New life for the Equal Rights Amendment
Jane Mansbridge describes why the ERA came just three states short of ratification, and how it might be resurrected.
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.
That is the full text of the Equal Rights Amendment (ERA.) It’s simple language, but the 95-year long effort to add it to the U.S. Constitution has been anything but. After a strong, bipartisan push in the 1970s, the amendment ultimately came up just three states short of ratification by the congressionally-mandated deadline in 1982.
For decades it was assumed that was the end of it. But in March of last year, Nevada became the 36th state to ratify, closing the gap to just two states. And a precedent set by the so-called “Madison Amendment” in 1992 may have legally re-opened the door to ratification.
In this episode, HKS Professor Jane Mansbridge, author of “Why We Lost The ERA,” digs into the bipartisan history of the ERA, describes some of the lessons learned from the failed ratification effort in the 1970s and 80s, and explains why it still has a chance to become the 28th amendment to the U.S. Constitution.
Each week on PolicyCast, Host Matt Cadwallader (@mattcad) explores the ways individuals make democracy work by speaking with the world’s leading experts in public policy, media, and international affairs about their experiences confronting our most pressing public problems.
Transcript
Note: This transcript was automatically generated and contains errors.
Matt: Over the course of its history, the ERA has kind of defied our partisan lines. When it was first proposed, it was opposed by progressives. When it was first put into a party platform, it was the republican party.
Prof Mansbridge: Absolutely.
Matt: Can you trace us through the history of how the ERA developed over time?
Prof Mansbridge: Yeah. The democratic party and the democrats opposed the ERA at the beginning because they were afraid, I think correctly, that it would eliminate the protective loss for women. In this country, a lot of labor legislation began, and indeed, sometimes that’s as far as it got was laws saying that women couldn’t work more than X number of hours, or bear more than X number of pounds, or whatever, because the country was very anti-labor legislation.
So, the only way the labor legislation could get in was by being legislation for women and children. The democrats were afraid that this would eliminate that special legislation, and it would have. So, they opposed it. But then what happened was those laws got changed to include men, and so it wasn’t as necessary. There had been an evolution in the administrative law so that actually before the ERA came to the congress, the special provisions for women had been upgraded to be provisioned most for men or eliminated.
So, those issues were sort of began to be gone by the time … Then the democrats took the ERA into their platform. It was definitely a republic issue for a while. When it first came before the states, it was absolutely a bipartisan issue. It was bipartisan until Ronald Reagan didn’t put it in his platform in 1980. Before that, both parties had it in their political platforms.
Matt: What actual effect would it have on legislation, especially today?
Prof Mansbridge: Well, we don’t actually know. There was a section in my book about what it would do. It’s a little bit like, as I said, the First Amendment. You put the principle in. All sorts of strange things might happen. For example, under the First Amendment, we have Citizens United, which keeps us from having any reasonable campaign finance loss. We hope there wouldn’t be that kind of, what I consider, perversion, actually of the Amendment.
You just put an Amendment because you think that there’s a principle that ought to be in the Constitution, like free speech, or equal rights for women. Then, you can’t completely predict what the court will do with it, but you assume that there will be reasonable interpretations going forward, and that laws that otherwise would be discriminatory in one way or another, will be ruled unconstitutional by having equal rights in the Constitution.
So, I can’t predict exactly what laws would be changed, or what would be ruled unconstitutional. We have, right now, a pretty conservative Supreme Court. The chances are that nothing very great would happen at the moment. But, it’s just as when the early members of our republic put the First Amendment in the Constitution, they didn’t have a particular idea of what laws would be ruled unconstitutional. They just thought it was a good idea to have freedom of speech there in the Constitution as a right.
Matt: One of the tensions that you wrote about was on how … In the immediately … After congress has passed the Amendment, and it went to the states, there was an immediate flood of states ratifying. But then there was a point at which it became a hard slog just for those last handful of states. One moment that you called out was a Supreme Court decision. I think it was Craig, that changed the whole perspective of both the supporters and the opponents of the ERA.
Prof Mansbridge: It changed it relatively importantly, but not fully. What Craig did was to create what was called an “intermediate test for constitutionality.” For most things, the court uses what’s called just a “rational basis test.” For race, race is what’s called a “suspect category.” When you have a law that distinguishes between blacks and whites on the explicit basis of race, then the court is supposed to pay quite a lot of attention to that law, and make sure that it passes constitutional tests.
