In 1972, a year of disco, hip-hugging bell-bottoms, 36-cents-a-gallon gas and Joe Biden’s first Senate election, Congress sent the Equal Rights Amendment to the states for ratification. This required the assent of three-quarters of them (38) within seven years.
A ratification deadline, which has been an organic part of every amendment submitted to the states for a century, is intended to ensure what the Supreme Court calls a “sufficiently contemporaneous” consensus for constitutional change.
Although the ERA (“Equality of rights under the law shall not be denied or abridged ... on account of sex”) has long been dead as a doornail, it is a useful cadaver.
Progressives toiling to resurrect it are expending energy they might otherwise devote to achievable mischief. And they are reminding the nation how aggressively they will traduce constitutional, rule-of-law and democratic norms to achieve their goals, however frivolous.
The ERA rocketed toward ratification: Seven states approved it the first week, 19 within three months, mostly without hearings because it was rightly regarded as a constitutional nullity, a “consciousness-raising” gesture: What would it add to the 14th Amendment’s guarantee of “equal protection of the laws” for all “persons”?
But by 1975, the momentum to clutter the Constitution with pointless verbiage stalled. So, the amendment’s supporters began their now 47-year, ever-more-sophistical campaign to rig the ratification process.
Although decades later they would assert – without evidence, of which there is none from the Constitution’s text or history – that ratification deadlines are unconstitutional, they got Congress to extend the deadline.
Congress, whose members are sworn to “support and defend” the Constitution, extended it 39 months – by a simple majority vote.
This, even though the deadline was a component of the amendment, which had to pass both houses of Congress with two-thirds majorities. And even though 30 of the 35 states that had ratified it by January 1977 had referred to the seven-year deadline in their ratification resolutions.
Congress, supinely pandering, extended the deadline – but only for states that had not already ratified it. This was to block additional recissions: Four states, having had second (or perhaps first) thoughts, had canceled their ratifications.
The 39-month extension expired in 1982, 123 months after the ERA left Congress, having gone longer (65 months) without an additional state’s ratification than it took to get the original 35 (which by then had shrunk to 30).
Since then, the ERA’s advocates of equality for women have insisted on ever-more-elaborate special treatment for the amendment. They have said the clock can never expire on ratification, and no ratification can be rescinded. Baldly declaring the five recissions impermissible, and that all deadlines are illegitimate, between 2017 and 2020 they got three more states to ratify the ERA. So, they said, the 38-state threshold had been reached, and they demanded that the National Archivist declare the Constitution amended. This he declined to do.
The ERA-as-Lazarus project has had unpleasant experiences in the courts, where law is taken seriously. In 2021, a federal district judge (an Obama appointee) held that the seven-year deadline set by Congress half a century ago was valid, so the three states’ make-believe ratifications, 2017-2020, were without legal effect. This brings to 26 the number of federal judges (14 Republican and 12 Democratic appointees) whose message to the ERA resurrectionists has been essentially: You’re kidding, right?
With a tenacity inversely proportional to their credibility, the ERA’s bitter-enders, who of course subscribe to progressivism’s theory of unlimited presidential power, insist that the ERA is “one signature away” – the archivist’s – from becoming the 28th Amendment. They want President Biden to order the archivist to ignore all the legal folderol and paste the ERA into the Constitution.
The archivist who spurned the resurrectionists’ demand has retired, but his likely successor seems equally sensible.
At Senate confirmation hearings for Colleen Shogan in September, she was asked by Sen. Rob Portman, R-Ohio: “If confirmed, would you continue to abide by the January 2020 [Justice Department’s Office of Legal Counsel] opinion, as your predecessor did?” She said yes, and that a court order would be the only circumstance under which she would certify that the ERA has been ratified. If she means this, the amendment’s fate was settled long ago.
If any of the resurrectionists were just 21 in 1972 when Congress sent the ERA to the states, they are now 71. Their hip-hugging bell-bottoms are dimly remembered embarrassments, like the ERA.