHMMichael.

  • 11:56:13

    QUINNOne thing I think is interesting in this debate is we talk about how we interpret the Constitution today. Madison in his lifetime, as the father of the Constitution, was often asked how should we interpret the Constitution. And that may add some light to this debate. He actually said, "Don't depend just on the words. They change in meaning." We have to pick -- and they're imprecise to begin with. He said, "You should try and find the sense behind them." And he wasn't saying just the practice at the time, but the sense -- the idea behind it.

  • 11:56:48

    REHMMichael Quinn, president of James Madison's Montpelier, Barbara Perry at the University of Virginia's Miller Center for Public Affairs, Marcia Greenberger, founder and co-president of the National Women's Law Center, thank you all so much. And thanks for listening all. I'm Diane Rehm.

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