Is the Equal Rights Amendment Truly Dead?

The second liberty principle for this Freedom Friday concerns the rule of law and the Equal Rights Amendment (ERA) to the Constitution. According to Thomas Jipping, senior legal fellow at The Heritage Foundation, the American Bar Association (ABA) endorsed the ERA in 1972, the year that the amendment was proposed by Congress and sent out for ratification by the required number of States. Now the ABA is claiming that the ERA is part of the Constitution.

Jipping wrote that the ABA held its annual convention on August 6^th where it made its claim about the ERA being part of the Constitution. IT IS NOT! Jipping explained what happened. 

Congress proposed the ERA in March 1972 with a seven-year ratification deadline. With that deadline looming, and fewer than the necessary 38 states ratifying, Congress passed a controversial resolution in 1978 purporting to extend the deadline by 39 months. No additional states ratified the 1972 ERA and five that already had subsequently withdrew their support. As the Congressional Research Service has repeatedly observed, the 1972 ER “formally died on Juen 30, 1982.”

Because Congress will likely never propose another one, supporters are desperate to maintain the fiction that the 1972 ERA is, as Miracle Max would say, “only mostly dead” rather than “all dead.” It remained pending before the states, and available for ratification, because Congress did not put the deadline in the right place in its proposing resolution. Or so they contend.

Congress proposes a constitutional amendment by passing, by at least two-thirds of both houses, a joint resolution that has two parts: a proposing clause with procedural rules for state consideration and the text of the amendment.

The states have ratified eight constitutional amendments under a ratification deadline, four of them with the deadline in the proposing clause and four in the amendment text.

If the location really does make all the difference, it was a very well-kept secret in 1972….

Congress discussed the most appropriate placement of a ratification deadline in a 1932 House hearing on what would become the 20^th Amendment. The reason to do so was purely practical; it would avoid “unnecessary cluttering up of the Constitution.” No one suggested that moving the deadline from one place to the other within the same joint resolution had any legal significance.

The House actually made that shift in 1960 with consideration of the future 23^rd Amendment. The House Judiciary Committee report did not even note that, for the first time, its ratification deadline appeared in the joint resolution’s proposing clause. No one in either the House or Senate or in any state legislature ever said anything about the fact that the ratification deadline for the 23^rd, 24^th, 25^th, or 26^th amendments appeared in the proposing clause.

Jipping continued his article with statements by various individuals and groups conceding that the time for ratifying the ERA had expired. He wrote that the claim by the ABA “is embarrassingly wrong on the facts.” He ended his article with the following information.

To have any chance at credibility, the ABA must show why thousands of federal and state legislators, dozens of women’s groups, scores of other ERA advocates, the Justice Department under presidents of both parties, the U.S. Civil Rights Commission, the Congressional Research Service, the Supreme Court, and a host of others all got it wrong. Every single one of them.

They all missed what the ABA now claims is the most crucial point – that Congress has authority to set a ratification deadline only when it appears in one place in the proposing resolution, but not when it appears a few inches higher on the page.

Ginsburg and Steinem got this one right. The ABA is wrong on the ERA.

I am one of millions of Americans who are old enough to remember when the ERA was proposed, when the deadline was extended, and when the extended deadline passed without the ERA being ratified. Americans studied the amendment and determined that it would not be a good thing for girls and women. The fact that five states ratified the amendment earlier and then withdrew their ratification tells us how bad the ERA amendment was.