April 16, 2007 Monday

HEADLINE: The Revival of The Equal Rights Amendment

For decades, the dream of cryonics has been to freeze clinically dead people for long periods so that they can be brought back to life in the future when a cure for their fatal ailment has been found. This month, the first successful cryonic experiment occurred in Congress with the sudden resuscitation of the long-dead Equal Rights Amendment, now called the Women’s Equality Amendment.

Twenty-five years ago, the ERA died from lack of support among the states after an extended 10-year ratification effort. Unable to secure the constitutionally mandated 38 states, it was pronounced politically and constitutionally dead. Supporters in Congress, however, now claim that it never really died and that they have discovered a cure for its political ailment: Rather than securing the 38 states necessary for ratification, they argue that they can put the ERA into the Constitution by securing just three states.

Under the three-state argument, advocates insist that there is no real time limit for the ratification of an amendment and that they can count past states that ratified the earlier amendment decades ago – even five states that rescinded their votes of ratification. Thus, they can avoid submitting the amendment to the entire country for a contemporary vote on its necessity or wisdom.

It is an argument that sacrifices principle for convenience in a single-minded campaign to ratify the ERA at any cost. The ERA is being resuscitated not because of newfound popularity but because of a new way to avoid a popular vote.

This new theory of ratification is based on an ambiguity in Article V of the Constitution. This article mandates that any amendment to the Constitution must first pass both chambers of Congress by a two-thirds vote and then pass three-fourths of the states. It is a process designed to be extremely difficult but not impossible. In the words of James Madison, the process “guards equally against … extreme facility, which would render the Constitution too mutable; and … extreme difficulty, which might perpetuate its discovered faults.” The vote of the two chambers and the states was meant to confirm an overwhelming consensus of Americans before changing the Constitution.

What is missing from the text of the article is an express time limit for reaching this national consensus. It was a procedural issue that simply never came up in the constitutional debates, and it was not a practical issue for most of the proposed amendments. The first 10 amendments were enacted within 27 months. Only one amendment took more than four years, and that amendment, the 27th Amendment, is still viewed by many as procedurally invalid.

Despite the lack of an express time limit, the Supreme Court has held that an amendment must be ratified through a “sufficiently contemporaneous” vote. Thus, the Congressional vote and state ratification votes must be “succeeding steps in a single endeavor.”

The ERA was first introduced in 1925 but was not approved by Congress until March 22, 1972, with the traditional seven-year time limit for ratification. The amendment, however, could not muster enough votes within the first time limit, so Congress extended it for three more years. It also attempted to rig the process by voting to prohibit states from reconsidering the amendment if they previously ratified it – preventing efforts to rescind earlier votes. (Five states ultimately voted to rescind their votes and five more were preparing to rescind their votes when the ERA expired). The ERA, therefore, fell eight, not three, states short of ratification. By 1982, the ERA was pronounced a failed ratification and the Supreme Court dismissed an ERA-related case as moot given the expiration of the amendment.

Despite this history, advocates point to the only exception to the contemporaneous consensus rule: the 27th Amendment. Dealing with Congressional pay raises, the 27th Amendment was one of the original 12 amendments proposed by Madison as part of our Bill of Rights. Indeed, the first and second amendments to the Constitution were supposed to address the apportionment of the House of Representatives and Congressional compensation. They were treated as failed ratifications. However, in 1991, the country was outraged by a Congressional scandal and a “midnight raise” that Members voted for themselves. As a result, five states discovered the long-dormant amendment and voted to ratify – 202 years after its submission to the states. (Notably, unlike the ERA, the 27th Amendment never had a time limit).

While many academics condemned the amendment as untimely and invalid, the National Archivist declared the amendment as an official part of the Constitution. Congress promptly treated its enactment (and their raises) as set in stone.

The 27th Amendment actually shows the danger to be avoided with the ERA. The 27th Amendment was declared ratified as soon as the final state (Alabama) cast its vote. Similarly, once the third state has been secured in favor of the ERA, advocates are certain to claim that the amendment has been formally ratified – even if Congress allows all states to vote.

Congress legislatively should pre-empt the three-state strategy. One way to ensure a full ratification process would be to slightly change the language of the amendment so it is no longer identical to the 1972 version. It would not take much to constitute a new amendment. Congress also should condition its approval of the amendment on the necessity for a new ratification vote from 38 states as mandated in the Constitution.

The ERA shows the wisdom of requiring a contemporary consensus for the ratification of an amendment. The 27th Amendment was viewed by many as a minor and technical provision – blunting the opposition from academics over its dubious ratification. The ERA is much more important and politically divisive. Moreover, much has changed since the ERA was first proposed. Roe v. Wade was handed down and gender discrimination was targeted under dozens of laws and regulations. Women are now a majority of the country and a majority in many graduate school classes, including many law school classes. One of the leading candidates for president is a woman, as are the secretary of State, Speaker of the House, governors and many Members of Congress.

Back in the 1970s, I supported the ERA. However, I now have doubts whether such an amendment is truly needed given the legal, social and political changes that have occurred in the past two decades. For my daughter, Madie, and her friends, I remain concerned about gender discrimination. However, I am much more concerned about the implications of abandoning our constitutional traditions and creating shortcuts to amend our Constitution.

Our constitutional process allows for august rights to be secured in an equally august way: through an act of contemporary consensus of a supermajority of our people. If advocates succeed in changing the rules for ratification, the ERA will become a symbol of deep division rather than consensus for our country. The ERA may have sufficient votes to be ratified today without constitutional cryonics. Yet, in 1972 and 2007, the only cure for unratified amendments remains the popular vote.