Biden Declares Equal Rights Amendment Ratified

It is not ratified.

On his last weekday as President, Joe Biden has issued the following statement:

I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all. 

On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.

It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. 

While I, too, support equal rights for women Biden’s statement is utter nonsense. Indeed, were it otherwise the Amendment would have been declared ratified five years ago—or at some point when Biden’s presidency was not on life support—rather than five years after the Commonwealth in which I reside ratified an amendment that expired when I was in high school. (My 40th reunion has come and gone.)

NPR (“Biden says the Equal Rights Amendment is law. What happens next is unclear“) adds the necessary context:

President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution “the law of the land,” a surprising declaration that does not have any formal force of effect, but that was celebrated by its backers in a rally in front of the National Archives.

The amendment would need to be formally published or certified to come into effect by the national archivist, Colleen Shogan — and when or if that will happen is unclear.

The executive branch doesn’t have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said that the archivist’s role is “purely ministerial” in nature, meaning that the archivist is required to publish the amendment once it is ratified.

In response to an NPR question about whether the archivist would take any new actions, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

“This is a long-standing position for the archivist and the National Archives. The underlying legal and procedural issues have not changed,” the archives’ statement said.

We’ve rehashed the “issues” many times since Virginia’s action but there really is no controversy:

In 2020, the national archivist — who is charged with making constitutional amendments official — declined to certify the amendment, citing an opinion from the Justice Department’s Office of Legal Counsel. The department said it considered the ERA to be expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel released an opinion affirming that 2020 decision.

It would simply be absurd if an Amendment passed during Richard Nixon’s first term—more than half a century ago—and with a clear expiration date written into it (as had been common by that point) were suddenly declared the law of the land through fiat. The rationale for the deadline is clear: an amendment should reflect a reasonably contemporaneous consensus that the fundamental law of the land should be changed. Indeed, Virginia is only the 37th ratifying state if we ignore the fact that six states that ratified the amendment in the early 1970s subsequently voted to withdraw their approval (five between 1973 and 1979, the original open period, and North Dakota in 2021, after Virginia’s ratification).

Statutory and judicial actions over the last four decades have likely rendered the question moot: for all intent and purposes, gender equality has long been the law of the land. But, if we wish to enshrine it in the Constitution,* it’s easy enough: pass it through Congress again and get 38 states to ratify.


*There are some who argue that doing so would enshrine a binary view of the sexes, which has come under increasing dispute, into the Constitution. Nothing in my reading of the key section (“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) would obviously have that effect, in my estimation.

FILED UNDER: Gender Issues, US Constitution, US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Professor of Security Studies. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    This was kind of the perfect illustration of why Biden’s presidency ultimately failed: ignore an issue until it’s too late to do anything about it, ignore actual actions he could take on it (like an EO ordering the archivist to publish the amendment), and instead just deliver a speech full of pretty words that really mean nothing and think he deserves credit for that

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  2. Gavin says:

    Surely he said this while wearing kente cloth.
    Nonsense PR like this is why more people are becoming aware “bipartisanship” has, since B.Clinton, meant “Please give me high-minded cover to do the R stuff I really want to do.”
    Funny how it never works the other way — What if tax cuts for wealthy people were just words in a speech?

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  3. Michael Cain says:

    I guess I’m one of those that’s nervous about ratifying the particular language at this point. How does it apply to a trans woman whose chromosomes are XY, still has a penis, has been on massive hormone treatments for years, and wants to play women’s soccer in college? Do we have to struggle with, to borrow a phrase, “The law in all its majestic equality forbids both men and women from having an abortion.”?

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  4. Rob1 says:

    @Stormy Dragon:

    This was kind of the perfect illustration of why Biden’s presidency ultimately failed:

    Hold on there a moment. There is plenty to argue that Biden’s Presidency was successful, and certainly not a “failure.” There are many voices that will attest to a positive regard for Biden’s time in office based on personal outcomes. And, some of them are “Red Staters” who would be hard pressed to agree despite their improved lives. History has a bit of a way to run before this issue has a definitive assessment.

    And per Joyner, this was a non-issue. There was nothing for Biden to fail at.

    It was a gesture of defiance at the incoming administration of misogynists, chauvinists, and bigots.

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  5. Kurtz says:

    ETA: moved the question to the top. I am curious about it.

    Can someone explain to me why the archivist relies on the Department of Justice for legal opinions? That seems far from ideal, though I have not thought much about it.

    Nothing in my reading of the key section (“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) would obviously have that effect, in my estimation.

    What matters is not an estimation you or I make about an obvious meaning of the text, what matters is how a robed religious fanatic in a sparsely populated district in Texas estimates the meaning of the text.

    for all intent and purposes, gender equality has long been the law of the land.

    Eh, there is a ton of wiggle room. We have a federal judiciary stocked with judges who will leverage that room to great effect. And, quite frankly, many of those judges have demonstrated a willingness to expand that wiggle room, law, history, and secularism, be damned.

    That’s one reason I am skeptical it would matter much even if the archivist accepted ratification.

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  6. Justin says:

    I’m thinking that this is some last minute trolling of Trump and GOP by Biden. I expect a meltdown on X from him or conservatives sometime in the near future.

