Wishful Thinking on the ERA

The American Bar Association’s support last week of the implementation of the Equal Rights Amendment “as the 28th Amendment to the United States Constitution,” is, to be charitable, exotic constitutionalism and wishful thinking. It is being celebrated by no less an eminence than Laurence Tribe, who cheers the ABA for “affirming that the ERA” is now constitutional writ. A new section of the parchment would be a scoop, if it were true. The Equal Rights Amendment, which aims to ban discrimination on the basis of sex, was first introduced in Congress in 1923, and proposed at every session through 1971. It passed through the House of Representatives that year, and the Senate the next. Yet Congress included a ratification deadline of 1979. By that deadline, though, only 35 states, three short of the required 38, had come out for the measure. Five states subsequently rescinded their support. Whether a state can reverse a ratification is an unsettled constitutional question. In the last decade — and decades after the ERA’s expiration — Nevada, Illinois, and Virginia ratified the amendment. ERA true believers count those three, reject the validity of the reversals of ratification votes and — presto — get to the magic number of 38. Democratic attorneys general made that argument in court, but were turned back by the riders of the District of Columbia Circuit. These pages called that defeat a “Waterloo for leftists intent on quack constitutional litigation in pursuit of laws they have been failing to achieve the old-fashioned way.” The attorneys general wanted the court to instruct the National Archivist to simply mandate that “our Constitution has been amended to recognize that all individuals are equal regardless of their sex.” It is Article V, though, that gives would-be amenders their marching orders. The ABA’s resolution “urges federal, state, local, territorial, and tribal governments to implement the Equal Rights Amendment (‘ERA’) to the United States Constitution (‘Constitution’).” Feminist icon Gloria Steinem, though, admitted on Oprah Winfrey’s talk show in 1986 that since the amendment she championed “was not ratified in the nine years allotted to it, it now has to start the process over again.” What’s more, the Congressional Research Service is of the opinion that the ERA “formally died on June 30, 1982.” Reports of its demise are to the ABA and its ally in this — the New York Bar Association — much exaggerated. Such magical thinking could make for a challenging law school final exam, but is shocking from a professional association of lawyers, albeit one that earlier this year was forced to retract an anti-Israel statement.It could be that the ABA is wistful for the days when Ms. Steinem went head to head with Phyllis Schlafly, retold on Hulu’s “Mrs. America.” Or it could be that the ABA’s liberal worthies fear they’re unlikely to fare better at the Supreme Court than they did among the riders of the District of Columbia Circuit. In any event, saying a constitution has been amended when it hasn’t is no way to run a republic.

Wishful Thinking on the ERA

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