Time to make good

LITTLE ROCK — If ever there was a time when Arkansas could make up for missing a long-ago opportunity to lead the nation, that time is today. The lost opportunity occurred at the constitutional convention in 1868 when a proposal to give women the vote was laughed out of the Old State House. If Arkansas had enfranchised women then, it would have been the first state in the nation to do so and could now be proud of it.

The opportunity today that could make up for that failure is for Arkansas to become the first of the last three states needed to ratify the Equal Rights Amendment (ERA).

Thirty-five states—representing about 72 percent of the population—ratified the ERA in the 1970s, and the proposed amendment has been in limbo ever since.

In fact, everyone thought the ERA was dead. After all, the proposing clause in the 1972 joint congressional resolutions had determined a ratification time limit initially of seven years. Although this was later extended to 10 years, that time expired three states short of the 38 required.

But time has a habit of changing things: In 1992, the 27th Amendment—prohibiting members of Congress from awarding themselves pay raises without going to the voters—was ratified. This amendment was the original second amendment, one of two of the proposed 12 that didn’t make it into the Bill of Rights. Its ratification took more than 200 years, raising the possibility of the continuing viability of old proposed amendments, the ERA among them.

The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

First introduced in Congress in a different form in 1923, the ERA mirrors the 19th Amendment, which is usually described as the one that “gave” women the vote—women who actually struggled for and won the vote for themselves in a campaign whose roots went back to 1848.

The 19th Amendment prohibited discrimination against all citizens in voting rights on account of sex.

The brilliance of both the 19th Amendment and the proposed ERA is that they apply to 100 percent of the population.

The U.S. Constitution comprises the Declaration of Independence and the Constitution, the latter providing the framework by which the sentiments, philosophy and intentions of the Declaration were enshrined within the structure for the nation’s political, civil and economic life.

But there was a flaw: The Declaration of Independence famously declared, “all men are created equal.” Some scholars today maintain the fiction that the word “men” in the Declaration applied to both sexes. However, legislation and politicians—including the delegates in 1868 at the Arkansas constitutional convention—and judges determined throughout the succeeding decades that “men” really equals males.

This was enshrined as fundamental law in the 14th Amendment, when the word “male” entered the Constitution for the first time.

When women attempted by judicial review to establish that “men” and “male” included women so that women could vote, the Supreme Court justices, in the 1875 case of Minor v. Happersett turned their argument down.

Although there have been some modifications because of further judicial decisions, the standing under U.S. law remains unequal for men and women today, as Supreme Court Justice Antonin Scalia stated categorically in an interview in January of 2011, and the United States lags behind many other countries in the world in this regard.

Ironically, U.S. diplomats have ensured that equal rights on account of sex have been enshrined in the new constitutions of Iraq and Afghanistan—even as the same equality has been ignored at home.

This unequal standing can discriminate against both men and women, but ratification of the Equal Rights Amendment would remove this problem—not by judicial review, but by the prescribed constitutional means.

The Arkansas Legislature has debated the ERA in recent years, the measure has come up for discussion in Florida and Louisiana, and in Virginia, the Senate has voted in its favor this year. As yet, however, the first of the last three ratifications remains elusive.

Some legislators have expressed concern that the deadline in the 1972 ERA resolution makes ratifying a waste of time. To deal with this problem, HJRes47 and SJRes 39, currently before Congress, propose to remove the deadline from that 1972 measure and negate those concerns.

So Arkansans have two ways to help lead the nation out of this impasse: to call on local representatives to ratify the ERA in this state, and to call on our congressional representatives to support these two measures in Congress in order to remove any objections to ratification, both here and elsewhere.

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Bernadette Cahill is a writer and historian working on a book about the women’s suffrage movement and its influence on civil rights. She lives in North Little Rock.