Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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11. On the Fourteenth

On October 14, 1970, Senator Birch Bayh, still speaking as the senatorial floor manager of the Pure E.R.A., made a remarkable announcement on the floor. He revealed that, despairing of success for the Pure amendment, he now proposed to take a different route to the same objective. He remarked that he was making this announcement without having first come to an agreement with the women’s organizations he had been working with.

The new proposed route, he suggested, should be an equal rights amendment which would no longer use the well-known language but, instead, use the language of the “equal protection” clause of the Fourteenth Amendment – in order to achieve exactly the same purpose of outlawing discrimination based on sex.

It was not a new idea, as we will see; but Senator Bayh was proposing a new way of implementing the idea, as an alternative to the Pure formula hitherto pushed in Congress. His discussion of this alternative, and the discussion by others, will provide us with new insights into the lineup on the issue, particularly into the thinking of those people who insisted on the Pure language or nothing.

The background of Bayh’s proposal was the long history of feminists’ disappointment with the failure of the Supreme Court to apply the Fourteenth Amendment to sex discrimination, as effectively as it had historically been applied against race discrimination.

For the language of the Fourteenth is not couched in terms of race; it refers to all “citizens” and all “persons,” both terms including women without a shadow of a doubt. The operative clause of Section 1 of the amendment provides that “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” There is no more reason, in the language of the amendment, to apply this to all sexes than to all races – and no less reason, too.

The history of Supreme Court decisions has been that this injunction (not “deny to any person ... the equal protection of the laws”) has been applied to cases of discrimination committed against “persons” on account of race, but it has not been applied to cases of discrimination committed against (female) persons on account of their sex.

The convolutions of the legal mind which were devised to justify this byzantine conclusion need not delay us, but let no one think that the decisive reason was the question of Congressional intention. It happens that a clause in both the Fourteenth and the Fifth Amendments offers the premier example of how the court interpreted the Constitution without being obsessed by legislative intention. This example concerns precisely the meaning of “person.”

The well-known “due process” clause was applied by the court, in a twist of legal thinking, to a “person” quite unknown to the Founding Fathers, namely, to the brand-new kind of legal “person” known as a corporation. In contrast, no twist was necessary to include women under the rubric of “persons”; women are commonly conceded to be such, even by traditionalists. But the Supreme Court refused to apply the guarantees of the Fourteenth Amendment to this kind of person, while a juridical fiction covered corporations with the guarantees of American Freedom, as if they were human beings.

Pro-E.R.A. leaders had long conceded that the Fourteenth Amendment could do the job, if the Supreme Court permitted it to do so.

The idea had even come up in the National Woman’s Party, though it will be instructive to see what happened to it. Back in 1938, it was suggested by a leading member of what by then was a very tiny N.W.P. group: Ethel Adamson, of the New Jersey organization, national chair of the party’s Susan B. Anthony Memorial Committee (which had some importance in the group at that time). Adamson conducted a small campaign among the N.W.P. leadership in favor of a test-case approach to expanding the coverage of the Fourteenth Amendment to cover sex discrimination. She wrote to Alice Paul on December 22 of that year:

I have been thinking over this fundamental principle of women being in the Constitution and wondering if now – in these more advanced times – there could be obtained a decision by the Supreme Court which would declare women to be PERSONS.

This would take care of the opposition’s arguments, she thought (quite justifiably):

If we could bring MEN under all protective legislation equally with women that would do away with protective legislation in its objectionable features.

Such an effort “might possibly give us our equal rights without the expense and labor of a campaign for the Amendment.” At a minimum “it might give much publicity and talking points, and keep the matter before the public as a Cause Célèbre in the Supreme Court.” Besides, her argument went on, this course did not necessarily take the place of an E.R.A.; we could get both more easily:

If we could get [such] a decision of the Supreme Court ... that would end many of the injustices to women. If we still wanted a special Amendment for Equal Rights – which sentimentally really should occupy a special place for itself in the Constitution, it might be very easy to achieve after a Supreme Court decision had practically made such an enactment valid and compulsory. [1]

Adamson wrote also to other leaders of the group.

