Balkinization: E.R.A. Puzzles

E.R.A. Puzzles

David Pozen

Virginia’s approval of the Equal Rights Amendment brings to the fore a tangle of legal complications. The headline issue, of course, is whether the E.R.A. is now part of the federal Constitution, notwithstanding that Congress’s extended ratification deadline expired in 1982 and that a handful of states have voted to rescind their earlier ratifications. Call this the ratification puzzle. There has been lots of writing on this issue, and I have little to add except to note that a decision not to accept the state E.R.A. rescissions could have unintended spillover effects on the push for a constitutional convention to add a balanced budget amendment. If the E.R.A. rescissions are overlooked for purposes of counting to 38, then it becomes harder to deny that the four recent rescissions of Article V applications can be overlooked for purposes of counting to 34—putting us on the brink of our first-ever Article V convention.

The puzzles don’t end there. Imagine that the E.R.A. becomes part of the Constitution in the near future, perhaps after the next Congress passes a joint resolution waiving the prior ratification deadline and directing the Archivist of the United States to recognize the E.R.A. as the 28th Amendment, which the Archivist promptly does. What then?

The first question to arise will be what the new 28th Amendment means. Socially conservative critics have assailed the E.R.A.’s “radical language,” which calls for “the patriarchy to be dismantled forthwith” and for all men “to be castrated upon fulfilling their biological function.” Wait, sorry, had the wrong document there… The actual text of the operative clause provides in full: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” How will this minimalist directive be understood and applied by courts, Congress, and others? Will it be seen as basically “irrelevant” in light of existing law on sex equality, or will it be read to authorize or compel legal reform in the areas of paid leave, pregnancy discrimination, violence against women, and more? Call this the interpretation puzzle.

The two puzzles (more precisely, the two sets of puzzles) are interrelated in both a sociological and a conceptual sense. Fears over potential “radical” interpretations of the E.R.A. that would disrupt prevailing gender norms and strengthen reproductive rights help explain why some groups are so adamant that the ratification effort has failed. Meanwhile, the fact that state legislatures have had almost 50 years to consider ratifying the E.R.A. deepens the interpretive difficulties.

Many judges these days endorse an originalist approach to constitutional interpretation, at least in part. They say they must be faithful to the text’s public meaning at the time of its adoption. Even if we put to the side all the familiar concerns with originalism, how is this method supposed to work when the text at issue has gone through a multidecade ratification process during which there have been profound shifts in relevant background assumptions (for example, about the nature of sex discrimination and its relationship to sexual-orientation discrimination) and judicial doctrines (for example, the introduction in the mid-1970s of heightened scrutiny for discrimination on the basis of sex and the increasing entwinement of liberty and equality justifications for abortion rights in cases following Roe v. Wade)? To identify the E.R.A.’s “original” meaning, should the interpreter look to the 1969–1972 debates in Congress, to the early and mid-1970s debates in the initial ratifying states, to the 2010s debates in the decisive ratifying states such as Virginia and Illinois, or to all of these sources together? What if these debates turn out to be qualitatively different in certain respects? Does the Supreme Court’s post-1972 constitutional case law on sex equality bear on the E.R.A.’s meaning, and how?

The difficulty, then, is not just that we have an ambiguous and contested legal text. It is also that we have had an extraordinarily prolonged, polycentric, and dynamic ratification drama that confounds any effort to discern a unitary meaning of that text throughout the course of its adoption. Put another way, if originalism is the idea that “the meaning of the constitutional text is … the ordinary or plain meaning the words had to the public at the time each provision of the constitution was framed and ratified,” in this case “framed” and “ratified” have come apart. How most ordinary citizens understand the words of the E.R.A. today is not necessarily how they would have understood those same words in 1972. (Indeed, most Americans today were not alive then.)

There is no real precedent for this. Although the 27th Amendment on congressional compensation had an even longer ratification period—some would say an illegitimately long period—key background assumptions and judicial doctrines did not similarly shift over its duration. The observation that extended ratification windows such as the E.R.A.’s can increase interpretive uncertainty might be seen to provide additional support for the Ackerman-Prakash position on the general need for “synchronicity” in constitutional lawmaking.

All of this leads to yet another difficulty, this one with special resonance for liberals. Conservatives in the mold of Justice Scalia have long suggested that the 14th Amendment’s Equal Protection Clause is addressed primarily if not exclusively to racial discrimination, given the history of its adoption after the Civil War. Liberals typically respond that the Clause’s language (“nor shall any State … deny to any person within its jurisdiction the equal protection of the laws”) is capacious enough to evolve with the times and to safeguard many other forms of equality, including sex equality.

Would the E.R.A.’s codification undermine this “living constitutionalist” response? In a world where the E.R.A. is the 28th Amendment, if a growing social movement tries to argue that the Equal Protection Clause prohibits discrimination on the basis of, say, disability or poverty or marital status, or even to argue that it continues to prohibit discrimination on the basis of national origin and alienage, will skeptical judges point to the E.R.A. as evidence that the clause should not be stretched in such a manner? “Go get yourself a 29th amendment!” one can imagine Chief Justice Roberts proclaiming.

Call this the living constitutionalism puzzle. Not only is the interpretive payoff of the E.R.A. unclear, but its ratification also could have a boomerang effect on future equality claims not grounded in clear constitutional text—precisely the kinds of claims that many supporters of the amendment have been advancing in recent decades. Even as they argue in favor of robust readings of the E.R.A., these supporters will need to be on guard against constructions that would dilute the force of unenumerated-rights claims in other contexts.

None of this is to suggest that the E.R.A. isn’t still worth the struggle. Inscribing sex equality into the Constitution’s text would, at a minimum, serve an important expressive function. The experiences of countries like Germany and France provide possible roadmaps for how it could yield important substantive gains as well. But these points do suggest that the E.R.A. may continue to perplex and divide constitutional interpreters for many years to come, and not just when they are interpreting the E.R.A. itself.

Posted 11:43 AM by David Pozen [link]