The Equal Rights Amendment lingers on, its pulse faint but its supporters determined. Their slender hopes arise from recent disrespect for the amending process.
First introduced in Congress in 1923, the ERA 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." In 1971, the year before Title IX prohibited sexual discrimination in education, the Supreme Court for the first time cited the Equal Protection clause of the 14th Amendment to invalidate a law on the ground that it involved discrimination on the basis of sex. In spite of this evidence that the ERA might be a legal redundancy (ERA supporters said it was needed to "put women into the Constitution"), in 1972 it sailed through the House (354 to 24) and the Senate (84 to 8), and on March 22 it went to the states to be ratified or rejected by March 22, 1979.
Hawaii ratified it the day it left Congress. The next day Nebraska ratified it -- improperly, and had to do it again six days later. Six states ratified in the first week. In three months, 20 states ratified it, cavalierly, in several senses. Most did not even hold hearings.
After four years and 10 months (in January 1977) Indiana ratified. No state has ratified since. By the end of the seven years, 35 states had ratified -- three short of the necessary three-fourths. But five of them, including fickle Nebraska, had experienced second -- or perhaps first -- thoughts, and rescinded their ratifications.
Since 1917, when Congress proposed the 18th Amendment (Prohibition), Congress has stipulated a seven-year period for deliberation about every proposed amendment. This has been to ensure that ratification reflects a "contemporaneous" consensus of three-fourths of the states. But in 1979 those demanding the ERA in the name of equality for women demanded special treatment for the women's amendment.
Congress chivalrously (feminists lack a lively sense of irony) complied, tacking more than three years onto the ratification process. And Congress further stacked the deck in favor of the ERA: To prevent further rescissions of ratifications, Congress said the ERA could henceforth be considered only by states that had not yet ratified it.
The Constitution's first 10 amendments were ratified in 27 months. In 1971 the 26th Amendment (lowering the voting age to 18) took less than four months. The average time for all amendments since the first 10 -- with the exception of the most recent amendment -- has been less than 18 months. With the same exception, no amendment has taken even four years.
That exception is the 27th Amendment: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Passed by Congress in 1789, when there were 13 states, it was ratified by a 38th state in 1992, when Congress was eager to assuage public impatience with congressional pay raises. Besides, Congress had not stipulated any ratification deadline 203 years earlier.
Still, citing the 27th Amendment as precedent, ERA's supporters are pursuing a "three state strategy" to complete ratification. Rep. Robert Andrews (D-N.J.) proposes a resolution requiring the House to "verify the ratification" of the ERA when "an additional three states" ratify it.
However, even if considerations of "contemporaneousness" are ignored, ERA supporters need an eight-state strategy because of the five rescissions. But ERA supporters argue this:
Any ratification, however stale or slapdash, is immortal because ratification is a semi-sacramental act that can never be reconsidered -- rescinding a ratification is impossible. Never mind that there is no constitutional text that limits a state legislature's right to reconsider ratification as long as a proposed amendment is a live controversy -- is merely a proposal. On the other hand, reconsideration of a rejection of ratification can happen repeatedly.
In the Constitution, the ERA would either be a redundancy or a license for judicial legislating, yielding whatever meaning a result-oriented judge decided to discover in it. Actually, even as such a license it would be a redundancy, given the abuses to which the Equal Protection clause is susceptible.
More than 27 years after Congress passed the ERA, nearly 23 years after the last state ratified it, more than 20 years after Congress's original ratification deadline passed, more than 17 years after the extended deadline passed, ERA supporters propose not just rewriting the rules of ratification but essentially abolishing all rules. The cynical uses ERA supporters would try to make of it can be inferred from their willingness to make a mockery of the ratification process.
ERA supporters say it has become a "symbol" of progressivism. That is exactly right.