Alice Paul could not be bothered. She asked the party’s Campaign Secretary, Caroline L. Babcock, to respond to Adamson. Babcock dismissed the suggestion in a short note which utterly failed to confront the main points that Adamson had made:

Miss Paul says that it seems to her that it is better to go on with the idea of getting an Amendment to the Constitution because the work of getting such an Amendment through Congress and through the States creates a body of opinion in its favor; that it does not seem to her useful or possible to pass an amendment like the equal rights amendment without developing that body of favorable opinion. [2]

This ignored Adamson’s point that a favorable Supreme Court action could stimulate and facilitate “the work of getting such an Amendment.” In fact, Paul’s view is perilously close to an attitude that critics had charged to her: that in her mind the E.R.A. was simply a peg on which to hang a party-building campaign, if not activism-for-the-sake-of-activism. The letter communicating Paul’s view continued as follows: “A Supreme Court’s decision would not have this effect, she thinks” (though she gave no reasons) “and it could always be reversed.” (As we will see, this point about reversability was answered by Bayh’s proposal.)

Ethel Adamson seems to have backed down when she received Alice Paul’s brush-off, and the N.W.P. Papers do not show that further consideration was given in its ranks to the idea of the Fourteenth Amendment route.

But the idea continued to hang in the air. Earlier in 1970, Representative Griffiths, the E.R.A. floor manager in the House, even told the lower chamber that she felt her battle was with the Supreme Court. “All this amendment [the E.R.A.] asks,” she said, “could easily be done without the amendment, if the Supreme Court were willing to do it, but they are not.” She not only conceded but emphasized that the E.R.A. was necessary only because of the court’s failure to interpret the Fourteenth properly.

Senator Bayh’s proposal was to use the language of the Fourteenth Amendment in a new amendment which would state outright and positively that it covered sex discrimination. It is obvious immediately that this negated the common argument (used by Alice Paul inter alii) that a Supreme Court decision might be reversed. Bayh’s idea combined all the advantages of using the Fourteenth’s language together with none of the drawbacks.

True, there had been some change in the court’s posture that had become visible over the years. Senator Bayh himself referred to this, as being encouraging but insufficient in itself. He argued that his new amendment “would make it absolutely clear” that Congress and the states did not agree with the traditional course taken by the Supreme Court, that is, its refusal to apply the Fourteenth to sex. “Many scholars have contended that these [court] decisions were likely to fall, in time, in any case. The Court’s 14th Amendment standards have evolved dramatically in recent time. But this [new] amendment would remove any doubt whatsoever ...”

And a little later: yes, “We have made considerable progress. Especially in the last few years the courts have taken great strides toward providing the kind of equality I believe is necessary.” However: “The Supreme Court still has a long way to go ...” But there is no reason, Bayh argued, to wait until the Supreme Court caught up with the world.

I believe that if given enough time the Court would eventually hold that the Equal Protection Clause of the 14th Amendment demands the kind of equality between the sexes which the equal rights amendment would guarantee. But that process would take far too long in my judgment. [3]

What about the opposing general, marshaling the Senate forces opposed to the E.R.A., namely, Senator Ervin? In a remarkable development, Ervin expressed his belief that the Fourteenth Amendment could make the E.R.A. unnecessary, that “the Equal Protection Clause, properly interpreted, nullifies every state law lacking a rational basis which seeks to make rights and responsibilities turn upon sex.” [4]

Both sides were for the Fourteenth route to sex equality, both floor managers said they would accept the language of the Fourteenth as the way to eliminate sex discrimination! What was there to fight about?

One of the leading legal authorities commonly put forward by the Pure E.R.A. forces, Professor Leo Kanowitz, likewise put considerable hope in the Fourteenth route. He presented a weighty paper to the Senate Judiciary Committee just before the 1970 debate, and it was even inserted in full into the Congressional Record by the E.R.A.’s supporters. [5] Kanowitz pointed out that nowadays the Supreme Court does concede that the Fourteenth applies to women; the court has merely argued that “women in many situations constitute a class that can reasonably be subjected to separate treatment.” This view leaves the door open to laws that are formulated in terms of sex differentiation.

