How to Get Americans To Embrace Constitutional Amendments Again

by Kate Shaw and Julie K. Suk

Julie C. Suk, a law professor at Fordham, is the author of 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.

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.

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 is possible — 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.

Read entire article at New York Times