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Oct. 18, 2021

The Original Fight for the Equal Rights Amendment

After the 19th Amendment was ratified in 1920, enfranchising (some) women, lots of questions remained. If women could vote, could they serve on juries? Could they hold public office? What about the array of state-laws that still privileged husbands and fathers over wives and daughters in regard to property and earnings rights? 

In February 1921, Alice Paul, head of the National Woman’s Party declared: “Now that political freedom has been won, we hope to wipe out sex discrimination in law, so that the legal status of women will be self-respecting.” Their strategy to accomplish this, on the advice of legal scholar Professor Albert Levitt of George Washington University was to push for a new constitutional amendment, which became known as the Equal Rights Amendment.

Between 1923 and 1932, Congress held six hearings on the ERA, but it faced fierce opposition until the mid-1930s. By the mid-1930s, support for the ERA began to increase dramatically, as congressional subcommittees started to report the amendment favorably nearly every year after 1936.  In 1940 the Republican Party added the ERA to its party platform. Four years later the Democratic party did the same. 

On October 12, 1971, the House of Representatives finally voted on the ERA, introduced by Michigan Democrat Martha Griffiths. The vote passed 354 to 24, with 51 not voting. On March 22, 1972, the Senate also passed the bill, 84-8, with 8 not voting. Then the fight moved to the states. As of October 2021, 38 states have ratified the amendment, the final three states coming long after the original deadline, but the amendment has not been added to the Constitution.

I’m joined in this episode by Dr. Rebecca DeWolf, author of the new book: Gendered Citizenship: The Original Conflict over the Equal Rights Amendment, 1920–1963, who also graciously fact checked the introduction to the episode.

Our theme song is Frogs Legs Rag, composed by James Scott and performed by Kevin MacLeod, licensed under Creative Commons. Episode image is: “A group of young members of the National Woman's Party before the Capitol. They are about to invade the offices of the senators and congressmen from their states, to ask them to vote for Equal Rights.“ Washington D.C, ca. 1923. Library of Congress.


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Kelly Therese Pollock  0:00  
This is Unsung History, the podcast where we discuss people and events in American history that haven't always received a lot of attention. I'm your host, Kelly Therese Pollock. I'll start each episode with a brief introduction to the topic, and then talk to someone who knows a lot more than I do. Be sure to subscribe to Unsung History on your favorite podcasting app, so you never miss an episode. And please tell your friends, family, neighbors, colleagues, maybe even strangers to listen too.