And Kanowitz stated flatly that the adoption of the E.R.A. “would not fundamentally change the picture” with regard to this court interpretation. There is nothing in the one-sentence blast of the E.R.A., any more than in the Fourteenth Amendment, that would cause the courts to cease to permit “sex classifications ... if it can be demonstrated that though they are expressed in terms of sex, they are in reality based on function.”

This opinion, which is not peculiar to Kanowitz but which is common among constitutional lawyers, will come as a surprise to victims of the propaganda blitz, who have been told thousands of times that the E.R.A. is Pure precisely because of its brevity. We will see below that this vaunted brevity is precisely what makes the E.R.A. a paper tiger, and that the only sure consequence of the E.R.A. is a symbolic feeling of satisfaction and not a positive legal impact.

Kanowitz was of the opinion, then, that the language of the E.R.A. does not exclude sex classifications based on function in the courts’ opinion; that it would not illegalize sex-discriminatory laws any more thoroughly than would the Fourteenth Amendment. But Kanowitz was in favor of the E.R.A. Why then?

The passage of the E.R.A., he explained, would demonstrate “an unshakable intention” to eliminate sex discrimination; it “would give encouragement” to the reformers, and otherwise provide the symbolic impetus to virtue. (Italics added.) To which we must add, lest it be forgotten: for this encouraging symbol, juridically dubious in content, workingwomen have to let hard-won working conditions be taken away from them in far from symbolic fashion.

Professor Kanowitz added a caution about a danger – a danger that was going to take on some substance. Congress, in adopting an E.R.A., must make clear in its legislative record that it still encouraged the Supreme Court to interpret the Fourteenth in an anti-sexist way.

I say this because there is a very real danger that if this is not done, the adoption of an amendment at this time will ultimately represent a defeat rather than a victory for those of us who seek the eradication of irrational sexbased distinctions in American law and society.

Because the court may reason this way: since Congress has deemed it necessary to adopt a new amendment, it must have believed that nothing else in the Constitution provides relief. This reasoning may tend to stop the court from continuing to modify its traditional Fourteenth position, pending E.R.A. ratification. In the interim the needed clarification may come to a halt.

Here is where we come out: for the sake of the symbolic act of “encouragement” etc., which is alleged to be sufficient ground to support the E.R.A., we get two hard-edged real consequences – not only the destruction of the remaining state labor legislation, but also a damper on the process of relief from the dangers of sex classification itself.

This should help us to understand the cogency and appeal of the new equal-rights amendment which Senator Bayh proposed on October 14: “Neither the United States nor any State shall on account of sex, deny to any person within its jurisdiction the equal protection of the laws.” This, if adopted, would put the Fourteenth’s language into immediate and full operation without waiting for the uncertain evolution of the Supreme Court.

Senator Bayh’s presentation speech demonstrated that the new (Fourteenth-type) wording of the amendment got around the reasonable objections that had been made to the old one-sentence blast, while still doing what he wanted an E.R.A. to do. He agreed that “the precise language” of the old amendment has no “special magic,” and that perhaps it needed revision in any case, given the “dramatic evolution in our concepts of constitutional equality.” As an example of the kind of fundamental objection which it answered, he cited the argument against the E.R.A. made by Professor Paul Freund of the Harvard Law School –

who takes the position that “not every legal differentiation between boys and girls, men and women, husbands and wives, is of” an “obnoxious character, and that to compress all these relationships into one tight little formula is to invite confusion, anomaly, and dismay.”

Thus Bayh strongly agreed that a requisite degree of “flexibility” had to be built into an equal rights amendment. He even insisted that the old E.R.A. did have such flexibility (unlike the rigid interpretations of the N.W.P. doctrinaires), and he cited his – and Representative Griffiths’ – opinion that the Pure E.R.A. would allow legal discrimination between the sexes in cases of “overriding and compelling public interest.” [I]

In any case, the necessary flexibility, he thought, was rendered without doubt by the new amendment, which recognized “the need for a flexible standard in cases where different treatment under the law may be justified.”