What the ERA would have done would have been to have put gender/sex in that very suspect category. Ironically, because the ERA was before states at the time, the court said, “Well, the people are going to rule on this matter of the ERA by bringing it before the states, so we won’t actually go that far. We’ll go [to what they called] to an intermediate test,” which is a little bit more than rational basis, but a little less than suspect. It’s sort of like Goldilocks, just somewhere in between, and not what the proponents, the Equal Rights Amendment wanted, which was when you distinguished between men and women explicitly, the court would pay a lot of attention. It would be a suspect category.
That’s what it didn’t do. Yes, the Craig decision took some of the steam out of the propulsion towards the ERA, but on the other hand, it didn’t go the whole way. So, it left the proponents still needing to pass the ERA. At the same time, one of the reasons it stalled was it the southern states … The southern and the Mormon states, that were not ratifying it. So, it came on what we might call “geographical” or “historical” obstacles as well.
Matt: Despite just being an intermediate step, functionally, it did take care of a lot of the laws. Basically all, except for the military draft, which then became almost the central issue of the campaign after. Can you talk about that?
Prof Mansbridge: Yeah. It became the central issue, and when I wrote Why We Lost the ERA, one of the things I said is that we didn’t listen hard enough to the opponents. The book is in part about the process of democracy, and how the process can sometimes get screwed up, but through this adversary stance, is that the different parties take. In our case, we didn’t want to say that the Supreme Court would not use the Equal Rights Amendment to force women into the draft, which it would not have.
At that time, and still, there’s something that lawyers call, and the court has called, “The Doctrine of Military Necessity,” or difference to the military. That means, for example, let’s just take the First Amendment again, that soldiers don’t have the same rights of free speech that civilians do. If the military thinks that soldiers shouldn’t be something in their newspaper, the military can say, “X, Y, Z does not go in the newspaper. End.”
You can’t say, “Oh, my free rights, to free speech,” etc. etc. There could be a law against soldiers saying, for example, where they are, or anything. The court is very clear that … If the military would have just said, “This is going to hamper our ability. Drafting women will hamper our ability to go forward as a military,” the Supreme Court wouldn’t have done anything by all the past precedent. However, our lawyers were progressive, and they didn’t like the Doctrine of Military Necessity. They thought that soldiers should have the same rights as civilians.
They didn’t want to use that argument. So, we didn’t use that argument. We said women should be drafted. Now, I personally do think that women should be drafted, and indeed the American public has come around to think that women … I’m not sure what exactly the public opinion is now, but I think that more than half the American public at the moment thinks that it’s fine to draft women. At that time, when the ERA was coming before the states, only a quarter of the American public thought it was a good idea to draft women.
So, it wasn’t really a great idea to be arguing that … It would. So, we kind of talked ourselves into our own corner by not really taking seriously the arguments of our opponents. That was just one example. But there were other examples in which we weren’t listening very hard. It was a dynamic of deafness. My argument was this wasn’t just true of the Equal Rights Amendment … Movement, it’s true of all social movements. All social movements acquired this dynamic of deafness because they’re voluntary movements, and in order to give your time to a voluntary movement, you need to think it’s going to do wonderful, wonderful things.
So you talk yourself into thinking this is going to be revolutionary. Well, if the public doesn’t want something revolutionary, you’ve talked yourself into something the public doesn’t want. That’s the dynamic of all social movements, actually. The ERA was much more listening-oriented than almost any other social movement partly because it was a Women’s Movement, and women come from across the board, and we’ve learned to pay a lot of attention to one another.
Matt: Can you talk a little bit more about the volunteer aspect of it, because in the book you talk about three different ways. The fact that this was a movement driven by volunteer activists, it meant that they were appealing to principle rather than an immediate self interest, that there was less organizational control. It wasn’t arranged in a way that there was an ability to weaken your stance, and come to some kind of compromise. Could you go through those?
Prof Mansbridge: Sure. Again, social movements are what I call “hydra-headed”. They’ve got lots and lots of heads all over the place, and you can’t control it. Someone in the ERA case … We in Illinois were getting nuns to get up in front of the Illinois journalists [inaudible 00:13:20] and say that the ERA would have no effect whatsoever on abortion.
