“Women have insisted for generations on an inclusive Constitution. … There’s something morally wrong with enforcing a deadline to stop it.”
—Professor Julie C. Suk, a leading scholar of constitutional gender equality and author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment.
The Equal Rights Amendment is now one floor vote in the Senate away from finally becoming the 28th Amendment to the U.S. Constitution. Earlier this month, by a vote of 222-204, the U.S. House passed H.J. Res 17, a bipartisan joint resolution introduced by Rep. Jackie Speier (D-Calif.) to remove an arbitrary timeline for ERA ratification. Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) have introduced an identical resolution in the Senate.
Senate opponents of the ERA argue it’s too late to ratify the Amendment because the preamble to the Amendment Congress passed in 1972 had a seven-year timeline for ratification. Congress later extended that timeline to 1982, but it wasn’t until 2020 that the required 38 states ratified the ERA. Those opposed to the ERA also argue that we still don’t have enough states for ratification because five states have tried to rescind their ratifications.
Ms. magazine spoke about these issues and more with Professor Julie C. Suk, a leading scholar of constitutional gender equality in the United States and around the world. Her recent book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment, charts the legal, historical and political significance of the ERA’s current resurgence, enabled by generations of women who have fought for the ERA.
In the book, she addresses why the ERA has taken so long and what it could do for women today. Suk teaches in the sociology and political science departments at the graduate Ccnter and is a Florence Rogatz visiting professor of law and senior research scholar at Yale Law School.
Carrie Baker: Why did you write this book?
Julie Suk: I wrote this book because I found the whole prospect of the ERA never becoming part of the U.S.. Constitution deeply disturbing. The absence of ERA makes the U.S. something of an anomaly in the world of constitutionalism. If you compare the United States to other constitutions, we have one of the most unamendable constitutions in the world. We have a highly polarized society with low prospects for bipartisan coalition than we had even 50 years ago, and certainly at the founding.
From that perspective, it’s disturbing but not surprising that something that seems so obviously to belong in a constitution, like the ERA, would fail in the United States for so long. And now we are facing a new possibility: making a constitutional amendment that generations of women have fought for in this very unprecedented multi-generational way.
I wrote the book to understand how women Constitution-makers have made the meaning of the ERA, and the relationship of the ERA to existing constitutional law, including the 14th Amendment. I wanted to write the story of who made the ERA because one of the most important arguments for the ERA is that women have insisted for generations on an inclusive Constitution, and maybe there’s something morally wrong with enforcing a deadline to stop it.
I wanted to tell a story to give “we the people”—not only lawyers—a shared narrative of how the ERA was made, what it was meant to do, and how that meaning changed over time. Getting the ERA into the Constitution isn’t the only purpose. The process by which it happens shapes what it can actually do as law.
Instead of saying, “I really want the ERA to happen so I start backwards from that,” my central question is: “If the ERA were to happen, what kind of ERA would we want?” If we get an ERA that either does nothing, or worse, enforces a rigid gender neutrality that undermines women and helps powerful corporations, that’s not an improvement on the constitutional law that we currently have. That’s why we have to pay attention to how the ERA gets completed. The articulation of feminist meanings have to be part of the process, because if we lose those meanings, we may not get an ERA worth having.
“It’s disturbing but not surprising that something that seems so obviously to belong in a constitution, like the ERA, would fail in the United States for so long.”
Baker: What meanings in history did you discover that makes the ERA worth having today?
Suk: It’s captured in the subtitle of my book, “The Unstoppable Mothers of the Equal Rights Amendment.” I’m using “mothers” in two senses. First, the idea of “founding mothers” of the Constitution. Second, actual motherhood as a source of inequality.
The legitimacy of our Constitution is tainted by the fact that it was adopted by largely white slaveholding men and that many provisions were written which did not take the humanity and personhood of women, African Americans, and many other people into account. That is something that needs to be fixed. The “Founding Fathers” did not even create an amending process that could easily fix these original exclusions.