A big fact about the Fourteenth route was that there was a long-tested body of law around the Equal Protection clause, whereas the new language of the Pure amendment would have to begin building up a body of interpretive law through a period (undoubtedly a long one) of litigation and lawsuits. Birch Bayh argued that his new idea would harness the cause of sex equality to the existing body of law, the same body of law that had been built up to implement the banning of race discrimination.

In the following important passage of his speech, Senator Bayh stated the juridical advantage of his new approach:

... the [new] amendment would clearly prevent the kind of restrictive interpretation and disruptive application which the critics have feared. By relying upon the language of the Equal Protection Clause, the amendment would incorporate a vast body of experience in dealing with the most difficult questions of discrimination. The standards of application under the 14th Amendment have developed into a coherent and comprehensive body of law ... There can be no doubt that this amendment would assure the kind of continuity and consistency for which the opponents of [the old E.R.A.] have been arguing.

The layman, perhaps bedazzled by the illusory simplicity of the Pure E.R.A., may not appreciate one aspect of this argument. We have not yet done justice to a side of the Congressional debates which sounds technical-juridical when it is read in the dull pages of the Congressional Record but which may have an overriding influence on the courts.

More than once it was demonstrated that the most responsible advocates of the Pure amendment broke down and admitted that they did not know what the juridical impact of their amendment would be on specific areas of law. Lay people may be unconcerned about this area of uncertainty. But for a chamber of Congress filled with rather skilled lawyers, it was another matter. For these lawyers, and for anyone else concerned about the juridical meaning of the Pure one-sentence blast, Senator Bayh’s new formula performed an important service: it swept a number of juridical problems away. Bayh could say, and did say, that the whole minutely worked-out body of judicial experience that had been applied to racial discrimination via the Fourteenth route – all this could now be shifted over, practically in one piece, to do the same job for sex discrimination.

To be sure, as everyone knows, the Fourteenth Amendment did not really root out all racial discrimination; it confined this discrimination, at best. But in truth Senators like Bayh, who faced the facts, expected no more than that from the Pure E.R.A., at the best; and he hoped for no less. As we have seen, knowledgeable theoreticians of law like Professor Kanowitz hoped mainly that the E.R.A. would provide a symbolic demonstration of “intention” and “encouragement.” Bayh came to the same point with his paramount argument for the amendment:

... most important, this amendment would retain the most essential benefit of the equal rights amendment – the extraordinary symbolic value of a national mandate in the area of discrimination on account of sex.

While the managers of the movement in Congress thought of the E.R.A. as mainly a “symbol,” the rank and file of the women’s organizations were still being told that the Pure amendment would sweep away all sex discrimination with one iron broom. The gap in thinking shown here was going to grow bigger in the future, not smaller.

With the presentation of Senator Bayh’s new amendment – a newly proposed E.R.A. by the current Senatorial floor manager – it might have seemed that the E.R.A. problem had at last been resolved.

As we have seen, even the opposing floor manager, Senator Ervin, was indicating his benign interest. Logically, Ervin would have to support the Bayh formula; on the basis of his previous statements and argumentation, it is hard to see what sort of case he could make against it. As for traditionalist-sexist opponents of the E.R.A. in any form, it is true that some might continue to oppose it, but these would have to come out into the open by making the traditionalist viewpoint the focus of Senate consideration for the first time in this debate; and most of them would be reluctant to do so. Anyway, in that case they could be more easily isolated.

The liberal-prolabor bloc of Senators appeared to be lining up in favor of the new Bayh formula. They had obviously been approached by Bayh before he made his announcement. Bayh was immediately succeeded on the floor by the Republican liberal pro-labor senator from New York, Jacob Javits, who fervently endorsed the new proposal, emphasizing that he did so as a previous supporter of the Pure E.R.A. Bayh’s comanager of the E.R.A. in the Senate, Senator Marlow Cook, told the chamber he was a co-sponsor of the new amendment.

