Luke Bierman ’79, the A. Lindsay O’Connor chair of American institutions in the political science department, hosted a lecture on March 10 exploring the ambiguity surrounding the proposed Equal Rights Amendment (ERA) and whether it can ever be ratified as the 28th Amendment to the U.S. Constitution. The lecture, which was titled “The Equal Rights Amendment: 28th Amendment or NOT,” contextualized the ERA within the broader history of constitutional amendments, the challenges of the ratification process and the interpretative issues inherent in constitutional law.
The ERA is a proposed amendment that would make it unconstitutional for the federal government or states to deny citizens equal rights based on sex. Bierman explained how the concept of equal rights for women predates the ERA by centuries. Bierman referenced Abigail Adams’ 1776 letter to John Adams, in which she urged him to remember women and be generous to them as the nation was being formed. This early advocacy set the stage for future movements, including the 1848 Seneca Falls Convention, which marked a pivotal moment in the fight for women’s rights. This struggle continued with the ratification of the 19th Amendment in 1920, granting women the right to vote. The National Women’s Party, founded in 1921, pushed for broader legal protections, ultimately leading to the drafting of the ERA.
Bierman framed the ERA debate as a microcosm of broader concerns about the process of amending the Constitution. He explained the various methods that Article V allows for proposing and ratifying amendments.
“There are two ways to propose amendments. The House and Senate can have a two-thirds vote each, or, upon request of two-thirds of state legislatures, Congress shall call a convention for proposing amendments. For the 27 amendments that exist, the first methodology is the only methodology that has been used,” Bierman said. “To ratify, amendments require three-fourths of the state legislatures’ approval or of conventions held in three-fourths of states.”
Bierman continued to demonstrate the inherent difficulty of passing a constitutional amendment, noting how, of the more than 11,000 constitutional amendments introduced since 1789, only 33 have been approved by Congress and sent to the states for ratification. Of these 33 approved amendments, six ultimately failed to be ratified by the states. In contrast, states amend their constitutions frequently, sometimes thousands of times.
The ERA was first introduced in 1923, Bierman noted, but gained momentum in 1972 when Congress approved it for ratification, implementing an original seven-year timeline for ratification. Initially, 22 states ratified the amendment that year, followed by eight more in 1973. By 2019, the required 38 states had ratified it. However, several uncertainties arose.
“Congress extends the original deadline three years […]. Article V says that you have to pass this by two-thirds of a vote. Is that an effective deadline extension? Can you have a deadline anyways? Article V doesn’t talk about any of those things,” Bierman said. “By 2019, we now have 38 [ratifications], but several states rescinded […]. We have late ratifications, we have conditional ratifications, we have ratifications after rejections […], but Article V doesn’t say anything about this.”
Sophomore Evelyn Sanchez was particularly interested in Congress’ initial timeframe for the ratification of the ERA.
“I think that Congress giving the states a timeframe to ratify the Equal Rights Amendment might be coming from a good place to propel it. However, the ambiguity it caused is an overreach of power and ultimately harmed the process,” Sanchez said.
Bierman noted that on Jan. 17, President Joe Biden stated the ERA had cleared all legal hurdles and should take effect. However, legal challenges persist regarding whether rescissions are legitimate and whether Congress has authority over ratification deadlines. The ambiguity in constitutional language and historical precedent leaves the ERA’s status unresolved.
Bierman concluded by emphasizing that the uncertainty surrounding the ERA is not an isolated case.
“This isn’t the only confusing provision in the Constitution. Indeed, if we look at primary issues, they all have the same kinds of uncertainty. Uncertainty abounds privacy, the right to bear arms, equal protection [and] free speech. The problems we have in interpreting Article V to decide whether the Equal Rights Amendment has been ratified are precisely the kinds of issues embedded across the Constitution,” Bierman said.
Sophomore Bella Nalli felt that the situation surrounding the ERA could be extrapolated to other current political debates.
“I think [the lecture] did a great job showing how the ambiguity surrounding the Equal Rights Amendment extends to so many other issues in our country — not just gender equality, but issues like abortion, religion and executive authority are also highly uncertain,” Nalli said.
Ultimately, Bierman emphasized how the ERA’s uncertain status exemplifies the broader challenges of constitutional interpretation and the evolving nature of legal rights in the United States. The ongoing debate underscores the continued relevance of constitutional amendments and the tensions inherent in balancing historical precedent with modern legal and political realities.
