"Amending the Constitution Is Still Possible. Start With the E.R.A."

I have looked upon it with interest as the ERA (not quite dead) continues to be subject to ratification fights in recent years. 

I have (with some less passion of late) taken the position that it is bad policy to allow it to be ratified after it has lingered for fifty years.  Congress has the power to do so.  It does not require a supermajority vote since the deadline (unlike some amendments) is outside the text.  

And, recissions of past votes are not required to be honored.  In fact, I question if the Constitution correctly applied (given text and history) warrants honoring them at all.  The recession might be a symbol of contemporary sentiments and needs (see Coleman v. Miller), which would be a factor to weigh in the balance.  

The Senate recently voted to remove the old ERA deadline with the assumption that this would make the ERA part of the Constitution since the last three states "ratifying" it would count.  And, it would count the day the 38th state did so.  This being over two years ago (see Section 3), the ERA would be actively in place today.  

Anyway, the vote was subject to filibuster, and only two Republicans (Collins and Murkowski) voted for it. Schumer then voted against it for procedural reasons so that it could be proposed in the future.

An op-ed supports the effort, including for the less familiar reason that it would help start the ball rolling for additional amendments.  It also supports the basic principles of sex equality.  And, it would be an important support of equality when abortion rights, etc. are threatened.  

I'm quite sympathetic to that, thinking in the 21st Century it would be a good idea to add certain things.  I am unsure if this is the best path.  OTOH, what other amendment would get more bipartisan support?  The natural-born citizen amendment to change the rule for presidential elections used to be a possibility but now we have birthers.  

I asked a panel that included one of the authors how the ERA would change the law given we already had a sex equality measure in the Constitution. The panel did not know.  This was five years or so ago and I think the point still holds.  The Supreme Court held that sex discrimination should be deemed suspicious while still holding it did not apply to pregnancy discrimination.  What does the ERA add? 

The op-ed seems to suggest original understanding might factor in:

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.

I think this is a possible interpretation.  The ERA is a modern effort that includes some differences from 19th Century efforts.  Still, you could cite the efforts there in support of a more active and extensive understanding of equality.  When the Supreme Court created its gender jurisprudence in the 1970s, this modern view was in the air.  Justice Blackmun, the author of Roe v. Wade, even joined in the "pregnancy discrimination is not sex discrimination" argument.  I do wonder if he believed it in 1993.  

Dobbs is a wrong-minded application of the Constitution, but it argued that sex equality precedents did not require a different result.  The precedents submit sex discrimination to "heightened scrutiny" if not quite as high as race.  How would this Court treat that differently with the ERA?  

Who knows.  Constitutional amendments have various purposes, including setting forth principles that are already accepted but subject to some doubt and lack of enforcement. This was a major reason for the Bill of Rights.  And, once in the text, the principles will take a life of its own.  So, along with the history of the ERA fight, what the ERA will wrought is unclear.

This is all academic (the op-ed is written by two academics!) at this moment in time on some level. The ERA deadline repeal won't pass this Congress. But, it is worth thinking about.  

I still am wary about it all, including inserting an equality provision that singles out one group. I support an open-ended equality provision applicable to the U.S. and the states with the power of enforcement to help clarify the details as necessary to address the needs of the time.  As long as we are thinking big, even if one specific measure is on the table.