And it wasn’t sexism just by men. There was a persistent onslaught against the ERA by a powerful, widely followed, right wing lawyer, Phyllis Schlafly.
Then, in 1980, the republican president to be, Ronald Reagan, came out against it. And later that year, the Republican Party followed his lead and officially opposed it.
So, it was no small wonder, that two years later, on June 30, 1982, the deadline for ratification, it died on the vine. It fell three states short of the number needed to become part of the Constitution. Close, but no cigar.
So, almost 60 years after it had been written and proposed by Alice Paul in 1923, the amendment failed.
Alice, was the architect of some of the most outstanding political achievements on behalf of women in the 20th century.
She died in 1977, unaware, of course, that three years later Ronald Reagan and the Republican Party would deal a death knell to her lifelong dream of women having equal rights under the Constitution.
So, in the main, what would the ERA do if it had prevailed. Well, it would assure that women have the same rights as men. And it would bar discrimination against women. Most importantly, it would prohibit the practice of paying women less than men for virtually the same work.
That egregious practice is still rampant in this 21st century. Ugh!
Anyway, would you believe it?: Just taking the first step to make the ERA part of the Constitution, took Alice and women’s rights groups just short of 50 years. Yes, it took a half century or so to get Congress’ approval.
They finally got it in March 1972.
That entitled them to tackle step two: Get at least three fourths of our 50 state legislatures, some 38, to approve (ratify) the amendment. They had roughly 10 years to do this.
But as said, as of the deadline, they fell 3 states short. So, it was a sad, bitter end to a 59 year grueling struggle for a great cause.
POST MORTEM
For what it’s worth, let’s now review the factors that played a role in the failure. And let’s try to come up with a transcendent reason why the ERA didn’t make it. And knowing this might show the way to increase chances for another attempt to be successful.
1. Phyllis Schlafly
So, who was this lady? And what did she do to torpedo the ERA?
Phyllis was a right wing, conservative attorney. She had extremely far-right social and political views. As such she was an out-spoken, vigorous foe of feminism.
And, over the many years involved in this battle, she led a powerful, public relations onslaught against the ERA. Her hue and cry was fear.
The panic she pushed the most was that in case of war, women would be drafted for combat.
She also spread dread that:
Women in divorces could lose their rights to alimony.
Women could lose presumption of fitness for custody of children.
Women could be required to do the same physical things that men do, like heavy lifting.
It would lead to public unisex bathrooms.
But legal experts readily debunked those fears as utter nonsense. The ERA would do no such things.
Nevertheless, many people believed Phyllis. She had a massive following. So, her words, repeated over and over for so many years, were definitely a substantial factor in the ERA’s defeat.
2. Ronald Reagan and Republican Party
Then, as mentioned, in 1980, two years before the deadline, these two potent republican entities both came out against the amendment.
But realistically, at that late time in the 60 year process, the ERA was already dead in the water. It was, because of Phyllis Schlafly’s years of well organized bombardments against it.
So, these two “Johnny-come-lately” opponents were simply jumping on Phyllis’ negative bandwagon, seeking votes in the 1980 presidential election.
Moreover, as said, they couldn’t have killed something already dead.
Nonetheless, this shows how Ronald Reagan and the Republican Party felt about equal rights for women.
3. Time
That it took from 1923 to 1982, almost 60 years to process the ERA attempt, definitely was a major factor in its failure.
When opposing parties to any proposal whatever, no matter how worthwhile, get an extraordinary amount of time to marshal negatives against it, this enhances their chances to beat it down. Almost always there will be “Schlaflys” to oppose something opposable. And the more time they have, the better their chances to prevail.
Conclusion
In Sage’s humble opinion, what principally defeated the ERA, was the time factor. It was, in combination with having to convince just too darn many people of its need. It also was bucking a “Party first, country second” political principle. (More on that coming up).
In any case, amending the Constitution in the last century as well in this one, under the 1790 process, required and requires approval of just too many entities.
