The ERA is the toughest nut to crack in my Birch Bayh project. Is there anything new to say about something so widely discussed? Slowly, though, I am finding some new things as a dig through the Archives. One was the point that I made the other day about the coincidental interaction of Reed v. Reed and the ERA’s consideration in the Senate Subcommittee.
One line of inquiry that I was pursuing was that Roe v. Wade killed the ERA. But now I’m doubtful that’s true–the evidence is not compelling. I now have a new hypothesis. It is that the amendment’s supporters did not do enough outreach to the states.
The Twenty-Fifth and Twenty-Sixth Amendments were preceded by extensive surveys of state officials (legislators and election officials) to solicit feedback. This both shaped the proposal Congress made and built support in the states for ratification. As Tip O’Neill used to say, “People like being asked.” The same was true after these Article V proposals passed Congress. Many letters were swapped between Senator Bayh or his staff and state officials on ratification itself.
There was no similar survey or outreach for the ERA. This may have been a serious mistake. Congress did not have as good a feel for what the public would accept and state officials did not feel included. Why was there less consultation? I don’t know, though overconfidence is one explanation.
Things got worse when Congress extended the ERA’s ratification deadline in 1978. At this stage the Subcommittee showed disdain for the states. The right of a state to rescind its ratification was denied (erroneously, in my view). Reliance by the states on the original 7-year ratification limit was dismissed. Of course, ratification did not occur.
I am not saying that this was the only reason for the ERA’s defeat. But it is a factor that has not received adequate attention.