Newspapers write obituaries in advance of the deaths of important people, an exercise described as emotion anticipated in tranquillity. Herewith, an obituary of the Equal Rights Amendment, which dies June 30, when the ratification deadline--the second one--arrives.
ERA supporters say they came close to winning. They did not: they have not won a single state's ratification for more than five years. And by the only reasonable standard, they fell eight states short.
The first 10 amendments were ratified in 27 months. The average for the rest has been 19 months. The most recent (lowering the voting age) took less than four months. No amendment has taken even four years to ratify. ERA dies in its 123rd month, 65 months since the last state voted to ratify it.
Most (20) of the 35 states that ratified ERA did so in the first three months after it was submitted in March 1972. Most of the 20 acted without hearings. In the next 120 months, only 15 states ratified it, and five voted to rescind ratification.
The three-year extension of the deadline was anti-constitutional, disregarding the principle that amendments should enjoy a "contemporaneous" consensus of three-quarters of the states. But, then, ERA was anti-constitutional. It was designed as an end run around democratic procedures, as an instrument for supplanting legislation by litigation, removing sensitive social decisions from representative institutions and handing them to judges.
ERA advocates constantly cited the "fact" that (in the words of Eleanor Smeal, leader of the National Organization for Women) "there are over 800 federal statutes that discriminate against women. . . ." When inflamed, Smeal would claim that "there are some 1,100 statutes at the federal level that discriminate. . . ." The 300-statute discrepancy doesn't matter because the 800 figure is itself deceptive.
It evidently refers to a Civil Rights Commission assertion that 800 sections of the legal code contain "either substantive sex-based differentials or terminology inconsistent with a national commitment to equal rights." For example--steel yourself for the scary sight of injustice--the word "longshoremen" is used instead of "stevedores." For that, we would amend the Constitution?
Some "sex-based differentials" are unwise, but it is silly to say, as ERA advocates do, that the way to change them is by investing millions of dollars and hours in a 10-year campaign to amend the Constitution. The silliest argument was the central one, that ERA was needed "to put women in the Constitution"--as though the Bill of Rights, and the due process and equal protection guarantees for "any person" do not extend to women.
I suspect such arguments were often made disingenuously by people who found the ERA campaign fun, and a useful fund-raiser. One of the last fund-raising ploys was a television pitch in which numerous TV stars simply commanded: "Support ERA!" What was more distasteful, the low level of the appeal, or the fact that the money it raised was for a cause that the sponsors knew was dead?
Perhaps ERA will be resubmitted, draining energies from larger causes. But we shall never know whether ERA would have been just a constitutional nullity ("raising consciousnesses" but adding nothing substantive to the document) or also a ticking bomb which some federal judges would have seized to justify doing God-knows- what.
What is clear is that the accelerating emancipation of women is the most important and beneficial social development of the postwar period. It is a blessing in terms of equity for individuals, whose lives have been enriched by careers opened to their talents. And it is a blessing for society, which can hardly afford to suffocate the talents of half--the most talented half, I suspect --of its members. But the ERA sideshow has been irrelevant to all this.
The story of the Child Labor Amendment underscores the irrelevancy of ERA. CLA was submitted to the states--without a ratification deadline--in 1924. It said: "The Congress shall have power to limit, regulate, and prohibit the labor of persons under 18 years of age." Twenty-eight states have ratified it, and no ratification deadline has passed.
A Texas legislator used to enliven ERA debates by reading hair-curling passages from Upton Sinclair and Jane Addams about freckle-faced moppets being mangled in looms, and then he would demand of ERA supporters: how can you work so hard for ERA's undefinable benefits for adult women when you should be urging eight states to ratify CLA, thereby ending the scandal of child labor?
Of course, child labor was dealt with long ago by statutes. And with that thought, my prosecution of ERA, like ERA, ends.