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The Constitution would be poorer without ERA

This June will mark either the passing of an era or the passage of an ERA. Without approval of three additional state legislatures, 50 years of efforts that moved two-thirds of both houses in Congress, and a decade of effort that won approval by 35 states, will end in failure. The world's oldest written extant Constitution, our own, would still provide no fundamental commitment that ''equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.''

Prudent people already think they know the outcome - that among 15 states there will be no favorable majorities in the general assemblies of even three states. Already the 27th Amendment is treated as a game, the outcome of which we know. ''They'' (the women) have lost.

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From within the Constitution where I live professionally, the view is quite different. It is a view of pending loss, of historic and constitutional opportunity about to be forfeited. It is also a professional sense of sheer amazement. I would have thought that the chance to count oneself significantly, in adding a memorable and permanent improvement to the Constitution of the United States, would not lightly be rejected by men and women whose other votes in state assemblies cannot possibly be comparable in significance. It is incredible to me that state assembly members, living from year to year through forgettable bills of appropriation, endless caucuses, and recurring campaigns do not see how one vote, on this issue, provides a greater claim to history than anything else they may do.

The indifference of state assembly members to make ratification their most important business cannot be on grounds that the 27th Amendment is trivial, because it is not. It carries into words eminently suitable for a Constitution a proposition neither condescending nor at all objectionable. Rather, like the 13 th Amendment (which forever interred chattel slavery) it speaks against the recurring and incorrigible tendencies of government to be condescending, ignorantly denying equality of rights by gender.

The objection that the wording of the Equal Rights Amendment would be an iron bed of Procrustes, relentlessly indifferent to any gender-related distinctions at all (the example is often given of mandatory unisex dressing rooms or bathrooms in all governmentally-operated facilities) is quite mistaken. Where considerations of hygiene, safety, and privacy are involved, ''equality of rights under the law'' (which is exactly and only what the amendment provides) is plainly not offended by separate facilities equal in usefulness and the separateness of which stigmatizes no one.

On the other hand, I have heard it said that the 27th Amendment is not needed because the Constitution already adequately speaks to this subject. But this, too, is seriously in error. The equal protection clause (of the 14th Amendment) has embarrassed the Supreme Court by its very poor adaptability to gender-based discrimination by government.

Partly this is so because such forms of unequal treatment by government played virtually no role whatever in its Reconstruction passage, in 1868. Partly it is because the sole reference to sex in the 14th Amendment itself explicitly allowed women altogether to be denied any right to vote (an ''accommodation'' provided by the 14th Amendment that it required the separate l9th Amendment, ratified in 1920, to overcome). And partly it is because the court fully understands that gender-based laws cannot be analyzed in perfect analogy to race-based laws (which are the focus of the 14th Amendment), and that the comparison is often very faulty.

This difference is recognized in the different language of the Equal Rights Amendment itself. Thus, it provides for ''equality of rights under the law,'' and admits to common sense distinctions relevant to gender that would not be relevant to race.

The fact is that the Constitution is a poorer document without this amendment , just as it was once even weaker in having no 14th Amendment and, in the beginning, no Bill or Rights at all.

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The amendment should be read again, read privately, thought about quietly. It should be compared with the balance of our Constitution, its conformity in style and spirit examined fairly and with detachment. If that is done, then by June it is still possible for us to mark the passage of the 27th Amendment, and not simply the passing of an era.

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