Politics & Policy

The Equal Rights Un-Amendment

Activists calling for Virginia’s adoption of the Equal Rights Amendment gather outside the Virginia State Capitol building in Richmond, January 8, 2020. (Jonathan Drake/Reuters)

Three states have gone to court to get an amendment added to the Constitution. House Democrats plan a vote in support of this scheme. What the Left is attempting to do here is to subvert Article V of the Constitution — the part that spells out the proper way to amend the Constitution — in order to make it easier for liberal judges to impose their policy preferences on the nation.

The purpose of the Equal Rights Amendment is to put seemingly innocuous language into the Constitution — declaring men and women equal before the law — that could then be used to force policy changes that the democratic process will not yield. The Democrats on the House Judiciary Committee have issued a report that speaks favorably of using the amendment to secure paid family leave, prohibitions on discrimination on the basis of sexual orientation, and the end of policies that have a disparate impact on women. (Physical standards for firefighters could be held unconstitutional, for example.) Using the amendment to shore up the alleged right to abortion also gets a positive mention, naturally. If these policies should be adopted at all, legislatures should do it openly and deliberately rather than sneaking them through.

When Congress originally submitted the ERA to the states for ratification in 1972, it gave it a March 1979 deadline. Deadlines have been a common feature of amendments, one the Supreme Court unanimously declared permissible in 1921. The ERA didn’t get enough states to ratify it before that deadline. Congress then, by a simple majority, purported to extend the deadline for three years — an act declared unconstitutional by the only court to review it. (It takes a two-thirds supermajority, the kind the ERA got in 1972, to submit an amendment for ratification.) The ERA didn’t get ratified by the new, dubious deadline, either. At that point, in 1982, everyone — including the Supreme Court — acknowledged that the amendment was dead.

In recent years, however, three states have claimed to ratify it. Their legal claim is that the amendment was validly submitted to the states, but the deadline is invalid. The states that rescinded their ratifications, the argument maintains, also acted invalidly. House Democrats are moving legislation to invalidate the deadline retroactively. They claim Congress can take this action free from both the two-thirds supermajority requirement for an amendment and the presidential-signature requirement for ordinary legislation.

None of these maneuvers is consistent with the rule of law. Even Ruth Bader Ginsburg has conceded that any effort to ratify the Equal Rights Amendment would have to involve starting over: getting a new supermajority of Congress and new state ratifications. Legislators and the court should not participate in this charade. The judicial system could start by quashing the states’ lawsuit.

The Editors comprise the senior editorial staff of the National Review magazine and website.

Most Popular

Elections

The Media’s Bernie Sanders Makeover Begins

Just you watch: By the time Election Day rolls around in November, liberal columnists will be telling us that Bernie Sanders is the “real conservative” in the presidential race. Many among the center–left commentariat are struggling to come to terms with the likelihood that the Democratic Party will ... Read More
Elections

The Media’s Bernie Sanders Makeover Begins

Just you watch: By the time Election Day rolls around in November, liberal columnists will be telling us that Bernie Sanders is the “real conservative” in the presidential race. Many among the center–left commentariat are struggling to come to terms with the likelihood that the Democratic Party will ... Read More
Elections

There’s Zero Chance Bloomberg Would Pick Hillary

There’s no better evidence that Mike Bloomberg’s chances of getting the Democratic nomination are on the rise than the fact that the opportunistic Hillary Clinton is already trying to grab a piece of the action. The Drudge Report startled the political world on Saturday by noting that “sources close to ... Read More
Elections

There’s Zero Chance Bloomberg Would Pick Hillary

There’s no better evidence that Mike Bloomberg’s chances of getting the Democratic nomination are on the rise than the fact that the opportunistic Hillary Clinton is already trying to grab a piece of the action. The Drudge Report startled the political world on Saturday by noting that “sources close to ... Read More

Socialism . . . But?

For once, conservatives were ahead of the curve. American conservatism functioned as a political mass movement in the postwar era not because of the rhetorical gifts of its chief expositors (William F. Buckley Jr. et al.) nor because of the intellectual prowess of its best and most creative minds (ask George ... Read More

Socialism . . . But?

For once, conservatives were ahead of the curve. American conservatism functioned as a political mass movement in the postwar era not because of the rhetorical gifts of its chief expositors (William F. Buckley Jr. et al.) nor because of the intellectual prowess of its best and most creative minds (ask George ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More
Law & the Courts

The Roger Stone Double Standard

Whether Roger Stone, the loopy, self-aggrandizing political operative, deserves nine years in Supermax for obstructing an investigation into Russia–Donald Trump “collusion” is debatable. Whether the powerful men who helped create the investigation that ensnared Stone have been allowed to lie with impunity ... Read More
NR Webathon

This Is Not a Drill

We may be months away from the most radical major-party nominee in American history. Bernie Sanders doesn’t belong on the Burlington City Council, let alone on the cusp of the American presidency, but that’s where the Democratic nomination would bring him. NR has jousted with socialists over the years ... Read More
NR Webathon

This Is Not a Drill

We may be months away from the most radical major-party nominee in American history. Bernie Sanders doesn’t belong on the Burlington City Council, let alone on the cusp of the American presidency, but that’s where the Democratic nomination would bring him. NR has jousted with socialists over the years ... Read More