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January 11, 2011Are women “persons”? Not according to Supreme Court Justice Antonin Scalia’s reading of the U.S. Constitution.

Recently asked whether the 14th Amendment prohibits discrimination based on sex, Scalia replied flatly: “It doesn’t.”

As perplexing as this remark may sound at first, Scalia summed up what proponents of the Equal Rights Amendment (ERA) have argued for decades: the principle of equal rights for both sexes is not explicitly written into the Constitution.

And it should be.

Without a specific guarantee for equal protection of the sexes in the Constitution, Congress has the power to scale back legislation banning discrimination against women. Or pass laws that discriminate.

Suffragette Alice Paul was among the first to see a need for the ERA. She authored the amendment in 1923 on the 75th anniversary of the Seneca Falls Convention. The ERA was introduced in every session of Congress from 1923 until 1972, when it passed in the Senate and House. The amendment required ratification by at least 38 states, but garnered only 35. The ERA was then reintroduced in Congress in 1982, and in every session since.

Eighty-eight years is too long—even for Scalia’s colleagues on the bench. “I would like to see in our Constitution this clarion statement of bedrock principle,” said U.S. Supreme Court Justice Ruth Bader Ginsberg.

The text of the amendment is simple and straightforward: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Who could disagree with that?