If You Liked It Then You Shoulda Put a Ratification On It
Will We Deepsix Principled Process to Pass the ERA in the Era of Trump?
If there’s a hypothesis to glean from the Trump impeachment, it’s that our elected officials and their zealot followers no longer care if a process is fair, logical, or applied conscientiously, as long as it delivers what they want politically. The Equal Rights Amendment is our most recent test case.
Let’s start with the background.
Back in 1972, our U.S. Congress passed the ERA by the 2/3 majorities needed in each chamber and kicked it to the states for ratification. The ERA, in its entirety, says this:
Sec 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Sec. 3. This amendment shall take effect two years after the date of ratification.
Article 5 of the U.S. Constitution provides that legislatures from three-fourths of the states (38 total) have to ratify an amendment before it’s adopted. However, the Original Dads forgot to say how long states get to ratify. As a result, when Congress passed the ERA, it added an arbitrary seven-year deadline.
Historically speaking, that was plenty of time. In 1972, no successful amendment had taken more than four years to ratify, and almost every amendment that took at least two passed at a time when documents arrived by horse.
The 26th Amendment, which established voting at age 18 in 1971 — took only 100 days, which is not surprising. It’s not hard to schedule a vote if a legislature is in session.
Hawaii ratified the ERA the same day Congress passed it, eight more states ratified in the first week, and another seven came on before a month had expired, making the total 21. Within a year, thirty states had ratified. Five more states came on by 1977, when things stalled out, prompting Congress to extend the homework due date until 1982.
It was not until 2017, 2018, and January of 2020, respectively, when Nevada, Illinois, and Virginia helped us hit 38 states. Woo hoo! Pop the champagne, right?!? Wrong. The National Archives and Records Administration said this week it would “take no action to certify the adoption of the Equal Rights Amendment.”
In response, the Democratic attorneys general for Nevada, Illinois, and Virginia filed a lawsuit to force the archivist to “make it so” because they say Congress doesn’t have the authority to set a time limit.
This lawsuit is not surprising. What Democrat with higher office aspirations wouldn’t want a gender-gap exploiting TV ad saying “(insert name here) made the ERA happen!”? But wanting something bad enough or even knowing it’s worthy should not trump (no pun intended) bedrock democratic notions.
And, yes, the ERA is worthy. Though most states and the federal government have already animated the ERA’s express language, it makes a powerful symbolic statement worth making.
But if we believe the will of the people should matter, how can we not be conflicted?
You can only favor an unlimited time for adoption if you presuppose that a state legislature that ratifies will maintain its positive outlook into perpetuity, and we know this isn’t true.
Phyllis Schlafly, a conservative traditionalist, convinced stay-at-home moms by the truckload that the ERA would mean women in the draft, a loss of child support, and erosion of the court presumption in favor of women as the primary custodial parent following divorce. Schlafly so successfully stoked these fears that five state legislatures (Idaho, Kentucky, Nebraska, Tennesse, and South Dakota) voted to rescind their prior ratifications, which technically means only 33 states have now ratified the ERA.
I say “technically” because, just as there is no constitutional provision that says whether congress can set a time limit, there isn’t one dealing with recission (prompting ERA proponents to yell, “No do-overs!” at those five states).
“We the people” are going to be left to decide how we move forward because the Supreme Court generally refuses to answer “political questions,” and how could a question like the one raised in this lawsuit be ANY more political?
Even as a pro-ERA, pro-choice, pro-LGBTQ Democrat, I struggle to co-sign ERA adoption now. (I mention pro-choice and LGBTQ because conservatives have now turned the ERA into an abortion/gay rights platform, contending that “equality” and “gender” are loaded terms that the Godless liberals will use to get activist judges to force you to let trans men sit on your lap in public restrooms or take your ATM card to cover abortions for grade school girls, or some equally hyperbolic nonsense).
But with 29 state legislatures controlled by Republicans, is it a struggle to think that, with this new gloss, at least SOME of the ratifying states might think differently now? What lets us subjugate current voices to those of the past (and vice versa)? Yet this is what an open clock does.
Ironically, the best model for how we should move forward with future amendments comes from the one with the most storied path. Prepare to have your mind blown.
When our Founding Fathers sent their early amendment proposals, including the Bill of Rights, to the states in 1789, one said this:
“No law, varying the compensation for the services of the Senators and Representatives, shall take effect until an election of Representatives shall have intervened.”
This proposal fell out of public minds until a college student irked about getting a “C” on a paper he wrote on the proposal about this proposed started writing state legislatures, leading to its revival in 1982 and ratification as the 27th Amendment in 1992, over TWO HUNDRED YEARS after its introduction.
An ERA proponent might go, “Well, there you go! There’s your precedent for the ERA having a never-ending clock. The archivist signed that one!” But these proposals are as different as night and day. There is zero doubt that you could get 50 states to ratify the 27th Amendment today. You just can’t say that about the ERA. Also, Congress didn’t give that one a shot clock.
As if this weren’t complicated enough, what to make of the fact New Hampshire voted no in 1790 only to change its mind in 1985 on the 27th Amendment, and North Carolin and Kentucky reaffirming their yes votes from the 1700s in the 1980s. (Curious that they would do this if they thought their old votes were still good).
This is all to say we clearly need a principled approach going forward, and we can’t lose the wisdom in the 27th Amendment; it is such a genius way to ferret out the “will of the people.” Legislators could give themselves a raise, but before they could take the money, they had to stand for election. We should employ the same principle for all amendments and give each state one — and only one — election cycle to rescind or ratify after an election.
Or we can accept whatever method gets us there. It wouldn’t be the first time.