Brevity is the hallmark of the United States Constitution: seven Articles and twenty-seven (27) amendments. It is approachable by laymen, which adds to its weight as a cornerstone of national unity.
The Constitution should not be cluttered up with superfluities. The Child Labor Amendment was proposed in 1924 to overcome twin Supreme Court decisions denying congressional authority to regulate child labor under either its taxing or commerce power. The amendment was placed in abeyance when the Supreme Court reversed its child labor precedents in NLRB v. Jones & Laughlin Steel Corporation (1937). Congress enacted child labor legislation without the amendment accordingly.
The Equal Rights Amendment was proposed in 1972. It provides: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
In 1972, the ERA had meaning. The Supreme Court had only begun to guarantee women a right to move beyond the kitchen and bedroom in Reed v. Reed (1971). No woman had ever been appointed to the High Court. But as the amendment began racing through state legislatures (three-fourths are required to ratify) the Supreme Court’s issued an array of constitutional rulings prohibiting discrimination based on sex. Meanwhile, Sandra Day O’Connor, Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan, and Amy Barrett were appointed to the Supreme Court. Justice Ginsburg authored the Court’s 8-1 opinion in United States v. Virginia (1995) prohibiting the exclusion of women at military academies. The ERA has become a museum piece.
But there is partisan political advantage to persisting. Senate Majority Leader Chuck Schumer announced on Monday that the Senate would vote this week to delete a 1982 deadline for state ratifications of the ERA that would satisfy the three-fourths threshold. (Only 35 rather than 38 states had ratified by 1982). The effect of the deletion, if also approved by the House, would cause the ERA to be instantly ratified because of the prior but belated ratifications of Virginia, Nevada, and Illinois in 2020, 2017, and 2018.
Why would Democrat Schumer go to all this effort to ratify the constitutional status quo? Doesn’t he have more important things to do? Schumer hopes to force votes that would embarrass Republicans by their opposition to the ERA, which would risk alienating female voters already infuriated by the Dobbs decision overturning the constitutional right to an abortion and judicial rulings threatening to remove mifepristone from the market.
The Constitution, however, is too important and venerated to be left to political party gamesmanship. The ERA at this point would be no more than a vanity for women and the Democratic Party. Let it rest in peace. Its goal has already been achieved by other means.