A New E.R.A. or a New Era? Amendment Advocacy and the Reconstitution of Feminism

Scholars have largely treated the reintroduction of the Equal Rights Amendment (ERA) after its ratification failure in 1982 as a mere postscript to a long, hard-fought, and ultimately unsuccessful campaign to enshrine women’s legal equality in the federal constitution. This Article argues that “ERA II” was instead an important turning point in the history of legal feminism and of constitutional amendment advocacy. Whereas ERA I had once attracted broad bipartisan support, ERA II was a partisan political weapon exploited by advocates at both ends of the ideological spectrum. But ERA II also became a vehicle for feminist reinvention. Congressional consideration of ERA II forced feminists to rethink their objectives and strategies, and ultimately to reconstruct their legal and political agendas. Having achieved the eradication of most of the overt sex-based classifications that had been ERA I’s primary targets, amendment proponents focused on developing a coherent doctrinal approach to laws and policies that exerted a disproportionately negative impact on women. As they attempted to negotiate the competing demands of their own aspirations and a political climate hostile to the creation of new rights, women’s rights advocates confronted thorny constitutional questions, including the relationship between the ERA and abortion, private institutions, and affirmative action. The campaign for ERA II set the stage for a new phase in American legal feminism: one which aspired to substantive equality, recognized the limitations of amendment advocacy, and eschewed the expedient separation of reproductive freedom from constitutional sex equality. ERA II not only epitomized the scope and limitations of feminists’ success in transforming the law and of constitutional amendment advocacy as an instrument of change, but also laid the groundwork for a new era in feminist constitutionalism