The Evolution Of Law: Eras And Enactments

The era in question is likely the early Middle Ages, when the English common law was established in the King's Court, or Curia Regis. This was a single royal court set up for most of the country at Westminster, near London. The common law was largely created following the Norman Conquest of 1066, with the Anglo-Saxons having previously developed a body of rules resembling those used by the Germanic peoples of northern Europe.

The common law became law through the development of a centralised judiciary. It was largely created by judges, rather than legislators, until the late 19th century.

The Equal Rights Amendment (ERA)

The ERA was first introduced to Congress in 1923 but made little progress until the 1970s. In March 1972, it was approved by the U.S. Senate and sent to the states for ratification within seven years. By 1978, when it had received only 35 of the necessary 38 approvals required, Congress passed a bill extending the deadline to June 30, 1982. Despite this, no new states ratified the ERA by the deadline.

Although the ERA gained ratification of 30 states within one year of its Senate approval, mounting opposition from conservative religious and political organizations effectively brought ratification to a standstill. The main objections to the ERA were based on fears that women would lose privileges and protections, such as exemption from military service and economic support from their husbands. Advocates of the ERA, led by the National Organization for Women (NOW), maintained that the issue was mainly economic and that many sex-discriminatory state and federal laws perpetuated a state of economic dependence among a large number of women.

In 2017, Nevada became the first state to ratify the measure since 1977. As of January 27, 2020, the ERA has satisfied the requirements of Article V of the Constitution for ratification (passage by two-thirds of each house of Congress and approval by three-fourths of the states). However, the Archivist of the United States has not yet certified the ERA as the 28th Amendment to the Constitution, pending resolution of political and legal challenges to its unique ratification process.

The ERA's ratification timeline

The Equal Rights Amendment (ERA) was first proposed and introduced in Congress in 1923 by Alice Paul, the leader of the National Woman's Party. It stated:

> Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have the power to enforce this article by appropriate legislation.

In 1943, Paul reworded the first sentence of the original ERA into Section 1 of what is now called the "Equal Rights Amendment":

> Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

> Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

> Section 3: This amendment shall take effect two years after the date of ratification.

On March 22, 1972, the ERA passed the Senate (84-8) and the House of Representatives (354-24) by well over the required two-thirds majority and was sent to the states for ratification. A seven-year deadline was placed in the proposing clause, not in the text of the amendment itself.

The ERA was ratified by thirty states in the first year, but it fell victim to the emerging conservative political movement. By 1978, when it had received only 35 of the necessary 38 approvals required by Article V, Congress passed a bill by a simple majority extending the deadline to June 30, 1982. Although Article V does not give the President any role in the amendment process, President Jimmy Carter signed the extension bill as a symbolic show of support for the ERA.

By the June 30, 1982 deadline, no more states had ratified the ERA. Two weeks later, the amendment was reintroduced in Congress, and “start-over” ERA bills continued to be introduced in every session of Congress until 2023. A November 1983 floor vote in the House of Representatives under a suspension of the rules failed to achieve the required two-thirds majority by only six votes.

In the 113th Congress (2013-2014), lead sponsor Representative Carolyn Maloney (D-NY) included revised wording in the ERA bill she introduced in the House of Representatives:

> Section 1: Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

> Section 2: Congress and the several States shall have the power to enforce, by appropriate legislation, the provisions of this article.

> Section 3: This amendment shall take effect two years after the date of ratification.

The ERA bill in the Senate, with language unchanged from the 1972 version, was introduced by lead sponsor Senator Robert Menendez, D-NJ.

In the 118th Congress (2023-2024), no “start-over” ERA bill has been introduced in the House or the Senate.

On March 22, 2017, 45 years to the day after Congress passed the ERA, Nevada became the 36th state to ratify it. On May 30, 2018, Illinois became the 37th state. And, in a historic vote to become the 38th state to ratify, the state of Virginia voted to ratify the Equal Rights Amendment on January 15, 2020.

The three-state strategy for ERA ratification

The "three-state strategy" is a strategy for achieving ratification of the Equal Rights Amendment (ERA) in the United States. The ERA is a proposed amendment to the US Constitution that would explicitly prohibit sex discrimination.

The three-state strategy was first explored by the ERA Summit, a small national volunteer organisation of ERA advocates, in 1992. It was developed after the 1992 ratification of the 27th Amendment, which was added to the Constitution more than 200 years after its passage by Congress with no time limit attached.

The strategy posits that the ERA's 35 ratifications were still valid, and that states could ratify the amendment even after the deadline had passed. This is because Article V, which specifies the process for constitutional amendments, does not mention a time limit, and Congress has demonstrated that any time limit on ERA ratification is open to change.

The first three-state strategy bill was introduced in 1994 by Representative Robert Andrews (D-NJ). It stated that when three more states ratified the ERA, the House of Representatives would take any necessary action to verify that ratification had been achieved.

In 2011, Andrews joined Representative Tammy Baldwin (D-WI) in supporting a bill to override any deadline and affirm the ERA's ratification when 38 states had approved the amendment. This bill was introduced in multiple sessions of Congress, led by Senator Benjamin Cardin (D-MD) in the Senate and Representative Jackie Speier (D-CA) in the House.