An even more telling scene was acted out in the House, which (remember) had already adopted the Pure E.R.A. formula. Here the amendment’s manager, Representative Griffiths, stated flatly that “I have been pleased to join with Senators Bayh, Kennedy, Javits, Goodell, Cook and Dole” in sponsoring the new amendment. The mention of Senator Edward Kennedy’s name as a sponsor was new, again assuring a realignment in favor of the Bayh formula. Griffiths was saying that she was ready to get the Pure E.R.A. replaced with the Fourteenth formula in the House, if the Senate acted on it. Indeed, she had already worked closely with Senator Bayh in working up the proposal, and an assistant to Bayh recalled that she was “enthusiastic” about the new route. [6]

That was one side of the new development. The reader cannot fail to recall that there was another side: what was the meaning of the new Fourteenth route for the much-desired destruction of women’s labor legislation? Would the new Bayh formula have the same impact in this regard – or more? or less?

One of the outstanding differences between the Pure sentence and the Fourteenth language, a difference that was quite out in the open, was this: the Fourteenth formula could be reconciled with legislation benefiting women, in certain cases and contexts. This was evident from the juridical history that had already accumulated about this language of the Fourteenth. The adoption of the Fourteenth route would have all of the “symbolic” value that everyone talked about, but it would not preclude all pro-woman legislation. The latter issue would still have to be fought out, measure by measure, by anyone who wanted to fight about it.

This put the spotlight strongly on the central question about the whole fight: in the case of this, that or the other proponent of the Pure E.R.A., was the motive really that of encouraging women’s rights, or was it the destruction of labor legislation? Senator Bayh, for example, obviously thought it was the former motivation; and we would venture the opinion that the second did not occur to him – until it hit him over the head a few days later.

The whole promising new development of a new E.R.A. was quickly and thoroughly wrecked – by “the women,” said Bayh. Which women?

By this time, we should make clear, the little group of doctrinaires around Alice Paul and the National Woman’s Party had dwindled in importance and influence. The N.W.P. played little or no role in the blow-up of the Fourteenth route, though the group held the same views as those who did the blowing-up.

Bayh had to deal with the bigger battalions of establishment “feminism.” In the first place, this meant the organized women of the Republican and Democratic Party machines, who put their pressure on him as the Women’s Committees of the major parties. Ancillary to these big guns were such organizations as the National Association of Women Lawyers (N.A.W.L.), the Citizen’s Advisory Council on the Status of Women, and in large part also the National Federation of Business and Professional Women (B.P.W.) – though we will see that the last-named played a more reluctant role. Vocal, but with less impact, was the National Ad Hoc Committee for the E.R.A., an umbrella group of D.C. women’s organizations led by Flora Crater.

Although N.O.W. pursued the same line to strike down the Fourteenth route, it was apparently considered not quite upper-bracket by the establishment women’s battalions, and it tailed after the latter without being admitted to the anterooms of power. In any case, it was the front headed by the Republican/Democratic Party ladies that Bayh’s initiative smashed into. [7]

Bayh had carefully given some of these key women advance notice of his intention to propose a substitute. On October 12, 1970, he had called representatives of the influential women’s groups into his office. They included inter alii Marguerite Rawalt, a past president of the B.P.W. and subsequently a leading Washington lawyer representing the N.A.W.L.; Gladys O’Donnell of the National Federation of Republican Women; and Catherine East, Executive Secretary of the Citizen’s Advisory Council. No one was present from N.O.W. at this meeting.

Bayh explained his intention and the difficulty of getting the E.R.A. passed in the current Congress; he showed a copy of the new proposal and asked for a “quick opinion.” The women there expressed their opinion: thumbs down. But they wouldn’t oppose his introduction of the new formula, they said (later explaining that this was due to the lack of time to stop him). Bayh was going to write to other women’s organizations asking for opinions.

