Passing the ERA By Fiat

Amending the Constitution with one simple trick.

NYT (“Gillibrand Presses Biden to Amend the Constitution to Enshrine Sex Equality“):

Senator Kirsten Gillibrand of New York is on a mission in President Biden’s final days in office. She wants to convince him that he can rescue his legacy by adding the century-old Equal Rights Amendment, which would explicitly guarantee sex equality, to the Constitution as a way to protect abortion rights in post-Roe America.

He could do it all, she contends, with one phone call.

Both houses of Congress approved the amendment in 1972, but it was not ratified by the states in time to be added to the Constitution. Ms. Gillibrand has been pushing a legal theory that the deadline for ratification is irrelevant and unconstitutional. All that remains, she argues, is for Mr. Biden to direct the national archivist, who is responsible for the certification and publication of constitutional amendments, to publish the E.R.A. as the 28th Amendment.

The move would almost certainly invite a legal challenge that would land in the Supreme Court. But Ms. Gillibrand wants Mr. Biden to use his presidential power while he still has it to force the issue, effectively daring Republicans to wage a legal battle to take away equal rights for women.

Ms. Gillibrand’s is just one of the many entreaties Democrats in Congress are making to Mr. Biden in the waning hours of his term to take bold action before President-elect Donald J. Trump and an all-Republican Congress take over in January. Some are pressing him to protect undocumented immigrants brought to the United States as children. Others are pushing for more clemency grants for incarcerated people.

There is no small irony in having run an election on the basis of preserving democracy and then racing to prevent the winner from governing during the lame duck period. I’m reminded by the meme during the Obama administration from Republican-leaning commentators, “They warned me that if I voted for McCain [such and such would happen]. And they were right!”

As to the particular matter of the ERA, we covered it extensively a few years back. In a June 2018 post following the ratification of the long-dormant amendment by the Illinois legislature (“Is The E.R.A. Really Just One State Away From Ratification? Maybe, Maybe Not.”), the late Doug Mataconis explained the backstory:

The Equal Rights Amendment, which would become the 28th Amendment to the Constitution if it were ratified, was first presented to the states in 1972 after it had passed both chambers of Congress with the required two-thirds majority. At the time, the proposed Amendment, while controversial in some quarters, was widely supported in others including by many leading Republicans such as Presidents Richard Nixon and Gerald Ford. At the time it was passed, the resolution under which it had passed Congress set a deadline of seven years for the measure to be ratified by the requisite number of states, meaning that the ratification period would expire by 1979. This provision of the Congressional resolution is similar to ones that had been attached to other Constitutional Amendments that had been presented to the states in those years, such as the Twentieth Amendment, the Twenty-First Amendment, the Twenty-Second Amendment, Twenty-Third Amendment, the Twenty-Fourth Amendment, the Twenty-Fifth Amendment, and the Twenty-Sixth Amendment. Each of these amendments was ratified roughly within a year or less after they had been submitted to the states, though, so the time period was not an issue in any of those ramifications. In some cases, the language was included in the Amendment itself and in others, it was part of the resolution that Congress sent to the states. With the E.R.A., the resolution that passed Congress in 1972 included a preamble that explains the purpose of the amendment and the text of the proposed amendment itself. Contained within the preamble was the stipulation that the proposed amendment would become “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.”

Unlike the Amendments noted above, things did not go smoothly for the Equal Rights Amendment. By the time of the expiration of the seven-year period set by Congress, the measure had been ratified by 35 states, three short of the number needed for the Amendment to become part of the Consitution. The last such ratification took place in Indiana in 1977 and the Amendment hit a roadblock after that. With the time on the resolution running out, Congress passed a joint resolution that President Carter signed into law that purported to extend the ratification deadline to 1982. That resolution, though, was only passed by a simple majority rather than the two-thirds majority required by Article V of the Constitution and it was unclear at the time if the resolution was even effective. Whether it was or wasn’t turned out to be immaterial, though, since there was no further action by any state between 1978 and 1982. At that point, the Amendment passed into history, seemingly to join the list of failed Constitutional Amendments. In 2017, though, Nevada’s legislature purported to ratify the Amendment, making it the 36th state to ratify the Amendment, and then this week Illinois joined the list, leading supporters of the Amendment to claim that they were just one state away from ratification.

