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Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution
Why ERA Failed looks at the systemic problems of politics and the amending process. The author, Mary Frances Berry, considers the behavior of the two sides from the perspective of a historian and lawyer. She describes the history of the amending process, from the Constitutional Convention to the present day, and its application to the struggles for amendments concerned with the status of blacks after the Civil War, income tax, prohibition, child labor, and woman suffrage.
Berry concludes that ERA approval was problematic at best and defeat predictable. Supporters did too little of what is required for ratification of a substantive proposal too late. Furthermore, the large number of state ratifications gained was deceptive. Support was eroding instead of increasing in the final stages of the campaign.
Berry concludes that ERA approval was problematic at best and defeat predictable. Supporters did too little of what is required for ratification of a substantive proposal too late. Furthermore, the large number of state ratifications gained was deceptive. Support was eroding instead of increasing in the final stages of the campaign.
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First published January 1, 1986
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August 18, 2025
A HISTORIAN PROVIDES ESSENTIAL ADVICE FOR PASSING A FUTURE E.R.A.
Mary Frances Berry (b. 1938) is an African-American historian and activist who teaches American legal history at the University of Pennsylvania.
She wrote in the Preface to this 1986 book, “The purpose of this book is to analyze why ERA failed in the context of the history of the amending process of the Constitution. The genesis of the book lies in my dismay as I testified before the House Judiciary Committee concerning ERA. I noticed that there was so little discussion of the traditional principle of the equality of rights and so much on whether ERA would violate traditional family values. Creating an appearance that some essential values would be compromised by adding an amendment is a powerful weapon that cannot easily be defused. This strategy has been used before by those opposed to a proposed amendment. Because the Constitution is by design more difficult to amend than not, I believe it would be useful to present an explanation of the inherent difficulties of the amending process in order to understand the outcome of the ERA controversy.”
She explains in the Introduction, “The failure of the Equal Rights Amendment ratification effort had many causes. This study considers only the behavior of the ERA proponents and opponents compared with that of participants in earlier ratification campaigns for controversial proposed amendments to the federal Constitution. It describes the history of the amending process from the Constitutional Convention to the present day and its struggles over amendments concerned with the status of blacks after the Civil War, the income tax, Prohibition, child labor, and woman suffrage… these dating from about 1890 to the entry of the United States into World War I. The Populists, primarily discontented Western and Southern agrarians, wanted political participation by women, monetary reform, and governmental regulation of monopolies and an income tax instead of high tariffs… progressivism, a mostly urban, middle-class response to the evils of rapid industrialization, supported Prohibition, women’s rights, the abolition of child labor, and income tax.” (Pg. 1)
She reports that after the Civil War, “Many blacks asked for economic rights, including land for the freedmen, as a fundamental basis for assuring freedom and equality; but the most important black leader, Frederick Douglass, and his adherents preferred to emphasize political rights, which could be used to gain and protect economic opportunity. Suffragists were divided when it became clear that women would not be enfranchised along with black men. Black women such as Frances Ellen Harper, and white women such as Julia Ward Howe and Lucy Stone, were willing to delay suffrage for women and support suffrage for black men if they could not achieve both. Sojourner Truth took the opposite view, joining [Elizabeth Cady] Stanton and [Susan B.] Anthony in opposing suffrage for black men only. Some Republican political leaders saw black suffrage as a less controversial and expensive response to the freedman than acceding to their demands for economic benefits.” (Pg. 31)
She continues, “some suffragists saw the exclusion of women’s rights solely as an abandonment of their interests… these women turned to some of the worst elements in the Democratic party for support. Anthony and Stanton joined forces with George Train, a wealthy anti-black Democrat… to appeal for the franchise for white women in order to counter the effect of black male voting, which, they claimed, could lead to black supremacy. Stanton… stated that it was wrong to elevate an ignorant and politically irresponsible class of men over the heads of women of wealth and culture, whose fitness for citizenship was obvious… These appeals to prejudice by white women leaders were unfortunate. They undermined the moral force of their demand for suffrage… Furthermore, the posture taken helped to identify the women’s movement as an upper middle-class white women’s movement, and as essentially racist….” (Pg. 32)
