What did the Founders mean when they declared “All men are created equal”? The people who migrated to America in the 17th and 18th centuries intended to escape life under the divine right of kings. Equality in America, at the time of the Revolution, meant no one would be limited, or exalted, merely because of family ties. Equality was really synonymous with freedom, the ability to rise or fall based on one’s own merits or faults.

That was the Declaration of Independence. When the Founders wrote the Constitution, they began with the words, “We, the People.” Yet the Constitution created the United States of America by forming a union among the former colonies. Why not begin with “The Undersigned States”? Presumably the Founders meant to emphasize that the Constitution is the consensus of a self-governing people, not the unilateral decree of a king or governor.

Almost immediately after the Constitution was adopted, the first ten amendments, known as the Bill of Rights, were added. The Bill of Rights specifies the limits on Congress’s power over the People and the States. Having created a new, distant central government, the people meant to ensure that it would not usurp or abuse their rights.

In early America, people dwelt on the potential conflict between Government and the People. The only way to maintain their freedom from autocratic rulers was to rule themselves, that is, to embrace self-government. Thus Lincoln in his Gettysburg Address spoke of “Government of the People, by the People, and for the People.”

As Lincoln had announced a “new birth of Freedom,” the Civil War produced a new birth of equality, too. Shortly after the Civil War ended, there was quickly ratified a series of constitutional amendments (XIII-XV) known as the “Civil Rights Amendments.” These abolished slavery and guaranteed former slaves the same rights and protections as other citizens. Thus, the Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

The underlying intent of the Civil Rights Amendments was to eliminate race or color as a basis for determining legal rights. But the Equal Protection Clause, because it referred broadly to “persons” (rather than, for example, “former slaves”) did more than that. In addition to expanding the concept of equality under the Constitution, it added a new party, the Person, to the traditional concerns over the relative rights and power between Government and the People.

The courts have consistently held that race and skin color are never a proper basis for legal distinctions between people. Race and skin color are, in fact, superficial characteristics that have nothing to do with an individual’s actual abilities.

The question soon arose whether the Equal Protection Clause, with its broad wording, permits states to treat persons differently for reasons other than their race or color. The Supreme Court determined that the Equal Protection Clause does permit legal distinctions between persons as long as the different treatment is reasonably related to a legitimate purpose of government-the “rational basis” test.

What About Sex?
For over a hundred years, just about everyone assumed that sex was an area where self-governing people could make rational decisions and enact laws that sometimes limited, but many times favored, women, based on reason and common sense. But starting in the 1970s, the Supreme Court began treating sex differently — one might even say, “irrationally. “

The original Equal Rights Amendment, proposed in 1923, would have amended the Constitution to treat legal distinctions based on sex the same way as those based on race. The ERA lay dormant for about fifty years, until resurrected by Betty Friedan and other modern feminists.

Ms. Friedan lamented in 1967 that ERA supporters were “bitter old women…fighting all alone.” They fought alone for good reason. Most people recognized that sex is not the same as race and that legally equating the two is not only illogical, but also would inhibit states from enacting reasonable laws affecting, and often helping, women. For, unlike skin color, sex sometimes makes a difference, and when sex does matter, it matters a great deal.

The first attack on the “rational basis” test as applied to sex was the 1971 Supreme Court case, Reed v. Reed, which involved a mother and father who each wanted to be named as executor of the estate of their deceased son. Under Idaho law, whenever two equally entitled candidates of opposite sexes desired appointment, the man was preferred. Mrs. Reed, rejected as administrator of her son’s estate, took her claim to the Supreme Court.

The state offered several rational bases for the law: it avoids the cost of hearings, expedites estate proceedings, and minimizes family disputes. But the Supreme Court rejected these reasons and unanimously declared the Idaho law unconstitutional, calling it “the very kind of arbitrary legislative choice forbidden” by the Equal Protection Clause.

Giving preference to male candidates might not have been the fairest possible method of appointing administrators, but it is hardly irrational. Idaho’s elected legislature passed this law for reasons that were, at the time, good and sufficient to the men and women of Idaho. When the Court called Idaho’s law “arbitrary,” what it really meant to say was, “not modern.” If the people of Idaho objected to their old-fashioned laws, they had a simple self-help remedy: demand that their legislators change the laws.

In fact, they did exactly that. Several months before the Supreme Court issued its decision, the Idaho legislature eliminated the mandatory preference complained of in Reed. The Supreme Court could have let the new law stand on its own; instead, all nine justices decided to substitute their judgment for that of the people (including the voting women) of Idaho. Even though the people had reached the “right” conclusion on their own, the Supreme Court still thought it necessary to assert its governmental power over them.

