Thomas I. Emerson

The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women

III. The Constitutional Framework ........................ 888 A. The Basic Principle .............................. 889 B. Laws Dealing with Physical Characteristics Unique to One Sex ........................................ 893 C. Classifications Based on Attributes Which May Be Found in Either Sex .................................... 896 D. The Privacy Qualification ......................... 900 E. Separate-But-Equal, Benign Quotas, and Compensatory A id ............................................ 902 F. State Action ..................................... 905 G. Other Matters of Interpretation and Wording ........ 907 H. Summary ....................................... 909

First Amendment Doctrine and the Burger Court

In the decade since the Burger Court took over from the Warren Court there has been little change in the position that the system of freedom of expression occupies in our national life. Freedom of expression continues to be accepted as the core of our structure of individual rights. It remains the foundation of our efforts to obtain the proper balance between individual liberty and collective responsibility. And it still provides the framework within which our society tries to achieve necessary, nonviolent, social change. Throughout this period, political, economic, and social conditions have supported levels of consensus sufficient to maintain the system. Indeed, in some ways political strains on the system have eased as irrational fears of a Communist menace have abated. The material welfare of the country has, at least up to now, continued to expand. And the social climate has not been unduly intolerant or basically hostile to the system. In general, in the last decade the system has not been tested by the strains of crisis conditions. Nevertheless there have been some significant changes in the system of freedom of expression. These developments have come about in part because of the natural tendency of any vigorous set of legal doctrines to expand to the limits of their logic. In part the developments are due to technological changes in our society, such as those that have resulted in an ever-increasing concentration of the mass media, in the startling growth of data collection and other pressures on our privacy, and in the alarming problems associated with the financing of elections. In part the changes are attributable to the inevitable trend of our society toward collectivism, marked by the dominant role of large organizations, the expansion of governmental functions, and the establishment of vast public and private bureaucracies. Other changing patterns in our complex society have similarly brought forth new issues.

Nine Justices in Search of a Doctrine

times, presented the United States Supreme Court with a hopelessly unsupportable piece of state legislation and an unusual variety of possible doctrinal solutions. The Courts response to this situation, and the implications of its choice of doctrine for the future of individual rights in America, make an intriguing study of the judicial process. The Connecticut law, as a matter of social policy, had little or nothing to be said for it. It was enacted in 1879 and remained as a relic of a Comstockian philosophy which had long since ceased to be widely held, if it ever had been. The statute was at war with all accepted standards of medical practice. It invaded the sacred realm of marital privacy, and for all practical purposes denied to married couples the right of deciding whether or when to have children. Under certain not infrequent circumstances, it imposed upon individuals the cruel choice between sexual abstinence on the one hand and ill health, death, or deformed children on the other. Not generally enforced, indeed unenforceable in most instances, it hung like a cloud over the medical profession. More important, its enforcement only against birth control clinics resulted in patent discrimination against persons who were too poor or too uneducated to seek private medical advice. Its basic purpose was fantastically in conflict with the clearly perceived need to deal with the worlds second most critical problem-the population explosion. Even its staunchest supporter, the Roman Catholic Church, was ready to concede that the use of contraceptives by married couples involved a religious principle rather than a public policy to be imposed on all faiths by government sanction. Yet the legislature failed to repeal the statute.2 To the ordinary layman, Griswold v. Connecticut seemed easy. But to the lawyer it was somewhat more difficult. The lawyers problem with the case was that the issues did not readily fit into