With my home state of Virginia having become the 37th state to ratify the defunct Equal Rights Amendment, Supreme Court Justice Ruth Bader Ginsburg has taken the unusual step of weighing in:
Supreme Court Justice Ruth Bader Ginsburg said Monday that those like her who support an Equal Rights Amendment to the Constitution should start over in trying to get it passed rather than counting on breathing life into the failed attempt from the 1970s.
“I would like to see a new beginning,” Ginsburg said during an event at Georgetown’s law school in Washington. “I’d like it to start over.”
Congress sent the amendment, which guarantees men and women equal rights under the law, to the states in 1972. It gave states seven years to ratify it, later extending the deadline to 1982. But the amendment wasn’t ratified by the required three-quarters of states before the deadline.
Last month, however, Virginia lawmakers voted to ratify the amendment, becoming the 38th and final state needed. The Justice Department has said it’s too late, and a lawsuit is now ongoing.In addition to Virginia, Nevada and Illinois also voted to ratify the amendment after the deadline, in 2017 and 2018 respectively. Five states have moved to rescind their earlier approvals.
“There’s too much controversy about late comers,” Ginsburg said. “Plus, a number of states have withdrawn their ratification.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’ve changed our minds?”
Ginsburg has previously expressed the view that the amendment “fell three states short of ratification.”
Given that there is a pending lawsuit on which she could very well have to rule, it’s a bit surprising that she’s going public with her view on this. Naturally, since I’ve expressed the same view, I’m in agreement.
We disagree on the continued utility of passing such an Amendment:
Ginsburg has been a champion of the Equal Rights Amendment for decades. And her standard response to the question of how she would improve the Constitution is to point to the ERA.
Ginsburg said Monday she is often asked, “Haven’t you, through the vehicle of the 14th amendment’s equal protection clause” gotten to “the same place where you would be with the ERA?” She said her answer is “not quite.”
Ginsburg noted that every Constitution in the world written since 1950 has the equivalent of an Equal Rights Amendment.
“I would like to show my granddaughters that the equal citizenship stature of men and women is a fundamental human right,” Ginsburg said, echoing comments she has made previously.
She added: “The union will be more perfect when that simple statement — that men and women are persons of equal citizenship stature — is part of our fundamental instrument of government. So even if the argument is it’s largely symbolic, it is a very important symbol.”
I don’t think an ERA would be damaging and the symbolism might well be worthwhile. But we’ve long since surpassed the reductio absurdum point on gender equality without an explicit statement.
I’ll defer to Ginsburg’s expertise on whether every constitution written in the last 70 years has an ERA-equivalent. But I do know that the one Douglas MacArthur imposed on Japan during our postwar occupation—and which still governs the country—has one.
