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1 Wilfred U. Codrington III, The Benefits of Equity in the Constitutional Quest for Equality 105 (2019)

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               THE BENEFITS OF EQUITY IN THE
         CONSTITUTIONAL QUEST FOR EQUALITY

                        BY WILFRED   U. CODRINGTON III

        Recent  high-profile scandals have prompted  a national conversation about
male  privilege, gender-based disparities, and sexual violence in the United States.
Relatedly,  within an   18-month  period,  two  states ratified the Equal  Rights
Amendment, proposed by Congress in 1972, thereby reviving the chances of
securing a constitutional guarantee of gender equality.' Unlike the broader national
conversation, however,  the renewed  debate over the ERA   has been fairly limited,
mainly  focused on two types of questions. On  one hand, there are questions about
the ratification process, in particular, the merits of picking up where the initial
campaign   left off-the  three-state strategy-versus  beginning  anew  with  the
fresh start approach.2 On the other, advocates and opponents  have sparred over
whether, given the progress over the last 50 years, the U.S. Constitution needs an
ERA.3  To  be sure, these are valid concerns that demand  resolution. The process
issue, likely a political question, merits consideration because it implicates not just
the ERA,  but future battles in amendment politics and even democratic legitimacy.
The   substantive concern,  whether  there  is a  present need   for an  ERA,   is
fundamentally  a question about our values, and addressing it properly requires deep
reflection about the type of nation we have been, are, and aspire to be.
        Yet, these are not the only issues raised by the prospect of an ERA. Instead,
the greatest ERA-related controversy may  be the narrowness of the debate and the
important questions left out of it. For example, is the ERA sufficient to meet today's
gender discrimination challenges? And  if not, what else could help? Drawing on the
development   of American  law and  history, I conclude that the answer to the first

' Wilfred U. Codrington III is the Bernard and Anne Spitzer Fellow at the Brennan Center for Justice
at NYU School of Law, where he focuses on democracy, constitutional reform, and the rule of law.
1 See Bill Chappell, One More to Go: Illinois Ratifies Equal Rights Amendment, N.Y. TIMES (May 3 1,
2018),   https://www.npr.org/sections/thetwo-way/2018/05/31/615832255/one-more-to-go-illinois-
ratifies-equal-rights-amendment [https://perma.cc/R7GK-BDUU] (discussing Illinois' ratification of
the ERA in 2018, which followed Nevada's ratification of the ERA in 2017).
2 Compare Vikram David Amar, What Legal Effect, IfAny, Can Recent State Ratifications (Including
Illinois's Earlier this Summer) ofthe EqualRights AmendmentHave, JUSTIA: VERDICT (Sept. 21, 2018),
https://verdict.justia.com/2018/09/2 1/what-legal-effect-if-any-can-recent-state-ratifications-
including-illinoiss-earlier-this-summer-of-the-equal-rights-amendment-have [https://perma.cc/6Q2N-
2FS3] (explaining lawmakers would have to restart the process to pass an ERA, because extending the
lapsed ratification deadline would be problematic.), with Allison L. Held, Sheryl L. Herndon &
Danielle M. Stager, The EqualRights Amendment: Why the ERA Remains Legally Viable and Properly
Before the States, 3 WM. & MARY J. WOMEN & L. 113, 135 (1997) (If Congress reviews and votes to
repeal the ratification deadline, which is not part of the amendment, state legislatures can restart the
ratification process where it left off.).
3 Compare, e.g., JESSICA NEUWIRTH, EQUAL MEANS EQUAL: WHY THE TIME FOR AN EQUAL RIGHTS
AMENDMENT  IS Now (2015) (making the case for the ERA through a range of gender discrimination
cases), with Susan Estrich, Politics and the Limits of Law: A Musing for Dean Sullivan, 90 CAL. L.
REv. 813, 813 (2002) (Phyllis Schlafly was right, ironically enough. We didn't need an Equal Rights
Amendment. We got one, virtually identical to the one we proposed, through the decisions of the U.S.
Supreme Court.).


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