“The Equal Rights Amendment Has Been Ratified. It Is the Law”: U.S. House Resolution Declares ERA 28th Amendment

[China]

“The Equal Rights Amendment Has Been Ratified. It Is the Law”: U.S. House Resolution Declares ERA 28th Amendment

 

In an opinion issued on Wednesday, Jan. 26, the Department of Justice’s Office of Legal Counsel (OLC) helped clear the way for the Equal Rights Amendment, according to leading ERA advocates. In January of 2020, under Trump, the OLC issued an opinion arguing that Congress had no power to remove a seven-year timeline for ratification in the preamble of the ERA and that therefore three recent state ratifications were invalid. The OLC opinion issued by the Biden administration strongly affirms the power of Congress to remove the deadline. The opinion follows the overwhelming consensus among constitutional law scholars.

 

According to a recent amicus brief authored by former Stanford Law School Dean Kathleen Sullivan and signed by Laurence Tribe, Dorothy Roberts, Kimberlé Crenshaw, Catharine MacKinnon and 11 other top constitutional scholars:

 

Quote

“The language of Article V is mandatory: an amendment to the Constitution ‘shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states.’ Nor does the text of Article V envision a role for an executive branch officer to assert his discretion regarding the validity of the amendment. The text requires no additional action by Congress or by anyone else after ratification by the final State.”

 

In a press conference, Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) responded to the newly issued OLC memo by saying that the ERA has already been ratified and should be recognized as the 28th Amendment—and that the archivist should do his ministerial duty to certify and publish the ERA. Action by Congress could clarify this, but is not necessary for publication of ERA.

“The ERA has been ratified. It is the law. It should be certified and published by the archivist,” said Eleanor Smeal, president of the Feminist Majority Foundation. “The fight now is that we’re going to enforce the ERA. Without enforcement, it’s just a symbol. We want the ERA enforced.”

 

On Thursday, Jan. 27, Reps. Speier, Maloney and 154 cosponsors announced the introduction of a resolution before the U.S. House affirming that the Equal Rights Amendment has been validly ratified and is now in effect as the 28th Amendment to the U.S. Constitution.

 

“Two years ago, the final state Virginia ratified the amendment. The amendment says two years hence, it is law. And that’s today,” said Speier. “The ERA is fully ratified, no question about it.”

“We introduced this resolution to underscore and affirm that the ERA has been validly ratified as required by the Constitution, and should be recognized as the 28th Amendment to the U.S. Constitution,” said Maloney.

 

Also on Jan. 27, President Joseph Biden issued a statement reiterating his strong support for the ERA and urged Congress to pass the resolution. “No one should be discriminated against based on their sex—and we, as a nation, must stand up for full women’s equality.”

 

The resolution states that the ERA has satisfied all Article V requirements to amend the Constitution: a two-thirds vote in the House and the Senate, achieved in 1971 and 1972, and ratification by three-fourths of the states. Listing each of the 38 states by date of ratification, the House resolution resoundingly concludes the ERA “has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution, and shall be known as the ‘Twenty-Eight Amendment to the Constitution.’”

 

The House resolution addresses the Republican argument that the three recent ratifications by Nevada, Illinois and Virginia came too late. The resolution declares, “No time limit exists within the text of the proposed amendment that was ratified by three-fourths of the states.”

 

As a result of the Trump administration’s OLC opinion, the national archivist David S. Ferriero declined to take the final ministerial steps to make a constitutional amendment official—to verify the ratifications and then publish a formal proclamation certifying that the amendment is valid and is part of the Constitution.

 

“It’s outrageous that one unelected official is stopping women from getting into the Constitution,” said Maloney. “We urge the Biden administration to withdraw the erroneous OLC opinion and instruct the archivist to certify the final three state ratifications and publish the ERA in the Federal Register.”

 

Over 200 constitutional law scholars agree, recently signing a statement that Barr’s OLC opinion is wrong and that the Biden Justice Department’s Office of Legal Counsel should withdraw the opinion. The scholars argue that the opinion is “lacking a thoroughly reasoned understanding of precedent and Congressional power under the Constitution,” that it “sought to advance a policy preference against the ERA” and that it is “common practice for the OLC to review and withdraw legal opinions issued by a prior administration that are legally unsound and/or do not reflect the view of the current President.”

 

Earlier this month, Columbia University’s ERA Project released a detailed analysis signed by top constitutional law scholars explaining why the OLC memo was flawed. And 16 scholars, including Tribe, Roberts, Crenshaw and Sullivan, recently released a legal brief arguing that the ERA is validly ratified.

 

Click on the link for the full article

[LadySkinsFan]

It's about ****ing time! Yay!

[Larry]

Gotta say. 
 

At least as I understand it, 

 

The amendment, as passed by Congress, contained language that said it had to be ratified within 7 years. 
 

35 states ratified it. But it needed 38. 
 

