When the equal rights amendment was introduced in Congress in 1972, it quickly garnered the necessary majority in each house and was sent to the states for their consideration. Hawaii ratified the amendment the same day as Congress, and 34 other states quickly followed.
But the ERA was never able to gain the approval of another three states to reach the necessary 38 state majority. In 1980, it died.
The crucial part of the equal rights amendment read, “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 could an amendment that seemed to fall so easily within the American democratic tradition and which got off to such a strong start fail?
Mary Frances Berry and Jane J. Mansbridge, authors of two new books on the ERA, believe the amendment’s failure was partly the result of a large number of mistakes and miscalculations by those pushing the amendment. The ratification efforts also suffered from factors out of the control of ERA proponents.
Berry, professor of history and law at Howard University and a member of the U.S. Commission on Civil Rights, has looked at the ERA in the context of other attempts to amend the Constitution. She spends most of her book identifying a group of conditions that appear to be needed for an amendment to be ratified.
ERA proponents made a critical mistake when they built consensus in Congress first and only then turned their attention to the states. Consensus-building state by state first, Berry says, is necessary for ultimate ratification. And waging successful state ratification campaigns requires far more attention to state and regional diversity than ERA proponents usually paid. Those and other factors " . . . all proved crucial in one or another of the earlier campaigns, and they all proved to be crucial in the defeat of (the ERA). . . .”
Mansbridge looks at other reasons for the ERA’s failure. She ranges from a discussion of the opposition of full-time homemakers to the ERA to the misunderstandings between groups trying to work together for the amendment. The associate professor of political science and sociology at Northwestern University is particularly insightful when she discusses the antagonism of many state legislators.
By the mid-1970s, many state legislators mistrusted the U.S. Supreme Court. They felt the court had used “superficially innocuous principles (such as equal protection) to achieve substantive results (such as busing white children to black neighborhoods) that many conservative and middle-of-the-road citizens opposed.” Legislators feared that the ERA’s “equality of rights under the law” would, in the Supreme Court’s hands, go from a principle they could support in theory to applications they would disapprove of.
Should feminists try again? Berry never comes out and says “yes,” but she has plainly positioned her book to be a primer for another attempt at ratification.
Mansbridge is more ambivalent. She points out how the struggle for the ERA helped promote change in America’s work places, courts and legislatures, but she’s doubtful about another try. “In 10 or 20 years it may be possible to pass an ERA that expresses the principle of equality between the sexes in language as simple and unadorned as that of the Bill of Rights. . . . But if this book indicates anything, it is that persuading the state legislators to vote for such an amendment would require a major change in political climate.”
Berry and Mansbridge’s complementary approaches give the reader a far more complete picture than either book could alone. Although written by scholars, the books are accessible to the non-scholarly reader. If you’re interested in why the ERA failed or whether there is any hope for its eventual ratification, read the two together.