Memory and Authority of Failed Constitutional Amendments

When the original public meaning of any constitutional provision is enforced, guarantees of rights that were adopted before women were included in legal rights may appear illegitimate and inadequate for a 21st-century democracy. Originalists have long pointed to Article V amendment as the legitimate path to changing the Constitution. Jack Balkin’s Memory and Authority points to the importance of expanding American constitutional memory if women and minorities are to be included in the transhistorical “We the People.” This Essay illustrates how the memory and authority of failed constitutional amendments can challenge originalists’ reliance on amendment as the path to democratically legitimate change. It looks closely at the history of how the Equal Rights Amendment (“ERA”) failed in light of ongoing contestation over whether it should be added to the Constitution’s text. The failure of the ERA should be remembered as antidemocratic because obstructive maneuvers in Congress and state legislatures produced the deadline and delayed ratification in a manner unconducive to determining the will of the people. Remembering the ERA’s failure as antidemocratic, courts should refrain from invalidating the amendment, even if they also refrain from treating it as part of the Constitution’s text.