Also, the “founding mothers” of the ERA paid attention to actual motherhood as a disadvantaging factor in society for women. This history has been forgotten. In fact, the ERA was about equality for mothers by overcoming the disadvantages that women faced because they were mothers and mothers-to-be.
Baker: In your book you say that the time limit is not binding. Can you explain that argument?
Suk: The ERA time limit is different from other ratification deadlines that were intended as expiration dates. With the Prohibition Amendment, Congress added it to the text of the amendment itself and the text made it very clear that if not ratified within seven years, the amendment would be dead. The text said that the article would be “inoperative unless … ratified … within seven years.”
Around the late 1950s and 1960s, Congress then started expressing the deadline slightly differently. Instead of putting it into the text of the proposed amendment, Congress started putting it into the preamble. But even in the 23rd and 24th Amendments, if you look at those preambles they said that the amendment would be valid “only if . . . ratified . . . within seven years.”
Now, with the 25th and 26th Amendments, they put it in the preamble and used the same language that they used in the ERA, which was “valid to all intents and purposes … when ratified … within seven years.
The differences between “inoperative unless” and “when” ratified were noted by Ruth Bader Ginsburg, when she testified at the deadline extension hearings in Congress as a law professor in 1977 and 1978. She, and lawyers for the Justice Department, argued that “when ratified within seven years” in a preamble just meant if it is ratified within seven years it’s certainly part of the Constitution. But if it takes longer, then it’s an open question that Congress can revisit.
Article 5 is the constitutional rule for amendment. It does not say anything about deadlines. It just says that the amendment becomes valid when ratified by three-fourths of the legislatures. So, it’s not clear from the text as to whether Congress has the authority to impose a deadline. But the text gives Congress power to designate the mode of ratification. And one long-standing understanding of Congress’s power to designate the mode of ratification is that it includes the power to make procedural rules for state ratification, such as a timeline, which Congress could revisit and change. And Congress could regulate the “mode of ratification” by majority vote, because any other time the Constitution requires a supermajority it explicitly states that.
Baker: Several states have rescinded their ratification of the ERA. Is that valid?
Suk: The Supreme Court discusses a similar situation in Coleman v. Miller in 1939. Two states actually rescinded their ratifications of the 14th Amendment, and Congress just counted those states as ratifying states and declared the amendment ratified. The Supreme Courts say: Well, if Congress had the power to declare the 14th Amendment ratified despite recissions, that supports the inference that Congress has general power to make the political judgement when there’s a dispute about the validity of a ratification.
A dispute about the validity of a ratification can occur because of recissions. A dispute can occur because it’s unclear whether a time limit was intended to make the amendment expire irrevocably. Coleman v. Miller says in such disputes, the decision-maker is Congress because it’s fundamentally a political, rather than legal, judgment. Congress has to decide: Is this amendment still relevant and necessary? That’s a political judgment about the social and economic circumstances giving rise to the need for the amendment.
Baker: Would the ERA do more than the 14th Amendment to secure full rights on the basis of sex?
Suk: When the ERA was introduced, the 14th Amendment was not enough. The women’s movement had a dual strategy. They advocated for the ERA at the same time as pursuing a litigation strategy to persuade the Supreme Court to expand the 14th Amendment to guarantee the right to be free from governmental sex discrimination. That litigation was successful in many respects.
So, today, it is actually true that the Constitution, as it’s interpreted by the Supreme Court and enforced in courts throughout the country, does prohibit discrimination on the basis of sex. The culmination of that jurisprudential development is United States v. Virginia, the case that forced the Virginia Military Institute to admit women after over a century of excluding women, in a Supreme Court decision authored by Justice Ginsburg.
Some argue that, because this litigation was successful, the ERA’s goals have now been met and therefore the ERA is unnecessary. But there were parts of the ERA agenda that were not fully realized through this litigation, specifically the disadvantages women face in society because they are mothers and mothers to be, including governmental discrimination on the basis of pregnancy.
