Constitution

ERA Now?

|The Volokh Conspiracy |

Virginia has now become the 38th state to vote to ratify the Equal Rights Amendment, which arguably crosses the ratification threshold set out in Article V of the U.S. Constitution for constitutional amendments. And so, Virginia has forced us to think seriously about the question of how the Constitution can be validly amended.

Back in June of 2018, as the National Organization for Women was gearing up a campaign to push the ratification of the ERA over the finish line, I argued that the effort was misguided and that the states should properly consider the proposed amendment dead and no longer available for potential ratification. Although the Virginia legislature apparently disagrees, I still think the ERA has not been properly ratified and should not be considered to be part of the Constitution.

There are a host of issues here. Some are purely procedural. The Office of Legal Counsel has recently issued an opinion concluding that the ERA is dead. The key issue for the OLC is whether Congress has the authority to set a time limit on the ratification of a constitutional amendment, which Congress purported to do in the case of the Equal Rights Amendment. When Congress voted to adopt the ERA in 1972 and send it to the states for potential ratification, it conditioned its approval on a seven-year ratification deadline (Congress subsequently voted to extend the deadline to the summer of 1982).

This is consistent with the relatively modern practice by which Congress has attempted to limit how long the ratification process can take. The text of the Constitution provides very little guidance about the ratification process and says nothing about whether or not Congress can set a deadline on the process. The OLC says that it can, and the national archivist, who is tasked with registering a successful ratification, has deferred to the OLC. For the moment, the executive branch of the federal government at least has concluded that the ERA has not yet been ratified and cannot be ratified in its current form. (Even if the OLC is right about the initial deadline, there is a further interesting question of whether Congress could now vote to further extend the deadline and retroactively validate the tardy ratification votes.)

Some issues are conceptual, and those were the focus of my earlier post. Why do we have this kind of process for revising the Constitution and what are the implications of this design? Ultimately, I think Article V is best understood as creating a supermajoritarian process of democratic deliberation on constitutional change. It requires broad democratic agreement to change the constitutional rules. That process of democratic deliberation becomes incoherent if adoption and ratification is not more-or-less contemporaneous. Most amendments to the U.S. Constitution have taken about two years to be ratified, and nearly all of them have been adopted well within the seven-year limit set by Congress when it adopted the ERA. The singular outlier is the Congressional Pay Amendment, which was adopted by the First Congress and was recognized as successfully ratified in 1992. The Office of Legal Counsel (mistakenly in my view) accepted the Twenty-Seventh Amendment as validly ratified.

Now the ERA would be the only other example of a constitutional amendment that was adopted through a multi-generational process of ratification with votes separated by decades. It might be the case that there is currently a national supermajority to adopt the ERA, but we have no idea if that is true. In truth, we are effectively adopting the ERA on the basis of the votes of three state legislatures that responded to the new NOW ratification strategy that presumed that the ERA was not dead after all. Swept under the rug are the state legislatures that subsequently rescinded their ratification votes and those that conditioned their own ratification votes to the original congressional deadline. NOW would prefer to play the game of "heads I win, tails you lose" with the constitutional amendment process.

Finally, this unorthodox ratification process also raises interpretive issues. At least with the Congressional Pay Amendment we had a clear technical rule that raises very few interpretive quandaries. Legislators in 1789 and 1992 both understood themselves to be adopting the same rule. No one can confidently say what constitutional rule the ERA embodies. It does not embody a straightforward technical rule. It references deeply contested political principles, and there is little guidance about which potential principle is actually being enshrined in the Constitution through the language of the ERA.

Some urge that it should simply be adopted for the sake of political symbolism. That's fine if we can all agree that it has no legally consequential effects, but I suspect those who say today that this is just symbolism will say tomorrow that it has consequences that courts should enforce against democratically elected legislatures. Perhaps we should just think that the ERA is a cypher that effectively delegates to federal judges the authority to make up and enforce whatever rule they want in the name of gender equality. That might well be the practical effect of accepting the validity of the ERA. For those who might generally favor originalism as the proper guide to constitutional interpretation, the ERA is an interpretive nightmare. An amendment that was initially proposed to alter a legal environment that has not existed for decades in the United States but that is somehow still seen as necessary by current proponents hardly has an obvious public meaning. Perhaps we should just think that Congress and the states have now endorsed the U.S. Supreme Court's 1971 decision of Reed v. Reed?

