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George Will

George Will: ERA reappears as tragedy

| Wednesday, June 13, 2018, 8:53 p.m.
Phyllis Schlafly, a foe of the Equal Rights Amendment, addresses her supporters at a rally Nov. 22, 1977, at the State Capitol in Springfield, Ill.
Associated Press
Phyllis Schlafly, a foe of the Equal Rights Amendment, addresses her supporters at a rally Nov. 22, 1977, at the State Capitol in Springfield, Ill.

WASHINGTON —

Karl Marx was no more mistaken than usual when he said that historic people and events appear twice, first as tragedy, then as farce. Today's advocates of a musty fragment of the 1970s, the Equal Rights Amendment, are demonstrating that something that begins as farce can reappear as tragedy, because abuse of the Constitution is tragic.

With Illinois slouching toward bankruptcy, its Legislature must have better things to do, yet it recently ratified the ERA. But can a legislative cadaver be ratified?

On March 22, 1972, a stampeding Congress sent to the states for ratification this constitutional amendment: “Equality of rights under the law shall not be denied or abridged ... on account of sex.” Without seriously considering what this would add to the 14th Amendment's guarantee to “any person” of “equal protection of the laws,” the House and Senate passed it 354-24 and 84-8, respectively.

Legislators sworn to “support and defend” the Constitution voted to clutter it with language the meaning of which they did not — could not — know. The meaning was irrelevant to the main purpose, which was to grandstand with an amendment the first, and for many advocates the sufficient, function of which was “consciousness-raising” — to “put women in the Constitution.”

Because the Constitution's framers believed that the most important decisions should not be taken on slender majorities, and that frequent amendments would impair the Constitution's majesty, they required amendments to pass both houses of Congress with two-thirds majorities and receive ratification by three-quarters of the states. Since then, constitutional morality has evolved the principle that ratification should occur during a predetermined period of deliberation.

So, Congress required ERA ratification within seven years, which was generous: The first 10 amendments (aka the Bill of Rights) were ratified in 27 months. The average time for ratifying amendments since the first 10 has been 16 months, and no amendment has taken even four years.

Twenty states ratified the ERA in three months. In January 1977, four years and 10 months into the process, Indiana became the 35th and last state to ratify it. Twenty-six of the 35 referred to the seven-year deadline in their resolutions of ratification. By a simple majority, not the two-thirds required for amendments, Congress extended the deadline for 39 months — but only for states that had not ratified it. It died in 1982, in its 123rd month, having gone longer without a single additional state's ratification than it took to get all of its original 35.

The only federal court to rule on the four-year extension held it unconstitutional, and said all rescissions were valid. Now, however, ERA advocates argue that the clock can never expire on ratification — states can vote over and over until they ratify it, and no ratification can be rescinded. In 2017, Nevada ratified the cadaver, so ERA proponents insist they are just one state away from victory. But, inconveniently, ERA supporters in Congress have repeatedly reintroduced it (most recently in January 2017), thereby conceding that the process must begin again.

Which is farcical. In 1972, there were 13 women in the House and two in the Senate. Today there are 90 in the House and 23 in the Senate, reflecting 46 years of legal and social changes that a prompt ratification of the ERA would not have hastened and that consignment of the ERA to the attic of 1970s nostalgia will not impede.

George Will is a columnist for The Washington Post. His email address is georgewill@washpost.com.

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