The Ginsburg Effect
Only two years after the Reed decision, the Court came within one vote of judicially adopting the ERA. The case of Frontiero v. Richardson (1973) involved laws requiring military women’s husbands, in order to qualify for dependent benefits, to show that they actually depended on their wives for more than one-half of their support. As in Reed, the Defense Department offered many reasons for its policy, but eight justices voted to invalidate the policy because they considered those reasons-unreasonable. Only Justice Rehnquist dissented.

Four justices, anticipating passage of the ERA, voted to judge sex classifications by the same strict standard as race classifications. Four other justices refused to go so far. Criticizing his brethren’s rush to judicial adoption of the ERA, Justice Powell warned that some issues “normally should be resolved by the elected representatives of the people,” and when they are not, “democratic institutions are weakened, and confidence in the restraint of the Court is impaired.”

Ruth Bader Ginsburg had represented the plaintiff in Reed, argued Frontiero, and returned for a rematch in the 1976 Supreme Court case of Craig v. Boren. This case challenged an Oklahoma law prohibiting the sale of 3.2 percent beer to males under 21 and females under 18 years old. The state presented abundant evidence that teenage boys were far more likely than teenage girls to drink, drive, and have accidents. Then-ACLU lawyer Ginsburg contended that this law, even though it was “rational” and apparently favored women, violated the Equal Protection Clause simply because it treated women and men differently.

The state lost. The Court agreed with Ms. Ginsburg that legal distinctions based on “gender” (as she called sex) should receive special treatment under the Equal Protection Clause. It is interesting that on the winning side of this case, besides Ms. Ginsburg, were the Oklahoma beer distributors. She won a constitutional victory, and they won the right to sell beer to thirsty teenage boys. The losers in this case were, sadly, parents, highway patrolmen, and the people of Oklahoma, who had simply acted rationally to try to save a few young lives.

For several years Supreme Court decisions concerning “gender” continued to reject the reasonable determinations of voters and legislatures, often operating to the detriment of women. For example, in Mississippi University for Women v. Hogan (1982), the Court ordered Mississippi’s only all-female state nursing school to admit Hogan, a man, even though several public coed nursing schools were available in the state. Under the Equal Protection Clause, it was increasingly clear, when a person takes on the People, the person usually wins.

A Virtual ERA
There was no individual person involved in the Virginia Military Institute case, U.S. v. Virginia (1996). The Justice Department simply decided that some woman, some day, might want to attend VMI. The people of Virginia certainly approved of VMI’s all-male status. Polls at the time showed 80 percent of Virginians favored keeping VMI all-male, and they kept electing legislators who supported VMI. Even federal law-the same Title IX that has ravaged men’s college sports-expressly and specifically permitted the existence of historically single-sex schools and programs.

The lower courts had agreed with Virginia that single-sex programs are pedagogically valid and legitimate within a public education system. Nonetheless, the Supreme Court tossed out all the expert evidence supporting those findings. Now-Justice Ruth Bader Ginsburg wrote the VMI decision, which ratcheted up the existing legal standard for any sex-based state action to require “an exceedingly persuasive justification.” No justification is acceptable if it relies on “overbroad generalizations about the different talents, capacities, or preferences of males and females.”

So stated, the new test effectively enacts the ERA. Given that there will always be some woman, or some man, who defies the stereotype, it is almost impossible to imagine any legal distinction based on sex that would survive the Ginsburg test.

When the ERA failed, it was because people like Phyllis Schlafly pointed out it could lead to things like coed bathrooms, homosexual marriage, and drafting women. We’ve got coed bathrooms on college campuses, several states have cases pending in which homosexual marriage may be legalized. The only reason women aren’t drafted today is that men aren’t drafted, either.

Indeed, the last thirty years have yielded mixed results for women as a group. Elites-those with the brains and money to attend college and pursue a career-have succeeded spectacularly. Others-those less talented, and often imprudent or unlucky in love (or sex)-are worse off and greater in number. They suffer misfortunes particular to women: un-wanted pregnancies, single motherhood, and the poverty and welfare dependency that often result.

These problems have been exacerbated by the ERA mindset: a constitutional interpretation that, in the name of equality, refuses to acknowledge reality. Women and men are different, and no law can make them the same. A society cannot function if it cannot make rules based on reason, experience, and the collective wisdom of its people.

Justice Scalia, dissenting in the VMI case, wrote:

“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”

The real tragedy of the Equal Protection Clause, the conflict of Persons versus the People, is that it has left us-by which I mean all of us, women and men, persons and people — no more equal, but considerably less free.

This is adapted from a speech IWF President Anita K. Blair delivered at the James Madison Symposium at the U.S. Capitol in July 1999. The audience included congressional members and staff, university professors, and about 70 high school teachers from across the country who had won scholarships to study in Washington, as James Madison Institute Fellows.