If we think there is a serious need for the ERA and genuine support for it in the contemporary United States, then there is a ready solution—draft a new amendment, push it through Congress, and send it to the states. If we think that the ERA could not currently be adopted and ratified in a reasonable amount of time, then perhaps we should not be eager to say that the ERA is part of the Constitution because exactly three states legislatures have endorsed it since Jimmy Carter was in the White House.

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  1. ” It might be the case that there is currently a national supermajority to adopt the ERA, but we have no idea if that is true.”

    It is in fact extraordinarily unlikely that there is such a supermajority, and virtually certain the ERA’s backers don’t think there is. If there were such a supermajority, they wouldn’t need to try to ressurect a dead amendment and ignore rescissions. They could just have it reissued by Congress and ratified afresh, removing all doubt about the legitimacy of the process.

    They don’t because they can’t, and THAT is evidence for the lack of current supermajority support.

    Finally, a word about the sort of supermajority required here. Achieving a supermajority of states ratifying, or a supermajority of members of Congress originating, does NOT require supermajority support among the public. It simply require a modest majority that is well distributed.

    If 51% of the public, uniformly distributed, supported the ERA, 51% of every legislator’s constituents would support it, and it would be reissued and ratified by virtual acclamation.

    The supermajority requirement doesn’t require overwhelming public support, it just requires that support not be geographically restricted.

  2. Lest we forget, the process was developed at a time when the job of the Senate was to represent the states, not the general electorate.

    1. Amendments in general increase the power The People grant to government. The supermajority makes sure most think so, not just a bare majority. This is much more important than prosaic lawmaking. This is lawmaking of the lawmaking.

      Any amendment’s approval should thus be very clear to all involved so you can’t sneak something through. This isn’t. Ergo, dead, by first principles of not letting the powerful get away with things sneakily.

      That some are suggesting it is just a principled redundancy of no consequence anymore due to changed attitudes and laws, “so don’t be afraid”, should make you very afraid. More sneakily.

      1. Amendments neither increase nor decrease government power, necessarily. But this one plainly decreases government power, since it places limits on what governments can do.

        1. On the contrary, while Section 1 of the amendment serves to limit state and federal power, Section 2 clearly allocates to Congress additional power. Given some of the hijinks Congress has gotten to with other amendments having that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” language, you have to have at least some concern what Congress might do with this one.

          1. Under current law, which is wrong (Flores), Section 2 only allows Congress to prohibit laws to the extent they violate Section 1.

  3. I’d like to see an argument explaining why, in the context of the existing 14th amendment, the ERA is more than a virtue signalling redundancy, functionally worthless, and should be excluded from the Constitution as a matter of good taste, if nothing else.

    1. Under “originalism” that’s easy: the 14th amendment wasn’t intended or expected to require equal legal rights between men and women, and had no problem with federal or state laws treating men and women differently in any context.

      Outside of “originalism” that’s still easy. Originalism exists, and is a threat to current legal interpretations of the Constitution and, if that theory, or other theories that do not hold that the 14th requires equality before the law, should take hold of the nation again, current interpretations are not sufficient. The ERA, while not a silver bullet, would be an important stop-gap to such future events.

      1. It would be much more helpful if you explained what you mean by originalism, especially when you use it in ways that many self-proclaimed proponents or adherents don’t recognize.

        The 14th amendment on its face mandates equality of the sexes, the only way to read it otherwise is to posit that there are fundamental differences in the sexes that require different treatment to ensure equal application of the law. A law that says “it is a felony to bleed from your crotch for more than 2 days and not die” is facially equal, but there’s a material difference between the sexes that mandates a different application of the law to ensure equal protection of the law. This is the (general) originalist position, and explains many historical inequities not from changes in the law, but from changes in the facts – many people long ago (and not so long ago) believed false facts and so came to the wrong interpretation of the law. But had they known the true facts they would have applied the law then as an originalist would apply it today (or at least that’s the claim).

        The alternative claim you seem to be advocating is not originalism, but a caricature of it that may be better described as static-ism – the facts don’t matter, only a persons opinion at a point in time.

        1. The 14th amendment on its face mandates equality of the sexes […]

          Which is why women’s suffrage wasn’t necessary.

          But had they known the true facts they would have applied the law then as an originalist would apply it today (or at least that’s the claim).

          Yeah, this kind of sophistry only persuades originalists. To everyone else, “if they had agreed with me, they would have said what I’m saying now” is obvious self-serving nonsense.

      2. You seem to severely misunderstand originalism.

        1. Most originalist adhere to the original public meaning of the words used in legislation or constitutional provisions. Intended or expected application is typically rejected as irrelevant, except to the extent it sheds light on the original public meaning.