Today's story is about the original push for the Equal Rights Amendment or ERA. In August, 1920, the 19th Amendment secured the requisite 36 ratifications and was adopted into the United States Constitution. The 19th Amendment read, "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state on account of sex. Congress shall have the power to enforce this article by appropriate legislation." The 19th Amendment did not immediately enfranchise all women, as many women of color still faced significant barriers to practicing that right to vote until the Voting Rights Act of 1965. Even for those women who were enfranchised, the brief text of the 19th Amendment left a lot of questions unanswered. If women could vote, could they serve on juries? Could they hold public office? What about the array of state laws that still privileged husbands and fathers over wives and daughters in regard to property and earning rights? The National Woman's Party had been founded in 1916, to fight for the enfranchisement of women, and was best known for picketing the White House as silent sentinels. In February, 1921, the NWP held a convention to discuss the future of the organization now that the 19th Amendment had been passed. The group's leader, Alice Paul declared, "Now that political freedom has been won, we hope to wipe out sex discrimination in law, so that the legal status of women will be self- respecting." By May of that year, the original strategy for removing sex discrimination via federal bill was proving unpopular with supporters. And legal scholar Professor Albert Levitt of George Washington University, suggested to Paul that they pursue a new constitutional amendment instead. Drafting the amendment to everyone's satisfaction proved difficult; but by the celebration for the 75th anniversary of the first Women's Rights Convention in Seneca Falls, Paul announced the final form of what she called the Lucretia Mott Amendment, also referred to as the Equal Rights Amendment, which read, "Men and women shall have equal rights throughout the United States, and every place subject to its jurisdiction." Despite intense opposition from social reformer Florence Kelley, future Supreme Court Justice Felix Frankfurter, and Dean of Harvard Law School, Roscoe Pound, among others, the NWP persuaded two lawmakers to introduce the amendment into Congress in 1923: Representative Daniel Anthony of Kansas, who was Susan B. Anthony's nephew, and Senator Charles Curtis, also of Kansas, future Vice President to Herbert Hoover. Between 1923 and 1932, Congress held six hearings on the ERA. But it faced fierce opposition until the mid 1930s. By the mid 1930s, support for the ERA began to increase dramatically, as congressional subcommittees started to report the amendment favorably nearly every year after 1936. In 1940, the Republican Party added the ERA to its party platform. Four years later, the Democratic Party did the same. As the ERA was gaining strength in the 1940s, Alice Paul rewrote the amendment to echo the 15th and 19th Amendments. Several congressional members advised Paul such a rewording of the amendment would help it gain even more strength in Congress. By 1943, she had revised the amendment so that it now read, "Section I) Equality of rights under the law shall not be denied or abridged by the United States, or by any state on account of sex. Section II) Congress and the several states shall have the power within their respective jurisdictions to enforce this article by appropriate legislation.Section III) This amendment shall take effect five years after the date of ratification." On October 12, 1971, the House of Representatives finally voted on the ERA, introduced by Michigan Democrat Martha Griffiths. The vote passed 354 to 24, with 51 not voting. On March 22, 1972, the Senate also passed the bill 84 to eight, with eight not voting. The approved text kept the first substantive section of Alice Paul's 1943 version; but Congress members had changed the language of the two enabling clauses that detailed how the ERA would be enforced and put into effect. To deal with the criticism of ERA congressional opponents, pro ERA Congress members had taken out the phrase, "and the several states" from the second clause, leaving the amendment's enforcement power only to Congress, and reduced the timeline for how long states had to update their laws from five years to only two years. Congress also attached a seven year deadline to the ERA for how long the amendment had to secure the 38 states necessary for ratification of a constitutional amendment. Once Congress approved, the ERA went to the state legislatures for ratification. By the end of 1973, 30 states had ratified, but only five more ratified by the original seven year deadline. Congress extended the deadline to 1982, although opponents contended that they could not do so with the simple majority vote that they took. In any case, no further states ratified the ERA. So by the 1982 deadline, there were still only 35 states that had ratified, three short of the needed 38. Between 2017 and 2020, three additional states ratified the ERA: Nevada in 2017, Illinois in 2018, and Virginia in 2020. In January, 2020, the attorneys general of Nevada, Illinois and Virginia filed a lawsuit to require the Archivist of the United States to, "carry out his statutory duty of recognizing the complete and final adoption of the ERA." Alabama, Louisiana, Nebraska, South Dakota and Tennessee moved to intervene in the case. The case has been winding its way through the courts and is currently in appeal. On March 17, 2021, the House of Representatives voted 222 to 204 to remove the time limit on ratification. The bill is awaiting a vote in the Senate. To help us understand more about the early history of the ERA, I'm joined now by Dr. Rebecca De Wolf, author of the new book, "Gendered Citizenship: the Original Conflict Over the Equal Rights Amendment 1920 to 1963." So Hi, Rebecca, thanks so much for joining me today.

Dr. Rebecca DeWolf  9:22  
I'm so glad to be here.

Kelly Therese Pollock  9:24  
So I would like to start by just asking how you got interested in this topic of the early years of the Equal Rights Amendment, early years being like a, you know, four decades span of the Equal Rights Amendment?

