Generalissimo Franco, Dead Parrot, ERA
In 1978, I asked a question that led a state senator to kill the ERA in Virginia, perhaps dooming it nationally. (And I can't remember whether I favored or opposed the amendment at the time.)
ZELIG, FORREST GUMP, AND ME
The Equal Rights Amendment (ERA) kerfuffle last week reminded me that I’ve enjoyed a number of Zelig/Forrest Gump moments where I was a small cog in the vicinity of important historical events and may accidentally have played a tiny role in precipitating those events. In early 2023, I wrote, half in jest (but only half):
“I used to tell my students that ‘there is a slight possibility that my work [in the 1980s] helped speed up the demise of apartheid in South Africa,’ and I put special emphasis on the word ‘slight.’”
The short version is, I worked for Chase Manhattan Bank, whose withdrawal of credit lines to South Africa was pivotal in dooming apartheid’s sustainability. I was the bank’s economic officer for Sub-Saharan Africa and had written some memos warning of increased economic risks in South Africa in coming years. No one ever told me whether my memos had any role in the bank’s decision, but I’ve always hoped they did. An advisor to South Africa’s president called me, frantically, for information, but I could offer only honest, innocent ignorance of the situation. (More details are at “Checkpoint, Toothbrush, Wind of Change.”)
Likewise, as a small-town journalist, I asked a question of a Virginia state senator in early 1978. My question triggered lightning-fast action on his part to kill the ERA’s ratification in Virginia—at a time when many thought Virginia could give the proposed amendment sufficient momentum to win two more states and, thus, inclusion in the U.S. Constitution.
The funny thing is that I can’t recall whether I personally supported or opposed the ERA at the time. I was just a small-fish reporter asking a question for a story. Here’s how it went.
NOT-SO-UNCONTESTED CALENDAR
In 1978, I was a stringer (i.e., reporter on part-time contract) for five small Virginia newspapers, covering the General Assembly (state legislature) for all of them. One of the legislators in my bailiwick was State Senator J. Harry Michael, Jr.—a moderate Democrat, later appointed to a federal district judgeship by Jimmy Carter. He was a good friend of mine from earlier political activities. As a small-town Democratic Party official, I had helped out with his 1973 bid for lieutenant governor and had worked with him on many other endeavors.
One morning, I stopped by Sen. Michael’s office to talk over the latest rounds of legislation. Having read the morning missives from the Senate Clerk, I asked Michael, nonchalantly, “Are you OK with the ERA breezing through the Senate?” He asked, sharply, “What are you talking about?” I said, “This morning, I saw that the ratification bill had been placed on the uncontested calendar.” (The uncontested calendar was where senators would bundle dozens of noncontroversial bills—post office namings, Boy Scout commendations, memorial tributes, etc.—and vote for them all in a single vote to save time. A bill could only be placed there if there was not a single senator objecting, and the uncontested calendar almost always got a unanimous or near-unanimous “yea” vote.)
It wasn’t clear how the ERA had made its way onto the list, as the amendment was highly controversial. When Michael was perturbed, his craggy face, deep-set eyes, and raptorial eyebrows reminded some of us of Sam the Eagle—then a new character on The Muppet Show. Many considered him to be the top constitutional authority in the General Assembly. He had told me previously that he was worried about the ERA’s language. He very much favored equality, but thought the particular wording of the ERA could introduce considerable confusion and uncertainty into American law. (I think alimony, child custody, and the military draft were among his concerns.)
On hearing my news, his eyes flared, his eyebrows plunged, and his face went into full Sam the Eagle mode as he shouted:
“WHAT ???!!!”
Then he lurched up out of his seat and bolted for the door, practically leaving his FDR-style cigarette-holder suspended in mid-air. He uttered a mild obscenity as he disappeared down the hallway. (He was a rail-thin, Piedmont-accented Virginia gentleman straight out of central casting, but as he would readily admit, he had been a Naval officer and, in private, retained the capacity to curse like the proverbial sailor.) He descended in the elevator, stormed across the street, and instructed the Clerk to remove the ratification bill from the uncontested calendar. Other than Sen. Michael’s last-minute objection, the ERA might well have sailed through to ratification that morning, unseen among the Girl Scout accolades and garden-club kudos. Instead, it moved to the regular calendar, where it went down in defeat.
With just over a year left before the ERA’s March 22, 1979 statutory deadline, 35 states had already ratified the amendment, with three more needed to enshrine it as part of the U.S. Constitution. ERA supporters hoped that Virginia’s ratification would kick-start at least two more states into signing on. But with the failure in Virginia, the air went out of the tire, and no other state ratified the amendment before the 1979 deadline or before the legally questionable 1982 extension of that deadline.
In the 2010’s, a legal theory arose that (1) the deadlines were meaningless, illegitimate, and nugatory and that (2) states cannot rescind ratifications of not-yet-operative amendments. (Between 1973 and 1979, five states voted to rescind, and another did so in 2020.) Prevailing legal opinion holds that the deadlines are, indeed, operative and that in 2025, the ERA has been stone-dead for nearly 43 years. In Virginia v. Ferriero (2021) and Illinois v. Ferriero (2023), judges appointed by President Obama effectively ruled that the deadlines still stand and that the ERA expired in 1979 or 1982.