          1. To be clear, what part of the “original public meaning” of the 14th Amendment supported equal treatment of women?

            And how to you reconcile this “original public meaning” with the fact that they didn’t support equal treatment of women?

    2. A simple difference is that the Supreme Court applies intermediate scrutiny to sex differences, not strict scrutiny as it does for race. While the difference is less than originally envisioned, there remain a number of cases upholding various laws under intermediate scrutiny, in some cases pointing out that the result would have been different under strict scrutiny.

      The ERA would likely result in applying strict scrutiny and changing the result in these cases.

      Moreover, while some of the issues presented as “parade of horribles” issues that might be ordered by the courts if the amendment were passed, like gay marriage, were in fact subsequently ordered by the courts based on the 14th Amendment alone, And others (like gender-integrated military units) were adopted by legislation, still others, like requiring gender-integrated bathrooms and gender-uniform dress codes and drafting women into the military, haven’t been adopted yet (at least as a nation-wide mandate for bathrooms and dress codes) and could still be affected by the amendment’s passage.

  4. For those who might generally favor originalism as the proper guide to constitutional interpretation […]

    … this is no problem, because they’re already used to claiming that “originalism” allows them to say “so they didn’t mean to apply this to the states, but if they had, this is what they would have thought […]”, since Incorporation doesn’t appear until the late 1800s and wasn’t part of the original intent, meaning or text of the Constitution.

    So given that “originalists” are already adept at those mental gymnastics, keeping a foot in the 70s and 2000s to understand the “original” meaning of the ERA should be easy.

    1. Again more caricature.

      Originalists don’t ask how the founders thought the first amendment applied to the states, they ask, “did the ratifiers of the 14th amendment intend the protections of the prior amendments to apply to the state? If so, what are those things protected against the federal government, and what is their state level analog?”

      Most originalists say yes to the first question, and we know those as the privileges and immunities of US citizenship. Then the question in any case is: is the state doing something that was explicitly prohibited to the federal government? If so, they are also prohibited from doing it.

      1. Originalists […] ask, “did the ratifiers of the 14th amendment intend the protections of the prior amendments to apply to the state? If so, what are those things protected against the federal government, and what is their state level analog?”

        Yes, that’s what I said.

        I’m just being more condescending about it in pointing out how absurd the whole deal is.

  5. has anyone written anything up about what the practical implications of this would be? especially from the ‘pro’ side

    1. Keeping in mind that the results of reading the ERA into the 14th amendment have been to implement the nightmare scenario warned of by the ERA’s opponents, and vehemently denied by its advocates? And had that result due to advocacy by many of the same people who supported the ERA then, and support it now?

      I don’t think I’d particularly trust the ERA’s proponents to be honest about what they hope to get out of it.

      1. Even if your concerns end up being correct, it would be helpful and informative to get a list (of likely results) from both the pro-ERA side and the anti-ERA side. At the very least, we’d be reasonably confident about the things both sides agreed upon as likely to happen.

      2. Keep in mind, though, that what seemed a nightmare scenario in the 1970s is now culturally mainstream. The culture wasn’t ready for gay marriage in the 1970s; it was by the time of Obergefell. Ditto gays in the military. Ditto unisex bathrooms. So arguably the almost forty year delay served to prepare the country for what was eventually inevitable.

        1. “Culturally mainstream” among those in positions of power, merely acquiesced to by everybody else due to a proven inability to stop it, and the demonstrated personal risk of speaking up against it. By the time the Obergefell ruling came along, the judiciary had already imposed SSM on the country in the teeth of repeated democratic votes attempting to stop them. The Supreme court just came and endorsed the victory already won over the corpse of representative government.

          Like this tranny stuff. Almost everybody thinks it’s insane, but the people who don’t are in positions of power and influence, and are successfully ramming it down our throats.

          1. Surveys indicate differently. The public really does change its positions and normalize things.

            In other words: you are not everyone.

            1. Surveys clearly show that the “change in public” opinion followed the courts’ imposition of SSM, it did not precede it.

              And no survey I’m aware of shows support for the tranny cause.

              1. What exactly are you pointing at as the “tranny cause?”

                I don’t know many who object to the rule “don’t be a dick” (heh) in general, but maybe you mean a follow up from what Canada did in criminalizing the use of pronouns?