Dr. Rebecca DeWolf  9:38  
It's a great question. It's kind of I got a long answer for you if that's okay. So my first year of my PhD program, so this is like 2008, 2009, so a while ago, my PhD advisor, I was his teaching assistant for a class and he asked me to give a lecture on the ERA and at that time I didn't know so much about the ERA. So it was fun to kind of just start digging into it. And what really got me into the topic though, was after the lecture, I opened it up to the class for discussion. And to my amazement, some of the students, either thought that the ERA was already in the Constitution, so there was just like a general lack of knowledge about it, which was surprising. But even more students would say something along the lines of, "yeah, there's still sex discrimination. And there's still disadvantages against women, but we don't see the ERA as the solution to that problem." And that really, you know, just set off like a lightning bolt of curiosity for me. You know, this idea of why hadn't the persistence of sex discrimination created more of a robust push for the ERA? Why don't people see it as a solution to the problem? Again, this is 2008, 2009. So it's a while ago, and the popular conception of the ERA has changed quite a bit in recent years, which we can talk more about that later. But originally, I just really wanted to solve this puzzle of why this recognition of ongoing sex discrimination didn't cause more people to want the ERA and to support the ERA and to get out and fight for it. And also, just one more thing with that, around the time that I was, you know, needed to get that lecture, I was also taking a graduate course. And I had to read a really good book for that course. It was Susan Douglas' "Where the Girls Are," and it's a history of women's portrayal in the media. And she has just like this insightful, really great discussion on how fear conflict is often depicted in the media as like a typical catfight between women. So you have like Gloria Steinem versus Phyllis Schlafly, and so it's like an oversimplification. And the imagery suggests that women always constantly fight with each other, and they're overly emotional. And the implicit suggestion is, this is why they're not fit for leadership positions. And I really wanted to not approach the ERA in that way. I wanted to get away from the cat fight framework for it. As I started to dig into the history, I mean, originally, I was just interested about all the ERA so I was like obsessive about it, like writing all my graduate papers on it just really crazy with it. But then I got more and more interested in the earliest years, because so much of the earliest years calls into question so many of the assumptions that many of us might hold about topics and US history. So for example, you have conservatives and liberals on both sides of the issue. And they were not directly opposed to each other in the conflict. You know, you have conservative ERA supporters, you have conservative ERA opponents. You have liberal ERA supporters, liberal ERA opponents. And the other thing is many feminists were against the amendment, and many feminists were for it. So the fact that you're seeing dividing lines that have played out in other topics of US history, not playing out the same way in this topic, just really made me think, Okay, what are what's really going on here? What are they really fighting about? So I mean, so that's really where it all started.

Kelly Therese Pollock  13:03  
Yeah, I was fascinated. I have talked a lot on my political podcast about the more recent ERA, so you know, just the past few years of the, you know, sort of struggle to finally get it into the Constitution. But I didn't know most of this early history. So when you were looking at this, this is, you know, like I said, it's a long, it's like four decades of history here. What are the kinds of sources that you were looking at what you know, where, where are you getting this information? And of course, some of it is just, you know, sort of very public, but but what are the ways that you can tease out this early history?

Dr. Rebecca DeWolf  13:41  
So that's a great question, and I'm going to have another long answer for you. For my methodology and my sources, I approached the ERA very much as I don't want to write a story or a history about like villains versus heroes, or, you know, good guys versus bad guys or over glorify one group and demonize another group. I really wanted to make sure that I found and established like a full picture of each position, because one of the things I was trying to do is to figure out how the ERA can fit into other topics of US history and not just be as a tool to talk about the history of American feminism, or, you know, the history of the women's movement. I wanted to see if it fit in somewhere else. And to be able to do this, to be able to do that, and this might sound a little corny, but I need to see like all the sides of the puzzle piece, you know, to fit it into the puzzle. So I very much tried to be kind of empathetic towards the anti ERA position and the pro ERA position. So with that, I will say, I'm going to get to the sources soon, I promise. But originally, I should mention that when I first came to Okay, my dissertation is going to be on the original ERA conflict, I was under the impression that I think a lot of people assume, partly because when other books on history have given short little summaries of the ERA in earliest years, they usually offer something up, like, you know, Republicans were for it and Democrats were against it or conservatives were for it and liberals were against it. So I thought, okay, that's probably true, and I will write a typical political history. And I'll see what the ERA can tell us about the history of the Republican and Democratic parties. That was my goal. And as I started to dig into the primary sources, especially the congressional sources, and I will detail those in one minute, I began to realize that that summary was not accurate, that you actually do have Democrats, a good amount of them supporting the ERA in significant ways, and you have a good amount of Republicans and conservatives opposing the ERA in significant ways in the original conflict. So you don't see the dividing line that some other people have offered up in their summaries of it. So that made me think, Oh, my God, I had to rethink my whole project here, because it's not going to be a political history, and, you know, the way I wanted it to be, and so at that point, I decided that I need to let the sources just speak for themselves and stop putting my assumptions on them, and to see what words and ideas and reasoning that they keep coming back to in the discourse that was used over and over again. And what I saw was a consistent argument about rights and about citizenship. And what does it mean to be a citizen? What does it mean to be a rights-bearing citizen? And what are the rights of citizenship now, after the 19th Amendment. I was like, Okay, this is going to be about citizenship, because that's what they're literally arguing about.