At the same time that Supreme Court cases in the mid-1970s recognized the unconstitutionality of gender classifications that perpetuated gender stereotypes, the Supreme Court decided cases that said that pregnancy discrimination in the provision of governmental benefits was not sex discrimination.
Even though we got statutory law changing that idea with regard to employment discrimination, the Supreme Court never actually overruled its cases saying that governmental pregnancy discrimination was not unconstitutional sex discrimination. So, pregnancy is one subject on which I think the ERA could go beyond what the 14th Amendment has done.
But I think the most important function of the ERA is political rather than legal. Most of the people who are driving the ERA revival are activists, not lawyers. They want empowerment by constitutional inclusion, not a legal fine-tuner. Women have been fighting for a place in the Constitution for 100 years; they’ve done all this work that remains invisible in the text of the Constitution. If we keep equal rights for women in the 14th Amendment without an actual textual guarantee in the Constitution, it has less political force than it could and should.
That said, congressional committee hearings are essential to making the ERA a source of empowerment for 21st century women. Hearings and markups create legislative history that makes clear why 21st century women need the ERA and what they intend the ERA to do. Without legislative history, the ERA will do whatever the conservative Supreme Court wants it to do. Hearings should not be bypassed; they are opportunities to guide the Supreme Court Justices on the ERA’s intended public meaning.
Baker: What could public hearings accomplish?
Suk: Scholars, constitutional experts and members of Congress could create a clear record confronting some of the difficult questions raised by the ERA. How are its goals in 2021 different from its goals in 1972? What 1972 goals are still unfinished? What will ERA’s relationship to existing 14th Amendment doctrine be? Will some Supreme Court cases be overruled by the ERA?
On that question, the ERA could clarify the scope of Congress’s power to take robust and aggressive action to promote gender equality, especially to respond to unprecedented female recession we are now in because of the COVID-19 pandemic economy. The Supreme Court has severely limited Congress’ ability to reach a whole range of problems that have economic consequences. You see that in the 2012 decision in NFIB v. Sebelius, which basically upholds the individual mandate on healthcare based on Congress’s tax power, but five justices said that Congress’s commerce power doesn’t allow Congress to force people to buy health insurance, because not buying health insurance is not economic activity.
So, if we’re talking about women who have been forced out of the work force and are doing undervalued and undercompensated caregiving work at home and Congress wants to craft a detailed national policy response to that, it’s not clear that the Supreme Court’s existing jurisprudence about the Commerce Clause would authorize all the laws necessary to promote gender equality in the home.
The Supreme Court struck down the Violence Against Women Act’s civil remedy provision not only on the theory that the Commerce Clause was inadequate to authorize Congress to regulate sexual violence, but also based on a pretty narrow understanding of Congress’ power to enforce the 14th Amendment, limiting national legislation that affects domestic and family matters.
The language of the ERA is different from the equal protection clause. It prohibits the government from “abridging” equal rights. Perhaps you could argue that the government “abridges” equality of rights when it doesn’t do enough to prevent violence against women or to support women who are shut out of the labor market because of caregiving responsibilities. By that logic then you might end up with a more robust understanding of Congress’ power.
But all of this is interpretive, it’s not automatic. So we need a clear record establishing the intent of those who are making this amendment happen now. Without that record, the ERA’s short and abstract text just goes to judges, who can use their preferred interpretive tools to arrive at their own idea of gender equality that may, in the end, be at odds with what the ERA proponents are hoping for.
Baker: Do you think the three-state strategy is the right strategy to get the ERA in the Constitution?
Suk: Ruth Bader Ginsburg said she would like to see a new beginning. Like her, many people who support the ERA would find a new beginning cleaner and more attractive in an ideal world. It’s a tragedy that our Constitution and current partisan polarization make a new beginning for any constitutional amendment implausible in 2021. We have not amended the Constitution since 1992, and that amendment was written by James Madison in 1789. The last time two-thirds of Congress in both houses voted on an amendment was the D.C. representation amendment in 1978.
