That’s the position taken by the bipartisan resolution that fell short in the Senate last week: It would remove the E.R.A. deadline and recognize it as ratified, period.
The amendment process was designed to give the people’s representatives in Congress the lead role in shaping constitutional meaning, especially at times when the unelected Supreme Court’s interpretations of the Constitution neglect the needs and desires of the American people.
In 1924, for example, after the Supreme Court struck down federal laws that restricted child labor, Congress proposed the Child Labor Amendment. After 28 states ratified it, the Supreme Court changed course. Not only did the court begin upholding federal child labor laws; it also conceded that the question of a constitutional amendment’s timeliness was a political question that the Constitution left to Congress rather than the courts.
The 14th Amendment was itself a direct response to a Supreme Court decision, Dred Scott v. Sanford, which in 1857 held that Black people could never be U.S. citizens. The 14th Amendment overruled that holding, conferring citizenship on all persons born or naturalized in the United States. When two states sought to rescind their ratifications of the 14th Amendment, Congress asserted its control over the amendment process, ignoring those efforts and recognizing the 14th Amendment — the foundation of inclusive democracy — as part of the Constitution.
Skeptics say that the E.R.A. is no longer needed because Supreme Court decisions have enforced sex equality under the Equal Protection Clause of the 14th Amendment. But many senators — many people, period — now point to the rising threats to women’s lives and health after the Dobbs decision greenlighted near-total abortion bans. This reality suggests that the existing Constitution inadequately protects women’s fundamental rights.
Indeed, in all three states that recently ratified the E.R.A., ratification debates emphasized the continuing need for law and public policy to address remaining manifestations of gender inequality — even before Dobbs. These include pay inequity, often attributable to workplace disadvantages women face because of pregnancy, motherhood and caregiving obligations, and the persistence of sexual assault and harassment.
The Dobbs decision effectively exposes millions of American women to laws that force them to bear children, even those conceived through sexual assault, in states that do nothing to alleviate the burdens, disadvantages and risks stemming from both pregnancy and motherhood. It demonstrates the Supreme Court’s pinched view of the 14th Amendment’s commitments — essentially freezing the amendment’s meaning at the moment of ratification in 1868, before women could vote. Dobbs has further emboldened some judges to revive enforcement of 19th-century laws including the Comstock Act, which were intended to control women’s bodies before the law regarded women as equal citizens.
Kate Shaw and Julie C. Suk
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