                1. I’ll try this one. Brett B appears to be talking about the current “tranny agenda”, which goes something like this.

                  1. Trans people have the right to be regarded, for both legal and social purposes, as belonging to the sex they choose as their “gender identity” regardless of their actual body parts, either original or current.
                  2. Anyone calling them on that pretense, or who declines to use the trans person’s chosen pronouns, is guilty of illegal discrimination. And making fun of them is right out.
                  3. The trans person is entitled to use bathrooms and locker rooms reserved for his chosen gender. The tranny’s feelings trump everyone else’s body modesty.
                  4. In sports that are segregated by sex, “trans women” are entitled to compete as women.
                  5. In employment, student admissions, and any other activity where discrimination is an issue, the tranny is entitled to benefit from “affirmative action”, either as if they really were their chosen gender or as a category all to themselves.
                  6. Trannies may conceal their status in order to obtain sex.

                  I agree with Brett in not supporting this agenda, and in believing that most Americans don’t support it either.

          2. Brett, your objections would be far more persuasive if you were also arguing to abolish the electoral college and the two senators per state regardless of population. But no, the only time you care about anti democratic results is when it’s the judiciary. Well guess what: if conservatives can use the electoral college to achieve anti democratic results, liberals can use the courts.

            1. That’s because I’m not so much concerned about “anti-democratic” results, as I am “anti-rule of law” and “anti-liberty” results.

              And the difference between achieving “anti-democratic” results via the electoral college, and via the courts, is that the former is constitutional, and the latter not.

              1. And the difference between achieving “anti-democratic” results via the electoral college, and via the courts, is that the former is constitutional, and the latter not.

                So your problem is with Marbury v. Madison (1803)?

                I think your problems are a bit bigger then the ERA.

                1. I think it’s more that his problem is that Marbury has no inherent limit.

                  Case or Controversy clause? No worries, we’ll just ignore it and issue ex party rulings with neither plaintiff nor respondent.

                  If Marbury is always right as you’re using it then there is no end to judicial power, only things they haven’t yet seized, so it’s pretty clear that to some extent Marbury is wrong at least when the courts rule outside of the constitution or legislation. The question really is: how do we know when they’re so far outside the law that they’re no longer a judiciary?

              2. Meh. The electoral college would be unconstitutional if it hadn’t been written into the text of the Constitution itself. I think there’s an argument to be made that the Fourteenth Amendment rendered the electoral college unconstitutional, though I doubt a majority of the current Supreme Court would agree with that.

  6. Does the Constitution provide authority for Congress to restrict the timeframe for an Amendment to be adopted?

    Last I checked, no.

    The threshold is simple: 3/4 of the States. There is no time-limit.

    1. Article V does, at least for the ERA. It gives Congress the authority to propose an Amendment, which it did. The proposed Amendment was either not ratified (as per its terms the deadline for ratification expired) or it was ratified but is not yet “valid” (and can never become valid).

      SCOTUS held in Dillon v. Gloss 256 US 368 (1921) that Article V does not require that amendments, once proposed “be open to ratification for all time” and that “ratification must be within some reasonable time after the proposal.” (More on that in a moment.) Additionally, the Court held that Congress has the authority “to fix a definite period for the ratification”.

      In Coleman v. Miller 307 US 433 (1939) the Court abandoned the judicial requirement of a “reasonable time” after proposal. But it reaffirmed that “Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment”. And since Congress has internalized that the ERA is dead by its terms, there’s no constitutional impasse on this issue.

      The law today is that Article V authorizes Congress and Congress alone to determine the appropriate time period for ratification of its proposed amendments.

      1. Thank you for your input, and specifically for citing the cases.

        Considering the text of the Constitution makes no mention of this authority, I’m curious to read the rationale for inventing such.

        1. In Dillon the rationale was similar to above, and judicial deference to the Constitution’s silence on the question of time, and its delegation of this power to Congress (rather than to SCOTUS). For the rationale above:

          “Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.”

          On deference, SCOTUS has almost always deferred to Congress on constitutional matters where the Constitution vests power to Congress in general terms. The “subsidiary matters of detail as the public interests and changing conditions may require” is left to Congress.

          In Coleman, the Court just extended the latter argument to eat the former. Congress can propose amendments however it wants, and if it doesn’t put a time limit on them, SCOTUS isn’t going to get involved. That’s for Congress to decide. It’s a pretty classic instance of political question ducking, since there’s nothing in Article V that would guide SCOTUS in deciding “reasonable” time anyway. That’s for the people to decide, through their representatives.

          1. The question is whether SCOTUS’s deference to Congress refers only to the Congress proposing the amendment or also to all subsequent Congresses. The political question doctrine ain’t what it used to be. SCOTUS is now much more willing to decide the ratification issues regarding the ERA than it was regarding the Child Labor Amendment when Coleman was decided.