In 2023, the Boston Globe’s estimable Jeff Jacoby explained why “the Equal Rights Amendment is also still dead,” referring to Saturday Night Live’s “Generalissimo Francisco Franco is still dead” catchphrase:
“An iconic champion of women’s equality, [Justice Ruth Bader] Ginsburg was a lifelong backer of the ERA. She was also a sober jurist who would not pretend that an expired deadline could somehow, magically, be reopened. During an appearance at Georgetown Law School in 2020, Ginsburg said the only way forward for the amendment was to restart the process. ‘I would like to see a new beginning,’ she told the Georgetown audience. ‘I’d like to start over.’
Ginsburg also acknowledged that the main benefit of an Equal Rights Amendment at this late date would be its symbolic value. As a matter of substance, an addition to the Constitution is no longer needed to guarantee legal equality of the sexes.”
As a postscript, President Biden’s attempt to will the ERA into the Constitution via a tweet will be remembered as one of not one, but two presidential diktats over constitutional law in the span of a week. A few days later, the newly inaugurated President Trump attempted to alter the meaning, if not the wording, of the Constitution in his executive order effectively nullifying birthright citizenship—long believed to be enshrined in the 14th Amendment. My un-lawyerly guess is that Trump’s ploy will be as unsuccessful as Biden’s the week before. (I do recognize that the ERA issues have already been adjudicated, albeit imperfectly, while the Supreme Court has never clarified the meaning of the 14th Amendment.) In the meantime, both presidents’ actions will provide a mix of serious legal debate and wild-eyed, bipartisan demagoguery.
THE HEALTHIEST MIND IN POLITICS
Of all the dozens or hundreds of politicians I knew over the years, I always thought that Senator/Judge Michael had the healthiest, most principled mind of any I ever knew. His attitude can be summed up by one more anecdote from his senatorial days. One morning, we discussed some bill he was supporting and I asked, “Won’t your position rankle an awful lot of people back in your district? His response was the best statement I ever heard from any politician. He went into his signature lowered-eyebrows, flared-eyes mode and let loose a quiet earthquake:
“Well, g**d*** it, if they don’t like it, they don't have to g**d*** well re-elect me. I don’t need this job. There are plenty of other things I can do with my time.”
Then he relaxed his stance and leaned back. I asked whether he wanted me to quote him verbatim. He started laughing and said, “Well, Bob, maybe it’s not the most prudent statement for public consumption.” I hope he wouldn’t mind my quoting him forty-seven years later. I wish devoutly that more politicians had that attitude toward public office.
Finally, atop this story, you’ll find a blurry photo of Senator/Judge Michael next to Sam the Eagle. That’s the only photo of him I could find anywhere on the web—and it wasn’t easy to find that. It’s astounding that a public official could leave such a light internet footprint as recently as 2005, when the good judge passed away after nearly 25 years on the federal bench. Luckily, I found the two photos of him below in my own personal newspaper clippings—thus providing a better idea of his cinematic appearance.
THE ERA IS MERELY RESTING
In the article cited above, Jeff Jacoby compared the ERA’s fate to SNL’s Generalissimo Francisco Franco skit. For me, an equally apt metaphor resides in Monty Python’s celebrated “Dead Parrot” skit. A disgruntled customer brings a stiff, motionless parrot corpse into a pet store to complain that it died soon after purchase. The salesman insists that the parrot isn’t dead, but merely “resting”:
“I wish to complain about this parrot what I purchased not half an hour ago from this very boutique.” … “Oh yes, the, uh, the Norwegian Blue...What’s, uh...What's wrong with it?” … “I'll tell you what's wrong with it, my lad. ‘E’s dead, that’s what’s wrong with it!” … “No, no, ‘e’s uh,...he’s resting.” … “Look, my lad, I know a dead parrot when I see one, and I’m looking at one right now.” … “No, no, he’s not dead, he’s, he’s restin’! Remarkable bird, the Norwegian Blue, idn’it, ay? Beautiful plumage!” … “The plumage don’t enter into it. It’s stone dead.” … “Oh, nononono, no, no! ‘E’s resting!” … … … “‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!”
RIP, ERA.
Paul I don’t think the case US v Wong Kim Ark is applicable. You answered that question in your comment. Mr Ark’s parents were legal immigrants and he was born here during their legal status. The difference is children born to illegal parents. Native Americans were not granted citizenship under the 14th amendment and that was changed by an act of congress. I believe the discussion in Congress by the Senator who proposed the amendment was clear that this was an amendment to clarify the status of the freed slaves and not anyone else. Congress could change this by passing a law like they did in the early 1920’s for native Americans. They don’t do it then but maybe now they have the opportunity to clarify.
Bob, I'm surprised you state that the Supreme Court has never clarified the meaning of the 14th amendment. I thought they did exactly that in United States v. Wong Kim Ark in 1898. Wong Kim Ark was a man born in the US to Chinese immigrant parents who left the US to return China, and then was denied reentry to the US. He claimed birth-right citizenship based on the 14th amendment, which the Supreme Court affirmed, allowing him the reenter the US.