In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act").1 In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts.2 As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," a series of Supreme Court decisions interpreting the Equal Protection Clause, which some claim achieved much of what was sought by the ERA.3 Without diminishing the gains of the "de facto ERA" or revisiting the failed ERA itself, Seith's narrative shifts attention to the legislative gains achieved by the Equity Act.4
My aim in this response is to connect Seith's account to a broader discussion about the role of statutes and legislatures in advancing equity and to locate the Equity Act in relation to other civil rights statutes. Seith offers at least three important insights into the capacity of legislative lawmaking to further equity goals. First, Seith's account shows how Congress can serve as a key site for advancing constitutional norms. As I discuss below, Seith's insight can be extended further to other civil rights contexts. Civil rights statutes like the Equity Act, the Civil Rights Act of 1964,5 and the Fair Housing Act of 19686 have the potential to advance a more capacious and affirmative conception of equity than can be attained merely through a constitutional lens.7The equity norms advanced by these statutes are connected in crucial respects to constitutional norms but are more expansive.
Second, Seith's account allows us to consider the limitations of the antidiscrimination conception in advancing equity. Seith crucially notes that the provisions of the Equity Act sought economic equity and substantive equality, rather than "equality in theory."8 I show that the Equity Act is not unique among civil rights statutes in moving beyond prohibitions of antidiscrimination to advance equity. As I discuss below, other civil rights statutes- both the paradigmatic civil rights statutes of the 1960s and a newer wave of statutes-do more than prohibit discrimination; they adopt a broader set of tools for advancing inclusion. 9
Third, Seith reveals differences between the Equity Act and the typical civil rights statute: the Equity Act does not centrally engage courts, and it is not framed in the language of rights. Indeed, the Equity Act may be marginalized in legal commentary for these reasons.10 I argue that more generally, legal commentary should provide greater discussion of civil rights statutes that do not depend on court enforcement. I point to statutory and regulatory interventions that do not rely on private enforcement in courts, but rather on implementation through legislative and administrative bodies." Seith's account of the Equity Act should encourage legal commentators to expand our conception of law to encompass the full range of legal interventions in courts and in legislatures that seek to promote equality.
In this Article, I discuss these three key points, bringing in examples of both longstanding civil rights statutes and some more recent enactments. The majority of my examples come from efforts to address racial and ethnic equality, but the models extend beyond these examples. Finally, I argue that Seith's account of the Equity Act raises important questions for future exploration by scholars of civil rights law. To best promote equity one must understand the relationship between various modes of societal change: constitutionalism and legislative change; antidiscrimination and substantive equality; and litigation and nonlitigation strategies. These explorations should prove valuable not simply to academic commentators but also to those seeking to effect change in society.
Olatunde C. Johnson,
The Dignity of Equality Legislation,
Harv. J. L. & Gender
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1100