            1. SCOTUS will stay out of it, or enforce the proposal’s terms. In either instance it is deference to Congress, since the earlier proposal remains the one that was actually ratified.

              1. And the earlier proposal is self defeating, so if it’s been ratified then by its own terms it has no active clauses since the conditions within the amendment for it to do anything never occurred, and can no longer occur.

                For it to do anything you’d have to read out the conditional, “Congress can only do X when Y” and you’d have to say that Congress can always do X regardless of Y.

          2. It would seem to me that, if a State which had previously ratified a proposed Amendment changed its mind before the 3/4 threshold was reached, that the appropriate Constitutional course of action would be for that State to vote to nullify its previous ratification.

            SCOTUS’ version appears to give Congress Constitutional power to set deadlines for the Amendment process which the Constitution itself did not explicitly grant. SCOTUS and other courts have struck down laws which attempted to expand requirements for positions such as President, Senator, etc. as attempting to usurp Constitutional authority on the matter, yet in these cases they decided that Congress could, in fact, add requirements to the Amendment process.

            That doesn’t strike me as consistent, and obviously I’d argue that a decision which conforms to precisely the text of the Constitution (and would work) is better than one which requires reading between the lines and conjuring up authority not mentioned in the Constitution itself.

            The text says “…when ratified by the Legislatures of three fourths of the several States…” That sounds good enough to me.

            1. What about rescissions and ratifications that contained sunset clauses? If ratifications are political questions, then the latter half of Article V is meaningless. Congress could propose an amendment and then deem it to have been ratified by three-fourths of the States.

              1. If the ERA is successfully forced through on the terms of the promoters, that will be the next step, I expect.

                1. This is quite doubtful, and makes you look foolish.

                  1. You’d likely have said the same back during the 1970’s, if I’d said, “40 years after this amendment expires, its proponents will claim they can still ratify it.”

                    The left always denies every next step, until it takes it, and then it had always been obvious all along.

                    1. How much of it is really that, specifically?

                      I’d expect that most of the proponents 40 years ago are long since gone from the current effort, so is it right to blame them? What if, now that the pattern is pretty clear, those 40 years ago actively thought that they could truthfully deny such an intent while knowing that the following generation would pick up their fight and not honor their predecessors commitment? What if they didn’t even think about it?

                      Here at least many groups on either the right (anti-abortion) or freedom side (Gun Owners of America) are upfront of their intent (no abortions, or maximal liberty regardless of the cost, respectively), though I’d expect there are other groups that are less honest about their goals.

            2. First, many states have attempted to “nullify its previous ratification”. Nebraska, Tennessee, Idaho, and Kentucky’s state legislatures all voted to retract their ratification. Other states, like South Dakota, made it clear that their ratification “sunsetted” as of 1979.

              Second, that ducks the issue. The states can’t ratify part an amendment. The states that did ratify the ERA ratified the part that said it died by its own terms in 1979. So Illinois’s 2018 ratification doesn’t change anything. They’ve ratified an amendment that by its own terms did not meet the conditions for becoming “valid”.

              The Constitution (not SCOTUS) is the one that gave Congress power to set deadlines for amendments. The reason SCOTUS declined to let Congress “expand requirements for positions such as President, Senator, etc.” is because those attempts were contrary to the plain terms of the Constitution. If the qualification for President says 35 years of age, Congress can’t lower it to 34. Even imposing more stringent requirements may be beyond Congress’s power, since Article II Section 1, subpart 5 doesn’t give Congress the power to alter it. (The preceding and subsequent subparts specifically do authorize Congress to do things.)

              1. Just for fun: does that mean that the amendment should be added, but have no operative clauses? Or not be added at all?

            3. Last point:

              “The text says…”

              …that Congress “shall propose Amendments”. Congress gets to make the proposal. Do you agree that Congress can choose the language in the proposal? And why would the limits of that language arbitrarily apply to the substance of the amendment but not other requirements (like timing)? The only constitutional limit is that Congress cannot set an amendment that is ratified with more or less than “three fourths” of the states ratifying.

              1. The amendment says nothing about a deadline. Congress may have set one, but the states that ratified it ratified an amendment without a deadline.

                1. No they ratified a proposed amendment with a deadline.

              2. The amendment says nothing about a deadline. Congress may have set one, but the states that ratified it ratified an amendment without a deadline. And there’s the rub. Ignoring for the moment the states that changed their mind, there are 38 states that have approved the amendment with the original wording. If Congress tomorrow passed a law removing the time limit, and the President signed it (more likely if Trump loses re-election), would the ERA immediately become law?