In addition to the passage of time and the fact that the expiration date, and extension, passed by Congress lapsed some thirty-six years ago, there’s one other complicating factor that throws the issue of ratification into doubt. Going as far back as 1973, there have been four states — Nebraska, Tennessee, Idaho, and Kentucky — whose legislatures have purported to rescind their previous ratifications of the ERA. In the case of the Kentucky resolution, that measure was vetoed by the Acting Governor at the time but it’s unclear if that veto has any legal effect. Also unclear is whether or not the attempts of any of these states to rescind their ratifications has any legal effect. 

After several states filed a lawsuit in December 2019 over the matter, Doug wrote a follow-up (“Lawsuit Seeks To Preempt Efforts To Declare Equal Rights Amendment Ratified“) exploring the legal merits:

Based on the available law and most importantly the text of the Constitution, it seems clear that the Plaintiff States have a very strong case here. The Constitution gives Congress full authority to set time limits on ratification, and that’s exactly what they did here. Indeed, when it appeared that the amendment would not be ratified by the original 1979 deadline, Congress acted to give proponents three extra years to get the job done. They failed to do so. Additionally, the repeal of ratification by four states during the period before the original deadline appears to be perfectly valid as well. This would mean that Virginia would only the 34th state to ratify the Amendment (without taking into account the deadline issue, of course.)

The only argument that could complicate matters is the question of whether or not the three Plaintiffs — Alabama, South Dakota, and Louisiana — have standing to sue at a point before any purported action by a hypothetical 38th state, whether it’s Virginia or some other state. If the courts find that that they lack standing, then they’d have to refile their lawsuit. Of course, by the time that issue is argued, it’s possible that Virginia will have purported to ratify the ERA and the lack of standing argument will be moot. It’s also likely that, at that point, these Plaintiffs will be joined by other states and other parties seeking to prevent the alleged Amendment from taking legal effect. That argument will likely be tied up in the Federal Courts for several years, and will ultimately probably have to be decided by the Supreme Court.

Finally, when our mutual home state became the 38th state to ratify the amendment (notwithstanding the revisions) in January 2020, I wrote yet another post (“Virginia Putting ERA over the Top?“) on the options facing lawmakers. After a long setup, I noted a back-and-forth between Doug and commenter HarvardLaw92 in the most recent post:

[T]he legal questions are less settled than most of us had presumed.

The Supreme Court established almost a century ago in Dillon v. Gloss (1921) that Congress has the authority to impose a deadline on state ratification. Additionally, it simply makes good sense. It’s absurd to consider the ratification by a state legislature in 1972 and one by another state legislature in 2020 contemporaneous.

At the same time, in Coleman v. Miller (1939). the Supreme Court ruled that, if Congress didn’t specify a deadline when passing an amendment, it could be considered open indefinitely. Crucially, they added that it’s up to Congress to decide whether such an Amendment was valid. This came into play with the most recent Amendment to the Constitution, the 27th, which was passed by Congress way back in 1789 as part of the original Bill of Rights—-and not ratified until more than two centuries later, in 1992.

Coleman vs Miller is an incredibly messy precedent because it considered many separate questions and produced multiple concurrences rather than a majority opinion. But many legal scholars contend that Congress can decide to ignore both their own deadlines and the fact that five states rescinded their ratifications. Others argue otherwise.

I find the latter arguments more persuasive legally. More importantly, I think ratifying the ERA decades after its apparent death would be unseemly and undemocratic.

If the 2020 election goes the way of 2018, it’s quite possible that we’ll have a Democratic President, House, and Senate roughly a year from now. If they believe we need a Constitutional Amendment declaring women equal citizens under the law, they should pass it and send it back to the states for a clean ratification. It would almost certainly pass. 

We did indeed have a Democratic President, House, and Senate come the next cycle. Granting that amending the Constitution requires a two-thirds majority in both Houses and that the Democrats couldn’t even count on Joe Manchin or Kyrsten Sinema’s votes to carry their agenda, it’s noteworthy that no such effort was made.

I closed that post by wondering if the amendment was still necessary—or even wise:

Beyond that, the ERA was a creature of a long-ago era. While there are obviously still hurdles to overcome, women have long since become full economic and political citizens. Discrimination on account of sex has been banned by both statute and judicial Constitutional interpretation for decades.

Indeed, we’ve long since reached reductio creep on sex discrimination. I’m old enough to remember Phylis Schlafly and others warning that if the ERA were to pass, women would be serving in the infantry, men would be marrying men, and even gender-segregated bathrooms would be illegal. Those things have, of course, become reality. And the Republic still stands.

Furthermore, as some commenters on the aforementioned threads noted, the 1972-era language could ostensibly cause real damage to LGBTQ rights. We’ve moved past a binary conception of sex and gender. Again, the solution is the same: If proponents believe an ERA is necessary to protect women and others from a future President Trump, pass a modern version through the normal process.

