Ratifying the ERA at this late date

The ERA, of course, didn’t get ratified. I didn’t see anything in the amendment’s text that said it had to be ratified within seven years (or twelve or whatever); nor anything in the original Constitution that said so either.
However, since the States ratified one of the original twelve amendments known as the Bill of Rights–the amendment concerning increase in Congressmen’s salaries–within the last ten years or so, couldn’t the ERA likewise be revived and ratified? If the one amendment could languish for about 200 years and still get properly ratified, couldn’t the ERA, which has languished for about 20 years?

I was always under the impression that there was a time limit written into the proposed ammendment. I looked it up, and your right, there isn’t one:

Surely it would pass enough statehouses today to get ratified. What’s the deal? Are sisters just doing it for themselves, these days?

Elmer J. Fudd,
I own a mansion and a yacht.

It also included this preamble:

"Resolved by the Senate and House of representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), that the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.-

Just before the seven years passed, it was extended three more years (until 1982).

Great song!

Personally, I think it should be put back into play, even if they have to start from scratch again. Especially in this election year…how bad would the GOP look with the independents for trying to pass flag-burning amendments, and potentially sinking the ERA? They’d have to pass it.

But politics aside, given that, for most of this country’s history, it was assumed that women were second-class citizens at best (chattel at worst), the ERA belongs in the Constitution. There should be a final end to doubt that women and men are equal under the law.

The bill of rights is the first TEN amendments.

I don’t have proof, but I seem to remember a few states actually reversed their approval of the ER Amendment. Does anybody know about this?

The first 10 amendments are called “The Bill of Rights” nowadays.

However, the “bill” submitted by Congress to the States for Ratification in 1789 contain 12 proposed Articles of Amendment. Proposals 3-12 became ratified as Amendments 1-10 in 1791. Proposal 1 became Amendment 27 in 1992. Proposal 2 will probably never be ratified now that the House of Representatives has over 200 members.

It is entirely likely that the bill of 12 proposed Amendments was referred to as “The Bill of Rights” in its own time.

It is to late for the ERA. The collective powers of ignorance and sexism won that round. It should have passed, but it did not. Losing in a good cause des not justify bending/breaking the rules when you are unhappy with the outcome.

The right thing to do is to start the process over again. It may not pass, political reality being what it is, but those who vote against it should be forced to be on the record, again, as supporting sex-based descrimination.

The best lack all conviction
The worst are full of passionate intensity.

Are you sure you don’t have that backwards, tracer. Emory Law School tells it in opposite fashion.

This is also from the Emory Law link concerning the limits on how long states have to ratify an ammendment.

D’OH! You’re right. I had the first 2 proposed amendments backwards.

By precident once a state approves an amendment it cannot back out. However if it declines it can later approve it.

This has happened on other amendments states have back out and their vote was still counted.

Women found it easier to seek equality through the courts than legislation. Also we have learned in the 90s (ok the 00’s) to celebrate our differences (sexual, cultural, racial etc) not try to become one like we historically did.

Markxxx, the problem with seeking equality through the courts is that the courts can change their minds, or the people can pass amendments to override court decisions. Admittedly this is unlikely to happen with women’s rights but as long as the possibility remains I think most people who support equal rights would feel more comfortable with a constitutional amendment.

Oh, please. The ERA was about giving women equal treatment under the law, and quite frankly the only people who would “celebrate our differences” by not extending this to women are people who want to celebrate what they see as women’s inferiority.

I think the ERA would require women to register for the draft. What do you think?

In any case, this just adds to my support for the ERA, since I hate all forms of conscription, and forcing 18-year-old females to do it would erode support for draft registration.

The argument would be, the law protects women from being drafted, so it would have to quit providing for men being drafted, or else register women too.

Any similarity in the above text to an English word or phrase is purely coincidental.

Could someone who was alive and aware (I was four in 1982) explain to me how the ERA did not pass? I have this vague idea that Phyllis Schafly went around saying that if it passed, women would be forced to work outside the home, but that doesn’t seem to be a good enough reason to not ratify what is such a logical and inherently good amendment.


“This is my sandbox. I’m not allowed to go in the deep end. That’s where I saw the leprechauns.”

I would have been around one at the time, but I’d imagine that at least a contributing reason for this amendment’s failure lies in the fact that we already had an amendment that did everything that the ERA could have done, the 14th:

The whole equality thing was so logical and inherently good that it was added to the Constitution back in 1868.

“The true founder of civil society was the first man who fenced in a piece
of land, thought of saying ‘This is mine,’ and came across people simple
enough to believe him.”
–“Discourse on the Origin of Inequality” Jean-Jacques Rousseau

The 14th Amendment explanation would be nice, except for two things:

(1) I recall absolutely no discussion of the 14th Amendment in the debate over whether the ERA should become law. (I was 18 when it went to the states in 1972.) Phyllis Schlafly, who’s still active in Christian Right circles today, went around railing about how it would lead to unisex toilets, drafting of women, and so forth. And in the 1970s, there was still widespread support for the notion that women should stay at home with the kids, regardless of what the women themselves desired.

  1. If the 14th Amendment gave women equality, then how come they didn’t have the vote from 1868 on, not to mention equal right to receive an education, hold jobs, manage their own property, and so forth? Maybe the 14th Amendment should be interpreted to include anything an ERA would have given women (sure looks that way to me), but it seems obvious that it wasn’t interpreted that way, even as late as 1982, when the ERA went down the tubes.

Any Constitutional scholars out there? What does the 14th Amendment do for women’s equality now?

