Congress should let ERA languish

Today’s Democrats should allow the Equal Rights Amendment to languish for another 50 years.

When President Theodore Roosevelt asked Attorney General Philander Knox to concoct a retroactive justification of the U.S. seizure of land for the Panama Canal, Knox reportedly replied, “Oh, Mr. President, do not let so great an achievement suffer from any taint of legality.” Today’s Democrats, having channeled Knox when extending the eviction moratorium, can avoid further diminishing their stature by allowing the Equal Rights Amendment to languish for another 50 years.

In March 1972, Congress sent the ERA (“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex”) for ratification by 38 states within seven years. This was an act of gallantry by a chivalrous and nearly unanimous Congress whose 535 members included 15 women. (Unassisted by the ERA’s supposed barrier-breaking and consciousness-raising potency, there are today 143 women in Congress, although ERA advocates say women will not be “in the Constitution” until the ERA is.) Congress was too cavalier, in several senses, to explain what this would add to the 14th Amendment’s guarantee to “any person” of “equal protection of the laws.”

Hawaii, matching Congress’ frivolity, ratified the ERA 32 minutes after it flew through the Senate. Nebraska, stampeding to be second, did ratification wrong and took a mulligan. Most of the 20 states that ratified it in the first three months held no hearings. In January 1977, Indiana became the 35th state to ratify. Twenty-six of the 35 explicitly referred to the seven-year deadline in their ratification resolutions.

When the seven years expired, with the ERA still three states shy of ratification, those who were supposedly passionate about equal treatment of women sought and received special treatment: Although the Constitution requires a two-thirds majority for amendments, a simple congressional majority was used to extend the original deadline for 39 months. Compounding the lawlessness, Congress said the extra time for consideration of the ERA was available only for states that had not ratified it. This was to block state legislatures from joining the four that, having had second — or perhaps first — thoughts, had rescinded their ratifications. Nevertheless, the ERA died, redundantly, after 123 months. In the 65 months since Indiana’s became the 35th ratification, no other state had ratified and five of the 35 rescinded their ratifications.

Today, ERA advocates say (a) the clock can never expire on ratification (the House voted in March to remove the deadline) and (b) no ratification can be rescinded. The only federal court that has ruled on the 39-month extension of the original sevenyear deadline ruled it unconstitutional and said all rescissions are valid.

In 2020, Justice Ruth Bader Ginsburg, citing controversies about the three states that ratified the ERA decades after even the second deadline, said, “I’d like it to start over.” She added: “If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?”

Nevada (2017), Illinois (2018) and Virginia (2020) became the 36th, 37th and 38th, respectively, to ratify. In doing so, they ignored this constitutional ethic: A limited period of deliberation about an amendment guarantees (in the Supreme Court’s words) a “sufficiently contemporaneous” consensus of three-quarters of the states.

Disregard the most “recent” amendment, the 27th (concerning congressional pay), which was passed by Congress without a ratification deadline in 1789, when there were 13 states, and was ratified by a 38th in 1992, when the public was inflamed about congressional pay raises. Aside from the 27th, the first 10 amendments (the Bill of Rights) were ratified in 27 months, the 26th (lowering the voting age to 18) took less than four months, and the average time for the 16 amendments since the first 10 has been less than 18 months.

ERA advocates argue that Congress has, and courts enforce, such a cramped notion of congressional power that the ERA is necessary to protect women. Actually, what the advocates want, aside from applause, is to disempower Congress. They hope to clutter the Constitution with vague language that courts will use to impose unspecified social policies (concerning “equal pay,” abortion and other matters) that Congress will not pass.

A Venn diagram probably would show an almost complete overlap of today’s victoryat-any-price ERA advocates and the most vociferous progressive critics of the previous president’s disdain for constitutional norms.