So then, you know, things kind of took a turn, and what was supposed to be political history became more like an intellectual history, a legal history, gender history, about citizenship. So then for the sources, I used a lot of archival collections. On the one hand, I used the typical archival collections that you see on many topics that are similar to mine. So you know, like the papers of major women's organizations like the National Woman's Party, or the League of Women Voters, or the National Consumers League, things of that nature, all of Paul's papers. But then I also, was when I was digging, I was realizing, wow, gosh, there's a lot of men, especially in the drafting period of the ERA. So I wanted to see more about that, you know, what's going on with that. So Felix Frankfurter,  for instance, played a big role in the drafting period, and it's break-down, really. So I went to go look through his papers, same for Roscoe Pound. And then I also wanted to figure out what was going on with the presidential administrations. So I knew FDR and his administration did not like the ERA. So I went to the Presidential Library to go through some of those papers and see what was happening. Truman, I went to his presidential library, because I knew he endorsed it, but then he backed away from it. So I wanted to figure out why that was and same with Eisenhower. So I did like the typical collections that you'd normally see. And then I kind of branched out a little bit. And then I have a lot of court cases, which I talked about, really in the first two chapters to kind of provide some legal footing for me when I'm talking about the history of masculine citizenship. And then the meat of the sources really is the congressional source materials. I don't know why I really have no idea, why more people haven't used the congressional hearings on the ERA, because it's just like, a treasure trove of like information. It's like wonderful. So from the 1920s, up into the early 1960s, Congress held several hearings on the amendment. The House stopped holding hearings in 1948, because the House Judiciary Committee Chairman Emanuel Celler, he hated the ERA. So he stopped holding hearings on it. But the Senate still held hearings up until the 60s. But these hearings are so important, because they're lengthy A), B) there's a lot of testimony, and they just really provide you with a good idea of the public arguments, the arguments that they're presenting out there to try to persuade the public, you know, for or against the amendment. And so if you're getting after the ideas, and the reasoning and the assumptions and expectations that they're putting forward, there you go. It's all right there. So a lot of when I start analyzing the language that they're using, it's from those congressional hearings. So.

Kelly Therese Pollock  19:11  
Yeah, you mentioned that it's not a you know, Democrat versus Republican or liberal versus conservative kind of stance, especially at the beginning. You know, we could argue about what's going on right now with the ERA but so you talk about instead, this emancipationist versus protectionist stance, and I found that really helpful framing. Way back in I think the fourth episode of this podcast, we talked about Sophonisba Breckinridge, and Breckinridge is a feminist, you know, clearly cares a lot about women's rights and was opposed to the ERA and I remember sort of grappling with that and saying, how could that possibly be but this framing helps because she's certainly protectionist in that way. So can you talk a little bit about those, those two ways of looking at it and you know, how that sort of how helps us sort out what is going on here and why there are feminists who are opposed to it and there are conservatives who approve of it?

