The ERA’s long, strained trip

Updated

At the very end of the segment with Yale Law School professor Healther Gerken on Monday night’s show, Rachel suggested that all big (empty) political talk about changing the Constitution is actually a form of working the refs - that you may not actually change the Constitution but you may change how it’s treated and interpreted:
MADDOW: Does threatening to change the Constitution, even if you can`t pull it off, even if you can`t actually amend it - historically, has that had an effect on our laws or even constitutional interpretation even if the amendment itself hasn`t actually worked? GERKEN: Well, this is what is so interesting. They said sometimes, you can amend the Constitution without amending the Constitution. So you just talked about the ERA. It`s a great example as my colleague, Reva Siegel, has pointed out. The people who worked for the ERA actually got everything they wanted by moving for the ERA. They never actually got it into the texts of the Constitution. But everything that was embodied in that amendment was eventually given to them by the Supreme Court. So why did that happen? Well, they used the ERA as an organizing tool. They changed people`s minds about the place of women in society. And nine of the people whose minds were changed were sitting on the Supreme Court. And those justices eventually began to read the broad part of the Constitution in a way that was perfectly consistent with the ERA. So they got the constitutional amendment. It just isn`t in the text. MADDOW: And it just took 85 years, roughly. GERKEN: It did take a little while.
What they’re talking about after the jump… I didn’t realize it when I was watching it live, but I’m pretty sure Rachel knew Reva Siegel was going to come up in the answer to that question. In fact, while I’d never heard of Reva Siegel, the sheer quantity of references to her - especially the “de facto ERA” paper - that came up when I googled her this afternoon made me embarrassed that I didn’t understand the reference when Professor Gerken brought it up, and cements my certainty that her paper is exactly what Rachel was getting at. The paper’s full title is “Constutitional Culture, Social Movement Conflict and Constitutional Change: The Case of the defacto ERA” and you can download the 97 page pdf of it here. I’m sure there’s no shortage of fascinating material to read on the subject, but if you’re looking for looking for something a little more manageable than 97 pages, I’ll add that in the course of searching for a free link to the Siegel paper (no small task) I ended up reading these closing remarks by Lani Guinier at this year’s Money, Politics & the Constitution Symposium at the Brennan Center for Justice. I only skimmed the panel remarks but it sets a broader context for the idea of influencing the courts and American discourse that makes for a great virtual TRMS spin-off segment. :)

The ERA's long, strained trip

Updated