Gloria Steinem was right: The ERA is dead

Feminist leader Gloria Steinem has died at age 92. One thing that will not get the attention it deserves is her appearance on The Oprah Winfrey Show on Jan. 14, 1986. Asked about the status of the Equal Rights Amendment, she explained that “because it was not ratified in the nine years allotted to it, it now has to start the process over again and be passed by the House and the Senate and go through all of the states’ ratification process.” She was right.The Constitution provides that two-thirds of Congress can propose a constitutional amendment and three-fourths of the states (38 today) must ratify it. Congress proposed the ERA on March 22, 1972, with a seven-year ratification deadline. The same measure, without a deadline, failed in the Senate two years earlier, and Rep. Martha Griffiths (D-MI), the ERA’s primary sponsor, added the deadline to increase support. Recommended Stories A ratification deadline had been a common feature of amendment proposal resolutions for decades, and the women’s groups backing the ERA said that it was “customary” and would be “perfectly all right.” The National Woman’s Party, which started the ERA push five decades earlier, said that supporters would have no objection to “a reasonable time limitation in which the amendment should be ratified.” Everyone in 1972 knew that the ratification deadline was binding. Then-Professor Ruth Bader Ginsburg, in a report coauthored for the U.S. Civil Rights Commission, wrote that ratification by at least 38 states “must occur within 7 years” of its proposal by Congress and would become part of the Constitution only if ratification “is completed by 1979.” This is why, knowing the deadline was valid, ERA supporters pushed Congress to pass a resolution in 1978 extending it through June 1982. The only federal court to address it found this attempted extension unconstitutional, but it didn’t matter. Thirty-five states ratified the ERA, and five of them rescinded their support by the original deadline, and none did so thereafter. Do the math: 35 is less than 38. ERA supporters know that the 1972 ERA was the only one Congress would ever propose and, therefore, have been grasping at straws to pretend that it’s not dead. The main one is the observation that the ratification deadline is found in the “resolved” clause of the proposing resolution rather than the text of the proposed amendment itself. Yes, that’s right: the best they can come up with is that the deadline appears here, rather than there, on the page.That distinction-without-a-difference never dawned on anyone back in 1972. Eight of the amendments that actually made it into the Constitution were ratified under a seven-year deadline, four of which appeared in the amendment text and four in the resolving clause. Not a single member of either Congress or any state legislature said a word about where the deadline was located. Why? Because everyone knew Congress has authority to set a deadline and where Congress puts it makes no difference whatsoever. No fewer than 25 of the 35 states ratifying the 1972 ERA did so with resolutions that copied Congress’s proposing text — including the ratification deadline exactly where Congress put it.The Congressional Research Service has repeatedly said that the ERA “formally died on June 30, 1982, after a disputed congressional extension of the original seven-year period for ratification.” Perhaps, as a tribute, it should cite Gloria Steinem.