ERA has ended in tragedy

The Record (Troy, NY) - - FRONT PAGE - Ge­orge Will’s email address is georgewill@wash­post.com.

Karl Marx was no more mis­taken than usual when he said that his­toric peo­ple and events appear twice, first as tragedy, then as farce. To­day’s ad­vo­cates of a musty frag­ment of the 1970s, the Equal Rights Amend­ment, are demon­strat­ing that some­thing that be­gins as farce can reap­pear as tragedy, be­cause abuse of the Con­sti­tu­tion is tragic.

With Illi­nois slouch­ing to­ward bankruptcy, its Leg­is­la­ture must have bet­ter things to do, yet it re­cently rat­i­fied the ERA. But can a leg­isla­tive ca­daver be rat­i­fied?

On March 22, 1972, a stam­ped­ing Congress sent to the states for rat­i­fi­ca­tion this con­sti­tu­tional amend­ment: “Equal­ity of rights un­der the law shall not be de­nied or abridged ... on ac­count of sex.” With­out se­ri­ously con­sid­er­ing what this would add to the 14th Amend­ment’s guar- an­tee to “any per­son” of “equal pro­tec­tion of the laws,” the House and Sen­ate passed it 354-24 and 84-8, re­spec­tively. The irony of a gal­lant Congress be­hav­ing cav­a­lierly in sev­eral senses was surely lost on ERA sup­port­ers.

Leg­is­la­tors sworn to “sup­port and de­fend” the Con­sti­tu­tion voted to clut­ter it with lan­guage the mean­ing of which they did not -- could not -- know. The mean­ing was ir­rel­e­vant to the main pur­pose, which was to grand­stand with an amend­ment the first, and for many ad­vo­cates the suf­fi­cient, func­tion of which was “con­scious­ness-rais­ing” -- to “put women in the Con­sti­tu­tion.” An­other pur­pose was to arm lib­eral judges with lan­guage into which they could pour what­ever con­tent they wanted. So, the ERA would ei­ther be a con­sti­tu­tional nul­lity or li­cense for un­con­strained ju­di­cial improvising.

Be­cause the Con­sti­tu­tion’s framers be­lieved that the most im­por­tant de­ci­sions should not be taken on slen­der ma­jori­ties, and that fre­quent amend­ments would im­pair the Con­sti­tu­tion’s majesty, they re­quired amend­ments to pass both houses of Congress with two-thirds ma­jori­ties and re­ceive rat­i­fi­ca­tion by three-quar­ters of the states. Since then, con­sti­tu­tional moral­ity has evolved the prin­ci­ple that rat­i­fi­ca­tion should oc­cur dur­ing a pre­de­ter­mined pe­riod of de­lib­er­a­tion, re­flect­ing (in the Supreme Court’s words) a “suf­fi­ciently con­tem­po­ra­ne­ous” con­sen­sus of at least (nowa­days) 38 states “at rel­a­tively the same pe­riod.”

So, Congress, as has been cus­tom­ary since the 18th Amend­ment (Pro­hi­bi­tion, 1919), re­quired ERA rat­i­fi­ca­tion within seven years, which was gen­er­ous: The first 10 amend­ments (aka the Bill of Rights) were rat­i­fied in 27 months. Leav­ing aside the 27th Amend­ment per­tain­ing to con­gres­sional salary in­creases (dor­mant for 203 years, re­sus­ci­tated in the anti-Congress fever of 1992), the av­er­age time for rat­i­fy­ing amend­ments since the first 10 has been 16 months, and no amend­ment has taken even four years. The 26th Amend­ment (low­er­ing the vot­ing age to 18) took less than four months.

Hawaii rat­i­fied the ERA the day Congress passed it. Ne­braska, rush­ing to be sec­ond, did it wrong and had to do it again. Twenty states rat­i­fied it in three months, most with­out hear­ings. In Jan­uary 1977, four years and 10 months into the process, In­di­ana be­came the 35th and last state to rat­ify it. Twen­tysix of the 35 ex­plic­itly re­ferred to the seven-year dead­line in their res­o­lu­tions of rat­i­fi­ca­tion. When the seven years expired, those sup­pos­edly seek­ing equal treat­ment for women sought and re­ceived spe­cial treat­ment. By a sim­ple ma­jor­ity, not the two-thirds re­quired for con­sti­tu­tional amend­ments, a supine Congress ex­tended the dead­line for 39 months -- but only for states that had not rat­i­fied it, in or­der to pre­vent new rescis­sions. It died in 1982, in its 123rd month, hav­ing gone longer (65 months) with­out a sin­gle ad­di­tional state’s rat­i­fi­ca­tion than it took to get all of its orig­i­nal 35. By which time five of the 35 (in- clud­ing, de­li­ciously, Ne­braska) had re­scinded their rat­i­fi­ca­tions.

The only fed­eral court to rule on the four-year ex­ten­sion held it un­con­sti­tu­tional, and said all rescis­sions were valid. Now, how­ever, ERA ad­vo­cates ar­gue that the clock can never ex­pire on rat­i­fi­ca­tion -- states can vote over and over (as Illi­nois has done) un­til they rat­ify it, and no rat­i­fi­ca­tion can be re­scinded. In 2017, Nevada rat­i­fied the ca­daver, so ERA pro­po­nents in­sist they are just one state away from vic­tory. But, in­con­ve­niently, ERA sup­port­ers in Congress have re­peat­edly rein­tro­duced it (most re­cently in Jan­uary 2017), thereby con­ced­ing that the process must be­gin again.

Which is far­ci­cal. In 1972, there were 13 women in the House and two in the Sen­ate. To­day there are 90 in the House and 23 in the Sen­ate, re­flect­ing 46 years of le­gal and so­cial changes that a prompt rat­i­fi­ca­tion of the ERA would not have has­tened and that con­sign­ment of the ERA to the at­tic of 1970s nos­tal­gia -- hip-hug­ging bell-bot­toms, etc. -- will not im­pede.

Ge­orge Will Colum­nist

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