But without waiting, the Senator introduced the substitute amendment on October 14, as we saw, telling the chamber that he didn’t know as yet “whether it will be satisfactory to the various women’s groups who have worked so hard for passage of a constitutional amendment.” We have seen no information showing that the conscientious Senator tried to check the question with any women’s representatives speaking for workingwomen or trade-unionists.

This was not the first time, however, that Senator Bayh had tried to get his “key” women’s organizations to let up on their stand of “Pure E.R.A. or nothing.” In previous months he had tried to do this through his legislative aide, Paul J. Mode, who was a lawyer. [8] According to Catherine East, he had been told, politely but firmly, “to go fly a kite.” Their reaction this time was much the same.

Marguerite Rawalt and Catherine East forwarded the proposed Bayh substitute to their favorite pro-E.R.A. lawyer, Professor Thomas Emerson of Yale Law School. He initially told them the language was “okay,” but later warned that the statements made on the Senate floor by Bayh and the Republican co-sponsor Senator Marlow Cook, made in support of their new amendment, set a precedent for the continuation of the dreaded protective labor laws and other forms of special treatment for women. (Emerson’s previous “okay” opinion simply showed he was not knowledgeable about the Fourteenth route.)

Alerted to the fact that the destruction of labor legislation was at stake, the women’s organizations – those who represented “women” to the much-harassed Senator Bayh – went to work to kill the Fourteenth route. Their watchword was: better nothing at all. As Gladys O’Donnell, president of the National Federation of Republican Women, wrote Bayh in October: “We would prefer to see the E.R.A. go down to total defeat than to be glossed over with a gratuitous gesture.” [9] This despite her knowing that E.R.A. advocates like Professor Kanowitz “glossed over” the Pure E.R.A. as mainly a “symbolic” reassurance ...

Harriet Cipriani, O’Donnell’s opposite number for the women of the Democratic National Committee, joined with O’Donnell to call a private meeting of reliable women’s organizations on November 2 to get up a united front of establishment women to ensure the defeat of Bayh’s Fourteenth route amendment. They wrote Senators Bayh and Cook of their intention, and made the Senators a noteworthy offer: this demarche would be kept secret from the press if the Senators would be so kind as to kill the amendment themselves, thereby avoiding political embarrassment:

Following that [Nov. 2 meeting], we would hope to be able to delegate a small group to meet with you [Cook] and Senator Bayh to present a formal request that the Substitute Amendment be withdrawn. There will be no press release about this activity for we do not wish to embarrass anyone. [10]

Out of this November 2 meeting grew a “coordinating council” of women’s organizations for the Pure E.R.A. The council was very busy in the next weeks, meeting frequently in the offices of the Republican Women in the Rayburn Congressional Office Building. But the first objective failed: Bayh and Cook refused to slink away quietly from the substitute amendment, an amendment which had already offered new hope to people on Capitol Hill who had thought that the E.R.A. issue was a hopeless tangle.

And so, on November 12, the leaders of “women” held a press conference to make known their consensus position against the Bayh amendment. Their press release stated very clearly who was bossing this operation:

Such was the consensus of opinion at a joint organizational meeting sponsored by Gladys O’Donnell, President of the National Federation of Republican Women, and Harriet Cipriani, Deputy Vice-Chairman of the Democratic National Committee, called to discuss and consider the request of Senator Birch Bayh for views on his substitute proposal of October 14, 1970. [11]

The day after this press release, N.O.W. also issued a statement of outright opposition to the Bayh substitute. It did so at a press conference sponsored by Crater’s Ad Hoc Coalition, a broader assemblage of women’s groups than the council of the Republican and Democratic leaders. [12] N.O.W. rejected the Bayh substitute with exactly the same motivation as the battalions of Republican and Democratic women: viz., the substitute leaves room for women’s labor laws. N.O.W.’s public statement concluded:

N.O.W. opposes the Bayh substitute, however well-intended it is, because it and its legislative history would establish Constitutional backing for existing discriminatory practices which continue under the guise of “protection” and which deprive women of the right to make the same choices about their lives that men do. [13]

