The Re­turn Of That ’70s Thing

The Washington Post Sunday - - Outlook -

Lib­er­als, dolled up in love beads and bell-bot­tom trousers, have had an­other bright idea, one as fresh as other 1970s fads. Sens. Ted Kennedy and Bar­bara Boxer and Reps. Carolyn Maloney and Jer­rold Nadler, high-oc­tane lib­er­als all, have asked Congress to im­prove the Con­sti­tu­tion by adding the Women’s Equal­ity Amend­ment, which, like the Equal Rights Amend­ment be­fore it, says: “Equal­ity of rights un­der the law shall not be de­nied or abridged by the United States or by any state on ac­count of sex.”

Al­though it was first in­tro­duced in Congress in 1923, the ERA went nowhere un­til March 22, 1972. Then Congress sent it to the states to be rat­i­fied or re­jected by March 22, 1979, the stan­dard seven years stip­u­lated to en­sure that there is a con­tem­po­ra­ne­ous con­sen­sus for any con­sti­tu­tional change.

Thirty-five years ago, as now, the ar­gu­ment for the amend­ment was a pas­tiche of pe­cu­liar thoughts: It was needed to “put women into the Con­sti­tu­tion” and for the ex­pres­sive func­tion of “rais­ing the na­tion’s con­scious­ness.” March 1972 was a year af­ter the Supreme Court cited the equal pro­tec­tion clause of the 14th Amend­ment when in­val­i­dat­ing a law that in­volved dis­crim­i­na­tion on the ba­sis of sex. And March 1972 was 10 months be­fore the Supreme Court ruled in Roe v. Wade.

The full in­clu­sion of women in Amer­ica’s regime of rights was ac­com­plished in the 20th cen­tury with­out an ERA, a con­sti­tu­tional re­dun­dancy that would have added noth­ing to the guar­an­tees of equal pro­tec­tion of the laws and due process for all “per­sons.” And what ma­ture per­son thinks the Con­sti­tu­tion should be clut­tered with con­scious­ness­rais­ing pieties or af­fir­ma­tions, on the the­ory that, by some mys­te­ri­ous causal­ity, the so­cial cli­mate will be im­proved?

Be­gin­ning March 22, 1972, many state leg­is­la­tors — mostly men — acted cav­a­lierly, in sev­eral senses of that word. Hawaii rat­i­fied the ERA that day, in 32 min­utes. The next day Ne­braska rat­i­fied it, but so hastily that it made mis­takes and had to re­peat the process. Six states rat­i­fied in the first week, 20 within three months, most with­out hear­ings.

But by 1977, the drive had stalled. Thirty-five states had rat­i­fied it, three short — not re­ally; read on — of the re­quired three-fourths. So ERA sup­port­ers, their con­sti­tu­tional care­less­ness ap­par­ent in the ERA it­self, turned to rig­ging the rat­i­fi­ca­tion process.

They asked Congress to ex­tend by three years the time al­lowed for rat­i­fi­ca­tion — al­though the first 10 amend­ments (the Bill of Rights) had re­quired only 27 months and no amend­ment had to that point re­quired even four years. In do­ing so, Congress dis­re­garded the con­sti­tu­tional moral­ity that an amend­ment should suc­ceed only if a pre­de­ter­mined pe­riod of de­lib­er­a­tion pro­duces a con­sen­sus that is (in the Supreme Court’s words) “suf­fi­ciently con­tem­po­ra­ne­ous” to re­flect the will of three-fourths of the states “at rel­a­tively the same pe­riod.”

ERA sup­port­ers in­sisted that any state leg­is­la­ture that re­jected the ERA could re­con­sider that vote, but any rat­i­fi­ca­tion, how­ever slap­dash or stale, is a sacra­men­tal act that can never be re­con­sid­ered. Un­der the Con­sti­tu­tion’s Ar­ti­cle V, prop­erly read, Congress is di­vested of all power over an amend­ment once it is sub­mit­ted to the states. But when Congress ex­tended the rat­i­fi­ca­tion pe­riod, it stip­u­lated that the ERA could hence­forth be con­sid­ered only by states that had not yet rat­i­fied it. This was be­cause three state leg­is­la­tures had re­scinded their rat­i­fi­ca­tions, as Ken­tucky and South Dakota would later do. So the amend­ment ac­tu­ally fell eight, not three, states short.

Most de­bates about pro­posed amend­ments con­cern whether the amend­ments are nec­es­sary or would be ben­e­fi­cial. De­bate about the ERA has al­ways con­cerned what it might mean. For ex­am­ple, would it for­bid treat­ing the sexes dif­fer­ently in pen­sion and in­sur­ance plans be­cause of ac­tu­ar­ial data about sex-re­lated dif­fer­ences in health prob­lems and life ex­pectancy? Pre­sum­ably, judges would, over time, tell the na­tion what it had rat­i­fied.

All amend­ments gen­er­ate lit­i­ga­tion, but the ERA’s pur­pose is to gen­er­ate lit­i­ga­tion. It is a de­vice to get courts to im­pose so­cial poli­cies that sup­port­ers of the poli­cies can­not per­suade leg­is­la­tures to en­act. ERA — now WEA — sup­port­ers, be­ing po­lit­i­cally lazy, pre­fer the short­cut of lit­i­ga­tion to the pa­tient pol­i­tics nec­es­sary to pass leg­is­la­tion.

If Kennedy and like-minded leg­is­la­tors think that the con­di­tion of Amer­i­can women needs im­prove­ments, they should try to leg­is­late them. In­stead, they pre­fer to hope that lib­eral judges will re­gard the ERA’s lan­guage as a li­cense to leg­is­late. But, then, sup­port for the amend­ment tes­ti­fies to the sup­port­ers’ lack of con­fi­dence in their abil­ity to per­suade peo­ple to sup­port such poli­cies.

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