After Virginia finally ratified the Equal Rights Amendment last month, the feminists thought they were only a hair’s breadth away from seeing it added to the Constitution. But in a speech at Georgetown University this week, Supreme Court Justice Ruth Bader Ginsberg advised those attending not to get their hopes up.
At an event celebrating the 100-year anniversary of the 19th Amendment, Ginsburg said that anyone hoping to see such a change in the Constitution should start from scratch.
“I would like to see a new beginning,” she said. “I would like to start over.”
The problem, as Ginsburg and other legal scholars see it, is that while Virginia is technically the 38th state to ratify the 1972 amendment, Congress originally passed the ERA with the caveat that it would expire in seven years if it did not achieve full ratification. Congress subsequently expanded that deadline an additional three years. But by the time 1982 rolled around, the amendment had still only secured ratification from 35 states.
Furthermore, Nebraska, Tennessee, South Dakota, Idaho, and Kentucky all rescinded their ratifications after their original votes. It’s unclear whether the Constitution provides a mechanism for states to rescind, but the fact that these legislatures did so certainly adds weight to the argument that the ERA, in its present form, is a relic of history and not a serious contender for constitutional inclusion.
“There is too much controversy about latecomers — Virginia — long after the deadline passed,” Ginsburg said Monday, “Plus, a number of states have withdrawn their ratification; so if you count a latecomer on the plus side, how can you disregard states that said, ‘We have changed our minds’?”
In an opinion issued last month, the Justice Department Office of Legal Counsel argued that the ERA is a dead issue.
“Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment,” the office stated. “It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.”
Feminists insist that because the Constitution does not specifically single women out in its language, they are not legally covered by the same rights as male citizens.
“Women are not treated with the same value as men in America, and that stands to reason, as they have no value in their own Constitution,” actress Patricia Arquette said last year.
This is a common argument, but it has no merit. At the very least, the 14th Amendment, which prohibits states from making “any law which shall abridge the privileges or immunities of citizens of the United States” covers whatever loophole women may fear exists in the original Bill of Rights.
The truth is that feminists want to use the ERA to codify abortion rights in the Constitution and eliminate the possibility of Roe v. Wade being overturned. We’re sure that people like RBG would be more than happy to see that outcome, but even she has to admit that the ERA simply isn’t the right vehicle.