Interestingly enough, while N.O.W. stood firm against the least possibility of protective laws benefiting women workers, the Business and Professional Women’s federation wavered. (We have noted before that this organization had a propensity for individual mavericks with progressive inclinations.) Perhaps because of discouragement at the Pure E.R.A.’s slow progress, a feeling also motivating Senator Bayh himself, the then leaders of the B.P.W. told Senator Bayh to go ahead with the Fourteenth route. A hostile observer has blamed their stand on their close ties with Bayh himself. [14]

But among the women supporters of the Pure E.R.A., the watchword was still “All or nothing.” There was little inhibition about putting it that way. Bayh’s letter inviting opinions from women leaders got this reply, for example, from Phyllis Wetherby of Pittsburgh’s N.O.W. organization, a research engineer for U.S. Steel and a Democratic Committeewoman: “Yes, I do want all or nothing ... [A]nything else will only encourage the continuance of discriminatory ‘protections’.” [15]

On November 16 Bayh capitulated. He withdrew his substitute amendment from Senate consideration. “There are differing opinions about the proposal,” he told the Senate. “I would like to have a chance to discuss these differences personally with some of the leaders of women’s organizations in an effort to see if we cannot reconcile some of the differences that exist.” [16] Evidently he was saying that he was unconvinced by the “all or nothing” position. Two days later he held such a meeting, and there, faced by the same intransigence, he said he would give up on the question until “next year.”

Next year, back to the Pure E.R.A. That was the agenda. What actually happened was not altogether Pure.

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I. This point gives much of the game away for the Pure E.R.A. A team of horses could be driven through the hole opened up by this formulation. Most of the naive supporters of the Pure amendment have been propagandized to believe that not a word in it must be changed precisely in order to avoid such flexibility, that is, they believe the amendment is clear simply because it is so bare and laconic. But it is these and similar statements by the Congressional managers of the E.R.A. that lay down the legislative record conditioning the meaning that the Pure E.R.A. will be given by the courts; and the thousands of contrary statements by N.O.W. and Ms magazine (or by Professor Thomas Emerson of Yale) have only propaganda value.

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1. Letter, Ethel Adamson to Alice Paul, December 22, 1938, in N.W.P. Papers, Reel no. 62.

2. Letter, Caroline Lexow Babcock to Ethel Adamson, January 1, 1939, ibid., Reel no. 63.

3. For Bayh, see the Congressional Record, January 28, 1971.

4. The quotation from Ervin is from his statement before the House Judiciary Committee of March 23, 1971.

5. The paper by Prof. Kanowitz was published in the Congressional Record, September 14, 1970, and reprinted in the New Mexico Law Review, July 1971, from which it is quoted here.

6. The information about Griffiths given in the last sentence comes from Paul Mode, who was then Bayh’s legislative assistant for the E.R.A., given orally to one of the authors (Diamond).

7. This account is in part based on conversations between one of the authors (Diamond) and Catherine East, Marguerite Rawalt, and Paul Mode. Also see Isabelle Shelton, How Equal Rights Passed Senate, Washington Sunday Star, March 26, 1972.

8. Re Paul Mode, see above, n.3.

9. Letter, Gladys O’Donnell to Senator Bayh, October 26, 1970, in N.W.P. Papers, Reel no. 112.

10. This is cited from the letter to Senator Cook, same date, loc. cit.

11. News Release, National Federation of Republican Women, November 10, 1970; in N.W.P. Papers, Reel no. 112. – The New York Times story of November 12 referred to a meeting held on November 11 to issue the press release.

12. Bulletin, National Ad Hoc Committee ERA; in N.W.P. Papers, Reel no. 112.

13. N.O.W. statement of November 13, 1970; loc. cit.

14. The hostile observer is Marguerite Rawalt, a past president of B.P.W.; see above, n.7.

15. Letter, Phyllis Wetherby to Senator Bayh, November 17, 1970; loc. cit. (above n.12).

16. Senator Bayh in Congressional Record, November 16, 1970, p. 37268.

Last updated on 12 September 2020