Dr. Rebecca DeWolf  20:07  
Okay, so the meat of your book, I know Yeah. So maybe what I'll do first is just give a little like, here's the main argument and some background on that. And then I'll lead into the emancipationism and protectionism and how feminism shapes some of the some of the aspects of those positions. So the main argument of my book is that the original conflict created gendered citizenship in the United States. So even though the 19th Amendment disrupted the traditional understanding of American citizenship that had given men authority over women and law and in custom disparities between men and women's positions persisted, because ERA opponents and the original conflict, modernized the justification for sex specific legal treatment. So that's a lot I know. So I'm just gonna break it down. So again, the original ERA conflict captures the changing nature of American citizenship after the passage of the 19th Amendment because it created US as gendered citizenship. So it's important to understand that the United States legal system was founded on a profound commitment to the maleness of rights bearing citizenship. So legal and political authorities understood white women and then after the Civil War, Black women to be citizens, and that in that they were inhabitants of the country. But when it came to being a full citizen or citizen who enjoyed all the rights of citizenship, United States laws and customs continued to deny women that status of rights - bearing citizenship because they believed women were essentially weak and dependent creatures who required extra special protection. You know, I'm not gonna go too fully into the legal history around all that. The first two chapters of my book detail it a lot. So if you want to know, go buy the book.

But just to come back to that point here is that it's important to understand that this category of sex was used before and after the 19th Amendment as a way to basically restrict women's right to hold public office serve on juries, let's see, limit the work that women could do, prevent women from working in certain occupations. For a while women didn't have an independent nationality status. And there was also an array of sex based laws and customs based again on sex. So yeah, sex based laws and customs that continued to favor husbands and fathers over wives and daughters with regard to property earnings, contracting, inheritance and guardianship rights. So there's still all these policies and laws and customs that are sex based that are quite restricted for women. So when the 19th Amendment comes around, all those things don't just go away. So when the 19th Amendment, you know, when lawmakers passed the 19th Amendment in 1920, they removed sex, that's what the language of the 19th Amendment is, removing sex as a valid reason for withholding the right to vote, which implicitly affirms women's right to vote. But because it removes sex as a valid reason for withholding the right to vote, a lot of questions popped up of Oh, well, can sex still be a valid reason for withholding these other rights? Like what do we do about that? Does voter status command other rights? Or if you're a voter can you now serve on juries? Can you hold public office? And then also, what about all those marital status laws that still restrict women's autonomy in the home? And then from those questions, bigger questions came like what are the rights of citizenship now? And so the debates about the transformative possibilities of the 19th Amendment played out in several court cases and the political discourse of the era, but for our purposes, it evolved into the original ERA conflict because two different interpretations of American citizenship developed, which I call emancipationism on one hand, and protectionism on the other hand. Emancipationists were ERA supporters; they supported the ERA. And they supported the ERA as a way to ensure that men and women could participate as citizens on the same terms. And I use the words emancipationist and emancipationism to capture that pro ERA position because they often used that exact word in their arguments for the ERA. They would often say things like, "The ERA will emancipate women or we need the ERA to emancipate women." And just as an aside, when, Alice Paul began to draft the, you know, start to do early drafts with the amendment herself, she based her earliest drafts on the language of the 13th Amendment, which created freed persons after the Civil War. And she did that on purpose because she very much thought that especially the marriage, marital status laws create a form of involuntary servitude for women. So this idea that women hold a subservient legal status and only, they will only be emancipated through a constitutional amendment that will guarantee equal rights for men and women citizens. So that's really the heart of emancipationism, this idea that women need to be emancipated; it's only gonna come through the strength of a constitutional amendment that's going to ensure absolute sexual equality. But emancipationism and the original conflict, so from the 20s and into the early 1960s, it had conservative and liberal variations. So you have conservative emancipationists, like Senator Edward Burke, who was very influential in helping the ERA out during the 1938 congressional hearing, which I talked about in chapter four. And so for conservative emancipationists, they found in the ERA arguments that aligned with their support for private enterprise and their criticisms of the government's involvement in the economy. There's also like a little bit of legal formalism going on there where they would say things like, you know, if you have sex not being valid, a valid reason for holding the right to vote, you can't then use sex as another reason to uphold another right. We have to have things be consistent. But then you also have liberal emancipationists like Emma Guffey Miller, Senator Claude Pepper who was very influential in the late 1940s of the ERA. And so for them, while conservative emancipationists saw it more in terms of negative rights, how, you know, it's thinking of rights as a way to protect yourself from government intrusion, liberal emancipationists saw it more in terms of positive rights that if we got the amendment, we would be able to ensure social benefits for men and women alike, that men and women citizens both deserve to have economic security and social well being promised from the government. So it's just it's interesting that they still have the same core idea that there needs to be one standard of rights for men and women citizens, but they just varied in how they would use the amendment once passed, you know? So that's emancipationism. And then on the other hand, you have protectionism protectionists, they oppose the ERA protectionists were ERA opponents, and they opposed it as a threat to woman's natural rights of special protection. They believed that there were different societal functions for men and women citizens, which required sex based rights. And you know, it's a little bit more confusing for to explain protectionism because some people have assumptions about what that actually means. So in my book, when I'm talking about protectionists, I am not referring exclusively to advocates of special labor legislation for women. So special labor legislation arose in the late 19th and early 20th centuries as a way to regulate women's working conditions and shield them from economic exploitation. So you know, it prevented women from working in certain occupations, didn't let them work at night, sometimes gave them minimum wage laws, things of that nature. They were those laws were based on the idea that all mothers or all women were mothers or potential mothers, and because of that, the government had a responsibility to shield women, especially from economic exploitation to protect their roles in the home. For protectionism, though, you have liberal leaning protectionists, who love those labor laws, are major backers of those late labor laws. But you also have conservative protectionists, who do not like labor laws. So they hated the ERA not because of those labor laws, they so both conservative and liberal, protectionists believed that women required a special protection because in their minds, all mothers are all women were mothers or potential mothers. But conservative protectionists believed that women's special protection should come from the male head of the household. Liberal protectionists believed that government reform efforts could also serve as an effective instrument of protection for women. Even with those differences, though, you still see them applying or appealing to these same core principles that you will ruin the American family or the stability of American society, if you subject women to equal rights because women have needs that men don't have. Women have roles in the home that men can't do. And because of that, we had to provide women with their own set of rights. 

