Three days before leaving office, President Joe Biden announced that the proposed Equal Rights Amendment (ERA) to the Constitution should be considered in effect. He was responding to pressure from ERA supporters who, in my opinion, are misguided.
In 1972 the ERA was passed overwhelmingly with bipartisan support in the House (354 to 24) and Senate (84-8) — well more than the two-thirds of each house required by the Constitution. Although amendments don't require presidential signature, Republican President Richard Nixon endorsed the proposal.
The proposed ERA stated:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after date of ratification.
The time period for ratification set by Congress expired in 1982. Though it came fairly close, the proposed amendment failed to get the required ratification by three-fourths of the states.
The goal of the proposed amendment — to protect women from legislation discriminating against them — was both legitimate and reasonable. My problem is not with its goal, which I support, but its possible side effects.
To explain this conclusion requires a side trip into my work as a political scientist. One of the principal conclusions my research reached was that there is a fundamental difference between laws, on the one hand, and pseudolaws, which are often confused with genuine laws.
Genuine laws are general rules of action enforceable by sanctions. If a rule enforced by sanctions is not a general one —applying to the actions of all people — it is a pseudolaw.
Legislation discriminating against racial minorities is obviously a pseudolaw.
Legislation discriminating against women is obviously a pseudolaw.
There are already clauses in the U.S. Constitution which could reasonably be interpreted to prohibit Congress or state legislatures from enacting pseudolaws.
The Fourteenth Amendment prohibits states from denying "to any person the equal protection of the laws." The Fifth Amendment, applying to the federal government, says that "no person shall ... be deprived of life, liberty, or property, without due process of law."
In a companion case to Brown v. Board of Education (1954), the Supreme Court held that the Fifth Amendment's due process clause requires the federal government to respect the same standards that the 145h Amendment's equal protection clause imposes on the states.
Consistent application of these principles would amount to a constitutional prohibition of pseudolaws.
Adding the ERA to the Constitution would imply that the equal protection clauses do not prohibit pseudolaws.
The distinction between men and women is a major one. If securing equal protection for women required an amendment, it could be argued that the equal protection clauses should not be interpreted to forbid all distinctions between people.
Such an interpretation of the equal protection clauses would be very unfortunate, virtually destroying the meaning of the only language in the Constitution which, properly interpreted, distinguishes between genuine laws and pseudolaws and implicitly forbids the latter.
The courts have not always interpreted the existing equal protection clauses this way, but they have been groping their way toward this interpretation and making considerable progress. Adding the ERA to the Constitution could undermine this progress and possibly reverse it. We should not allow this to happen.
The time limits for ratification stipulated by Congress have long since expired. The fact that a few more states have recently ratified it should not be considered unless the states that have repealed their ratification are also taken into account.
Only a double standard here allowed Joe Biden to claim that the ERA has been ratified.
The Equal Rights Amendment is well-meant but a bad idea.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. Read Professor Paul F. deLespinasse's Reports — More Here.
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