Here is the full text of the ill-fated Equal Rights Amendment:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within
seventen years from the date of its submission by the Congress:"ARTICLE —
"Section 1. 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 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
"Section 3. This amendment shall take effect two years after the date of ratification."
The ERA was passed in 1972 and needed ratification from 38 states before its 10-year deadline expired. It got only 35. However, Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri have proposed a three-step strategy to declare that the ERA has, in fact, passed already and only needs to be recognized. It goes like this:
- The 10-year deadline is part of the preamble, not the actual text of the Amendment, so it doesn't count.
- During the Trump administration three more states ratified the ERA: Illinois, Nevada, and Virginia. That brings the tally to 38.
- Six states have repealed their ratification, but there's no constitutional mechanism for doing that. Once ratified, always ratified.
This means that the required 38 states have legally ratified the ERA and the national archivist merely needs to announce it. Done and done.
But can it work? Gillibrand plans to introduce a joint resolution that codifies her theory, but Republicans will never support it:
Ms. Gillibrand conceded that she did not think Republicans would ever support the amendment, “largely because the pro-life movement has co-opted this argument,” she said. She said her hope was to compel Mr. Biden to call on the archivist to take action, or to change the filibuster rules in the Senate so that civil rights measures like the amendment would need only a simple majority — not 60 votes — to move forward.
This is doomed. Biden won't act unilaterally; the Senate won't pass an enabling resolution; and no court would back Gillibrand's plan.
“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would succeed only in a different environment than we have. It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”
If Gillibrand were a Republican making a weird new legal argument for something like, say, overturning the 25th Amendment as a Deep State coup, there's a tolerable chance the Supreme Court would stroke its collective chin, make up some shiny new doctrine, and rule in favor. But a Democrat with a weird new legal theory for a liberal cause? Fuhgeddaboudit.
I support the ERA, and wish it was law.
With that said, the above listed concept does not pass the smell test.
- the text says ten years
- a repeal is a clear sign of intention
Stated differently, IF this was a law that I opposed, I would call this effort lawless or, at a minimum, disrespectful of a constitutional process. The ends don't always justify the means...
a repeal is a clear sign of intention
The politics won't allow this amendment to be adopted.That's the bottom line. (Also, the "preamble" argument is transparently specious). But who cares if a state legislature "signals intent" of something that's not allowed by the constitution? Gilbrand is right on that part.
Er...show me where rescinding ratification is forbidden in the Constitution.
Show me where it's allowed.
I asked first.
I asked first, asshole. You were quick with a reply a minute ago.
Jasper_in_Boston - respectfully you hold the "preamble" argument is transparently specious."
Was it the intent of the original drafters that this process would take five times as long as they detailed? If the drafters of the admendment wanted a time unlimited process, why not state that?
Seems like the original intent had a time element...
I think you misunderstand me. I'm saying that the argument that "the time limit is invalid because it's in the preamble" is...bunk.
However, absent time limit language in an amendment, there is indeed no constitutional time limit. Article 5 makes zero mention of this.
I agree. I don't really know how repealing ratification should be handled (something the Framers didn't really outline) but I do think that it should be honored, and I also think the 10 year time frame for adoption should be honored. I'm a big supporter of the ERA, but trying to adopt it this way is wrong, and bad for our politics in the long run. Better to gain support for the UI
The idea that you can't unratify before the law takes effect is just all kinds of dumb.
So dumb that the framers of the constitution didn't mention de-ratification in the constitution!
The most likely explanation is: they didn't think of the "50 years to ratify" situation and so it never occurred to them to put in such a provision. But that doesn't mean we should reserve the right to imagine elements in the constitutions that aren't there. The most honest course of action is to A) time limit constitutional amendments in the future (so they expire), and/or B) amend the constitution itself to allow state de-ratifications, and/or C) accept that, that, absent "A," states cannot de-ratify amendments they've already voted to approve.
From a pure practicality or efficient governance standpoint, it seems to me that state-level deratification power isn't a great idea: imagine, if, say, some state legislature (perhaps due to an election) had undergone a last minute change of heart with respect to the 14th or 15th or 16th....amendments.
The constitution is already very difficult to amend. Let's not turbocharge that difficulty.
*It's also possible the idea of de-ratification did occur to them, and they decided it wasn't a good idea to allow it. It's highly likely, after all, they were aware they were setting up a very arduous amendment process, and deemed it shouldn't be yet more difficult. Moreover, it's obviously possible to repeal an amendment via the amendment process itself (eg prohibition), so the framers would have known the Republica would enjoy an eminently practical safety valve to effect constitutional change in the event a dody amendment were adopted.
"So dumb that the framers of the constitution didn't mention de-ratification in the constitution!"
They didn't mention time limits in the Constitution either. That something isn't mentioned doesn't mean it's banned.