“Born in diversity and fired by determination, our society was endowed with a flexibility designed to contain the most fractious contentions of an ambitious, individualistic and adventurous breed.” - Sen. Adam Sunraider

I second RT’s recollection. I remember no discussion that the ERA was unnecessary ecause the rights it attempted to secure were already secured by the 14th ammendment. I imagine even at teh time people knew that argument would lack persuasive power to anyone who read a bit of history. It was much easier to raise opposition to the ammendment by claiming that it would lead to women in combat, the destruction of the nuclear family, etc. Please remember, also, that women’s liberation was still a young, active and confrontational political philosophy at the time. If you think sexism and glass-ceilings are a problem now, you should read some accounts of the 70’s.

Under 14th Amendment jurisprudence the USSC has devised a three-tiered test for equal protection claims. It involves “suspect classes,” which is a fancy way of saying “whose discrimination is worse and whose is more important”? If the Court decides that your class is a “suspect class” then laws which disproportionately affect people on the basis of that class are subject to “strict scrutiny.” The State must demonstrate a “compelling interest” in the law which is causing the unequal treatment. Race and religion are suspect classes (there are others). Next is the “quasi-suspect class” which requires “heightened scrutiny” of the law. I think the standard is “clear and convincing” for quasi-suspect but I’m not sure off the top of my head. Sex (and other classes) is quasi-suspect. Then there’s everyone else on the third tier, which is subject to “rational basis” review. The State needs merely demonstrate a “legitimate” state interest. The USSC has specifically indicated that, for example, sexual orientation is in the third tier. So while everyone gets “equal protection,” some protection is more equal than others.

::Suggesting Otto not try to discuss constitutional law ‘off the top of my head’. :wink: ::

Nevertheless, Otto’s summary is close to accurate. The USSC treats laws challenged as violating the equal protection clause of the 14th Amendment differently depending on what the law proposes to do. The reason for this is simple: ALL laws classify, and treat one group of those classified differently from the rest. Example: murder laws treat those who have intentionally killed a human differently from those who have not. We don’t get upset about this method of discrimination because we think murderers SHOULD be treated differently.

The reason the 14th Amendment wasn’t read from its passage in 1868 as preventing laws that discriminated against women is that it wasn’t perceived to be something improper to do. Frankly, in some cases today, it still isn’t. Clearly, setting aside women as a class and denying them some privilege that is granted to men is not generally approved any more, but there are times we still ** want** to treat women differently; for example, allowing them to have women’s only exercise spas.

In the period from 1870 to the early 1950’s, the USSC treated the equal protection clause differently than it does today. Even with regard to classification of the former slaves, the Court looked the other way, asserting that it was ‘equal protection’ to provide seperate but equal facilities and services.

When the USSC decided to change this approach, it took a very tough stance. It declared that laws that seperated people on the basis of ‘suspect classifications’ would be subjected to ‘strict scrutiny’. Such laws will be declared unconstitutional unless there is a compelling governmental interest being addressed by the classification, and unless the classification is necessary to address that interest. Laws almost never manage to meet this standard; I am unaware of any law that discriminates against blacks to be found constitutional. This stance reflected the perception of the Court that society no longer was willing to tolerate laws that discriminate against blacks (except for the South at the time. Any law that didn’t classify into a suspect class got the ‘rational relationship’ test: can it be argued the law furthers a legitimate government interest?

Such an all-or-nothing test has problems with application. The court applied strict scrutiny to laws that classify on the basis of alienage and nationality, but began to have trouble deciding what to do with laws that classify on the basis of gender. In the seminal case Reed v. Reed, 404 U.S. 71 (1971), the USSC engaged in independant review of a statute that treated women differently from men, giving men preference in being selected as administrators of the estates of those who died without wills. Without calling classification of women a ‘suspect class’ the Court struck down the law; they held it to be arbitrary to treat women differently from men in this selection process. This was followed in 1976 by Craig v. Boren, 429 U.S. 190 (1976) in which the USSC finally articulated a standard:

Now, this treatment has resulted in some gender classifications being stricken, and some being upheld. Thus, women aren’t protected to the same extent blacks are.

Is this a good thing? Women may end up thinking so soon. The current Court is finding it difficult to support race-based classifications that discriminate in favor of blacks, such as affirmative action programs, apportionment of representative districts for the purpose of empowering black voters, etc. In light of the strong comments and strict test that theoretically applies to race-based classification, the Court may find itself hoist on its own petard, so to speak. Frankly, women may not want to face the same problem; under the intermediate level of review, the Court is free to protect women without protecting men.

As to the ERA, it was the change in approach of the Supreme Court that really killed the amendment. When proposed, states and the federal government were free to discriminate against women as they saw fit; by the mid-70’s the Court had shown willingness to protect them from overt discrimination, and many states were beginning to protect them through legislation, as well. By 1982, when the amendment died, in states where the population was not so reactionary, there still was little motivation any more to protect women from the evil of a “man’s world.”

Contrary to the recollections of other posters, I do recall the 14th Amendment argument being raised long around 1980 (I would have been 20 then).

“The dawn of a new era is felt and not measured.” Walter Lord

Interestingly, there was a column printed in today’s edition of The (Toledo) Blade by Ellen Goodman, a columnist for the Boston Globe. In the column, she notes that some women in Missouri are attempting to have that state ratify the Equal Rights Amendment in a vote to be held this month. The theory here is that Congress can, if it chooses, accept ratifications from whenever they occurred, regardless of the original ‘limiting’ language in the proposed amendment. All Congress would have to do, theoretically, is pass another ‘extension’ and accept the additional three ratifications, assuming they can be obtained. It will be interesting to see if Missouri’s legislature ratifies, and, if so, what will happen in Illinois, which was, as I recall, the main battleground in the late 70’s and early 80’s for ratification.