My new book, We the Men, concludes by exploring how Americans can learn from the past to change the future. The long history of women’s struggles for equality in the United States makes clear that real progress has always required women to challenge prevailing certainties, advance uncomfortable demands, and confront powerful opponents.
I argue that America needs more
conflict over women’s status rather than less.
Conflict can generate change. Patiently
awaiting men’s spontaneous enlightenment will not.
The last part of the book highlights some of the unwon battles that
need fighting, or continued fighting, to push progress forward—now and over the
long haul. This unfinished
reform agenda spans teaching,
commemoration, political representation, legislation, litigation, and everyday
life.
In this post, I will focus on the unfinished battle for the Equal Rights Amendment. The required thirty-eight states have ratified the ERA, but the last three ratifications came decades after the expiration of the seven-year ratification deadline that Congress inserted into the 1972 joint resolution sending the ERA to the states.
The crucial next step is to push Congress to embrace the ERA’s declaration that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Federal lawmakers should either directly recognize the ERA as part of the Constitution, remove the ratification deadline, or—ideally—both.
Such congressional endorsement would make it more difficult for the
Supreme Court to resist the conclusion that the ERA’s ratification is complete. The Court has never denied recognition to a constitutional amendment that
Congress accepts.
Even so close to the finish line, fighting for the ERA remains arduous.
Continued opposition to the ERA in
Congress fits within a long history of vehement resistance to expanding women’s
rights and roles. The stakes are high.
Most broadly, the ERA could help transform how powerful and ordinary
Americans understand the relationship between women and the Constitution. Generations
of legal authorities have excluded women from the center of constitutional law.
Indeed, Justice Antonin Scalia argued in
2011 that the Constitution does not prohibit sex discrimination at all because:
“Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw
discrimination by sex, hey we have things called legislatures, and they enact
things called laws.” Scalia added:
“That’s what democracy is all about.”
This was never a compelling argument.
Men barred women from voting on both the original Constitution and the
Fourteenth Amendment prohibiting states from denying “any person” “the equal
protection of the laws.” From that
perspective, it is hard to see how abiding by what the men behind these
constitutional provisions purportedly thought about sex discrimination would be
a triumph of democratic legitimacy, rather than an importation of past
injustice into the present. But in any
event, women are unquestionably not an afterthought to the ERA. Adding that
amendment to the Constitution would affirm women’s equal citizenship and
women’s centrality to constitutional law.
Most practically, the ERA could help expand women’s rights and
opportunities. As We the Men recounts,
ERA opponents have spent over a half century describing the amendment as
simultaneously unnecessary and menacing. The first claim has always depended on
denying persistent sex discrimination and dismissing ongoing disparities. The
second line of attack has recently focused on arguing that the ERA would
provide constitutional protection for abortion rights. That latter argument has
an ironic dimension: Abortion opponents ordinarily refuse to acknowledge any
connections between abortion rights and sex equality. But anti-abortion attacks on the ERA suggest
the impact the amendment could have—eventually, if not necessarily with the
current Supreme Court. Embedding the
ERA’s explicit prohibition on sex discrimination into the constitutional
firmament would provide a new, sturdier foundation supporting feminist advocacy
about constitutional rights.
— Jill Hasday