                1. The resolution originating the amendment IS the amendment, for constitutional purposes. There’s no separate vote on the amendment itself and the resolution, the whole thing has to pass on one vote, with the supermajority.

                  And the resolution, thus the amendment, had a time limit.

                  Congress can’t vote to extend the time limit, because the original amendment had the time limit, and Congress has no power to alter amendments once originated. Congress has no role in the amending process AT ALL once they’ve originated the amendment.

                  Ratification is entirely a state matter, not Congressional, once the amendment is originated. So it’s up to the states, not Congress, whether they can rescind.

                  In as much as the purpose of requiring ratification votes is to measure support, and ignoring rescissions can result in amendments being ‘ratified’ that don’t actually at any time have the necessary level of support, rescissions should be permitted.

                  You can imagine Congress originating an amendment. One state ratifies. In the next election every legislator who voted to ratify loses their seat, and the new legislature rescinds. Rinse and repeat 38 times.

                  Does it make sense for an amendment that never had more than one state supporting it at any time, and has a supermajority of states on record opposing it, to be considered ratified?

            4. If Congress does not have the power to limit the time for approval, that’s fine, but you can’t retroactively go back and add an amendment under false pretenses. Again, We The People cannot and do not allow the powerful to sneak through increases to their power.

              If they goofed up, they have to try again, clearly. You don’t get to amend the Constitution through trickery.

    2. There’s no inherent time limit. If Congress originates an amendment which says, for instance,

      “The first ten amendments to the Constitution, known as “The Bill of Rights”, shall have a leading, “Simon says, ” added to them. This amendment shall only be valid if ratified within ten years of its origination.”

      If Congress does this, and the states ratify after 11 years, the amendment itself says that it isn’t valid. And it’s a valid part of the Constitution, including the time limit, ergo it’s not a valid part of the Constitution if ratified after the time limit.

      So, logically, Congress can include time limits if they are part of the amendment. And having done so, any subsequent vote by Congress is irrelevant, because a separately voted measure would not share the same “valid part of the Constitution” property unless itself originated and ratified by supermajority. As the alleged extension of the time limit for the ERA was not.

      The only real question here is whether a time limit in the resolution originating the amendment counts. I would say, yes, but only so long as they were voted on as a unit, not separate votes.

  7. The Constitution doesn’t restrict what the Congress can do, it only restricts what it CANNOT do. It says nothing about resticting amendment time frames, so obviously, any or no timeframe can be set for ratifications.

    1. The Supreme Court says otherwise (Dillion v. Gloss; Coleman v. Miller). The ERA was proposed with a time limit, which the Supreme Court in Miller said is valid whether in the amendment’s text or in its accompanying resolution. Many members of Congress who voted for the ERA insisted on the inclusion of a time limit (as introduced, there was none).

      If we are now going to say that no time limits may be placed on ratification, then the ERA should be void for being unconstitutionally proposed. The time limit is not severable from the rest of the proposing resolution.

      Also keep in mind that most States that originally ratified either rescinded their ratifications and said their ratifications would be invalid after the original time limit (March 22, 1979).

      1. I think you did not read Bob in SeaTac’s comment very carefully. He’s saying Congress can set a time frame.

        1. He makes good points, though. No trickery allowed.

    2. I don’t have a firm answer as to this particular question but your opening sentence is dead wrong. The Constitution is one of limited powers. It tells the government (federal) what it can do. If it isn’t given it is reserved to the states (10th Amendment)

      1. First, when Article V was amended there was no 10th Amendment. Second, the 10A doesn’t apply to Article V. Proposal and ratification of amendments is “delegated to the United States by the Constitution” under Article V. (It is also delegated to the states, partially.) Where the Constitution delegates power to the United States, the limits on that power are only what the Constitution prohibits.

        1. “First, when Article V was amended there was no 10th Amendment.”

          I’m not sure what you think that implies: Amendments amend. They change.

          You’d actually have a stronger argument that the 10th amendment doesn’t apply to Article V if Article V had been adopted after the 10th amendment!

  8. The Corwin Amendment (guaranteeing the rights of states to maintain slavery as an institution) did not have a timelimit. If a stealth strategy resulted in the requisite number of states ratifying it, perhaps over another century, would it be come law and supersede the current 13th, 14th, and 15th Amendments?