That something this important isn't mentioned makes it a near certainty that it isn't allowed.
No, it doesn't. The Constitution doesn't mention all sorts of important things -- and explicitly makes that point in the 10th Amendment.
The Constitution doesn't mention all sorts of important things
Sure, but the process to amend the constitution is mentioned, in great detail. It seems only just in a situation like this that we adhere closely to the words of the text. Which implies that, if you want to limit the time that can elapse for the states to ratify a change to the constitution (itself a perfectly sensible idea), you must state this plainly in the language of the amendment. Absent that, there's no time limit, as the 27th amendment shows us. That took more than 200 years to ratify! Are you claiming it's not valid?
To be clear, I disagree with Gillibrand that the fact that the time limit is in the preamble of the ERA obviates said provision. That's the part of her argument I think is plainly specious. If Congress wrote in a time limit (and they did in this case), then the clock starts ticking. End of story.
It seems only just and a credit card will get you a latte. More the latter than the former, but you keep dreaming.
They didn't mention time limits in the Constitution either
Agreed. So, if you want to create a time-limited amendment window, the language of the proposed amendment must state this.
Which it did*
*no, you fucking moron, that it was in the preamble means nothing.
It's too bad the ERA doesn't deal with Congress's compensation, because apparently amendments that deal with that crucial topic can be passed 202 years after they're first introduced.
https://constitutioncenter.org/the-constitution/amendments/amendment-xxvii/interpretations/165
But yes, I also agree that the preamble gives SCOTUS enough room to trashbin the ERA.
Those amendments being those teed-up without a time limit attached:
Republicans will never support it.
Which is, of course, the point, and it will not be lost on women voters, especially those who are already (justifiably) angry about Dobbs and the ensuing state-level Republican legislative misogyny.
Which team do you support?
A) weird new legal theories for liberal causes
B) weird new legal theories for conservative causes
C) all weird new legal theories
D) no weird new legal theories
middle and Newb - except that this is about amending the Constitution, which itself specifies how it may be amended, and there is no Constitutional mention of reversing a vote to ratify. See Kit’s category B).
KenSchulz - you are factually right: the Constitution does not provide for a reversal of the approval of an amendment. That is likely why the other component, the time limit, matters.
Stated differently, giving a hypothetical, say 20 GOP leaning states today pass an amendment ending birth right citizenship. Further, you give it a hundred and fifty years, I would not be surprised if you could round up the remaining 13 votes.
The spirit of the amendment process was to make changes that are broadly supported. Without a time limit, and no ability for a state to change its mind, the amendment process would look very different. Its a flaw in the process design, not a feature, to not allow a state to reverse its approval of an amendment
Actually, 18 additional states. Flaw? I’m afraid you were born a couple centuries too late to argue your case with the framers of the Constitution.
lol on my math typo. Opps
It doesn’t say that states *can't* rescind their ratification either.
Of course the ERA isn't already "the law of the land". Of course Gillibrand's scheme has no hope. These aren't even interesting questions.
One interesting question: Why would Gillibrand propose a scheme that has no hope and tramples all over constitutional procedures? What does she hope to gain by doing so? Does she think that signaling support for the ERA will strengthen her position with Progressive voters? Is she hoping to rile up Progressives to come out and vote? Does she see no risk in alienating people who care about the rules?
Another interesting question for supporters of the ERA: What do you think it will accomplish? Will it grant any new rights not already granted by the 19th Amendment and the Civil Rights Act? If so, what are those?
Noah Feldman at Bloomberg wrote a column a while back, arguing that the ERA would do some good in unknowable ways because it would give courts a basis for finding new rights, or new bases for existing rights: "Constitutional amendments are like planets in the constitutional solar system: they exert gravitational pull over the law. Adding the ERA would be like adding a new planet to the system. In the end, that would probably affect the existing constitutional balance — and for the better." I think this is a terrible objective - if you seek a change, you should be explicit about what you seek, so your fellow citizens can know whether they support it, or not.
Forgot to include a link to the Noah Feldman column I quoted:
https://www.bloomberg.com/opinion/articles/2020-02-15/the-equal-rights-amendment-could-still-do-some-good
Actually, I'm not sure I agree that this is a particularly interesting series of questions:
"One interesting question: Why would Gillibrand propose a scheme that has no hope and tramples all over constitutional procedures? What does she hope to gain by doing so? Does she think that signaling support for the ERA will strengthen her position with Progressive voters? Is she hoping to rile up Progressives to come out and vote? Does she see no risk in alienating people who care about the rules?"
This is really simple and straightforward: she's an ideologue. That's been clear since at least the Al Franken incident where she led the charge to oust him from the Senate based on what I consider to be a questionable assertion of #meToo moralizing.