That remains my position.

The reason Congress started putting a time limit on ratification of amendments is obvious: the Constitution is the supreme law of the land. If we’re going to change it, it ought to be by broad consensus. The will of the people on a state-by-state basis will naturally change over time, so it’s absurd to count votes taken in 1972 and 2022 as an indication of consensus. Indeed, the seven years given to the ERA and other contemporary amendments is actually quite a long time in our politics, with multiple intervening elections.

And the notion that we should ignore the express will of Congress on this matter—and the several states that subsequently rescinded their ratification!—and just declare an Amendment that died during the Carter administration to be passed, daring the courts to rule otherwise, is just profoundly undemocratic. The President—and, for that matter, United States Senators like Gillibrand—is expected to safeguard the Constitution, not run roughshod over it.

If the America of 2025 wants to explicitly enshrine equal protection for women in the Constitution, there’s a legitimate process for doing so.

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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. JKB says:

    Such an action could be challenged, but likely more effectively countered by aggressive enforcement. Many universities and other entities have Women-only scholarships and programs. This would move the litigation from Title IX interpretation to the amendment.

    And women being subject to the Selective Service registration, if not require, in equal numbers, to be drafted should one be instituted could be interesting.

    Perhaps we’d overcome the century old legal idea of women as wards of the state as was outline in Mueller v Oregon (1908). Ironically, it was women’s part in bearing children that heavily influenced the decision that the hours of work of women could be regulated.

    All in all, opposition to the ERA if instituted by fiat might be less effective than strict enforcement.

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  2. Scott says:

    Begs the question: Where were you, Sen Gillibrand, for the last four years? Where are the investigations into the Trump family and its international dealings? Why were you not pushing the Justice Dept to act faster in the aftermath of the Jan 6th insurrection? Why are you part of the problem? No one needs these last minute performative gestures.

    Forgive me if I just roll my eyes.

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  3. Sleeping Dog says:

    Yes Dems have their share of pols with crackpot theories. Nothing to see here.

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  4. Rob Robinson says:

    Sounds like the sort of illegal procedural gimmick that MAGA would attempt (on a different issue though).

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  5. Jay L Gischer says:

    We live in a time where the president elect is advocating for the end of birthright citizenship, and nobody in his party is telling him that its unconstitutional. At least not in public. This kind of circus act got him elected.

    I mean, yeah, I agree with James on the merits here.

  6. Kathy says:

    Kathy’s First Law: Nothing is ever that simple.

    That said, forcing equal rights on the nation is not tyranny. See how the 14th amendment got ratified. Better yet, read Kermit Roosevelt’s “The Nation That Never Was.” It’s a short book, but he goes into great detail about it.

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  7. gVOR10 says:

    The Constitution places no time limit on ratification. But I’m pretty sure the “Originalists” Supremes would find a way to stop the ERA. Which make it a silly thing for Gillibrand, much less Biden, to waste precious lame duck time on.

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  8. Jay L Gischer says:

    @gVOR10: I said above I agree with James on the merits.

    AND, I don’t think it’s silly to make Republicans publicly defend an unpopular position. That’s politics. I understand Gillibrand’s (political) calculation.

    What I want, though, is for Democrats to take a popular position that is less rights focused and more “kick the asses of corporate bloodsuckers” focused.

    Perhaps we can walk and chew gum at the same time.

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  9. Scott F. says:

    Senator Gillibrand is off-base here, but this comment from James made me laugh out loud –

    There is no small irony in having run an election on the basis of preserving democracy and then racing to prevent the winner from governing during the lame duck period.

    The party that pitched preserving democracy as their objective lost. The winning party taught us that the voters don’t care about lofty ideals like democracy.

    You keep wanting the Democrats to hold to institutional norms because they are important to you and you know better than to expect the Republicans to honor them. As for me, I want an even playing field. The Democrats should play by the rules the Republicans have established and get whatever they can before they hand over power.

    In my heart of hearts, I want Biden to take advantage of the newly minted presidential immunity for official acts. Ordering Senator McConnell to GITMO would work for me. He could claim national security as the reason, but SCOTUS says the executive needs to be above the law in order to take the bold actions demanded by the office. Biden may not need to charge Mitch with anything.

    Biden might want to send rioters to break into The Capitol as well. The President-elect is on the record saying that is fine and dandy.

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  10. JKB says:

    A bit of lashing out as Democrat are becoming “not strong enough to suppress their opponents by force”. Of course, calls like this and the reported flooding of tax dollars out to Democrat special interest groups for DEI and such, all just help open the eyes of those who were on the fence last month but now may move solidly to vote with against the Democrats until something dramatic changes in the party.

