Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?
The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.
Not so for our hypothetical 28th amendment. So what should we say here? That the proposal and most of the ratifications happened in the 1970s? Is that the baseline? Or do you blend those views with the ones from today? Does that, though, just let judges choose the original understanding that they want? Won’t the next few states to take up the ERA be tempted to insert statements (say about abortion) that attempt to create a record for interpretation?
Maybe my next article is here.