ERA and the sacrament of ratification

March 20, 1997|By George F. Will

WASHINGTON -- The revival of 1970s kitsch -- hip-hugging bell-bottoms, the Brady Bunch -- and the descent of feminism into farce continues with two measures designed to resuscitate the Equal Rights Amendment.

For 15 years it has been a-moldering in its grave, but this week, the 25th anniversary of the vote by which Congress sent the amendment to the states for ratification debates, it is being reintroduced in Congress.

Congress, never known for its sense of irony, passed the amendment in a chivalrous mood, trying to please regiments of women who regarded chivalry as phallocentrism in drag. The date was March 22, 1972. Hawaii, in hot haste to be first to vote to (as was then said) ''put women in the Constitution,'' ratified the amendment that day. Nebraska was cavalier, in two senses. Rushing to ratify second, it did it wrong and had to do it again six days later.

Twenty states ratified within three months, most without hearings. Two more ratified before the end of 1972. Then second -- actually, first -- thoughts began.

The ERA says: ''Equality of rights under the law shall not be denied or abridged . . . on account of sex.'' What would this add to the 14th Amendment's guarantee to ''any person'' of ''equal protection of the laws''?

Suspicions grew that the ERA was either a constitutional redundancy -- a ''consciousness-raising'' gesture, hence constitutional clutter -- or it was a ticking bomb that could explode with unpredictable consequences in the hands of activist judges. In January 1977, Indiana became the 35th and last state to ratify it.

As has been the case with all amendments sent to the states in this century, the ERA was sent with a ratification deadline, to ensure that the Constitution would be altered only if the states' deliberations produced a consensus which was, in the words of a pertinent Supreme Court opinion, ''sufficiently contemporaneous'' to reflect the will of three-fourths of the states ''at relatively the same time.''

The ERA's seven-year deadline was generous. The first 10 amendments were ratified in 27 months. The average for the rest, with one exception, has been 19 months.

The exception, the 27th Amendment (no law increasing congressional pay shall take effect before an intervening election) was declared ratified in 1992 when Michigan's legislature endorsed it, 203 years after it was sent to the states without a ratification deadline. Congress was too skittish in 1992 to challenge the amendment's validity.

Special treatment

No other amendment has taken even four years to ratify. The 26th Amendment, lowering the voting age, took less than four months.

However, when 1979 dawned, no state having ratified the ERA for two years, ERA supporters, so ardent for equal treatment of women, sought special treatment. They sought another seven years. But Congress rejected the notion that a 14-year process would represent contemporaneous consensus and instead extended the deadline only to June 30, 1982.

The only federal court to rule on the deadline extension held it unconstitutional. The Supreme Court did not get involved because no additional state ratified the ERA by June 30, 1982. It died then, in its 123rd month, having gone longer (65 months) without a single state ratifying than it took to get all of its 35 ratification votes.

The ERA is now being reintroduced without a ratification deadline. Another measure, called the ''three-more-states bill,'' would require Congress to verify the ERA as part of the Constitution if just three more states ratify it.

The premises of this bill are that the ratification clock can never run out, and that the five states (Tennessee, Kentucky, Idaho, South Dakota and -- how delicious this was -- Nebraska) that came to their senses and rescinded their ratifications had no right to do so. This latter theory, according to a critic of it, suggests that ratification is ''a sort of sacramental act.''

This attempt to rig the rules -- there shall be no limit to how long a state can take to ratify, and no way a state can change its mind even while ratification is still an open question -- is what should be expected from ERA supporters. Their disdain for democratic due process can be gauged from the fact that they think social policy should be set not by legislation but by litigation generated under an amendment drafted for the purpose of generating litigation.

Twenty states -- the 15 who never ratified it and the five who rescinded their ratifications -- oppose the ERA, but another campaign for it will be a useful fund-raising vehicle for feminist factions. And it will serve the public interest by distracting them from serious politics.

George F. Will is a syndicated columnist.

Pub Date: 3/18/97

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