On a recent episode of The Daily, a New York Times reporter asked a provocative question: “Could one phone call make the Equal Rights Amendment the 28th Amendment?” Imagine it: a single phone call from the President to the National Archivist, certifying that—after nearly a century of struggle—gender equality is finally written into the Constitution.
But the real story begins not with a phone call, but with silence.
A Constitution Without Women
The original U.S. Constitution didn’t mention women—not once. The only proposed use of “she” was in a rejected clause about fugitive slaves. Even after the Civil War, when the 14th Amendment promised “equal protection of the laws,” the Supreme Court insisted that those guarantees didn’t prevent states from excluding women from professions, juries, or even the voting booth.
Other countries—France, Germany, South Africa, Canada, India—explicitly guarantee gender equality in their constitutions. We don’t. That silence shaped the early Supreme Court’s approach: gender roles weren’t something the law challenged; they were something it reinforced.
The Separate Spheres Era
Take Myra Bradwell, who in 1873 argued she had a constitutional right to practice law. The Court rejected her, and Justice Joseph Bradley famously wrote that a woman’s “paramount destiny and mission” was to be a wife and mother. Or Virginia Minor, who in 1875 argued that women had a constitutional right to vote. The Court said no—women could be citizens without being voters.
These decisions didn’t just reflect the social norms of their time; they cemented them in constitutional law.
The 19th Amendment: A Key, But Not a Remodel
It wasn’t until 1920, with the 19th Amendment, that women won the right to vote. But the 19th was narrow. It opened one door but left the rest of the house unchanged: women could still be barred from juries, from professions, and from equal treatment in law.
The ERA That Wasn’t—And Might Still Be
That’s why suffragist Alice Paul proposed the Equal Rights Amendment (ERA) in 1923:
“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Congress finally approved the ERA in 1972, and within a year, 22 states ratified it. Eventually, the number reached 35—but three short of the 38 needed by the 1982 deadline. Opposition led by activist Phyllis Schlafly warned the ERA would destroy traditional gender roles, eliminate protections like alimony, and force women into the draft.
For decades, that seemed like the end of the story. Then, in a twist, Nevada (2017), Illinois (2018), and Virginia (2020)ratified the ERA, bringing the total to 38. Supporters argue the deadline doesn’t matter because the Constitution doesn’t explicitly authorize Congress to impose one.
Which brings us back to that podcast question: Could one phone call from the President to the Archivist certify the ERA as the 28th Amendment?
What Happens to the ERA Under President Trump?
The debate over the ERA was already politically charged when President Biden hesitated to certify it. Now, with President Trump back in power, the stakes have shifted again.
Trump has not publicly championed the ERA, and his administration’s prior legal stance leaned heavily on deadlines and originalist arguments. The Department of Justice under Trump previously issued an opinion saying late ratifications—like those from Nevada, Illinois, and Virginia—don’t count because Congress’s 1982 deadline expired decades ago. That opinion still stands and could easily be reaffirmed or strengthened under his administration.
A Trump-appointed archivist is also unlikely to certify the ERA unilaterally. Even if the White House reversed course, opponents could challenge the move immediately in court, arguing that constitutional amendments must follow clear, timely procedures.
Politically, Trump has embraced themes of traditional gender roles and skepticism toward federal gender equity mandates, making it unlikely he would spend political capital to revive a century-old amendment.
Why It Still Matters
The ERA’s uncertain status underscores how unfinished America’s constitutional conversation about gender equality really is. Without an explicit guarantee, courts rely on intermediate scrutiny—a mid-level constitutional test developed in the 1970s—to evaluate gender discrimination. A fully certified ERA could reset the landscape, possibly requiring strict scrutiny for all gender-based laws and fundamentally altering how courts approach gender equality.
But for now, the Constitution still doesn’t say, in so many words, that men and women must be treated equally. Whether one phone call—or one election—will change that remains an open question.