Did The Fourteenth Amendment's Equal Protection Clause Guarantee Equal Rights to Women?

I've been arguing with the usual liberals over at Volokh Conspiracy, and they got rather indignant when I pointed out that the "equal protection clause" of the 14th Amendment doesn't mean what they think it means:

Nearly all of our laws discriminate. The laws against robbery discriminate against those who take the property of others by force or the threat thereof. Our gun control laws discriminate against convicted felons, against minors, against U.S. citizens that have given up their citizenshp. School attendance laws discriminate against (or you might argue, in favor of) minors. They discriminate based on geography--you can't send your kid to a certain school unless you live in that district. Our laws discriminate based on age as to what public offices you may hold. Our laws discriminate against people who drive with more than a certain amount of alcohol in their blood--even if they haven't hit anyone yet!

The entire basis of law is discrimination based on criteria established legislative bodies and in some cases, by federal and state constitutions. The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.

Now, you certainly regard discrimination based on sexual orientation as wrong. I would certainly agree that in many situations, it is wrong, and with a few exceptions, I don't regard such discrimination as particularly sensible. But equal protection of the law means quite a bit less than you think.

I pointed out that the evidence is quite clear that the primary focus of the 14th Amendment, as demonstrated by statements from both proponents and opponents, was protecting the rights of blacks, and secondarily, the rights of Unionist whites who either already lived in the South, or had moved there after the Civil War. (Amusingly enough, I have seen liberals defend the racism of affirmative action on the grounds that the 14th Amendment was intended to protect blacks--not whites. There's some merit to such an historical analysis, as offensive as the results might turn out to be.)

So, one of the liberals commenting over there decided to show his superiority over me by asking if the 14th Amendment prohibited discrimination based on gender. The answer is very clearly, "No." If it had, there would have been no need for the later amendment to the Constitution granting women the right to vote, and all this discussion of an Equal Rights Amendment a couple of decades back would have been completely pointless.

It is not that no one thought of this argument. There was a challenge in 1872 to Missouri's law limiting the vote to men that ended up before the Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874). This was specifically raised on the "privileges and immunities" clause of the 14th Amendment, so it isn't strictly an equal protection argument, but the Court's position on this is essentially an original intent argument based on the fact that Congress passed the 15th Amendment to guarantee the right of male citizens to vote--something that suggests that the right to vote was not one of the "privileges and immunities" that the 14th Amendment protected. A similar argument, and a similar response, shows up in Bradwell v. Illinois, 83 U.S. 130 (1872), where a woman challenged an Illinois law that only licensed men to be lawyers.

As late as Goesaert v. Cleary, 335 U.S. 464 (1948), the Supreme Court upheld a Michigan law that prohibited woman from being licensed as bartenders unless they were the wife or daughter of the owner, and decided that this was no violation of equal protection:

The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations 'which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147 , 882, 130 A.L.R. 1321.

In short, as long as the statute's distinctions between different women in different situations had some connection to a perceived public need, there was no violation of equal protection--and certainly, the mere fact that the law discriminated against women as a sex was not an equal protection violation.

Do Breathe Right Strips Make That Much of a Difference?

I completely forgot to put one on last night before I crawled into bed. I slept poorly, and when I awoke from one dream, it was a dream of being suffocated in a pillow. My sinuses are congested, and I am far less energetic than usual.

Until Everyone is Free to Marry!

I saw this announcement last night about how Brad Pitt and Angelina Jolie announced that they aren't going to marry "until everyone is free to marry" and my wife and I both had the same thought: Warren Jeffs, polygamist and "husband" of little girls. Michael Williams beat me to the blog about this--and included some examples that make me want to laugh, such as this interspecies wedding from January:

JERUSALEM - Sharon Tendler met Cindy 15 years ago. She said it was love at first sight. This week she finally took the plunge and proposed. The lucky "guy" plunged right back.

In a modest ceremony at Dolphin Reef in the southern Israeli port of Eilat, Tendler, a 41-year-old British citizen, apparently became the world's first person to "marry" a dolphin. Dressed in a white dress, a veil and pink flowers in her hair, Tendler got down on one knee on the dock and gave Cindy a kiss. And a piece of herring.

You will recall my confusion a while back when I saw that supermodel Heidi Klum was marrying Seal--and I thought the headline referred to the marine mammal.

UPDATE: A reader asks:

Mr. Pitt left his wife for another woman and we're supposed to care about what he thinks about marriage?

Should I Rename This The Breathe Right Strip Blog?

From yet another reader:

First, thanks for the Breathe Right tips. I always though they were a gimmick, tried them for sleeping this past week based on your experience. Darn things work. I've slept better the past two weeks than I have in a long time. And, that has made a difference in my energy levels and allowed me to get in more exercise.

