This article also touches our earlier argument about equality. So I want to dig into it.
On first blush, as with many leftist ideas, it is hard for any reasonable humanist to disagree with the author. I completely believe in equality of the sexes and believe that where discrimination is evident, the government has a role in promoting equality. But MacKinnon's article demonstrates the difficulty in terms like "equality" and "discrimination." Let's take a closer look.
Women are at a crossroads in our struggle for legal equality as a means to social equality. Having women in politics matters, but it is crucial to have the policies women need. At this moment we risk losing ground gained, but we also have the opportunity to advance. At stake in this presidential election are the
Despite inroads, women's status remains characterized by sex-based poverty and impunity for sexual abuse from childhood on. The next president will appoint scores of lower court federal judges who will have the last word in most cases. One, perhaps three, justices may be named to a Supreme Court that in recent years has decided many cases of importance to women by just one vote. Equality can be promoted in employment, education, reproductive rights and in ending violence against women -- or not.
The equal protection clause of the U.S. Constitution is stalled. The fate of affirmative-action programs that have helped open doors for qualified women of all races may be vulnerable. The scope of Congress's power to legislate -- key to what a majority of Congress can accomplish for all our people -- has become uncertain.
MacKinnon begins the article with three paragraphs of unsupported puff. She blindly insists on the existence of "sex-based poverty" and "impunity for sexual abuse". This is a cheap rhetorical tactic, suggesting that if you dare to disagree with her definition of equality, you must be a supporter of sex-based poverty (whatever that is) and sexual abuse.
Existing laws essential for women's economic survival have often been regressively interpreted. Women on average remain poorer than men, largely because of unequal pay. Recently, the Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co., Inc. that plaintiffs must sue as of the first unequal paycheck, when they might not even know that their pay is unequal. Barack Obama supports restoring the rule, followed for decades, that allows suit for all the wage discrimination as of the last discriminatory paycheck. John McCain opposed this in the Senate.
Her conclusion strikes me as completely wrong. Much of the Ledbetter decision
had to with the way the law was written. The law might be faulty, but the court is supposed to
enforce the law, not reinterpret it - she said as much in her opening paragraphs concerning "scope of Congress's power to legislate". Apparently she wants to overrule Congress when it suits her, but stick with Congress's mandate when it doesn't. And a note to the lawyers on KP - I am not one, so don't go cuckoo about this paragraph and my response. My real concern is the next paragraph.
In addition, for reasons largely not of their own making, most women work in job categories that are paid less than men, yet are equally productive. Courts have not interpreted existing laws to guarantee equal pay for work of equal value. Comparable worth -- paying women what their work is actually worth -- would wipe out more of the pay gap, and hence women's poverty, than any single economic step.
This is where she gets truly scary. Apparently, MacKinnon would have a court decree what type of work merits what type of pay. If I read her correctly, she is not merely suggesting that identical jobs merit identical pay, but that jobs considered to be of equivalent productivity merit equal pay. Merely stating that "identical jobs merit identical pay" might deserve some consideration, but it could only apply to those few jobs that are so structured and limited in scope that duties and quality of work are precisely fixed. MacKinnon wants to go further and create an arbitrary productivity metric. There is no such thing nor is any such thing objectively possible. It would become a purely subjective exercise. The free market, private enterprise, and individual liberty would be replaced by the whims of a judge.
Cases under Title IX of the education amendments of 1972 have guaranteed equal access to education for women and girls. But full realization of these rights remains before the courts, as does recognizing combined discrimination (such as race and sex together), and the myriad rights lesbian women need. Gender bias in the legal system restricts women's access to justice, making expanding legal aid and victim services as crucial an issue for women as any that exists. Gender
justice calls for far more than the conventional equality approach that treats
This paragraph highlights another behavior I find typical of the far left - the use of euphemistic terms that sounds inarguably positive but has little intrinsic value besides labeling. What the hell is "gender justice"? MacKinnon doesn't even begin to define it, along with a "myriad" of other terms she fails to define. For the purposes of a fanatic like MacKinnon, the exact meaning is unnecessary. You are either for gender justice or against gender justice. You're not against justice are you?
Should a federal Equal Rights Amendment be enacted, and the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDW) be ratified, as the Democratic platform calls for, these egalitarian laws -- potentially addressing women's issues ranging across pay, divorce, rape, sex trafficking, stereotyping and health care -- would be interpreted in court.
If Congress and the states grant women explicit constitutional equality and an end to discrimination -- far more likely under Mr. Obama's leadership than Mr. McCain's -- federal judges will hold in their hands women's hopes for equality for generations to come.
Two thoughts here. One, why do women need "explicit constitutional equality"? They are protected just like any other American already. Existing discrimination strikes me as a failure to enforce existing laws rather than a constitutional issue. Two, like many other ideas on the left, MacKinnon's every idea invites the government deeper and deeper into your personal life and decision-making. I always find it strange that the left goes berserk over the idea of the government monitoring your phone calls or intruding on your sexual freedom, but the left is perfectly happy with the government stepping into monitor your thoughts and speech - God forbid you unfairly "stereotype" somebody.
I'm not going to discuss MacKinnon's abortion arguments. Abortion is its own moral morass, and one largely divorced from the more general feminist arguments she puts forward above. So let's hear her conclusion.
Neither presidential candidate has taken a position on all of these issues. But the decision, in Mr. Obama's words, on "what kind of America our daughters will grow up in" could not be more urgent. At stake is nothing less than whether women will be, finally, equal.
Actually, what is at stake here is whether we will allow our basic freedoms to be stripped from us by zealots like MacKinnon. Camus said, "The welfare of the people has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience." MacKinnon is just another tyrant-in-waiting, eager to destroy the freedoms of others in order to shape the world as she would see fit. Let's hope that the America our daughters (and sons) grow up in is far removed from the visions of MacKinnon and her ilk.