    1. The answer might be yes, since the 26th Amendment was successfully ratified after 203 years.

      Though there might be questions about its efficacy. The Corwin Amendment says no amendment “shall be made”. Since the 13A would predate a revived Corwin Amendment, it would have no effect on the 13A. Even if the 13A postdated the Corwin Amendment, it would only void Section 2 of the 13A. The Corwin Amendment only bars amendments to the Constitution that authorize Congress to interfere with or abolish slavery. Section 1 of the 13A bans slavery outright throughout the country. (It is only Section 2 that authorizes Congress to do something about it.)

      1. Can Parliament permanently bind future parliaments? Answer: no.

        Can an amendment permanently forbid future amendments: Similarly, no.

        It isn’t a patritian statement but rather a recognition of the inalienability of the sovereign power of The People to alter the Constitution. They can set up rules about it, but not forbid in its entirety.

        Amendment 57: This amendment cannot be repealed.

        Amendment 58: Amendment 57 is hereby repealed.

        Done.

  9. Can someone (briefly/succinctly) explain the case against the ERA, and against. The substantive cases for and against the amendment itself – not the constitutional ratification question.

    1. I mean – against and FOR. 🙂

    2. I started trying to draft a response but it cannot be done without making the FOR or AGAINST arguments sound like parody. Nobody knows what will happen if the ERA is ratified, because it will be interpreted by SCOTUS for the next hundred years. And without knowing what it will do, you can fill in the gaps with anything. From the anodyne (promoting “legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability”) to the hyperbolic (“essentially enshrine a radical view of gender” whatever that genius thinks it means).

      It’s just another culture war mountain in which the two sides project whatever they hate onto the other side. If you support it you want women to get conscripted and fight in wars. If you oppose it you want women to be slaves.

    3. I would be okay with the ERA if it actually did what it said it would do. More likely however it’d be another tool for this limbo state we’re currently in where everybody is supposedly equal but all anybody cares about is whining by radical feminists so they effectively become the privileged class because all the laws passed address only their concerns. Plus this would open the gateway to even more intrusion on private and individual liberty with quotas and more redtape and mandated brainwashing and money for scumbag lawyers. Basically what ends up happening everytime progressives get their way.

    4. OK, I’ll give it shot and try to play it straight.

      On the for side, there was one very general moral argument, that of course women deserve equality. The specific arguments were where it got tricky. In particular, a common one was that it would equal pay for equal work in industry, and eliminate discrimination in private hiring, despite the fact that the text applies only to state action.

      On the against side, the most common arguments had an element of traditionalism in them. Some straight up defenses of traditional roles for men and women, but mostly things like maintaining segregated facilities, and not subjecting women to the draft.

      However, there was also suspicion about the lack of alignment between the text and supposed results. For example, the claim that it would apply to private industry, simultaneous with the claim that it would not apply to government funded sports teams and restrooms.

      1. Existoid: I interpreted your question as what arguments were made back when it was under active debate in the mid 70s.

  10. I believe this is the text of the amendment.

    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.

    1. Yes, that’s what I found on Wikipedia. What is the problem with it?

      1. Well, should it become part of the Constitution, Congress becomes constitutionally entitled to enact any law they can make an even somewhat laughable case is related to preventing sex discrimination. That’s blowing a pretty big hole in federalism and individual rights: The states won’t be permitted to have their own opinions as to what constitutes such equality.

        The courts tend to be VERY lenient about what qualifies as “appropriate legislation”.

        1. This may surprise you, but the lack of an ERA didn’t stop congress from passing the Equal Pay Act, or any other piece of legislation aimed at preventing and redressing sex discrimination.

          So the problem you’ve identified is, if it is a problem, a problem regardless of the ERA.

          1. So, it would give them even more excuses to engage in current abuses, with less restraint.

            1. Exactly.

              A republican administration might pass the “guns for everyone” mandate, because women tend to be physically weaker any state that forbade carrying a firearm would be abridging equality of rights under the law on account of sex (because men need a force multiplier less than women do).

              The next democrat administration then repeals it, and passes the “no guns for anyone” mandate because women get hurt by guns.

              A bit of self parody here, but that’s the sort of problem with a wide ranging mandate to do good, rather than a prohibition on government doing bad.

  11. An important point is that Virginia appears to have shed its slack-jawed status.

    Clingers hardest hit.

