Jennifer MacLeod Explains the ERA and the U.S. Constitution

WOMEN'S RIGHTS IN THE UNITED STATES

The rights of the citizens of the United States are based in its Constitution, a remarkable document that can be printed on just two newspaper pages. It was adopted in 1789 after the 13 English colonies in America won their war against the rule of the England's monarchy, and founded the United States of America. The Constitution originally consisted of seven "articles," or sections. They set out the structure and functions of a new form of government, devised to draw its power from, and be continually responsible to, the people -- not monarchs, hereditary ruling families, theocracies, or military victors. The government was designed to have three branches -- the executive (the elected president, and his cabinet and staffs), the legislative (the elected members of the two houses of Congress), and the judiciary (the federal judges and Supreme Court justices, nominated by the President and confirmed by the Senate). The three branches, each with its defined functions and powers, form a system of checks and balances to prevent power being too concentrated and thus potentially tyrannical.

The fifth Article specifies the process by which the Constitution can be amended (added to) when the people, through their elected representatives, see a pressing need to do so. There are now 27 amendments in the Constitution, starting with several early ones, the "Bill of Rights," that explicitly addressed the rights of the new nation's citizens. Americans take their Constitution very seriously, constantly examining laws and practices in the light of the Constitution -- particularly with regard to governmental actions and the rights of individuals and groups. The ultimate authority on the interpretation of the Constitution lies not with the President or Congress, but with the Supreme Court, the highest court in the land.

A recent scientific survey showed that 96% of American adults believe that male and female citizens should have equal rights. Almost as many -- 88% -- believe that the US Constitution should make it clear that male and female citizens should have equal rights. These views are so widely accepted that 72% believe that the Constitution already does state that male and female citizens are entitled to equal rights. 

Yet the US Constitution does NOT contain any such guarantee. All male citizens, including former slaves, were granted by the Fourteenth and Fifteenth Amendments (in 1868 and 1870) the constitutional right to equal protection of the laws, and the right to vote. But all WOMEN were still excluded: The female citizens of the nation remained subordinate to men, with no vote and no voice in the nation's laws to which they were nevertheless subject. It took many decades of struggle for women to win the right to vote, in 1920, when the Eighteenth Amendment was added to the Constitution.

But the right to vote was not enough. Severe discrimination against women in almost every aspect of society and its institutions and laws continued, ensuring that women remained second class citizens in almost every regard. With no constitutionally guaranteed citizens' rights except the right to vote, women would still had to toil mightily, usually with greatly inferior resources, against the many discriminatory laws and practices that so handicapped their lives.

In an effort to remedy that grievous inequality, women proposed the Equal Rights Amendment (ERA): "Equality of rights shall not be denied or abridged by the United States or by any state on account of sex." It was not until 1972 that the ERA was finally passed by two-thirds of both Houses of Congress and sent to be ratified by the legislatures of three-fourths or more of the states, as required by the Constitution. The same Congress imposed an unrequired ratification time limit of seven years on the ERA; it was later extended three years by another session of Congress.

Strong and well-funded opposition to the ERA quickly arose, particularly from corporations and other institutions that did not want to give up the economic advantages of having a vast supply of greatly underpaid female employees, arbitrarily almost entirely excluded from betterment or advancement. While dedicated women and their male supporters achieved ratification by 35 of the 50 states within the time limit, that fell short of the required 38. The ERA appeared dead.

Since then, American women's status and opportunities have greatly improved. But this has been the result of their continually and painstakingly working to convince Congress, legislators, and the courts, issue by issue, often state by state, that they should be accorded the equal rights with men that should be their birthright under the Constitution.

Even when anti-discrimination laws are passed, they (unlike Constitutional Amendments) can be weakened, changed, or even overturned by a simple vote of Congress or a state legislature -- and often are. Women's rights supporters therefore continue to reintroduce the ERA in every new session of Congress, starting the amending process over from the beginning. There has been encouraging progress; Representative Carolyn Maloney is currently leading the effort in the House, and Senator Edward Kennedy in the Senate.  

There is another strategy, however, by which the ERA may be achieved. Certain legal analyses and precedents support the view that any session of Congress could extend or eliminate the earlier time limit. Thus the 35 existing state ratifications would remain valid, and only three more state ratifications will be required. There are many thousands of people around the United States supporting and working for the "three-state" strategy. And -- a most exciting development -- one of the not-yet-ratified states, Illinois, is expected to ratify the ERA this year. This will turn the three-state strategy into a two-state strategy, and other unratified states are organizing to reach the goal of 38.

Even though the women of the United States have more rights and opportunities than those in a great many nations around the world, they are unwilling to accept anything less than what they deserve as citizens in a democracy: full equality with men, backed by an explicit Constitutional guarantee. The Equal Rights Amendment, once added to the Constitution, will finally provide that guarantee.