Unratified Amendments: The Equal Rights Amendment

This is the fifth installment of a series about unratified constitutional amendments. Today we’re looking at an amendment that was first introduced nearly 100 years ago and we’re still talking about today: The Equal Rights Amendment.

The Equal Rights Amendment (ERA) is a proposed constitutional amendment that would guarantee equal rights under the law regardless of sex. It was first drafted in 1923 by suffragist Alice Paul, and since then some version of the ERA was introduced in every session of Congress until 1971. 

H.J. Res. 75, Proposing an Equal Rights Amendment, December 13, 1923. Drafted by Alice Paul and introduced by Daniel Anthony, Susan B. Anthony’s nephew, this was the first time the ERA was introduced into the U.S. House of Representatives. (National Archives Identifier 7452156)

In 1971, Representative Martha Griffiths introduced H.J. Res. 208, proposing an Equal Rights Amendment. The text read: 

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

While previous attempts to pass the ERA rarely got out of committee, H.J. Res. 208 not only made it to the floor, it was successful. On October 12, 1971, the House approved Griffiths’s version of the ERA by a vote of 354–24. The Senate approved an identical version on March 22, 1972, by a vote of 84–8.

Joint Resolution Proposing an Amendment to the Constitution of the United States Relative to Equal Rights for Men and Women, March 22, 1972. (National Archives Identifier 7455549)

Congress then sent the ERA to the states but included a seven-year deadline for ratification.  In 1978, with the seven-year deadline approaching, the ERA was three states short of reaching the required three-fourths mark. Congress decided to extend the time limit to June 30, 1982; however, no additional states ratified the amendment during its extension. 

President Jimmy Carter Signing Extension of Equal Rights Amendment (ERA) Ratification, 10/20/1978. (National Archives Identifier 181981)

Controversy surrounding the Equal Rights Amendment persists today. Despite failing to garner enough states by the deadline, three additional states have ratified the amendment in recent year’s putting the status of the amendment into question.

The Archivist of the United States has statutory responsibilities regarding certifications of constitutional amendments. Because of the ongoing uncertainty surrounding the ERA, the National Archives requested guidance from the Department of Justice on the legal issues regarding ratification of the amendment.

In January 2020, the Department of Justice issued its opinion, concluding “that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States.” 

The National Archives issued a press release on the current status of the ERA, saying the Archivist will abide by the Justice Department’s opinion unless otherwise directed by a final court order.

Our next, and final, post in the series is about the 1978 DC Voting Rights amendment.

One thought on “Unratified Amendments: The Equal Rights Amendment

  1. The Department of Justice has found time during COVID to fight a fully-ratified statement of constitutional equality for both women and men. All of those people should inform the women and girls in their lives of this fact. The ERA is the 28th Amendment because, as of January 27, 2020, it met the strict requirements of Article V of the U.S. Constitution for an amendment to be added. If Congress wanted a deadline, then it had to add that language to the text of the amendment itself where the states could vote up or down, as with any other change to the Constitution. Any law student who has taken Contracts 101 understands this. Jurists who talk about strict construction must agree. The Constitution is clear. It is unfortunate that the National Archivist has been barred from doing his job of certifying the ratification of the ERA by Virginia and publishing the ERA as the 28th Amendment. Not only is it important to understand that the ERA is done, but also to realize that it is a simple statement of fairness that anyone can use. In essence, it is a codification of The Golden Rule – of treating others as you would be treated – a most important tenet in every major religion and most secular societies. At this point, the only reason to oppose the fully-ratified ERA is for the right to be unfair.

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