“Why is this so difficult?” Representative Maloney asked of the long struggle to pass the E.R.A., the first version of which was introduced nearly 100 years ago. “What is so intimidating about treating women equally?”
The quick answer: abortion. Today’s E.R.A. opponents see the measure, above all, as a stalking horse that would result in bans on state laws that restrict or prohibit a woman’s right to terminate her pregnancy. Whether or not that prediction would be borne out, there is no question that the debate over the amendment has shifted in the decades since it was introduced. Back in the 1970s, the main opposition was driven by Phyllis Schlafly, the conservative activist who warned that sex equality would lead to a carnival of horrors, including same-sex marriage. That ship sailed even without the E.R.A., of course, but in 2022 the concept of “sex” itself is being contested in ways even Ms. Schlafly’s darkest fantasies couldn’t have foretold.
That is why widespread public support in the present day is key. “Until the world is clamoring for this, the world will do nothing,” said Kati Hornung, a political organizer who led Virginia’s effort to pass the E.R.A. and now runs a group focused on ensuring it becomes the 28th Amendment. The state strategy, she told me, “was to make it part of a daily discussion, where you as a politician couldn’t go somewhere without being asked about it. We have to do nationwide what we did here in Virginia.”
The advocates haven’t given up entirely on the courts. A lawsuit by the attorneys general of the last three states to ratify the E.R.A. is in the U.S. Court of Appeals in Washington, D.C., calling on the archivist to certify the amendment as required under federal law. The attorneys general of five conservative-led states have joined the lawsuit to argue against ratification.
For Ms. Hornung, the ultimate goal is the same regardless of what path it takes to get there. “We just have to have sex treated the same way as race, religion, country of origin. That seems fair and decent and reasonable,” she said. Right now, “it’s still men making decisions for the majority of the country, who are women.”
On the last night of March 1776, Abigail Adams sat down and drafted a letter to her husband, John, who was off serving in the Continental Congress, helping shape what would soon become the Declaration of Independence. “By the way,” she wrote, “in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember all men would be tyrants if they could.” She went on, “If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.”
John Adams and his colleagues didn’t heed her warning, but we can. And that means treating the Constitution not as a sacred text from another era, but as an adaptable framework for an ever-growing and changing society. The founders expected this. They knew they were far from perfect, and they intended their creation to be updated on a regular basis, even if they failed to anticipate how polarized the country would become. That polarization may seem like an intractable fact of modern life, but remember: 40 percent of the Constitution we live under in 2022 consists of amendments. That is to say, the American people — those living today and those yet to come — are the authors of the Constitution no less than the founders are. It is not their document anymore, if it ever was. It is ours.