And as the deadline approached, Congress voted to remove the 7 year time limit. 
 

And, after the 7 years, 3 more states ratified. 
 

Now, assuming that a miracle has happened, and my memory is correct, then I'm sorry, but no, I don't think Congress can modify a constitutional amendment, after 35 states have voted to ratify it. 
 

Wouldn't mind them introducing it again. Watch every single Republican vote against it. Use it as a campaign issue. 

Edited February 1, 2022 by Larry

[China]

14 minutes ago, Larry said:

Gotta say. 
 

At least as I understand it, 

 

The amendment, as passed by Congress, contained language that said it had to be ratified within 7 years. 
 

35 states ratified it. But it needed 38. 
 

And as the deadline approached, Congress voted to remove the 7 year time limit. 
 

And, after the 7 years, 3 more states ratified. 
 

Now, assuming that a miracle has happened, and my memory is correct, then I'm sorry, but no, I don't think Congress can modify a constitutional amendment, after 35 states have voted to ratify it. 
 

Wouldn't mind them introducing it again. Watch every single Republican vote against it. Use it as a campaign issue. 

 

Congress never modified the amendment.  The seven year limit is not part of the amendment.  FTA: 

 

Quote

“No time limit exists within the text of the proposed amendment that was ratified by three-fourths of the states.”

 

[Larry]

7 hours ago, China said:

 

Congress never modified the amendment.  The seven year limit is not part of the amendment.  FTA: 

 

 

From the National Archives. The actual measure as passed by the House, in 1971:  

 

 

Sure seems to state "shall become valid . . . when ratified . . . within seven years". 
 

So this argument seems to hinge on an assertion of "well, if it had been ratified within seven years, then the seven years part would not have been part of the Constitution. Therefore the election, if you will, never actually has an election date. It just keeps going forever until our side wins."

 

And again. I want the amendment passed. I can make lots of arguments in favor of passing it. (And only one against it. I assert that the 14th Amendment prohibits discrimination against all citizens. And that singling out some demographics as worthy of special, protected, status, invites the argument that this other group isn't protected, because they don't have an Amendment of their own.)

 

Just saying no, I don't approve of the stunt they're trying to pull, to claim that it's been passed. 
 

(For the record, I don't approve of Congress refusing to seat any members from the Confederate states, until said states ratified the 14th Amendment, either. Ratification cannot be coerced, especially not by denying a state representation.  My dislike is somewhat muted by the fact that it was a good cause, and very special circumstances.)

[China]

2 hours ago, Larry said:

From the National Archives. The actual measure as passed by the House, in 1971:  

 

 

Sure seems to state "shall become valid . . . when ratified . . . within seven years". 
 

So this argument seems to hinge on an assertion of "well, if it had been ratified within seven years, then the seven years part would not have been part of the Constitution. Therefore the election, if you will, never actually has an election date. It just keeps going forever until our side wins."

 

And again. I want the amendment passed. I can make lots of arguments in favor of passing it. (And only one against it. I assert that the 14th Amendment prohibits discrimination against all citizens. And that singling out some demographics as worthy of special, protected, status, invites the argument that this other group isn't protected, because they don't have an Amendment of their own.)

 

Just saying no, I don't approve of the stunt they're trying to pull, to claim that it's been passed. 
 

(For the record, I don't approve of Congress refusing to seat any members from the Confederate states, until said states ratified the 14th Amendment, either. Ratification cannot be coerced, especially not by denying a state representation.  My dislike is somewhat muted by the fact that it was a good cause, and very special circumstances.)

 

Well, I'll take the legal opinions of the constitutional scholars cited in the article over yours.  

[China]

 

Edit:  BTW, the states don't ratify the Resolution, which is what you posted.  They ratify the Amendment, the text of which is included in the resolution.

[PleaseBlitz]

Here is the amici brief.

 

https://www.eracoalition.org/wp-content/uploads/2022/01/01.10.2022-Constitutional-Law-Scholars-Catharine-MacKinnon-et-al.-Amicus....pdf

 

The amici argue (if it is boiled way way down) that Article V governs constitutional amendments, and provides no time limit AND does not give Congress the power to impose one (and Congressional powers flow from the Constitution).  

[DCSaints_fan]

17 minutes ago, PleaseBlitz said:

Here is the amici brief.

 

https://www.eracoalition.org/wp-content/uploads/2022/01/01.10.2022-Constitutional-Law-Scholars-Catharine-MacKinnon-et-al.-Amicus....pdf

 

The amici argue (if it is boiled way way down) that Article V governs constitutional amendments, and provides no time limit AND does not give Congress the power to impose one (and Congressional powers flow from the Constitution).  

It would seem to me, Congress is free to impose one, but it is also free to revoke that imposition.  Kind like what happened with Brexit (not the US, but the same principle).  A legislative body cannot be bound by itself.  So short of a higher law overriding them, namely the Constitution or ruling of the SC) there shouldn't be anything constraining Congressional power.