UPDATE: Another reader writes:

Four or five nights now. No congestion. Post-nasal drip all but gone, constant nagging cough likewise.

Thanks.

Gee, if I had a readership as large as Instapundit, I could make a measureable impact on the productivity and health of America!

I neglected to thoroughly scrub my nose last night, and as a result, the Breathe Right strip let go a bit at the edges, reducing the "opening" effect a bit. As a result, I woke up a couple of times in the night, and my sinus congestion was definitely worse this morning.

That's My Job, To Improve The Health of My Readers

I've mentioned my positive experiences with the Breathe Right strips--and some of my readers have profited from it:

Reading your blog prompted me to try these strips for about a week now.

I am definitely getting a deeper sleep.
I feel my appetite has decreased and I seem to feel full faster when I do eat. I'm 5'9", 270 lbs, so this has to help.

But most satisfying is that my dreams have become more peaceful. Normally I have terrible nightmares with incredibly tense scenes and ones of complete fustration, even to the point of being woken unable to breathe. I assume this is because I actually did stop breathing. I still dream a bunch but haven't had the hell scared out of me for about a week now.

I don't know about the snoring - my wife says she so used to it she's blocked me out at night.

I'm sold on these strips!

Another reader had a somewhat different experience as a result--and from reading about my screen-eating grasshoppers:

After reading your blog note on Breathe-Rite strips, I located a couple of strips left over from when I used to use them regularly some years ago and put one on last night. (I had stopped using them because the adhesive was removing too much of my nose skin.) Result: who knows if I had better sleep or not, but I sure had a weird dream. I had a dream that a massive swarm of grasshoppers or locusts had been spotted, and that people were warned to take refuge in their houses. I did so, and somehow developed the idea that I urgently needed to turn off the HVAC system to keep them from entering that way. At that point I woke up.

And:

I know this may come as a surprise, but my purpose for writing is to thank you for your "sinus surgery' article.

I am facing the same kind of surgery, so your play-by-play action was comforting...it at least helped stop the radical path ones mind can take when assuming what it is "really like" with no substantive knowledge.

This may seem like an unlikely metaphor; however, your article was a lot like my first seeing slides of Cairo, Egypt before moving my family there for a two-year graduate school internship in 1989. When I saw those slides, I was enlightened, or at least, forewarned. I believe your article will do the same thing for me; albeit in a much different setting.

I spent Friday through Monday visiting some friends in the Reno area, and photographing antique guns as eye candy for the next book. Unfortunately, I took the small/medium sized Breathe Right strips, which do not work quite as well for me. I'm sure whatever progress I was making on weight loss was completely defeated by a couple too many excellent meals in some of the Reno casinos. (One of the friends we were visiting had made some four digit wins the previous day on the slot machines, and insisted on buying us dinner.)

UPDATE: Another blogger reports on taking my advice:

Clayton tried Breathe Right Nasal Strips. Reading of his success, I tried them and had three of the best nights of sleep, I have had in the several years.

Interesting Benefits of the Breathe Right Strips

I've lost three pounds since Sunday morning. This is consistent with the improved quality of sleep that I have been experiencing. I still have a few weeks before the CPAP titration study, so I can keep seeing if this makes the progress I need. If I can manage three pounds a week between now and the CPAP titration study (a definite optimistic assumption--I know that keeping a linear progression on this is difficult), I will be down twelve pounds--enough progress that in combination with the Breathe Right strips, I should get increasing improvements in sleep quality.

Another benefit is that I have regained a sense of smell. I have had limited abilities to smell anything but the strongest aromas for a long time, because of sinus congestion--and now, all sorts of subtle smells are readily available! It isn't quite like regaining eyesight--smell just isn't that critical of a sense, and at times, it's actually an advantage!

Three Nights of Breathe Right Strips

First of all, there are two sizes of Breathe Right strips: one for small/medium noses, and one for large noses. I originally bought the small/medium size; I have a large nose, although on the small end of the large strip size. At this point, I have used these for three nights, the first of which was with the small/medium size.

There's no question that I am sleeping better with these. I either have not woken up at all during the night, or perhaps once (last night). Ordinarily, I wake up two or three times a night. I usually go right back to sleep, but waking is almost certainly a result of the obstructive sleep apnea, and thus a sign of impaired sleep.

I am definitely feeling more energetic when I am awake. When I first wake up, I do not bounce right out of bed (as I usually do) but since I feel so much better when I am finally up, this is a reasonable trade-off. It may be that I am coming out of deeper sleep using the Breathe Right strips, and thus it takes longer me to get fully awake.

My sinuses are definitely clearing more during the night, which may be a big part of the improvement in sleep quality. The appointment for the CPAP titration study isn't until early September, so I may wait another week or two to cancel that.