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  7. DK says:

    @Rob1:

    There is plenty to argue that Biden’s Presidency was successful, and certainly not a “failure.”

    Biden’s presidency was a failure in terms of modern TikTok America’s Twitterbrained focus on reality TV infotainment politics: horserace polls, crowd size, merch sales, gotcha punditry, hashtags, vibes, news cycle wins, empty sloganeering, and the other unserious stuff more appropriate for a season of Real Housewives of Constitution Ave. than for problem-solving governance.

    If you’re the type of calm and mature hiring manager who rates job performance on actual results and outcomes, then you might have a different take on Biden. But that sort of sobriety is currently passé in most of the United States. Perhaps temporarily, perhaps not.

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  8. Stormy Dragon says:

    @Rob1:
    @DK:

    There are precisely two duties Biden pledged to undertake in his oath of office, one of which he has utterly failed to achieve.

  9. DK says:

    @Stormy Dragon: If before taking the basketball court I pledge to win MVP and not miss a free throw, and I score 33 points with 18 rebounds and 75% free throw percentage — and the MVP award goes to someone else — it does not mean I played bad.

    I fault Biden for earnestly believing American voters — outside of blacks, gays, Jews, educated whites, and a few others who aren’t having psychotic episodes in the voting booth — are capable of staying focused, rather than backsliding into selfishness and stupidity. My people learned from generations of experience that the usual suspects cannot be trusted; good, well-meaning allies like Joe inevitably end up mugged by reality.

    But Biden’s aspirational pledges do not change fact of crime at 50-year lows, historic and unprecedented legislation passed, and the world’s best post-COVID economic recovery after having inherited record job loss, lockdowns, riots, bodies being stacked in freezer trucks, and a terror attack on Congress. Y’all may have amnesia, but I don’t.

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  10. just nutha says:

    @Michael Cain: Hyperbole much?

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  11. Jay L Gischer says:

    I have to agree with @Justin This is a troll. Let them fulminate about how he’s lying and playing fast and loose with the rules.

    Ah, it’s a bit rich for y’all to be complaining about “not playing by the rules” isn’t it?

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  12. de stijl says:

    Oh, my golly, that was dumb! And horrible.

    The requirements are very clearly laid out.

    Yes, the goals of the ERA have essentially already been enacted by law in most states, but you cannot bypass the Constitution on how Amendments are required to be enacted. Who authorized that announcement? Holy crap, that was so stupid.

    Given who is the batter’s box, this was incredibly bad! 1. Unconstitutional. 2. Extremely bad precedent.

    Why would you do this? I don’t want Trump to have precedent to willy-nilly declare new Constitutional amendments. That’s a terrible idea. Wtaf?

    Bad, stupid, unconstitutional, illegal, horrible precedent.

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  13. James Joyner says:

    @Kurtz:

    Can someone explain to me why the archivist relies on the Department of Justice for legal opinions?

    DOJ, and specifically its Office of Legal Counsel, is the lawyer for the Executive Branch. It was created by Congress in 1934 with that purpose. I don’t know how independent commissions and the like treat it but the rest of the government takes their rulings as gospel.

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  14. Fortune says:

    @de stijl: Can we agree this would, in normal circumstances, be grounds for impeachment proceedings?

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  15. Paul L says:

    I love the feminists declaring victory over Equal Rights Amendment being Ratified.
    Just like Roevember when women will provide Republicans with a overwhelming electoral defeat because of the abortion issue.
    Next Biden traps Trump with executive orders banning guns and providing federally funded late term abortions.

  16. Rob1 says:

    @Stormy Dragon:

    There are precisely two duties Biden pledged to undertake in his oath of office, one of which he has utterly failed to achieve.

    Oh come on! Biden pursued his duties with the resources that he had. Hindsight is 20-20 etc.

    My question to you and every other complainer out there: what the heck did you do the past 4 years besides post and vote? Perhaps you were a mover and shaker in local political activities, and if so good on you. Perhaps you punched above your weight in contributions. Also good on you.

    But it is my observation that there is way too much bitching and recriminating coming from people who do the minimum (or less) in terms of participatory democracy.

    Posting and complaining is easy. Voting is pretty easy. Humping up and down neighborhoods, knocking on doors, and spending stullifying hours on hundreds of phone calls to mostly apathetic citizens is hard. Creating new ways to reach people, that’s hard. Convincing people to do more, that’s hard. Posting, voting, and complaining, that’s easy.

    Biden was up against a “force majeure” — our culture. And the tidalwave of money that drives it. If he failed, it’s because we failed. In my book Biden’s effort was heroic, and will rate high in my memory of these times.

    Just like everything else in this “God-forsaken” country, there are net producers of democracy and net consumers of democracy. Address your dismay to the latter.

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  17. just nutha says:

    @Fortune: Sure. And the hearings will distract you from noticing that nothing’s being done on the debt ceiling, deficit, AGW, and other actual issues.

    It’s worked before, and since none of us care about anything but our own bank balances, it should work again. Who doesn’t prefer the circus to reality?

  18. Fortune says:

    @just nutha: It’s a theoretical question.