Gloria Steinem Was Right: The 1972 ERA Is Dead

COMMENTARY The Constitution

Gloria Steinem Was Right: The 1972 ERA Is Dead

Mar 17, 2023 5 min read
Thomas Jipping

Senior Legal Fellow, Center for Legal and Judicial Studies

Thomas Jipping is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies.
Gloria Steinem attends Equality Now 30th Anniversary Gala at Guastavino's on November 15, 2022 in New York City. John Lamparski / Getty Images

Key Takeaways

Steinem was right: The 1972 ERA is dead.

Even the liberal National Public Radio acknowledged just a few years ago that the 1972 ERA “fell short and expired in 1982.”

There exists no such thing as congressional “recognition” of ratification.

Since not enough states ratified the Equal Rights Amendment before its deadline, said the talk-show guest in January 1986, “it now has to start the process over again, . . . be passed by the House and Senate and go through all of the states’ ratification process.”

The show was Oprah, and the guest was feminist leader Gloria Steinem.

Steinem said what everyone knew: The ERA proposed by Congress in 1972 had expired. ERA supporters today, however, claim that Steinem was wrong—that the 1972 ERA is not only still alive, but that Congress can put it in the Constitution simply by recognizing its ratification.

Wrong. Steinem was right: The 1972 ERA is dead.

Article V of the Constitution gives Congress the power to propose constitutional amendments and to require that states ratify them either through their legislatures or by conventions. The Supreme Court unanimously held more than a century ago that this power includes setting a ratification deadline, a step Congress has taken many times.

Representative Martha Griffiths (D., Mich.), the 1972 ERA’s sponsor, agreed to add a seven-year ratification deadline that she said was “customary,” “perfectly proper,” and could help achieve “united support for the amendment.” Even though the deadline was binding, Griffiths predicted that the necessary three-fourths of the states would ratify the 1972 ERA “in record time.”

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Griffiths was wrong. Five of the 35 states ratifying the 1972 ERA had already withdrawn their support when Indiana became the last ratifying state in January 1977. Knowing that the March 1979 deadline was binding, ERA supporters pushed a 39-month deadline extension through Congress, but no additional states got on board. The Washington Post reported at the time that die-hard supporters such as the National Organization for Women “concede[d] defeat” when the deadline passed with insufficient state support.

During the extended ten-year proposal and ratification process, not a single member of either house of Congress or any state legislature questioned whether the 1972 ERA’s ratification deadline was binding. In fact, the ratification resolution adopted in 25 of the 35 ratifying states included the deadline as well as the proposed amendment text. Even the liberal National Public Radio acknowledged just a few years ago that the 1972 ERA “fell short and expired in 1982.”

Just two weeks later, Peter Rodino (D., N.J.) then the chairman of the House Judiciary Committee, introduced another resolution to propose the ERA, starting the process over. That resolution, and the ones he introduced at the start of the 98th and 99th Congress, also had a seven-year ratification deadline. So did the resolution that Representative Don Edwards (D., Calif.) introduced in the late ’80s and early ’90s. During the same period, Senator Ted Kennedy (D., Mass.) introduced several resolutions to propose the ERA with a seven-year deadline.

ERA supporters today, however, say that all of those federal and state legislators, activists, and media outlets were wrong. Every one of them. The 1972 ERA, they now insist, isn’t dead because the deadline didn’t mean what it said and wasn’t really valid after all. Not only that, but Congress can put the 1972 ERA—the one that the Congressional Research Service says “died on June 30, 1982”—in the Constitution simply by “recognizing” its final ratification. Who knew?

Trying to keep this myth alive, the Senate Judiciary Committee held a hearing on February 28 called “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” It examined Senate Joint Resolution 4, which purported to remove the ratification deadline from the 1972 ERA and to declare that it has, in fact, “been ratified by the legislatures of three-fourths of the several States.”

This position has two fundamental problems. First, a proposed constitutional amendment is no longer pending when it has been ratified by three-fourths of the states or when its ratification deadline passes without reaching that threshold, whichever comes first. In the case of the 1972 ERA, the deadline passed first and, even counting the states that had already changed their minds, 35 is less than 38. The 1972 ERA, therefore, is no longer pending before the states to be ratified and no longer pending before Congress to be amended.

This is Legislative Process 101. Every bill or resolution introduced during the previous 117th Congress that was not acted on expires when that Congress adjourns. Griffiths, for example, did not attempt to add a ratification deadline to the ERA resolutions she introduced in the previous six congresses because those no longer existed. Instead, she introduced a new resolution, this time with a deadline, to start the proposal process over again.

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The second problem is that Article V of the Constitution, which Judiciary Committee members themselves swore to support and defend, gives Congress no power after it proposes an amendment. Even liberal constitutional scholars, whom Democrats typically favor, recognize what is plain on the face of Article V. Walter Dellinger, the late professor and former acting solicitor general, for example, wrote that Article V “requires no additional action by Congress or by anyone else after ratification by the final state. The creation of a ‘third step’—promulgation by Congress—has no foundation in the text of the Constitution.”

The Senate, the House, or the two acting together can, of course, express an opinion about whether a proposed amendment has been fully ratified, but that’s as far as these bodies can go. Proposed amendments become part of the Constitution automatically upon ratification by three-fourths of the states; there exists no such thing as congressional “recognition” of ratification.

The desperation of ERA supporters is understandable because the 1972 ERA was likely the only one that Congress will ever propose. It has all sorts of symbolic value, and activists no doubt have big plans for it; the Supreme Court overruling its decisions creating a right to abortion, for example, has renewed the argument that the ERA could provide a separate constitutional foundation for abortion rights.

But the 1972 ERA train has not only left the station, it derailed more than four decades ago. ERA supporters should follow the advice of the late Justice Ruth Bader Ginsburg and “start over.”

This piece originally appeared in the National Review