But in fairness to the Framers, this is something that they could not have foreseen. When they wrote this amending procedure, there were only 13 close-together states. Things were so much simpler.
So, no way, could those Framers have anticipated how difficult their amending process for 13 states would be 230 years later for 50 states, some more than 7000 miles apart.
Indeed, the toil today of employing this antiquated process, makes proposed amendments that are in any way arguable, fantastically difficult to get approved no matter their preponderant merit.
So, it’s hard to visualize any amendment succeeding unless it has only trivial, petty, or no opposition. And even an unopposed one would take a long time and be quite costly and onerous to process.
But one advantage an amending effort would have today, is instant communicative tools, like computers, email, Twitter, texting, Facebook, et cetera. Advantages, that Alice and her group lacked.
And that lacking could account for a lot of the incredible amount of time the group needed to complete the effort. And, of course, it gave Phyllis Schlafly more time to derail it.
Nonetheless, despite today’s much better communicative tools, were still burdened with an archaic amending process that’s daunting.
Political parties with their thousands of legislators have to be persuaded. That would be 2/3rds of Congress, plus the many thousands in state legislatures.
That’s daunting to say the least.
And it raises this question:
Did the Framers unintentionally, innocently lock us into a constitution, which considering today’s political realities, is borderline non-remediable?
It looks that way.
Can this be fixed?
Though it would be woefully difficult, yes, it can. However, it only can be done using the same archaic process under which the ERA failed.
But doesn’t that argue, it would be futile, a waste of time?
Well, sure, some will think that way. But they will be wrong.
In good conscience, we just can't let things like the still ongoing, rampant discrimination against women continue. We must keep trying to amend the Constitution until we succeed and stop this appalling legal misogyny.
Moreover, as years pass, there likely will be other crucial matters for which amendments will be needed.
So, there’s no question that America desperately needs a more reasonable, practical, and effective way to amend the Constitution.
Screaming this need, was what happened to the ERA.
A Better Way?
Some countries, like Australia, use referendums to amend their constitutions.
Under them, instead of a country’s legislators, its citizens decide whether to amend. They do so in voting referendums.
Sage wholeheartedly believes this is the method America should use. And here are some whys and wherefores:
Our present outdated process, is based on our English tradition of law. Under it, whether to amend, legislators decide what should be done. The theory is/was, they are more capable than citizens to make such decisions. And in deciding, they’re not bound to consult citizens. And retrospectively, if the citizens don’t like what legislators decide, their only remedy is to replace the legislators in the next election.
Well, that system, which is still in effect today, was one more factor in the ERA’s downfall. And it would be a monumental hurdle in any new attempt to amend. This is because of the dominance and control that political parties have as to what legislators do or not do. Unfortunately, most often, it’s “Party first, country or constituents second.” In other words, our legislators, are not conscience or legally bound to do what the citizens who elected them want them to do or what’s best for the country or their state. Rather, they almost always do what their political party wants. They obediently vote “the party line.”
So, when it comes to amending the Constitution, this is a monstrous hurdle.
So, what to do to topple such a hurdle? That is, what can be done to force legislators to prioritize citizens’ need over party dictates? That is, get them to approve an amendment that says citizens shall make amending decisions in referendums.
Well, Sage thinks the best chance to do this would be by means of a massive, national public relations campaign. Really inform the public that citizens, NOT POLITICIANS, should amend the Constitution,. Get the public and the press solidly behind a movement to modernize our present archaic 1790 method.
Lastly, serious consideration should be given to conducting such amending referendums on Saturdays, days that for most people are non-workdays. Other countries have shown that this increases voter participation as much as 25 percent.
In conclusion, the Sage humbly apologizes for the length of this gem. But it’s such an important one.
More, he sayeth not.
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Notice: The writings in this publication are strictly personal opinions. In any case, they should not be taken or relied upon as legal advice. For such counsel, consult an attorney licensed in your jurisdiction.