Virginia Attorney General Mark Herring offered a curious quote upon his state’s ratification of the Equal Rights Amendment, a mere 48 years after Congress enacted it and sent it into the wild for the states to do as they will.
For nearly 150 years, the Constitution did not acknowledge the existence of women. Now, 231 years since our country was founded and on the centennial anniversary of the nineteenth amendment, the American people have shown that they are as committed as ever to true equality by adopting the Equal Rights Amendment.
If the American people are committed to “true equality,” then the ERA wouldn’t be needed any more than a constitutional amendment is needed to give us a right to breathe air. But for a guy giving elapsed years, Herring missed the one that matters here, and Congress included in its preamble to the 28th Amendment that it had to be ratified within seven years, subsequently extended for an additional three years before the initial deadline elapsed.
The ERA wasn’t ratified within the time frame required by Congress. Herring’s state didn’t ratify until now. Maybe Virginia wasn’t as committed as he says it was?
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.
In 1972, as women fought to break out of the yoke of their gender roles and treatment, there was little not to like about the ERA. Equal rights for women? What could possibly be controversial about that? There was the usual fearmongering, that this would break down all the societal norms that held families together, kept children fed, left men fighting with women for jobs since men were the breadwinners and women were employment dilettantes, dabbling for fun until they decided to return to the kitchen, barefoot and pregnant. Who was hotter, Phyllis Schlafly or Anita Bryant?
If the argument strikes you as ridiculous today, that’s part of the ERA issue. The battle for Equal Rights for women in the 1970s isn’t the same battle as today. The states that ratified the amendment back when did so in light of societal norms of the day. They also did so in light of the meaning of the ERA at the time.
“On account of sex” meant male/female in the old school binary way, must like Titles VII and IX of the Civil Rights Act. The states that ratified it within Congress’ deadline did with that understanding of its meaning. Even Herring seems to believe that this amendment acknowledges the “existence of women,” as if they didn’t exist before. But who are women today? What about the rest of the gender spectrum? What do the words mean? What would this amendment do?
But since it took Virginia almost half a century to ratify the ERA, does it matter?
The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.’”
While the OLC opinion binds the executive branch, it’s not law, and the courts still get to decide for realsies. Given that the time for ratification provided by Congress in its enabling legislation expired in 1982, and nobody kept this a big secret from the states, the issue of gross belatedness comes as no surprise to anyone, so the fact that a suit would be required to determine whether the final three state’s ratification means more than virtue signaling is no big shocker.
Walter Olson lays out the basics:
Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval.
Few proponents want to mention the five states that ratified, then rescinded their ratification, of the ERA. Can they do that? Well, they did, before the expiration of the deadlines and before, obviously, the ERA was ratified. They were:
- Nebraska: March 15, 1973.
- Tennessee: April 23, 1974.
- Idaho: February 8, 1977.
- Kentucky: March 20, 1978.
- South Dakota: March 5, 1979.
If their rescission was effective, that would make Virginia the 33rd state to ratify. That would be a problem. What’s the precedent for constitutional amendments?
The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, appears to confirm that Congress did not act unconstitutionally when it chose to prescribe a time limit for the Eighteenth Amendment, as it has done for many amendments in modern times.
Then again, in Dillon, the seven-year deadline was written into, and made a part of, the amendment itself, which is a bizarre way to craft a constitutional amendment since the language becomes surplusage upon ratification.
But the one thing that’s not getting much play at the moment, beyond the empty platitudinous crap offered by Mark Herring, is what would the ERA actually do today? What would change? What could be affected? How would it impact women? How would it impact anyone else for whom “on account of sex” has become their rallying cry?
Even worse, what if it turned out that equality as fought for, and understood, by Second Wave Feminists in 1972, turned out not to be a benefit to Third Wave Feminists, but a detriment, as they no longer seek equality but “equity,” which is a nice way of saying special treatment that relieves them of the burdens society and the law imposes on men “on account of sex”?