She notes, “Following ratification of the Nineteenth Amendment, as women’s votes continued to be undifferentiated from men’s, no immediate far-reaching changes occurred in women’s roles. But in the 1920s women who had become suffragists in order to promote progressive social causes… participated in a wide variety of causes… They also became involved in the unsuccessful movement to … outlaw the use of child labor. Others in the National Women’s party transferred their single-issue focus … to an effort to gain an equal rights movement.” (Pg. 44)
She recounts, “The legislative history of the ERA enacted in 1972 began in May 1970 when the Senate Subcommittee on Constitutional Amendments held the first hearing … on the subject… The Subcommittee … reported to the committee an ERA with an amendment that ‘neither the United States nor any State shall make any legal distinctions between the rights and responsibilities of male and female persons unless such distinction is based on physiological or functional differences between them.’ The full committee rejected this language … and also rejected sections proposed to modify equality in matters of child support, protective labor legislation, sex crimes, privacy, the admissions policies of higher education institutions, the draft, and military service.” (Pg. 63)
She continues, “The Senate approved the unamended version of ERA by a vote of 84-8 on March 22, 1972… the amendment’s supporters predicted quick ratification. But in their jubilation, they failed to note carefully the arguments made by opponents, or to develop in advance a strategy to counteract them should they later gain support… But in the glow of congressional passage, amassing 38 state ratifications seemed easy.” (Pg. 63-64)
She explains, “The absence of supportive consensus for ERA reflected fundamental opposition to changing the traditional roles women and men play… The mere possibility, without a probable reality, of sex integrated washrooms and prisons, or the loss of legal preferences for married women was enough to threaten the traditionalists. In short, beyond equal pay for equal work, which was already provided for by … the Equal Pay Act, many people did not want women to be equal to men. In some cases they wanted women to be better off---more advantaged than men and in other ways subordinated. As Phyllis Schlafly put it, ‘ERA was the men’s liberation amendment.’ It would give men more freedom to abandon responsibilities without giving women any valuable rights in return.” (Pg. 83)
She recounts, “Mrs. [Marilyn] Lloyd and Mr. Howard … made the strongest extended arguments against ERA. Mrs. Lloyd… wanted an amendment which would correct the discrimination women faced but not ‘rend the fabric of family life, or the institutions which this society has developed to protect a basic set of family values that are commensurate with family life'… Mrs. Lloyd also wanted to have language which would prevent construing the amendment to ‘deprive wives or widows of rights or benefits granted to them by the states, or to interfere with state laws that obligate husbands to support their wives.’ An amendment should also be made clear that distinctions between the sexes to protect personal modesty would be permitted.” (Pg. 103-104)
She concludes, “what supporters of ERA need more than anything else… is a strategy based on an awareness of how successful amendment-making proceeded in the past… They should take into account the importance of creating consensus state by state before an amendment receives congressional approval… They must persuade women in enough states that equality of rights is a principle they can embrace without doing harm to their lives and the lives of other females and males… Until a program balancing these requirements exists, there will no ERA in the Constitution.” (Pg. 120)
This is a very informative book, that will be of great interest to anyone studying the ERA.
Mary Frances Berry (b. 1938) is an African-American historian and activist who teaches American legal history at the University of Pennsylvania.
She wrote in the Preface to this 1986 book, “The purpose of this book is to analyze why ERA failed in the context of the history of the amending process of the Constitution. The genesis of the book lies in my dismay as I testified before the House Judiciary Committee concerning ERA. I noticed that there was so little discussion of the traditional principle of the equality of rights and so much on whether ERA would violate traditional family values. Creating an appearance that some essential values would be compromised by adding an amendment is a powerful weapon that cannot easily be defused. This strategy has been used before by those opposed to a proposed amendment. Because the Constitution is by design more difficult to amend than not, I believe it would be useful to present an explanation of the inherent difficulties of the amending process in order to understand the outcome of the ERA controversy.”