Kelly Therese Pollock  29:01  
It's really fascinating. I think to that, it's interesting thinking about the kinds of special protections that they were asking for, for women, that would have helped everybody. But they were able to get some of those protections like minimum wage, or you know, a number of hours you could work, things like that, for women. And then, you know, over time, of course, before we get to now in the fight, in the ERA today, there are some of those laws that apply to everybody. And so you don't need special protections for women, because you have special protections for everybody or not special, just protections for all workers.

Dr. Rebecca DeWolf  29:35  
Yeah, yeah, exactly. I mean, that said, go with that point, like emancipation is the liberal emancipation would be like, we're not against labor laws. We just think that it should be based on the nature of the work and not the sex of the worker. So yeah. So you made a great point about like once things start when, like, with the Great Depression and the New Deal, the government started to expand in its way of how it treated men workers, not just women workers. So you have like the Fair Labor Standards Act of 1938, which did provide minimum wages and limitations on work hours for men and women citizens. And so you would think if it was just about labor laws, then that would mean more liberal protectionists would come over, right? But they didn't, because it wasn't just about labor laws for them. They were concerned about other laws, in addition. So I actually have a quote from Frances Perkins. She's the first woman Secretary of Labor, but she was a strong ERA opponent. And so she actually testified at one ERA hearing in 1945. And so she said that, unlike the Fair Labor Standards Act, her state level labor laws, you know, the ones like the sex specific labor laws, were specifically quote "designed to safeguard women by providing women with days of rest and rest periods and prohibiting dangerous work for women at night, or in places deemed unwholesome to the morals and health of women." She then concluded that these state level special labor laws were quote, "based on right the unique biological function of women and their responsibilities as homemakers and mothers of future citizens." So to us that might seem just like, Wow, that's really conservative. To her, it wasn't. It made perfect sense. You know, so especially because she's applying to the government as a way to provide protection but in their minds, the best way to help women was to empower women with protection. So there are sex specific laws, not just the labor laws, they were, they liked sex specific laws that also required men to provide for their families. And their idea, they kind of reframed as women, married women have a right to be provided for by their husbands. In their minds, these kinds of sex specific labor laws, attended to women's special needs, and actually lifted women up to what they called real equality. So it's in their minds real sexual equality, or sexual equity or sexual fairness came from sex specific treatment.

