Not many people have had a kind word for Prohibition on its hundredth anniversary, but let us pause to note that its proponents and opponents alike displayed a constitutional scrupulosity that has rarely been seen since in our country. The Prohibitionists conceded that a constitutional amendment was necessary to enable the federal government to ban alcohol, rather than trying to retrofit an existing provision of the Constitution for their purpose. Sean Beienburg, author of Prohibition, the Constitution, and States’ Rights, tells the stories of many politicians who opposed the 18th Amendment but nonetheless felt obligated by its existence to support its execution—and sometimes took real political risks to provide that support.
The campaign for an Equal Rights Amendment has been less marked by constitutional fidelity. It began abusing the constitutional process for amendments in the 1970s, and that abuse continues to this day.
Article V of the Constitution lays out that process. Congress can propose an amendment by a two-thirds vote of each house. In 1972, it did so for the ERA. Its key provision read, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The resolution proposing the amendment said that if three-quarters of states’ legislatures ratified it within seven years, it would become law. The same time limit had been included in the text of the 18th Amendment and had been upheld as constitutionally proper by a unanimous Supreme Court in 1921. The resolutions proposing several other amendments also included time limits.
By the end of 1972, 22 states had ratified the ERA. Another eleven ratified it by mid February 1974. The amendment was only five states short of the necessary 38. But opposition, led by social-conservative activist Phyllis Schlafly, was growing. She warned that the amendment’s seemingly innocuous words would be used to impose unpopular policies: Bathrooms would have to be unisex, abortion subsidized, and young women eligible for any military draft.
Only 35 states had ratified the ERA by the 1979 deadline, and four of them had rescinded their ratifications. Depending on whether those retractions count, the amendment was either three or seven states short. As the deadline approached, Congress in 1978 voted to extend it by three years. But this extension passed Congress by a simple majority, not the two-thirds supermajority that the original proposal had garnered and that the Constitution requires for Congress to send an amendment to the states. In part because the constitutionality of the extension resolution was in question, President Jimmy Carter signed it—even though presidents have no formal role in constitutional amendments under Article V, and the Supreme Court had underlined the point as far back as 1798.
South Dakota, just to complicate matters further, passed a resolution after the extension but before the original deadline. It said that the state’s earlier ratification should be considered null if the amendment didn’t get 38 states on the original timeline.
A federal court ruled that the extension was unconstitutional, but it didn’t matter anyway: The amendment didn’t get any more ratifications during the three-year period. When the extension expired in 1982, everyone accepted that the amendment was dead. The Supreme Court therefore declared the court’s ruling moot. Feminists would make periodic attempts in the following decades to begin the process anew in Congress.
In recent years, though, advocates of the ERA have reached the liberating conclusion that they do not need to start over. They can bank all the previous ratifications, ignore the states that rescinded their ratifications, and get three additional states to put the ERA over the top. Over the last three years, Nevada, Illinois, and Virginia purported to provide those last three ratifications. In mid February, a simple majority of the House passed a bill purporting to remove the deadline. The qualifiers are there because the legitimacy of these acts is so dubious.
There are now, inevitably, dueling lawsuits over the issue. The three states that just tried to ratify the ERA are in court demanding that the National Archives recognize that the amendment is now part of the Constitution. Three other states—Alabama and Louisiana, which never ratified it, as well as South Dakota—sued to stop what they characterize as an unconstitutional ratification process.
The second group of states is surely correct about both the letter and the spirit of the law. Article V is designed as it is to ensure that any constitutional amendment reflects a broad social consensus. Congress, in proposing the ERA, reasonably specified a deliberative moment during which that consensus could be attained. It wasn’t. To deny this point requires constitutional contortions. One of the arguments behind the recent pro-ERA moves holds, for example, that the original 1972 time limit was unconstitutional but that the proposal to which the time limit was attached was nevertheless valid. The claim that the ERA is now part of the Constitution must also insist that there is a no-takebacks clause hiding in the penumbra of Article V.
All these acrobatics are being performed for what seems like a very small prize. The Supreme Court’s interpretation of the equal-protection clause of the 14th Amendment, together with changes in public attitudes, has accomplished much of the legal revolution that 1970s feminists sought. By 1997, Justice Ruth Bader Ginsburg could say, “There is no practical difference between what has evolved and the ERA,” while adding, “I would still like it as a symbol to see the ERA in the Constitution for my granddaughter.”
The practical effect of the ERA would be to strengthen the hand of progressives on the bench. Laws that discriminate on the basis of sex, or are thought to do so, are currently subject to “intermediate scrutiny” under the Supreme Court’s equal-protection jurisprudence. A ratified ERA might move the Court to apply “strict scrutiny” instead. Such feminist legal goals as requiring the federal government and states to fund abortion for those who cannot easily afford it—something the Supreme Court rejected in the 1970s—might be realized. A cynic might note, however, that if five justices want that policy badly enough to read the ERA to impose it, they already have the ability to use equal protection the same way.
The debate over the 1970s debate over the ERA is comprehensible only in the context of the federal judiciary’s growing power during the decades preceding it. It had become widely accepted that the Constitution was full of “majestic generalities” (“both luminous and obscure,” Justice William Brennan would add in 1985) and that it fell to the justices to fill in the details. Provisions of the Constitution such as the 14th Amendment’s due-process clause thus became a license for judges to make law. The ERA was an attempt to give the federal courts additional leeway by adding one more majestic generality to the constitutional text.
The opponents understood the strategy, and it was that understanding that motivated them. There was no good reason for Americans, and especially for traditionalists, to give a liberal-dominated federal judiciary a blank check. The growing power of the courts has probably reduced the demand for formal constitutional amendments in general: Why go to the trouble if the courts will do all the work? It stoked opposition to this amendment in particular.
There is some dissent on the left about the ERA, at least on tactics. Advocates of a balanced-budget amendment have gotten many state legislatures to call for a constitutional convention to consider the proposal. Progressives’ main weapon in fighting back against this proposal has been getting legislatures to undo their requests. So anti-BBA progressives need rescissions to count, even as pro-ERA progressives swear that rescissions are void.
Another dissenter is Justice Ginsburg, the most prominent feminist lawyer in U.S. history. She has repeatedly and recently said that advocates of the ERA have to start the amendment process again if they are to get their way. A strong argument can be made that the justices should be silent about such matters, especially given the lawsuits mentioned above, but Ginsburg has made a practice of disregarding such niceties. In this case, though, the justice is right. Article V is still alive, and the ERA is a zombie that cannot be reanimated.
This article appears as “A Zombie Amendment” in the March 9, 2020, print edition of National Review.
Something to Consider
If you enjoyed this article, we have a proposition for you: Join NRPLUS. Members get all of our content (including the magazine), no paywalls or content meters, an advertising-minimal experience, and unique access to our writers and editors (conference calls, social-media groups, etc.). And importantly, NRPLUS members help keep NR going. Consider it?
If you enjoyed this article, and were stimulated by its contents, we have a proposition for you: Join NRPLUS.