They asked Congress to extend by three years the time allowed for ratification -- although the first 10 amendments (the Bill of Rights) had required only 27 months and no amendment had to that point required even four years. In doing so, Congress disregarded the constitutional morality that an amendment should succeed only if a predetermined period of deliberation produces a consensus that is (in the Supreme Court's words) "sufficiently contemporaneous" to reflect the will of three-fourths of the states "at relatively the same period."
ERA supporters insisted that any state legislature that rejected the ERA could reconsider that vote, but any ratification, however slapdash or stale, is a sacramental act that can never be reconsidered. Under the Constitution's Article V, properly read, Congress is divested of all power over an amendment once it is submitted to the states. But when Congress extended the ratification period, it stipulated that the ERA could henceforth be considered only by states that had not yet ratified it. This was because three state legislatures had rescinded their ratifications, as Kentucky and South Dakota would do. So the amendment actually fell eight, not three, states short.
Most debates about proposed amendments concern whether the amendments are necessary or would be beneficial. Debate about the ERA has always concerned what it might mean. For example, would it forbid treating the sexes differently in pension and insurance plans because of actuarial data about sex-related differences regarding health problems and life expectancy? Presumably, judges would, over time, tell the nation what it had ratified.
All amendments generate litigation, but the ERA's purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot convince legislatures to enact. ERA -- now WEA -- supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.
If Kennedy and like-minded legislators think the condition of American women needs improvements, they should try to legislate them. Instead, they prefer to hope that liberal judges will regard the ERA's language as a license to legislate. But, then, support for the amendment testifies to the supporters' lack of confidence in their ability to persuade people to support such policies.
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