The Equal Rights Un-Amendment

National Review Online

Friday, January 31, 2020

Three states have gone to court to get an amendment added to the Constitution. House Democrats plan a vote in support of this scheme. What the Left is attempting to do here is to subvert Article V of the Constitution — the part that spells out the proper way to amend the Constitution — in order to make it easier for liberal judges to impose their policy preferences on the nation.

The purpose of the Equal Rights Amendment is to put seemingly innocuous language into the Constitution — declaring men and women equal before the law — that could then be used to force policy changes that the democratic process will not yield. The Democrats on the House Judiciary Committee have issued a report that speaks favorably of using the amendment to secure paid family leave, prohibitions on discrimination on the basis of sexual orientation, and the end of policies that have a disparate impact on women. (Physical standards for firefighters could be held unconstitutional, for example.) Using the amendment to shore up the alleged right to abortion also gets a positive mention, naturally. If these policies should be adopted at all, legislatures should do it openly and deliberately rather than sneaking them through.

When Congress originally submitted the ERA to the states for ratification in 1972, it gave it a March 1979 deadline. Deadlines have been a common feature of amendments, one the Supreme Court unanimously declared permissible in 1921. The ERA didn’t get enough states to ratify it before that deadline. Congress then, by a simple majority, purported to extend the deadline for three years — an act declared unconstitutional by the only court to review it. (It takes a two-thirds supermajority, the kind the ERA got in 1972, to submit an amendment for ratification.) The ERA didn’t get ratified by the new, dubious deadline, either. At that point, in 1982, everyone — including the Supreme Court — acknowledged that the amendment was dead.

In recent years, however, three states have claimed to ratify it. Their legal claim is that the amendment was validly submitted to the states, but the deadline is invalid. The states that rescinded their ratifications, the argument maintains, also acted invalidly. House Democrats are moving legislation to invalidate the deadline retroactively. They claim Congress can take this action free from both the two-thirds supermajority requirement for an amendment and the presidential-signature requirement for ordinary legislation.

None of these maneuvers is consistent with the rule of law. Even Ruth Bader Ginsburg has conceded that any effort to ratify the Equal Rights Amendment would have to involve starting over: getting a new supermajority of Congress and new state ratifications. Legislators and the court should not participate in this charade. The judicial system could start by quashing the states’ lawsuit.