Phyllis Schlafly, the longtime conservative activist and author who died Sept. 5, famously led the fight against the Equal Rights Amendment in the 1970s. The amendment said that neither the federal government nor any state could abridge or deny any right on the basis of sex, and its ratification seemed like a lock. Both parties supported it, and it passed the Senate in 1972 with 84 votes.
Then came Schlafly, who organized a small army of traditionalist women to defeat it.
Her argument was that however unobjectionable most people found the amendment’s language, judges would use it to push through policies many of those same people would dislike. If the military draft ever returned, the amendment would mean that women had to be subject to it. Supporters of the right to abortion that the Supreme Court had recently pretended to find in the Constitution would use the ERA to strengthen their case, too.
Whatever one thinks of traditional gender roles and, for that matter, abortion, Schlafly’s basic argument was right. Most of the point of the amendment was to put into law language that judges could use to enact policies that could not get through the democratic process by themselves. By the time Schlafly was debating the ERA, the Supreme Court was using what it had described as the Constitution’s “majestic generalities” as a license to fill in the blanks.
It was even using fairly specific constitutional language, like that of the due-process clauses, to impose its preferred policies on the country.
In this context, ratifying a constitutional amendment with sweeping abstract language would have been equivalent to giving the federal courts vast new powers and saying, “Surprise us!” It’s hard to think of a good argument for doing that – as opposed to passing legislation piecemeal to open up combat roles for women, and so on.
Schlafly ended up winning the battle but losing the war; some policies she feared have been enacted democratically. These days, not even many elected Republicans think women should be exempt from draft registration.
The Supreme Court used the equal protection clause to accomplish many of the same results the Equal Rights Amendment would have served. In 1997, after the court had ruled that the Virginia Military Institute had to go co-ed, Justice Ruth Bader Ginsburg said, “There is no practical difference between what has evolved and the ERA.”
The amendment’s conservative opponents said it would lead to same-sex marriage; the Supreme Court turned out not to need it, or much of a legal argument, to get there.
The opposition to the ERA 40 years ago, including the housewives who brought jam to state legislators (“preserve us from a congressional jam” went the slogan), looks dated now. But it also seems quaint that progressives would seek a formal amendment to the Constitution to achieve their goals rather than just having judges impose them.
Phyllis Schlafly may have lost the war, but the manner of her losing suggests that she was right all along.
Ramesh Ponnuru is a columnist for Bloomberg View and a senior editor of National Review.