Document Type

Article

Publication Title

The Georgetown Law Journal

Volume

110

Publication Date

2022

Keywords

RBG, Equal Rights Amendment, constitutional amendment process, separation of powers, Equal Protection Clause, women, gender, and the law

Abstract

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG publicly expressed doubts about the viability of the ERA, as it was being disputed in Congress and in the courts. This Article unpacks RBG’s ambivalent stance toward the ERA, tracing it to her understanding of the process of constitutional change toward greater inclusion, located in her legal scholarship of the 1970s. As a scholar, RBG focused not only on sex discrimination but also on legal procedure. She was keenly aware that the procedural paths taken toward important socio-legal changes, including women’s equal citizenship, would shape their potential to endure as law. This Article puts the spotlight on RBG’s often-neglected writings as a scholar before her judicial career. RBG’s transformative vision of constitutional gender equality had an institutional and procedural dimension that accompanied its ambitious substantive ideals. A modern constitutional democracy would fully include women in the rights and responsibilities of citizenship and power, by eliminating gender stereotypes from the law and by implementing public policies to enable the participation of people of all genders. Legislatures, rather than courts, are best equipped to complete this project. To legitimize such large-scale constitutional change, RBG viewed Congress as the appropriate institutional driver of the constitutional amendment process. Accordingly, Congress had plenary power over the procedural incidents of constitutional amendments such as the ERA, including ratification time limits and rescissions. RBG’s legislative constitutionalism on both the substance and procedure of the ERA point to cautiously viable paths forward for both the resurgent ERA and future amendments aiming to secure the inclusion of previously disempowered people in our democracy.

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