Meanwhile, in Hawaii, they were making the argument that under the state ERA, the state was required to fund abortions. Now, they didn’t get anywhere with that argument. It was never … That argument got nowhere at the time under the state ERA, so it was a completely … It didn’t go anywhere.
Matt: Right.
Prof Mansbridge: There, in Hawaii … But it really was not a great thing to happen to us when we were saying, “Look, the ERA wouldn’t have these effects,” and in fact, they didn’t have those effects in Hawaii. But, the Hawaii people were using the state ERA to make that argument, and a successful argument, but still. You just couldn’t control the Hawaii people, and it’s the same with any social movement today.
Some group of women will say something somewhere and people will assume that those people are talking for all women. Well, no. They’re talking for themselves. But, they might even talk in the name of the Women’s Movement, but they still … There’s no card-carrying membership where you can expel someone from the “Women’s Movement,” or from the environmental movement, or from any movement for saying things that large numbers of people and the rest of the movement don’t agree with. You’re vulnerable to that kind of outlier activity, and of course the opponents will take great advantage of it.
Matt: Sure. On the organizational part, I was struck by one example you wrote about in Illinois where an enormous protest was organized by one group that was campaigning for the ERA, and the protest went forward and huge groups of people chanting, etc. Whereas, another group that was campaigning for the ERA was trying to lobby with the legislators, were kind of grinding their hands because even those who supported the legislation, they were being overloaded. They were trying to finish their … I think it was the end of the legislative calendar.
Prof Mansbridge: Well, that was an example of just what I’m talking about, the hydra-headed non-controllable quality of it. Toward the end of the campaign, after Ronald Reagan had not put the ERA in his platform, it was getting much harder to get republican legislators to vote for it. Now, the state legislators are not all determined by the national presidential platform, but it has a big effect.
Half of the members of ERA Illinois were republican, and they were very, very pro-ERA, and they had a lot of republican senators, republic legislators, who wanted to pass the ERA, and some were on the fence, and so forth. They were trying to bring around the people on the fence. Then, the National Organization for Women has a big protest, in which they vilify all the republican legislators.
This drove the republicans and the ERA Illinois, slightly crazy. Yes, there were definitely moments, particularly towards the end in Illinois and elsewhere, when the parties began to diverge. When the parties were … When it was very much a bipartisan issue, that wasn’t as likely to come about. But later, yes? … In the early 80's.
Matt: The Women’s Movement today, whether it be the #MeToo Movement, or the Women’s March, it’s also had kind of questions about its partisan leanings. Pro-life women have said that they feel excluded from the movement. Do you think that are kind of lessons from the ERA fight that can be applied here that can make a bigger tent, I suppose?
Prof Mansbridge: Yeah. Well, activists disagree. My stance is inclusive. My stance is a big tent. I consider feminists anyone who favors equality for women. So, if Sarah Palin says she’s a feminist, that’s fine with me. She’s a feminist. She and I may disagree on a set of things. Similarly, with pro-life women, if they are for equality for women, they’re feminists as far as I’m concerned, and they’re in the Women’s Movement as far as I’m concerned.
Now, a particular march is another thing. You might want to have specific rules for specific marches, so the marches are, in fact, more coherent. For example, the National Organization for Women in the ERA struggle said that whenever the National Organization for Women ran a march, you could not carry banners saying you were for socialism, or that you refer lesbian rights. They wanted the ERA marches to be about the ERA and that’s all. Because they thought rightly that the opposition would take pictures of the women with socialist banners and so forth.
In the case of a march, unlike the Women’s Movement in general, you could … The people organizing the march could control certain things, and people make specific decisions about specific marches in order to try to make the march a coherent enterprise. I would certainly disagree with not having pro-life women in a march, but that’s my opinion. I don’t disagree with the idea that marches can be … The kind of banners that you bring to a march can’t be controlled. I think they should be controlled by the people who organized the march so that the march has a meaning.