She explains in the Introduction, “The failure of the Equal Rights Amendment ratification effort had many causes. This study considers only the behavior of the ERA proponents and opponents compared with that of participants in earlier ratification campaigns for controversial proposed amendments to the federal Constitution. It describes the history of the amending process from the Constitutional Convention to the present day and its struggles over amendments concerned with the status of blacks after the Civil War, the income tax, Prohibition, child labor, and woman suffrage… these dating from about 1890 to the entry of the United States into World War I. The Populists, primarily discontented Western and Southern agrarians, wanted political participation by women, monetary reform, and governmental regulation of monopolies and an income tax instead of high tariffs… progressivism, a mostly urban, middle-class response to the evils of rapid industrialization, supported Prohibition, women’s rights, the abolition of child labor, and income tax.” (Pg. 1)
She reports that after the Civil War, “Many blacks asked for economic rights, including land for the freedmen, as a fundamental basis for assuring freedom and equality; but the most important black leader, Frederick Douglass, and his adherents preferred to emphasize political rights, which could be used to gain and protect economic opportunity. Suffragists were divided when it became clear that women would not be enfranchised along with black men. Black women such as Frances Ellen Harper, and white women such as Julia Ward Howe and Lucy Stone, were willing to delay suffrage for women and support suffrage for black men if they could not achieve both. Sojourner Truth took the opposite view, joining [Elizabeth Cady] Stanton and [Susan B.] Anthony in opposing suffrage for black men only. Some Republican political leaders saw black suffrage as a less controversial and expensive response to the freedman than acceding to their demands for economic benefits.” (Pg. 31)
She continues, “some suffragists saw the exclusion of women’s rights solely as an abandonment of their interests… these women turned to some of the worst elements in the Democratic party for support. Anthony and Stanton joined forces with George Train, a wealthy anti-black Democrat… to appeal for the franchise for white women in order to counter the effect of black male voting, which, they claimed, could lead to black supremacy. Stanton… stated that it was wrong to elevate an ignorant and politically irresponsible class of men over the heads of women of wealth and culture, whose fitness for citizenship was obvious… These appeals to prejudice by white women leaders were unfortunate. They undermined the moral force of their demand for suffrage… Furthermore, the posture taken helped to identify the women’s movement as an upper middle-class white women’s movement, and as essentially racist….” (Pg. 32)
She notes, “Following ratification of the Nineteenth Amendment, as women’s votes continued to be undifferentiated from men’s, no immediate far-reaching changes occurred in women’s roles. But in the 1920s women who had become suffragists in order to promote progressive social causes… participated in a wide variety of causes… They also became involved in the unsuccessful movement to … outlaw the use of child labor. Others in the National Women’s party transferred their single-issue focus … to an effort to gain an equal rights movement.” (Pg. 44)
She recounts, “The legislative history of the ERA enacted in 1972 began in May 1970 when the Senate Subcommittee on Constitutional Amendments held the first hearing … on the subject… The Subcommittee … reported to the committee an ERA with an amendment that ‘neither the United States nor any State shall make any legal distinctions between the rights and responsibilities of male and female persons unless such distinction is based on physiological or functional differences between them.’ The full committee rejected this language … and also rejected sections proposed to modify equality in matters of child support, protective labor legislation, sex crimes, privacy, the admissions policies of higher education institutions, the draft, and military service.” (Pg. 63)
She continues, “The Senate approved the unamended version of ERA by a vote of 84-8 on March 22, 1972… the amendment’s supporters predicted quick ratification. But in their jubilation, they failed to note carefully the arguments made by opponents, or to develop in advance a strategy to counteract them should they later gain support… But in the glow of congressional passage, amassing 38 state ratifications seemed easy.” (Pg. 63-64)
She explains, “The absence of supportive consensus for ERA reflected fundamental opposition to changing the traditional roles women and men play… The mere possibility, without a probable reality, of sex integrated washrooms and prisons, or the loss of legal preferences for married women was enough to threaten the traditionalists. In short, beyond equal pay for equal work, which was already provided for by … the Equal Pay Act, many people did not want women to be equal to men. In some cases they wanted women to be better off---more advantaged than men and in other ways subordinated. As Phyllis Schlafly put it, ‘ERA was the men’s liberation amendment.’ It would give men more freedom to abandon responsibilities without giving women any valuable rights in return.” (Pg. 83)
She recounts, “Mrs. [Marilyn] Lloyd and Mr. Howard … made the strongest extended arguments against ERA. Mrs. Lloyd… wanted an amendment which would correct the discrimination women faced but not ‘rend the fabric of family life, or the institutions which this society has developed to protect a basic set of family values that are commensurate with family life'… Mrs. Lloyd also wanted to have language which would prevent construing the amendment to ‘deprive wives or widows of rights or benefits granted to them by the states, or to interfere with state laws that obligate husbands to support their wives.’ An amendment should also be made clear that distinctions between the sexes to protect personal modesty would be permitted.” (Pg. 103-104)
She concludes, “what supporters of ERA need more than anything else… is a strategy based on an awareness of how successful amendment-making proceeded in the past… They should take into account the importance of creating consensus state by state before an amendment receives congressional approval… They must persuade women in enough states that equality of rights is a principle they can embrace without doing harm to their lives and the lives of other females and males… Until a program balancing these requirements exists, there will no ERA in the Constitution.” (Pg. 120)
This is a very informative book, that will be of great interest to anyone studying the ERA.
May 17, 2012
This is a short book on the Equal Rights Amendment and why it failed in America. It's an enlightening book about the amendment, what it means for women and for America, and the opposition against it.
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