Kelly Therese Pollock  32:03  
Yeah, and we should point out and you point this out in the book that for all of these discussions, sex and gender were the same, that they were not distinguishing, I think for a modern audience.

Dr. Rebecca DeWolf  32:17  
Yeah, I can touch on that. Yeah, that's actually really important for understanding the periodization. I don't know if that's too gimmicky of a word, but like to understand the differences between the first and second conflict, there was a profound difference in how they understood sex and gender. So in the original ERA conflict, the participants on both sides, so both supporters and opponents believed that men and women were inherently different.They didn't separate the concept of gender from the concept of sex. So by sex, I'm referring to general anatomical differences between the spectrums of male and female persons. And by gender, I'm broadly referring to like the qualities and values a society attaches to men and women. But in the original ERA conflict, it was just they just thought of sex, that they thought gender was a part of sex, in a way that could never be broken, right? So so for both emancipationists and protectionists, they believed that men and women were destined to perform different roles in society, even emancipationists thought that. Emancipationists believed, just like protectionists that women were society's natural caregivers and nurturers. The difference is emancipationists said, "Well, they should be free, though, to choose how they're going to exercise their benevolent nature, whether through motherhood, or some other compassionate cause". And they also said, "Even though men and women are inherently different, that doesn't mean that the law can't hold men and women to the same standard of rights. And protectionists, for them, motherhood embodied womanhood. So I mean, that was like the key for them of how women exercised their natural caregiving responsibilities. And they believed that that necessitates sex specific legal treatment. To protect motherhood, you had to have sex specific rights. So that's going to change though quite consequentially for the ERA conflict. By the late 1960s, there was an ideological development where activists and intellectuals started to separate the concept of gender from the concept of sex, such that the stereotypical behavioral traits generally assigned to men and women were seen as socially created concepts and not essential products in nature. And so then that freed women from what had seemed to be biologically inescapable roles in the home and as society's caregivers. So you start to see ERA supporters, emancipationists advocating for you know, both men and women have duties in the home and in the workplace. Both men and women should be caregivers, and providers. And then that change encouraged even more liberals to come away from the protectionist position and back the ERA as a way to secure social benefits for the male or female parents primarily responsible for childcare. And then that change left the protectionist position in the hands of the conservative protectionists. So and then that's how you get the rise of someone like Phyllis Shlafly and whatnot.

Kelly Therese Pollock  35:14  
Yeah, so let's jump ahead to the present then because this is still an ongoing struggle. We still don't have an Equal Rights Amendment. There are still people especially now in the current formulation, these are Democrats, these are feminists who are arguing that we need the Equal Rights Amendment. So and you talk some about this in in the epilogue, but why are we still in this fight? What is going on? Why is there still not an Equal Rights Amendment in the constitution?