You can’t control a social movement, but you can control a march, and that’s all right with me. Somebody’s march should mean what they want it to mean. On the other hand, in general, I’m for a very big tent, and I think it’s really important to be able to speak across partisan lines, and to be able to bring people in, and I think with the new ERA surge, there are republic women supporting it just as there were originally. I’m very much for that, and I think that we all ought to be reaching across the aisle to make common cause in this matter.
Matt: Do you think this is a good time … Even in your book, you said this is a time to put the ERA to rest and start to look at other things. But you were saying maybe 10 or 20 years from now … Well, it’s 35 afterwards, is this a good time? Is this time to bring it back?
Prof Mansbridge: Yeah, a lot of people have mentioned that 10 or 20 years line in the book, and it is a good deal more than 10 or 20 years from now. Yes, there has been this rather extraordinary change in the status of the Amendment, that’s not in the book at all because what happened. Shall I tell the story of the Madison Amendment?
Matt: Yes, please do.
Prof Mansbridge: It’s kind of fun. What happened was in 1982, there was this guy, Gregory Wilson, who was an undergraduate at the University of Texas, and he was writing a paper, an undergraduate paper on the ERA. He was looking around, and one of the issues was whether a bunch of states, once they ratify, can rescind that ratification. The courts have said no they can’t, and he was very interested in the Madison Amendment.
James Madison, back in 1789, had proposed an Amendment saying that congress had to take a roll call vote every time it voted for a pay increase for itself. So, this guy, Gregory Wilson, Watson said to him, “Yeah, that’s a good idea. We should put that in the Constitution.” And it had only gotten, I think, about … What was it? About 8 states or so, and then he went out and he got some more states, and he got some more states, and he got some more states.
He made it his … After he graduated from being an undergraduate, he put his own $6,000.00 of his own money into it. He went around from state to state, and he actually got a bunch of states to ratify it, and he finally got the number that you needed to get it in the Constitution. He came up to the congress, nobody paid terribly much attention. He thought you have to have a roll call vote every time you have a pay raise, fine, fine, fine.
They passed it. They put it in the Federal Register and so forth, and it became the 27th Amendment to the Constitution. That’s … Law students began to think, “Well, if that can be true of the Madison Amendment, it can be true of the ERA, that the deadline of 1982 was just wasn’t in the Amendment, it was just a congressional act saying that it was the deadline.” If congress, by majority vote said that the deadline was ’82, then congress by majority of vote could say that the deadline is many years from now.
So they were able to get it back, and it’s going to the states right now. It’s been revolved through this rather extraordinary legal history, and good old James Madison and good old Gregory Watson, getting the 27th Amendment in our Constitution, and making a wonderful president for getting the Equal Rights Amendment in.
Matt: So, with Nevada now on board as of last year, that leaves Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Did I get them all?
Prof Mansbridge: I think so.
Matt: All right.
Prof Mansbridge: And you notice most of those are southern states. But the south isn’t the south it used to be, and Florida … Illinois has a rule that you need a super majority to pass a constitutional Amendment, so it’s not quite like the other non-southern states. As I say, these states are changing in the populations our whole view of women, gender, and equality is changing. I see no reason why Florida, Illinois, or North Carolina, or Virginia shouldn’t ratify the ERA, and then we’d have it in the Constitution.
Matt: And you only need two.
Prof Mansbridge: Only need two.
Matt: Wow. That’s pretty close.
Prof Mansbridge: That’s amazing. All because of the Madison Amendment.
Matt: If and when it passes, and it is ratified, where do things go from there?
Prof Mansbridge: Well, we’ve got bipartisan support for a number of things. For example, we had the Sexual Assault Survivors Bill of Rights Act in 2016. That passed unanimously in the House and Senate. It was introduced by Mimi Walters, a republican from California, and Zoe Lofgren, a democrat from California. So, it shows that on the subject of Women’s Rights, the parties can get together. I think that if and when they pass the ERA, when the states pass the ERA, what comes next depends on what bad laws are passed in the states.
It could, like the First Amendment, lie relatively unused for quite a while, until something bad happens. I would be very far from saying that the world will be in any major way changed after the ERA is ratified. It’s there as a protection, not as a major instrument of social change. It’s there just like the First Amendment, as an anchor to make sure bad things don’t happen in the future. It’s not a big engine of change, and it shouldn’t be sold as that way, and no one should expect it to be an instrument of change.