    The Social Democrats were democratic only so long as they were not the ruling party; that is, so long as they still felt themselves not strong enough to suppress their opponents by force. The moment they thought themselves the strongest, they declared themselves— as their writers had always asserted was advisable at this point— for dictatorship.

    –Mises, Ludwig von (1927). Liberalism

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  11. Gustopher says:

    There is no small irony in having run an election on the basis of preserving democracy and then racing to prevent the winner from governing during the lame duck period.

    I haven’t seen Biden doing anything that would prevent Trump from governing once he is sworn in. Biden does remain the President for about a month though, and the Presidency comes with powers — like clemency, immigration policy, etc.

    The US has a long transition period. Not sure why we need roughly 2.5 months, why a new congress couldn’t be sworn in before Thanksgiving, etc. (even recounts should be done by then in normal cases).

    And I would be entirely on board with an amendment restricting the pardon powers towards the end — a move that would have prevented a lot of Trumpers from getting last minute pardons in 2020/2021. Anyone who pardons Roger Stone should have to face the voters. And the Iran-Contra pardons of Poppy Bush. And some shithead Clinton pardoned that Republicans were complaining about…

    It’s not a lame duck period. The duck is still kicking. If you want the duck hobbled, that would need legislation and/or amendments to remove the powers of the presidency. (Should Poppy Bush have invaded Somalia on his way out the door?)

    As far as the main topic of the post, the ERA failed to get ratified during its window. If Gillibrand thinks otherwise, she can file a lawsuit about such-and-such violating it. I think the equal protections clause covers all of that though, and don’t want it weakened by a “some animals are more equal than others” ERA.

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  12. Gustopher says:

    @Scott F.:

    In my heart of hearts, I want Biden to take advantage of the newly minted presidential immunity for official acts. Ordering Senator McConnell to GITMO would work for me. He could claim national security as the reason

    I would have liked Biden to cue up a test case (queue up?) to define the presidential immunity, but I don’t think he would need to jail political opposition without charges to do it. There are doubtless smaller actions that would still dubiously exercise those powers. Presidential limo donuts on Alito’s front yard, perhaps.

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  13. Jay L Gischer says:

    @JKB: Do you remember that riot four years ago, where Trump repudiated the election results. You know, the Republican riot? The one that Trump has paid no consequences for whatsoever? That one?

    You are hitting the same vibe with me as Mitch McConnell did with his “the world is a dangerous place” crap.

    If you like democracy, and want to keep it, you need to stand up for it even when it isn’t convenient.

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  14. While I am in general agreement with your bottom line, I found it odd that you did not mention how the referenced litigation turned out. The current Archivist testified three times before the Senate that she would not certify the ERA without “a final court order.” In 2021, federal District Judge Rudolph Contreras (an Obama appointee) issued a lengthy ruling, holding that the ratification deadline was binding and that the ERA had not been ratified; he said it would have been “absurd” for the Archivist to disregard the deadline. On appeal by Illinois and Nevada, a unanimous panel of the D.C. Circuit rejected the claim that the ERA had been ratified. The ruling was written by Judge Wilkins (Obama), joined by Judges Childs (Biden) and Rao (Trump). (Feb. 28, 2023) On pages 25-26, the panel dryly destroyed the core argument of the deadline denialists– the ludicrous claim that the deadline was not binding because it appeared in the Proposing Clause. (The Trump and Biden Justice Departments both argued in court that the ERA was never ratified.) These court rulings were consistent with an unbroken string of court defeats for ERA revivalists, going back to 1982. All congressional joint resolutions endorsing the notion that the ERA remains viable have failed, and would be ineffective even if passed. A directive from Biden to the Archivist would be lawless political grandstanding, and if issued, should be ignored by the Archivist.

    Douglas D. Johnson
    @ERANoShortcuts on X and BlueSky

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  15. Blue Galangal says:

    This is just another “idea” to further disaffect young voters and set them at odds with the Democratic Party. I guarantee this will be a talking point by tonight in all the kids’ subreddits about how horrible Biden is and how only Jill Stein can save the Democratic Party.

  16. TJ Jackson says:

    Do not demonstrate your education achievements and IQ so openly. There are limits to birthright citizenship as clearly stated in the 14th amendment and explained by its author. Of course the uneducated among us bray about “birthright” citizenship while having never read the Constitution nor bothered to read what it is.

    Hence your comment. Res ipsa loquitur.