Dr. Rebecca DeWolf  35:44  
Well, I would say it's because the protectionists want a conflict. You know, why I like that underlying arguments is, so much of what we have today is because of what played out in the original ERA conflict. Protectionists, were able to put forward this concept of limited constitutional equality, and limited equality is the best way to go for men and women citizens. And so because protectionists were able to push that forward and kind of stamp out the ERA at the end of the original conflict. You know, I very much believe that there's still this prevailing notion that actually no it really is better if we just treat people completely different based on whatever their reproductive anatomy is. And that, that leads to, you know, the perpetuation of the sexual division of labor, you know, funnily women more as they should be the caregivers and men should be the providers. Even today, with the recent state ratification, you still see protectionist arguments coming back around against the ERA. I had like a great quote from one current day Era opponent who wrote like an op ed in 2019, I write about in my book in the epilogue. And she's arguing against the ERA right before Virginia ratified it, and she said in her op eds, along the lines of like, if the ERA is passed, every hard fought protection that we have strived for, to get women will be lost. So again, it's this idea. It's not that ERA opponent's protections are against women having rights they're not. They actually think women should have rights, but they think it should just be specific to women. They don't think men and women should have the same rights. So they think that there's responsibilities and roles that women have in society that men cannot do. And because of that women have certain rights that have to be protected. So if you had equal rights, then you would, in their minds be taking away indispensable rights away from women. And I think that that's a fear that is prevalent for many people. So my original, you know, research question to myself when I first stumbled on the ERA, giving that lecture was, why hasn't the recognition of the persistent persistence of sex discrimination encouraged more of a push for the ERA? And I think my answer is because protectionists created this belief of sex specific rights being more legitimate and more fair, and actually you have more justice if you have sex specific rights. And I think a lot of people still think that way.

Kelly Therese Pollock  38:12  
Yeah, it's fascinating. And of course, we have so many fewer, I mean, obviously, there are still things that the the ERA would solve, but some of these things like women can now fight in combat positions. And, you know, a lot of the things that, that were used by people like Phyllis Schlafly, you know, are no longer a thing that we need to think about. But I think about, you know, I didn't have to register for the draft when I turned 18, because I'm woman, you know, like, there are still things out there.

Dr. Rebecca DeWolf  38:39  
Yeah, yeah. And you know, so two things to that, like the right to be exempted from military service was something that protectionists argued quite a bit. They had like certain rights that they would come back to that these are women's rights being exempted from military service, being shielded from the ravages of capitalism, and being kept safe in their domestic roles, having maternity benefits only for women. And so those are arguments that were put forth in the original compact that Phyllis Schlafly tapped back into. But I would say though, the real core, one of the really central arguments of protectionists is the law has to be free to treat men and women differently on account of sex alone. So even though things are much better than they were when Alice Paul first wrote the amendment, the fact that the law is still able, you know, its own sex is only held to the intermediate level constitutional scrutiny. I don't want to get into all that legal mumbo jumbo. But the fact that you can still the in some ways the law can still treat men and women differently. That's good for protectionists. They're quite happy about that.

Kelly Therese Pollock  39:43  
 I would like to be protected from the ravages of capitalism while we're at it. So how can people get your book?

Dr. Rebecca DeWolf  39:53  
Okay, that's a great question. So my website I have some links up there. My website is Pretty sure it's also an Amazon. It's available through the press, University of Nebraska Press. And yeah, it should I think you can order really anywhere that books are sold. So that's why I've been told.

Kelly Therese Pollock  40:12  
Excellent. Well, Rebecca, thank you so much. This was a really fun, fun read, for me fun understanding of something that I only knew the more recent history of. So thank you and thanks for joining me.

Dr. Rebecca DeWolf  40:24  
Great. Thank you for having me.

Teddy  40:26  
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Transcribed by

Rebecca DeWolfProfile Photo

Rebecca DeWolf

I am a historian with a Ph.D. in history from American University. I have extensive experience as an educator, researcher, and writer. My areas of expertise include European history and United States' history and my thematic specialties include gender and women’s history, politics, and United States' constitutional culture.​

My research has achieved recognition through several awards and grants, including the Dirksen Center Congressional Research Grant, American University's Vice Provost Doctoral Research Award, and a Clendenen Dissertation Fellowship at American University.​

My book, Gendered Citizenship is available now from The University of Nebraska Press. My book explores the contours of women’s civic standing in the post-suffrage era through an examination of the competing civic ideologies embedded in the conflict over the Equal Rights Amendment from 1920 to 1963.