Podcast Summary: The Daily – "Could One Phone Call Lead to the 28th Amendment?"
Introduction
In the December 23, 2024 episode of The Daily, hosts Michael Barbaro and Sabrina Tavernise delve into a pivotal moment in American legislative history: the push to ratify the Equal Rights Amendment (ERA) as the proposed 28th Amendment to the U.S. Constitution. This episode explores the historical context of the ERA, the contemporary political maneuvers to secure its ratification, and the legal battles surrounding its legitimacy. The discussion is enriched by insights from congressional insiders Annie Carney and Senator Kirsten Gillibrand, providing a comprehensive view of the challenges and aspirations tied to this monumental effort.
Historical Background of the Equal Rights Amendment
The story of the ERA is rooted in nearly a century-long struggle for gender equality in the United States. Annie Carney, a knowledgeable commentator from within Congress, outlines the genesis of the ERA:
"This is a story that starts about a century ago and it's a pretty remarkable story about a very simple idea, and that is that men and women should be equal under the law in the United States and that discrimination based on sex should be prohibited." [02:14]
The ERA was first introduced in 1923 by suffragist Alice Paul, aiming to explicitly enshrine gender equality in the Constitution. However, it languished for decades without significant progress until the resurgence of the women's rights movement in the late 1960s and early 1970s.
The Legislative Journey of the ERA
In 1971, the ERA gained substantial momentum when a Democratic lawmaker successfully introduced the amendment in the House, garnering "overwhelming margins from both parties" [03:38]. By 1972, the Senate passed the ERA with an 84-8 vote, heralding a 49-year-long battle toward its potential constitutional adoption.
Annie Carney details the critical milestone reached when Indiana became the 35th state to ratify the amendment, placing it just three states short of the required 38 for ratification:
"Indiana became the 35th, leaving the Women's Rights Declaration just three states away from becoming the 27th Amendment to the Constitution." [05:00]
Despite this progress, the ERA's journey encountered fierce opposition, primarily led by Phyllis Schlafly, a conservative activist who argued that the amendment would undermine women's traditional roles and legal protections, such as mandatory spousal support.
Opposition and the 1982 Deadline
Schlafly's grassroots campaign was effective, leading to the ERA falling short of ratification by three states before the 1982 Congressional deadline. This period marked a seeming end to the ERA's quest for constitutional recognition. However, the debate resurfaced decades later, questioning the validity of the original deadline and the possibility of additional ratifications.
"Constitutional amendments, first of all, each one has taken its own circuitous path to passing, and they don't normally have ratification deadlines." [07:14]
Annie Carney explains that supporters of the ERA argue the deadline was never constitutionally binding, citing precedents like the 27th Amendment, which was ratified two centuries after its initial proposal.
Recent Developments and Renewed Efforts
The political landscape shifted with the election of President Donald Trump and later President Joe Biden, reigniting efforts to ratify the ERA. In response to the overturning of Roe v. Wade and the peak of the MeToo movement, three additional states—Nevada, Illinois, and Virginia—ratified the ERA, pushing the total to 38 states. This seemingly fulfilled the requirement for it to become the 28th Amendment.
Annie Carney states:
"According to supporters, it has cleared all the bars. The ERA has been ratified and should be part of the Constitution." [09:07]
However, the Trump administration issued a legal opinion asserting that the 1982 deadline was valid, thereby nullifying recent ratifications. This position was upheld by the Biden administration, creating a significant legal impasse.
Legal Debates and the Role of the Archivist
The crux of the current debate centers on whether the original deadline imposed by Congress is enforceable. Supporters argue that the Constitution does not specify deadlines for amendments, while opponents maintain that the deadline is binding.
"So, constitutional amendments [...] don't normally have ratification deadlines. An example is the 27th amendment. It was ratified in 1992. That's two centuries after Congress first passed it." [07:55]
This legal uncertainty has led to ongoing court battles, with recent federal court rulings siding against the ERA's ratification without adhering to the deadline.
Senator Kirsten Gillibrand’s Advocacy for the ERA
Highlighting the contemporary push to overcome these legal obstacles, the episode features a compelling interview with Senator Kirsten Gillibrand of New York. Gillibrand passionately advocates for the ERA, emphasizing its necessity in safeguarding women's rights post-Dobbs v. Jackson Women's Health Organization.
"Imagine how men in America would feel if they were told today that they too do not have the right to privacy to cross state lines or to receive medicine in the mail, or to have private conversations on social media with their families." [18:40]
Gillibrand articulates that the ERA would provide a constitutional foundation to protect reproductive rights and ensure gender equality, countering the limitations imposed by the 14th Amendment's general equal protection clause.
Efforts to Secure Presidential Support
Senator Gillibrand has actively sought to engage President Biden in supporting the ERA. Despite numerous attempts, including direct appeals and leveraging her position within the Senate, she has yet to secure a dedicated meeting. She recounts her interaction with Biden during the Stonewall Inn anniversary:
"I said, Mr. President, I think you have an opportunity to direct the archivist to sign and publish the ERA. [...] If you tell her or direct her or do a new OLC memo, she will do it." [23:19]
Gillibrand faces significant resistance from the White House, which continues to adhere to the 1982 deadline argument. Nevertheless, she remains undeterred, believing that a legal challenge will ultimately validate the ERA's ratification.
Overcoming Legal and Political Hurdles
The path to the ERA's ratification as the 28th Amendment is fraught with legal complexities and political reluctance. Senator Gillibrand emphasizes the need to act despite anticipated Supreme Court challenges, arguing that delaying the process could forfeit the opportunity to secure essential protections for women's rights.
"So, I've been asking the White House to either issue a new OLC memo, and if they don't want to do that, then direct the archivist to sign and publish on the basis that the two things that Article 5 requires have been completed." [09:12]
Conclusion
The December 23rd episode of The Daily presents a thorough examination of the Equal Rights Amendment's resurgence in American politics. Through historical context, legal analysis, and personal advocacy from Senator Gillibrand, listeners gain a deep understanding of the ERA's significance and the intricate battle underway to cement gender equality in the Constitution. The episode underscores the interconnectedness of legal interpretations, political will, and grassroots support in shaping the trajectory of one of the nation's most enduring civil rights endeavors.
Notable Quotes with Timestamps
- Annie Carney on ERA’s Historical Context:
- "This is a story that starts about a century ago and it's a pretty remarkable story..." [02:14]
- Annie Carney on ERA’s Legislative Progress:
- "Indiana became the 35th, leaving the Women's Rights Declaration just three states away..." [05:00]
- Annie Carney on Legal Deadlines:
- "Constitutional amendments... don't normally have ratification deadlines." [07:55]
- Kirsten Gillibrand on ERA’s Importance:
- "Imagine how men in America would feel if they were told today that they too do not have the right to privacy..." [18:40]
- Kirsten Gillibrand on Presidential Engagement:
- "I said, Mr. President, I think you have an opportunity to direct the archivist to sign and publish the ERA." [23:19]
This comprehensive summary encapsulates the multifaceted discussion of the ERA's journey toward constitutional recognition, highlighting the interplay of history, law, and politics that defines this ongoing legislative saga.