So, I belong to a whole generation of Americans who have never amended the Constitution. Our 18th century Constitution changed to protect the rights of women, but this happened by judicial interpretation. But if you “amend” the Constitution without formally amending it, you are entrusting constitutional change to judicial and legal elites. In most countries around the world, and indeed in most of the states, there is a role for the people in amending the Constitution.
The ERA story draws attention to the lack of access to constitutional change. If you just read Article 5 to map out what the process of amendment looks like, the ERA story is far messier. Legal scholars have long suggested that in fact almost all of our amendments have been kind of messy.
So the three-state strategy is the only viable, though messy, path. But it is consistent with Article 5, and pursuing it should shed light on the problems with Article 5 and the barriers our amendment process poses for amendments that seek the inclusion of people who are disempowered.
Baker: In your book, you say the ERA could provide the constitutional foundation to support legislation in areas such as accommodations for pregnant workers, paid parental leave, child care and workplace flexibility laws and could provide a basis for Congress to engage in affirmative efforts to support gender equality both at home and in the workplace.
How does the ERA do this?
Suk: This is through Section 2 of the ERA, which empowers Congress, and Section 3, which creates a two-year delay between ratification and effective date. If you look at the history, the only other time we used a similar delay was with the Prohibition Amendment. There was a one-year delay to give Congress and state legislatures time to enact new laws to enforce Prohibition.
The two-year effective date in the ERA is saying, “Time for Congress and state legislatures to legislate real equality for women!” Martha Griffiths, who was one of the primary sponsors of the ERA, explicitly said so on the floor of the House and in congressional hearings in 1971.
First, Congress and the state legislatures would start repealing laws that discriminated against women. They could analyze laws for the impact that they have on gender equality. Laws that operate to abridge women’s ability to live as equal citizens under the law would to on the chopping block.
But here’s where legislatures, rather than courts, could be most effective. Supreme Court decisions on sex equality are very conscious of the fact that courts can’t rewrite policy. They strike things down. They can’t strike things up. A lot of times, if you strike down a law because it discriminates against women, you don’t end up with gender equality just sprouting up like a plant and growing on its own. You often have to provide some kind of replacement infrastructure to actually implement women’s equal status in that area of law.
There is a lawsuit calling some aspects of the American Rescue Plan unconstitutional because they exceed Congress’s spending power by commandeering the states. If Congress passes comprehensive child care policy based on spending power, depending on how it is structured, similar efforts to narrow Congress’s spending power could be litigated.
Having a very clear statement in a constitutional amendment of Congress’s broad-ranging power to promote gender equality through the full range of public policy tools is very important. ERA Section 2 can do that—but only if the record is clear on what is intended by reviving the ERA in the 21st century.
If it’s intended to supersede the Supreme Court’s precedents on Commerce Clause, Section 5 of the 14th Amendment, and federal spending power, to provide a stable constitutional foundation for robust gender equality policies, such intent should be expressed in the legislative history.
Baker: Was the record in the ’70s clear as to that?
Suk: Martha Griffiths and Patsy Mink certainly had a vision that put Congress at the center of the ERA and women’s equality. Martha Griffiths proposed that upon ratification, Congress should form a commission to review all the federal laws and suggest revisions. Patsy Mink, the first woman of color in Congress, said ERA would be constitutional backing for legislation that addressed both overt and indirect discrimination against women.
Baker: So you’re arguing the ERA would prohibit laws that have a disparate impact on women?
Suk: That is a possible interpretation of the ERA, supported by the ’70s legislative history. When the ERA was passed by Congress in 1972, there wasn’t a clear distinction in everyone’s head between disparate treatment and disparate impact.
It’s only in 1976 that the Supreme Court’s decision in Washington v. Davis draws a clear line between disparate impact and disparate treatment. Before 1976, there was a real fluidity conceptually in the way that we thought of discrimination as involving both disparate treatment and disparate impact. The proponents of the ERA in the early 1970s were clearly thinking about both.