In the 2023-24 Congress, the three-state strategy bills are S.J. Res. 4 (led by Senators Benjamin Cardin and Lisa Murkowski) and H.J. Res. 25 (led by Representative Ayanna Pressley). These bills state that the ERA is valid and part of the US Constitution, despite any time limit.

In the last two sessions of Congress, the House passed this bill invalidating any deadline on ERA ratification, but the Senate bill was blocked by Republican leadership. In the current session, H.J. Res 25 has 215 co-sponsors, and a discharge petition has been filed that would force a floor vote on the bill if a majority of House members sign it.

The ERA's legal and political challenges

The Equal Rights Amendment (ERA) has faced numerous legal and political challenges since its inception in 1923.

Political Challenges

The ERA was first proposed in 1923 by Alice Paul and Crystal Eastman, leaders of the women's suffrage movement. However, it did not gain much traction until the 1970s due to a lack of female representation in Congress. In 1970, a new class of women lawmakers pushed for the ERA to become a top legislative priority. Despite facing resistance, the amendment passed both chambers of Congress with bipartisan support in 1972 and was sent to the states for ratification.

The ERA initially gained momentum, with 30 states ratifying it within a year. However, the conservative movement led by Phyllis Schlafly emerged as a significant obstacle. Schlafly and her supporters argued that the ERA would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat roles, among other things. This campaign was remarkably successful, eroding support for the ERA, particularly among Republicans. As a result, the ERA fell short of the required number of state ratifications by the original 1979 deadline.

Congress extended the deadline by three years, but no new states signed on, and five states even voted to rescind their prior approval. The momentum shifted against the ERA, and by 1982, most activists and lawmakers accepted its defeat.

However, in recent years, there has been a resurgence of women's activism, and the ERA has gained renewed attention. In 2017, Nevada became the first state to ratify the measure since 1977, followed by Illinois in 2018 and Virginia in 2020. With Virginia's ratification, the ERA technically met the threshold for adoption, but legal challenges and partisan opposition have stalled its adoption.

Legal Challenges

The legal challenges to the ERA centre around two main issues: the ratification deadline and the validity of state rescissions.

Ratification Deadline

The ERA passed by Congress in 1972 included a seven-year ratification deadline, which was later extended by three years. However, this deadline had expired by the time Virginia became the 38th state to ratify the ERA in 2020. Opponents argue that the deadline has passed, and the ERA is no longer pending before the states.

Proponents of the ERA, on the other hand, argue that ratification deadlines are inherently unconstitutional as they are not mentioned in Article V of the Constitution. They contend that Congress can act to amend or remove the deadline, and some have introduced resolutions in Congress to that effect. The American Bar Association (ABA) has also passed a resolution supporting this position.

State Rescissions

Five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their ratification of the ERA before the 1982 deadline. The validity of these rescissions is disputed. Proponents of the ERA argue that Article V of the Constitution does not permit states to rescind their ratification, and historical precedents exist where state rescissions have been ignored. However, a 1980 federal district court ruling in Idaho supported the validity of state rescissions.

Ongoing Debate

The legal and political challenges surrounding the ERA remain unresolved. While some argue that the ERA is no longer viable due to the missed deadline and state rescissions, others contend that these issues can be overcome through congressional action. The National Archives has stated that it will abide by the Department of Justice's Office of Legal Counsel's (OLC) opinion, which currently maintains that the ERA is no longer pending before the states due to the expired deadline.

Several lawsuits have been filed to compel the Archivist of the United States to certify and publish the ERA, but these have been dismissed due to a lack of standing. The Supreme Court has also ruled that the question of whether an amendment has been ratified within a reasonable time is a "political question" for Congress to decide, not the courts.

The ongoing debate highlights the complexities and uncertainties surrounding the ERA's path to becoming part of the Constitution.

The ERA's impact on sex discrimination

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would explicitly prohibit sex discrimination. The ERA would provide Congress with the power to enforce sex-based equality through appropriate legislation.

The Impact of the ERA on Sex Discrimination

The ERA would have a significant impact on sex discrimination by providing a clearer judicial standard for deciding cases of sex discrimination. The amendment would place sex-based discrimination cases under the highest level of judicial review, regardless of judicial attitudes. This means that sex discrimination would be subject to "strict scrutiny", requiring the government to justify any discrimination as "necessary" to achieve a "compelling" interest or goal.

Currently, sex discrimination is only subject to intermediate scrutiny, which requires the government to justify discrimination as "substantially related" to an "important" government interest. The ERA would raise the standard for justifying discrimination, making it much harder for discriminatory laws and practices to be upheld.

The ERA would also help to address gender inequalities in various contexts, such as pay inequality, hiring and promotion discrimination, sexual harassment, lack of support for family responsibilities, and underrepresentation in certain fields and occupations.

In addition, the ERA would provide a strong legal defence against any attempts to roll back the advances in women's rights that have been achieved in recent decades. It would create a constitutional foundation for Congress to pass new and more robust laws that protect women and girls, and send a clear message that the United States is committed to gender equality.

However, some critics argue that the ERA could potentially harm women's equality by prohibiting affirmative efforts to advance sex equality. They argue that the ERA would lead to a rule of "sex-blindness", preventing the government from adopting policies specifically designed to reduce sex inequality.

Despite these concerns, the ERA has gained widespread support and ratification by a majority of states. The ongoing legal and political debates around the ERA's validity and its potential impact on sex discrimination highlight the complex nature of this issue.

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