And ideologues, generally speaking, don't care about rules. They typically aren't great at strategizing (after all, they probably don't listen to the saner and more rational types). And the very last thing they care or even think about is that their behavior might alienate others. Anyone who feels alienated is clearly an inferior being who fails to live up to the ideologue's purity of purpose and clarity of vision. Dissenters are to be crushed, never catered to.
So! Nothing at all about "women." That's probably good. But nothing regarding "gender" nor "gender identity", much less "sexual preference or practice." It does seem to protect the "two-sex" folks, those born with ambiguous genitalia, so that's good.
But face it: the thing is dead. Best to start all over on the ratification process.
Oh, and Gillibrand is a ditz. I'm not yet ready to forgive her crusade against Al Franken.
Yeah, I endorse that the time limit seems solid, and also that "unratify" isn't a thing.
I do wonder what the ERA does that the 14th Amendment doesn't do.
It evidently ensure women had the right to vote. So there are probably more things.
What's weird about it? Thirty-eight states ratified it and the Constitution says that makes it a ratified amendment.
The point isn't to hope that the current Supreme Court goes along; it's to provide one more data point showing that we need to elect more Democrats to get a Supreme Court that supports the plain text of the Constitution.
Your embedded link is malformed.
This CRS report, done just before the 3/4 threshold was met, outlines the primary arguments that generally underpin the current political-legal theory.
I can understand doubts of Biden acting unilaterally, but I'm not the kind of person who would walk away from a strategy that has no alternative. You're batting at the bottom of the 9th with 2 outs and 0-2 in the count. Are you going to give up?
Pursuing this has the added benefit of keeping women's rights in the spotlight and in the minds of very important constituents of the Democratic Party, and pushing turnout.
"You're batting at the bottom of the 9th with 2 outs and 0-2 in the count. Are you going to give up?"
Shooting the pitcher is not a winning strategy.
IDK if this is akin to shooting the pitcher.
The scenario I'm describing is desperation to try anything to win the game, not a win-at-all-costs strategy.
Try anything vs. win at all costs.
That’s your distinction? Wow. Okay, you massive twerp.
I'm sorry Dave, but I can't help you.
I've noticed that.
Your metaphor implies that the United States is about to end. There will certainly be a 10th inning, and an 11th, and a 150th. Playing loose with the rules used to be considered "violating the norms". Are you ready to make it the new norm?
You mean, violating norms like stare decisis and the pre-Heller interpretation of the Second Amendment?
Yes, I think that's what he meant. So if you think those are bad things, why are you advocating something similar?
Attempts to revive the ERA are about to end. The metaphor says nothing about the end of the nation.
Every constitutional challenge either creates new norms or reinforces existing ones.
My problem with this is that it's almost exactly the kind of thing Eastman et al were trying to do with the January 6 procedures-- gaming the rules almost beyond recognition for one special case.
Plus, I'm with salamander on Gillibrand. She's been dead to me since she sacrificed Al Franken on her personal altar. Is she up for re-election this year, or is this some kind of abortion-related turnout gambit, or a desperate attempt to insert a more obvious basis for abortion as a constitutional right?
If the latter, it wouldn't work with this court anyway, and with any court I'm not sure it would be significantly different in effect from the 14A equal protection clause unless interpreted expansively.
What Eastman was trying to do was explicitly unconstitutional. That is why he's likely to lose his license to practice law.
What Gillibrand is trying to do is little different than a POTUS testing the constitutional bounds of the Executive branch using an EO.
I’m pretty sure it’s also because Gillibrand isn’t subject to bar review.
But she's also not under DoJ criminal investigation.
The DOJ isn't the one concerned with disbarment.
Eastman and buddies started out asking "how can we read these provisions so they let us get to where we want." The illegal and unconstitutional parts followed as implementation. IMO Gillibrand is engaging in the same kind of motivated reading. Her expressing it is about the equivalent of Eastman's article, which in itself wasn't unconstitutional. He's moving toward disbarment, as I understand it, because of the implementation steps.
A time limit to ratify has apparently been customary for a century, and it's been tested before SCOTUS (Coleman v. Miller), which found it a valid authority for Congress. It's placed in the preamble because it's part of the instructions, not part of the amendment itself. At least one other amendment has failed because of a time limit on ratification. I think trying to pass the ERA now is wishful thinking, and time wasted. It's dead, and there's clear precedent.
It's still a useful thing to wave around, because this Congress is unlikely to allow anything new like it to get near the floor now. So every revival gives Dems an opportunity to remind voters of their values, and who's against them.
Practically speaking, what would be the impact of ratifying the ERA now? Are there any rights of women that are not actually protected by the constitution that the ERA would grant? I'm honestly not clear on that.
The Senate is not going to play Kirstenball whatever the legal arguments.
I so wish someone would primary Gillibrand. She is a self-absorbed grandstander with no real respect for institutions or the good of the country as a whole. I am embarassed that she is one of my senators.