 

This also how the filibuster was done away with (at least for judicial appointments)

Edited February 1, 2022 by DCSaints_fan

[tshile]

I’m completely lost as to what the hell this is about 

 

edit: ok. I think I get the history of it now. 
 

still not clear exactly what the ERA does (I’m aware of the summary its supported use, just not the actual details )

Edited February 1, 2022 by tshile

[bearrock]

41 minutes ago, tshile said:

I’m completely lost as to what the hell this is about 

 

You and the rest of America  .  Quick run down: https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained

 

If posed in the 30's, all these issues would probably be considered a political question (whether states can rescind before full ratification, whether Congress can retroactively remove the 7 year time limit, whether the 7 year time limit applied to the ERA since ratified language itself didn't have the amendment).  The justiciable claim would be whether an imposition of the 7 year time limit violates Article V and is void ab initio.  

 

With today's court?  They might wade into some of the political questions.

 

With that said, I'm not sure how much in favor I would be of what would seem like a backdoor to many to pass such a major constitutional amendment.  It seems to me that such a maneuver would make future constitutional amendments harder, not easier and we need to be a lot more regular about updating and amending the constitution.

Edited February 1, 2022 by bearrock

[tshile]

oh ok this is the “make them sign up for the draft” thing. I remember that now. Sorry. I originally posted hoping someone would explain, and then I figured maybe try to figure it out for myself. Apologies for that ****ty post. 
 

 

So when are they required to sign up for the draft?

2 minutes ago, bearrock said:

With that said, I'm not sure how much in favor I would be of what would seem like a backdoor to many to pass such a major constitutional amendment.  It seems to me that such a maneuver would make future constitutional amendments harder, not easier and we need to be a lot more regular about updating and amending the constitution.

My gut, as someone who clearly knows nothing about any of this:

seems like we shouldn’t pick up where we left off 50ish years ago and allow 3 states to just push it through. 
 

**** changes over 50 years. 
 

then again it’s a constitutional amendment so… maybe that shouldn’t apply, since we’re talking about rights. 
 

🤷‍♂️ 

[Captain Wiggles]

Lol at this will make constitutional ammendments harder to pass. I'm 42 and the only ammendment passed during my lifetime has been the one that prevents members of Congress from granting themselves pay raises during the current session. Which was introduced by Madison in 1789 and the states didn't ratify it until 1992. 😬

Edited February 1, 2022 by clietas

[Larry]

Well, living in Florida, I think an argument can be made that we don't want Amendments to be too easy to pass. 
 

My profile's location entry is "Where the Constitution grants rights to pregnant pigs, and denies them to homosexual humans."

Edited February 1, 2022 by Larry

[bearrock]

29 minutes ago, clietas said:

Lol at this will make constitutional ammendments harder to pass. I'm 42 and the only ammendment passed during my lifetime has been the one that prevents members of Congress from granting themselves pay raises during the current session. Which was introduced by Madison in 1789 and the states didn't ratify it until 1992. 😬

 

2 minutes ago, Larry said:

Well, living in Florida, I think an argument can be made that we don't want Amendments to be too easy to pass. 

 

Fair points

[LadySkinsFan]

Did you men ever think that's the most important amendment because it officially takes females out of second class status? Plus it helps with females' rights to bodily autonomy.

 

Something that the theocratic ultra right wing otherwise known as fascists don't want? Some of them want to take away females' right to vote. The ERA codifies females' rights into the Constitution, something that should be obvious in the 21st Century.

[China]

Three Senate Republicans urge archivist not to certify the Equal Rights Amendment

 

Three Republican senators are calling on the Archivist of the United States David Ferriero to commit to not certifying the Equal Rights Amendment as part of the Constitution, as ERA advocates demand Ferriero publish the amendment before he retires.

 

In a letter dated February 8, Sens. Rob Portman of Ohio, Ron Johnson of Wisconsin and Mitt Romney of Utah wrote to Ferriero, seeking his "reassurance" that he won't act on the ERA "until it has been properly ratified and legal questions regarding such ratification have been resolved."

Backers of the ERA have been pressuring Ferriero, who's set to leave office in April, to publish the ERA as the 28th Amendment to the Constitution as part of his ministerial duties, arguing that it has satisfied all the necessary constitutional requirements and in fact took effect last month. However, key legal questions remain unresolved such as whether states can rescind ratifications of an amendment and if Congress has the power to lift a deadline retroactively.

 

Click on the link for the full article

[philibusters]

A second issue is whether a state can revoke its ratification.   6 out of the 38 states that ratified it revoked their ratification before the 38th state approved.  If you discount those 6 states, only 32 states have ratified it.

 

Ultimately I think it will be good for this to go to the Supreme Court.