On January 15 Virginia passed legislation ratifying the Equal Rights Amendment.
National Woman's Party cartoon. The constitutional amendment referred to in this cartoon is the 19th Amendment extending suffrage to women.
Which pretty much means nothing, legally, given that the expiration date for the amendment expires in 1982.
The Equal Rights Amendment, the ERA, was first drafted as a proposed amendment to the US Constitution, in its earliest form in 1921 by the National Woman's Party, a political party that had come up in the Suffrage era. The text was revised by the head of the party, Alice Paul, in 1923 and again in 1943. That text was basically used by Congress when Congress passed by Congress in 1972. It reads:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Alice Paul of the National Woman's Party raising a glass of grape juice in celebration of the passage of the 19th Amendment granting women suffrage in 1920. Paul lived a long life and died in 1977.
The original Congressional act had a fairly typical seven year time period in which for the states to ratify the amendment. Wyoming passed the ratifying act on January 24, 1973, making it the third state in the union to ratify it. It failed to gain a sufficient number of state ratifications, however, in that period so Congress, by that time heavily Democratic in the post Watergate era, extended the deadline to 1982. By the end of that period the proposed amendment had only secured 35 out of the necessary states and the original act died.
That legislative death hasn't kept there from being state action since 1982, although the 1982 extension itself raised real Constitutional questions in the first place.
Since 1982 three more states have passed ratifying acts, with Virginia being the latest, bringing the number of states now up to a pointless 38. Four states, however, have rescinded their ratifications, bringing it down to a pointless 33, maybe. Backers of the ERA claim that pre ratification rescissions are invalid, although they seem less bothered by post deadline ratifications. In truth, there's no good reason to suppose that a state can't rescind its approval of a Constitutional amendment prior to it becoming law, in spite of claims that this is a legally deficient process. Indeed, the four resicinding states all rescinded prior to 1979, with two of them doing so prior to 1975. One state's rescision, Kentucky, was vetoed by the Lt. Governor of that state in the Governor's absence, which itself raises Constitutional questions as it hasn't been determined if a Governor can veto anything on a proposed Constitutional Amendment.
So what's all this mean?
Well it means that the ratification is invalid and mostly just a show of support for the old text.
And now what?
Well, the whole thing will go to the United States Supreme Court in a messy procedure in which the Court will be asked to sort out the Constitutional dog's breakfast this situation creates. The questions are numerous, including whether or not a state can ignore the passage deadline (it can't), whether or not a state can rescind its ratification (it can, but probably only before the deadline as well), whether a Governor or person holding a state's chief executive role temporary can veto anything on a proposed Constitutional amendment (probably not) and whether Congress can validly extend the deadline in the first place.
That last matter might not seem to be an issue, but it is. The time limits on the ratification of Constitutional Amendments exists for a reason and part of that reason is making the making an original action valid in time. Extending out deadlines creates a situation in which the passing legislatures in the early ratification may no longer hold the same view later on. Seven years is a fairly typical period for a Constitutional amendment. Ten years could have been a valid period, but if you get out to twenty or more the process may be void on its face.
Moreover, in this case, extending the deadline did not receive the Constitutionally required 2/3s majority necessary to pass a proposed Constitutional Amendment, and so it was passed simply as a law. The better legal position, therefore, is that the deadline actually expired in 1979. This doesn't really matter here, however, as no states ratified the act between 1979 and 1982.
Or maybe it does, of the state's that passed the amendment prior to the original deadline passing, 24 of them referred to to the original deadline in their ratification. That may mean that they voted to ratify by that date, and not approve an endlessly open ratification process.
None of which answers the question of whether the ERA, in 2020, should be passed into law at all.
In 1972 the proposal was a radical one in context, which is why it failed to ultimately pass. The nation was reeling in a period of radicalism brought on by the late 1960s and all that era entailed. The "Women's Lib" movement was at its height and interestingly later younger feminist have retreated from much of what that movement then sought. But as radical as it was, much of what its backers then proposed would not have comported with later developments.
Indeed, even at the time its backers claimed that its impact would be nearly non existent in numerous ways. It wouldn't require, for example, that women serve in combat in the military and it wouldn't require women to be conscripted, if there was conscription. Opponents of the ERA claimed that it would do both, and lead to "unisex" public bathrooms. Since that time social engineers in the government have operated in support of their theories within the military and women do serve in combat roles in spite of a nearly universally held view within the services that its a bad idea and bathrooms have become a matter of odd American public debate.
The point is not to debate that, but to point out that if the ERA passed today, there'd be nothing for the text to do in the context of what it originally proposed to do. Subsequent legislation achieved the same goals.
Which doesn't mean that the text would be without impact. It would be, in the form of litigation on what "on account of sex" means.
Originally it obviously meant on account of gender, and the definition of gender was the biological one that science supports, male and female. The vast majority of the original proponents of the ERA, and the legislators who voted for it, would have had no other meaning even remotely in mind. But in the current era that's not how it would be taken at all. Various groups would argue that "sex" meant gender as they self identify it, or maybe even the physical act of sex. Indeed there's already been an argument by two feminist scholars that the original ERA no longer fits the bill and a new one should be drafted with uses a term with something like "gender in all its expressions", which is vaguely coded language that would enshrine the currently popular concept that gender is self identified rather than biologically identified as a Constitutional principal.
No matter what a person feels about those things, the lessons of 1919, and also of 1973, demonstrate why on most issues its better to let things actually get sorted out legislatively rather than amend the Constitution. The 18th Amendment which provided women the right to vote everywhere, can be pointed to as a success, as there were many states in which women still couldn't vote in, in 1919, and nobody would hold that opinion now except for an extremist.
Regions in North America that allowed women to vote in 1917. By 1919 there's be more white on this map, including Mexico which had extended the franchise in its post revolution constitution by that time.
Prohibition, on the other hand, also from 1919 gives us an opposite example.
Lots of states had gone dry by 1919, all on their own. When Prohibition came into law, however, in 1920 full scale opposition to it was already rolling and advanced. The Constitutional Amendment seemingly served to fire a spirit of brazen resistance to it, and because of what was occurring at the time, it was wholly unnecessary. Had Prohibition not become the law of the land, the trend was that it was becoming the law of most of the states and that it had really widespread support. Making it a Constitutional Amendment all but killed that support very rapidly.
Roe v. Wade provides another example. While no Constitutional Amendment was involved, the constituionalization of an issue badly has lead to a massive decline in respect for the Supreme Court as well as the odd idea that the Court itself is a national Oligarchic Panel. If anything the removal of what was a legislative issue from the legislatures has lead to decades of bitter dispute and the retreat of one side, the left wing side, into the courts in a fashion that's inherently anti democratic and not very well respected among a large amount of the nation's population.
Which is not to say that the same thing would happen in regard to the ERA. Rather, what I'm saying is that the history on women's equality actually did play out the way Prohibition would probably have but for the Constitutional Amendment requiring it. There's nearly no legal inequality between women and men now save for jobs that are absolutely gender defined. Over the past 47 years these issues in terms of the law have been worked out themselves. So passage of the ERA now would serve at most to do nothing at all, or at worst to be used for things it was never intended to be used for.
Critics may point out that there's still social inequality, although like many fin de siecle debates the degree to which this is true is very overstated. But that brings up another point which is the Roe v. Wade one. While there are very much issues that need to be addressed by way of the Constitution, it pays to be very careful about those as the constitutionalization of an issue serves to fire up a spirit of resistance which more conventional laws do not. The resistance here would likely not be massive, but then the need for the ERA at this point isn't great either.