This does then pose a very interesting question that’s unprecedented in constitutional law: If you have an amendment that’s made across a period of 40, 50 years and you have these intervening doctrinal developments, how do they affect the doctrinal development of the new amendment?
These are things that need to be worked out by the courts, but I don’t think they should be worked by the courts alone. People who are making the amendment by ratifying it in the state legislatures and by removing the deadline in Congress, responding to the people and to activists, should provide some direction to the courts.
“Almost every constitution in the world has the equivalent of an ERA, and many of these constitutions also have some protections for unborn life and limitations on abortion that are more restrictive than Roe v. Wade.”
Baker: What do you think the impact of the ERA would be on abortion rights?
Suk: It’s hard to imagine equal rights for women without reproductive freedom, which includes the right to terminate a pregnancy, at least in some circumstances. But there is a range of reasonable views as to what degree and form of reproductive freedom are essential to women’s ability to live under the law with equal citizenship stature. Almost every constitution in the world has the equivalent of an ERA and many of these constitutions also have some protections for unborn life and limitations on abortion that are more restrictive than Roe v. Wade.
In completing the ERA, we should focus on areas of agreement about the forms of reproductive freedom necessary for women to live as equals rather than as second-class citizens. Reproductive freedom includes the right to bear children, not only the right to terminate a pregnancy.
There’s a little bit too much emphasis on abortion when we talk about reproductive freedom, when people across the political spectrum agree that the government has done too little to support women who choose to be mothers.
Ruth Bader Ginsburg was involved in a case that actually never made it to the Supreme Court, Struck v. Secretary of Defense. Struck was a military nurse in Vietnam working for the Air Force who was pregnant, and despite the fact that abortion was illegal in many states at this time, the Defense Department told her if she wants to keep her job she’d better get an abortion. She didn’t want to have an abortion. She wanted to give birth and give the baby up for adoption and come back to her job.
So, Ruth Bader Ginsburg really was taken by this idea that being forced to have an abortion as a condition of keeping your job was sex discrimination because reproductive freedom is not just the freedom to terminate a pregnancy—it’s also the freedom to choose to be a mother without it being an economic disaster.
Unfortunately, that idea hasn’t taken hold. In the United States now, choosing to be a mother often is an economic disaster for many women. Conservatives are increasingly recognizing that it’s become too expensive and too hard to be a parent. This is an issue on which there’s bipartisan agreement. So, we can protect both the woman and unborn life by focusing on pregnant worker fairness, because if pregnant women are not accommodated on the job, it’s the woman and the fetus who suffer.
We should focus on the shared bipartisan commitment to supporting mothers and families rather than abortion as the core reproductive freedom issue for the ERA.
Baker: How will the ERA allow Congress to better address violence against women?
Suk: As noted earlier, the ERA would make it clear that Congress has power to enforce gender equality, and that includes the full range of laws and policies to prevent and remedy the multiple forms of gender-based violence.
Baker: What would you like Ms. readers to know about your book? Was there anything that was particularly surprising to you when you were delving into that history of the ERA process?
Suk: I’d like readers to know that We the Women honors women as constitution-makers, and connects the women who wrote the ERA in 1923, to the women who were its chief framers in the 1970s, to the women who completed its ratification and transformed its meaning in the 21st century.
Before I wrote the book, I didn’t fully appreciate how important women of color in Congress were to shaping a vision of the ERA that defended motherhood and democracy—people like Patsy Mink, Shirley Chisholm, Barbara Jordan.
I also did not know how much Ruth Bader Ginsburg contributed as scholar to illuminating the difficult constitutional questions raised by the deadline extension, which are very relevant today to the deadline removal.
Ms. readers—and all Americans—should know that women of color in state legislatures have been at the forefront of reviving the ERA. That fact should matter as we confront the political question entrusted to Congress as to whether the ERA should become part of the Constitution, notwithstanding the unique path it has taken.
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