The New ERA Campaign: Constitutional Malware

January 10, 2020 Updated: January 15, 2020
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Commentary

Computer hackers spread malware to create havoc.

Sometimes, their goal is evil satisfaction and sometimes financial gain. Some political activists spread political malware for similar purposes. They sow havoc because it offers ego-building publicity, and opportunities for fundraising, organizing, and dramatic lawsuits.

Hence, the campaign to resurrect the long-expired “equal rights amendment” or ERA.

The campaign’s activists assert that “women are not protected by the U.S. Constitution,” which, of course, is an utter falsehood. Moreover, they claim, if only three more states ratify the ERA, it will become part of the Constitution, thereby assuring equal rights. As explained below, that is also false.

The incentives behind the campaign are obvious. The ERA is poorly drafted and vague (which is why it was rejected). If it became part of the Constitution, the result would be legal chaos. Activists know they would be able to feed off that chaos with lucrative lawsuits, direct mail fundraising, and publicity.

If, as is overwhelmingly probable, the courts reaffirm that the ERA is dead, then the same activists can organize campaigns attacking the courts and promoting or opposing judicial nominees.

ERA activists have won the endorsement of two of the three states they seek by gulling the Nevada and Illinois legislatures into “ratifying” the expired amendment. They now are targeting Virginia.

Perhaps because this scam seems so far-fetched, the response has been belated. But in December, three states sued to stop the Archivist of the United States from accepting ERA “ratifications.” On Jan. 6, the U.S. Justice Department’s Office of Legal Counsel advised the Archivist to the same effect.

Now state lawmakers should terminate the game by refusing to play.

Here’s the background:

To become part of the Constitution, an amendment must be proposed by Congress or by a convention of the states, and then ratified by 38 states. When members of Congress first considered the ERA, they found its language appealing: Section 1 proclaimed that “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 granted Congress broad new power to enforce the amendment.

In 1972, Congress proposed the ERA to the states, on condition that full ratification must occur by 1979.

At first, state legislatures ratified quickly. But then they began to notice how poorly drafted the ERA was and how much anguish it would cause, because beneath the amendment’s simple surface lurked constitutional, political, and social nightmares.

For example, the ERA uses the word “rights,” without regard to the fact that “right” has many legal meanings. When the existing constitutional text employs the word, the text describes the right, or kind of right, intended. Thus, the Constitution protects the “right of the people peaceably to assemble,” “the right … to keep and bear arms,” and so forth. By contrast, the ERA contains no defining or explanatory language.

The ERA mandates “equality.” But that, too, has many meanings. The amendment would provoke endless litigation on such issues as whether state offices may maintain separate bathrooms for men and women. (There are plenty of judicial decisions holding that separate is never equal.) May the federal government draft men but not women? Is there a “right” to be drafted? To not be drafted? Must a state office grant pregnancy leave? If it grants pregnancy leave to women, must it grant pregnancy leave to men? Or is granting leave to both unequal, because women become pregnant and men don’t? No one knows how the ERA would resolve these or a multiplicity of other questions.

As the 1970s wore on, state lawmakers became aware that the ERA was the proverbial pig in the poke. By adopting it, they would be replicating experience with parts of the 14th Amendment, whose drafting defects have spawned doubt, litigation, and shifting court opinions for more than 150 years. (Despite claims to the contrary, most of the Constitution is fairly precise.) Lawmakers learned that the ERA would license unelected judges to legislate extensively.

The pace of state ratifications slowed. Then it stopped. Then it shifted into reverse as states began to rescind. Congress attempted to extend the deadline from 1979 to 1982—an action a federal court correctly ruled unconstitutional. Still, not a single additional state signed on. By the extended deadline, only 30 of the 38 required states had ratified: 35 initial ratifications, minus five rescissions.

More states might have rescinded, but ERA advocates, including Ruth Bader Ginsburg (now Justice Ginsburg), acknowledged defeat. In recognition that the ERA was dead, the Supreme Court dismissed pending ERA litigation as moot.

And that’s where matters rested until activists invented their renewed “ratification” campaign. Of course, their campaign requires them to pretend the ERA isn’t dead, so they claim:

  • That Congress’s deadlines for ratification are ineffective and the ERA lasts forever;
  • That, assuming deadlines to be effective, deadlines must be in the body of the amendment rather than (as in the ERA) in the resolution’s introduction;
  • That Congress may extend deadlines retroactively;
  • That every state ratification counts, no matter how late; but
  • That no state rescission counts, no matter how timely.

The first assertion contradicts settled Supreme Court authority. The second disregards settled practice, the resolution’s wording, and the trend of modern court decisions.

The third—that Congress may create a new retroactive deadline—violates all constitutional understanding. As the Office of Legal Services pointed out, it’s like saying that if the president vetoes a bill in 1980 and Congress fails to override it, then Congress may try to override it again 40 years later.

The fourth assertion—that we must count ratifications passed after the deadline—disregards the Supreme Court ruling that Congress may impose a deadline.

The fifth—that rescissions don’t count—is flawed because (1) it’s based on non-binding court language since widely repudiated, (2) it contradicts universal legislative practice, (3) it contradicts the historical practice on which the Constitution’s amendment process was based, and (4) it contradicts a federal court decision directly on point.

Where did the ERA activists get their constitutional gibberish? Believe it or not, their source was, according to one of their websites, a 1997 school paper written by three law students. Perhaps no reputable lawyer would sign on.

Ratification today would be even more pointless and irresponsible than it was in the 1970s: pointless because the courts now recognize full gender equality; irresponsible because the amendment poses even more problems now than in 1972.

For example, should courts interpret the ERA as understood in the 1970s or as understood when finally ratified? In 1972, the phrase “on account of sex” referred to men and women. Today, judges might interpret it to include other alleged genders. No one has any idea of what direction the courts would go in applying the ERA.

The campaign to raise the ERA zombie is the height of constitutional and civic irresponsibility. State legislators should reject it with the contempt it deserves.

Rob Natelson is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He was a law professor for 25 years and is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2014).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.