Amending the Constitution Is Still Possible. Start With the E.R.A.
Last week, the Senate held a vote on the Equal Rights Amendment — the latest development in a century-long effort to amend the Constitution to explicitly guarantee sex equality. The E.R.A. resolution received 51 (bipartisan) votes but fell short of the 60 votes necessary to advance under the Senate’s current rules.
The fight for the E.R.A. remains critical — with Roe v. Wade now toppled, it is in fact more critical than ever. Despite what a majority of Americans think, our Constitution has no explicit guarantee of equal rights for women and men — the only right that cannot be denied or abridged “on account of sex” is the right to vote. In the hands of the current Supreme Court, the existing Constitution’s equality guarantees do far too little to protect women.
The E.R.A. would protect the fundamental rights necessary for women to live as equal citizens in America. Properly applied, it would guard against pregnancy and motherhood discrimination; it would also protect women’s control over their reproductive lives. It would authorize laws remedying gender violence, like domestic violence and sexual assault. It might even require government to reduce the gender pay gap.
The fight for the E.R.A. also has broader significance for American politics: It should serve as a reminder that constitutional amendment ispossible — and necessary, especially in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization — and that it is one area in which Congress, not courts, gets the final say.
Our Constitution is one of the most difficult in the world to amend. The last truly significant amendment — the 26th, which lowered the voting age to 18 — belonged to another era, in 1971, when Richard Nixon was president. But the remoteness of the possibility of formal constitutional change today may be as much a product of constitutional culture as constitutional structure: Several generations of Americans have lost the habit and muscle memory of seeking formal constitutional change, and the push to get Congress to declare the E.R.A. part of the Constitution could lead the way out of this inertia.
The E.R.A. was first introduced in 1923, and in 1972 Congress adopted it by well over the constitutionally required two-thirds supermajorities. It looked to be sailing to ratification, for which the Constitution requires approval by three-quarters of the states. But progress ground to a halt in the late 1970s, just three states short, after a conservative movement led by Phyllis Schlafly ignited fear of an America without patriarchy.
Congress has taken renewed interest in the E.R.A., especially since the Supreme Court ended women’s constitutional right to abortion in Dobbs — though it wasn’t Dobbs alone. Donald Trump’s misogyny helped galvanize a renewed push for the E.R.A., with Nevada ratifying in 2017, Illinois in 2018 and Virginia in 2020, which brought the total to 38 — the number necessary to ratify an amendment.
But there’s a catch. When Congress passed the E.R.A. in 1972, it included a ratification deadline, providing that the amendment would be part of the Constitution “when ratified within seven years” — that is, 1979. Congress later extended the time frame, but only until 1982 — and some states also voted to rescind their ratifications. So skeptics raise a serious question: How can the recent ratifications be valid when they came decades after even the second deadline? And do the rescissions deprive the E.R.A. of the constitutionally required 38 states?
The debate today is over who decides how to treat both deadlines and rescissions. The Constitution’s provisions on amendment are silent on these questions. What Article V of the Constitution does say is that Congress is in charge of proposing amendments that it deems necessary. It also empowers Congress to choose the “mode of ratification,” a power that is understood, even by the Supreme Court, to include control over time frames. If the deadline power belongs to Congress, shouldn’t the power to change any deadlines it imposes — as well as the power to refuse to recognize rescissions — also lie with Congress?
That’s the position taken by the bipartisan resolution that fell short in the Senate last week: It would remove the E.R.A. deadline and recognize it as ratified, period.
The amendment process was designed to give the people’s representatives in Congress the lead role in shaping constitutional meaning, especially at times when the unelected Supreme Court’s interpretations of the Constitution neglect the needs and desires of the American people.
In 1924, for example, after the Supreme Court struck down federal laws that restricted child labor, Congress proposed the Child Labor Amendment. After 28 states ratified it, the Supreme Court changed course. Not only did the court begin upholding federal child labor laws; it also conceded that the question of a constitutional amendment’s timeliness was a political question that the Constitution left to Congress rather than the courts.
The 14th Amendment was itself a direct response to a Supreme Court decision, Dred Scott v. Sanford, which in 1857 held that Black people could never be U.S. citizens. The 14th Amendment overruled that holding, conferring citizenship on allpersons born or naturalized in the United States. When two states sought to rescind their ratifications of the 14th Amendment, Congress asserted its control over the amendment process, ignoring those efforts and recognizing the 14th Amendment — the foundation of inclusive democracy — as part of the Constitution.
Skeptics say that the E.R.A. is no longer needed because Supreme Court decisions have enforced sex equality under the Equal Protection Clause of the 14th Amendment. But many senators — many people, period — now point to the rising threats to women’s lives and health after the Dobbs decision greenlighted near-total abortion bans. This reality suggests that the existing Constitution inadequately protects women’s fundamental rights.
Indeed, in all three states that recently ratified the E.R.A., ratification debates emphasized the continuing need for law and public policy to address remaining manifestations of gender inequality — even before Dobbs. These include pay inequity, often attributable to workplace disadvantages women face because of pregnancy, motherhood and caregiving obligations, and the persistence of sexual assault and harassment.
The Dobbs decision effectively exposes millions of American women to laws that force them to bear children, even those conceived through sexual assault, in states that do nothing to alleviate the burdens, disadvantages and risks stemming from both pregnancy and motherhood. It demonstrates the Supreme Court’s pinched view of the 14th Amendment’s commitments — essentially freezing the amendment’s meaning at the moment of ratification in 1868, before women could vote. Dobbs has further emboldened some judges to revive enforcement of 19th-century laws including the Comstock Act, which were intended to control women’s bodies before the law regarded women as equal citizens.
Congress has already begun to carve a path in response to Dobbsin the context of ordinary legislation. In December 2022 it passed the Respect for Marriage Act to protect same-sex and interracial marriage following Justice Thomas’s ominous Dobbsconcurrence suggesting that some constitutional protections for marriage equality should be re-examined. Congress also enacted the Pregnant Workers Fairness Act, requiring employers to provide reasonable accommodations to pregnant workers.
A forceful push for the E.R.A. is critical not just for the values it would confirm in our Constitution. It could also give Americans a taste for the constitutional amendment process, which has come to feel much too out of reach and would enable the people through their elected representatives to challenge the constitutional direction taken by the Supreme Court.
Congress should activate its full powers as the director of the amendment process and, in the name of both sex equality and the possibility of making “a more perfect union,” reacquaint Americans with the possibility of changing the Constitution.
Kate Shaw is a contributing Opinion writer, a professor of law at Cardozo Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner. Julie C. Suk, a law professor at Fordham, is the author of the forthcoming “After Misogyny: How the Law Fails Women and What to Do about It” and “We the Women: The Unstoppable Mothers of the Equal Rights Amendment.”
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