This column first appeared Sept. 11 on Library of Law and Liberty.
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.
In other words, the Constitution is a living document even without fanciful judicial lawmaking. It can, with a sufficient consensus (a two-step process culminating with ratification by three-quarters of the states), be altered to suit the requirements of an evolving polity. Some of the constitutional amendments now seem so elemental that we cannot imagine the document without them, such as the Bill of Rights, the abolition of slavery, full suffrage, and equality before the law for all citizens. Others—such as the federal income tax and direct election of senators—have altered the national government in ways that are subtle but profound. Some, such as the ill-fated experiment with Prohibition, seem foolish in hindsight.
Alas, humans are capable of all kinds of foolishness. The amendment process in Article V was intended to be onerous so that hasty and ill-considered changes could be weeded out. A host of amendments have been proposed but never ratified. Most have failed at the first step of the process, never securing the necessary two-thirds approval of both houses of Congress. For the most part, the list of stillborn proposals, numbering in the thousands, reads like an inventory of history’s bad ideas. Not every trendy idea produces political consensus, and thank goodness for that.
Unlike the impulse of an activist judge, urged on by a cadre of Progressive law professors, a proposal to amend the Constitution must earn substantial—indeed, super-majority—political support, sometimes requiring years of sustained effort and extended deliberation. Fleeting fads aren’t likely to make the grade.
Only six proposed amendments have completed the first step in the process, approval by Congress, only to fail to achieve ratification by a requisite number of states. Of these the most famous may be the Equal Rights Amendment, which stated in pertinent part that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The goal of the ERA was to put “sex” on the same footing as “race” for purposes of constitutional analysis, requiring courts to exercise “strict scrutiny” of laws drawing a distinction between the sexes. The Supreme Court had declined to require a “compelling state interest” for laws that discriminated on the basis of sex, unlike race-based classifications.[1]
Ruth Bader Ginsburg, who was a prominent ERA advocate as cofounder of the Women’s Rights Project at the American Civil Liberties Union, acknowledged that the Fourteenth Amendment was not intended to deal with sex discrimination.[2] Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke[3] summed up the state of the law: “The Court has never viewed [gender-based] classification as inherently suspect or as comparable to racial or ethnic classifications.”
The ERA, which was first introduced in Congress in 1923 and approved in 1972, would have changed that. The ERA enjoyed bipartisan support, including the backing of Presidents Gerald Ford and Jimmy Carter. By 1977, it had been ratified by 35 of the required 38 states. Riding the wave of the feminist (or, as it was then called, “women’s liberation”) movement, the ERA was widely expected to pass. It was endorsed by nearly every major daily newspaper, the AFL-CIO, the American Bar Association, and the League of Women Voters. The “establishment,” in other words, strongly favored ratification of the ERA, much as the legal professoriate now overwhelmingly supports same-sex marriage and protection of LGBT rights.
Yet the ERA ultimately failed, despite the backers’ obtaining a controversial extension of the initial ratification period as support for ratification began to wane. What happened?
Once thought to be unstoppable, the ERA faced well-organized political resistance. Grassroots opposition to the amendment brought the pro-ratification momentum to a halt in 1977, and even induced some states that had previously ratified to rescind their ratifications. No state ratified after 1977. What had once seemed like a compelling idea petered out as the three-year extension of the deadline, to 1982, came and went.
Led by Phyllis Schlafly, a prolific author, conservative activist, and mother of six hailing from St. Louis, Missouri, opponents of the ERA defeated it by appealing directly to its intended beneficiaries—women—and making the case that “equal rights” could be disadvantageous to them in a number of respects. Under the gender-neutral standard of the ERA, Schlafly argued, women would be subject to the military draft, combat assignments, less favorable treatment under laws dealing with divorce and child custody, and even the possible elimination of sexually segregated facilities such as public restrooms. Although Schlafly was accused of alarmism, her claim that equating “sex” with “race” for constitutional purposes could lead to unisex bathrooms and gay rights foreshadowed later developments under Title IX and Title VII.
If anything, the proponents of the ERA unjustifiably dismissed the potential for future judicial mischief. For example, Ginsburg, who as a law professor at Columbia University testified in favor of the amendment, denied in scholarly publications that it would authorize “homosexual marriage.”[4] In support of this conclusion, Ginsburg cited “explicit” legislative history and judicial decisions holding that “marriage is founded on unique physical characteristics of man and woman”––a contention that a majority of the Supreme Court would reject 36 years later in Obergefell v. Hodges, even without the ERA (a majority in which she joined).
What is the moral of this story? In the past, Americans have democratically adopted constitutional amendments embracing new rights, eradicating injustices, and implementing technical corrections to problems not anticipated by the Framers. Activist judges are not needed to “save” us from an antiquated Constitution.
At the same time, the national polity has declined to rally around causes that lacked a sufficient depth and breadth of political support. If the Constitution requires revision, the appropriate mechanism is amendment, not ad hoc judicial tinkering based on prevailing—but often transitory—intellectual fashions. Ratification by 38 states, which demonstrates nationwide consensus, is difficult to achieve. That is how a republic (“if you can keep it,” Benjamin Franklin famously warned) is supposed to work. All the theoretical arguments for non-originalist constitutional decisionmaking ignore Article V.
We have a living Constitution, and 27 amendments to prove it.
[1] See Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973).
[2] Ginsburg, “Ratification of the Equal Rights Amendment: A Question of Time,” Texas Law Review 57 (1979), 919, 936.
[3] 438 U.S. 265, 303 (1978).
[4] Ginsburg, “Ratification of the Equal Rights Amendment,” p. 937 and footnote 111.