    1. Are you so sure that the very religious catholic hispanics are going to be aligned with your freshman at oberlin view of gender (or race for that matter)? 🙂
      Look, youll win on several fronts: tearing down key tenets of anglo american law, banana republic economic policies. But I wouldnt be too confident that hispanic or (probably incoming soon) middle eastern or african immigrants will be that amenable to your liberal arts school social views

      1. Conservatives have influenced this situation by engaging in bigotry toward Hispanics. How many Hispanics are going to be receptive to the arguments of bigots who targeted them?

        1. I remember the left being shocked, shocked prop 8 passed in California because of all the bitter, hateful Catholic latino clingers.

          Your world of interpretation.

          1. What is your world of interpretation? In that world, do conservatives win the culture war? Have they been winning all along (for the most recent half-century or so), or did the tide change recently, or is the pivot point approaching?

            Are tolerance, reason, inclusivity, science, modernity, education, and the like advancing against backwardness, ignorance, superstition, bigotry, and dogma — or are they diminishing in our society? Will that change soon?

            Will Americans arrange a return to gay-bashing; voter suppression; creationism in science classrooms; misogyny; prohibition of abortion, contraception, gay marriage, and doobies; school prayer? Elimination of environmental protections, Medicare, consumer protections, Social Security, immigration, school lunch programs, and Obamacare?

            Thank you.

  12. the era would essentially enshrine a radical view of gender (unique to one side of the spectrum, the majority of its electoral supporters probably wouldnt even back their view) which ignores obvious and well-researched biological/psychological differences.

    It should be rejected if only as a middle finger to the third wave feminists, making it clear that they dont get to entrench their garbage ideology into law

    1. @sam123

      I agree that male and females have biological/psychological differences. But why would that be the basis for NON-equal rights under the law? Pretend I’m dumb and literally don’t know anything about this stuff. 😉

      1. If you are forced to apply strict scrutiny due to ERA it would imperil policies that recognize gender differences in key areas (tests for military, sex segregated bathrooms etc.)
        Some will laugh and say that this is a “Parade of horribles” but they wont tell you why the parade wouldnt happen.
        Any guarantees theyd make would be cold comfort. They chided those opposing gay marriage who were concerned that theyd be forced to in any way support the institution, assuring them that they were being paranoid. But look what has happened. Some people dont ever compromise, they just want to humiliate the outgroup forever.

        1. “Some people dont ever compromise, they just want to humiliate the outgroup forever.”

          Setting aside that permitting gays to marry does not require anybody to “support the institution”, I like how “outgroup” here means “those opposing gay marriage” without any concept that prohibiting gays to marry is itself a way to “humiliate” some different “outgroup”.

          1. Recognizing the historic nature of an institution doesnt constitute humiliation. (I would vote for it if my state held a referendum but you know in your heart of hearts the legal argument for constitutionalizing gay marriage was horseshit, and opens the floodgates for all sorts of unenumerated rights revivals. Lochner anybody :))
            And yeah people are being forced to support the institution (eg: masterpiece)

            1. Not recognizing polyamorous marriages, for example, isnt humiliation. Maybe it is an interesting policy question, but it isnt comparing like and like

              1. The state says a black and white person are not allowed to get married. This is not a humiliation, in your view? Of course banning polygamist marriages is humiliation towards polygamists. So are laws criminalizing polygamy. That’s the point. At the very least, it interferes with the rights of polygamists at least as much as an antidiscrimination law prohibiting religious people from discriminating in the sale of goods and services to gays, polygamists, etc.

                1. The difference is that man-woman was actually part of the MEANING of “marriage”. Historically, men have married women, women have married men, with variants where a man married more than one woman, (But if the man died, the marriage was over, because the women weren’t married to each other.) and rarer variants where a woman married more than one man. (Ditto.) Arranged marriages, variations in the age to qualify, bars on marriage between close relatives, all known variants.

                  But, man marries man and woman marries woman was legal nowhere and no when, up until 2001 in the Netherlands. It was so off the wall that it didn’t even occur to anybody to bother stating it in the law! SSM just didn’t fit within what the word “marriage” MEANT. You might as well say that marrying a toaster is legal, because the law didn’t bother saying marriage was restricted to people.

                  By contrast, interracial marriage was recognized AS marriage, and was actually fairly common, common enough that where people didn’t like it, they explicitly outlawed it. And that interracial marriage would have to be legal was a predicted consequence of the 14th amendment, discussed during ratification debates, and immediately implemented by the lower courts before the Supreme court set out to render the 14th amendment a dead letter.

                  It didn’t come out of the blue like SSM.

                  1. SSM just didn’t fit within what the word “marriage” MEANT.

                    I have never run into a single person that was at all confused by what my marriage “meant”. Some don’t like that we’re married, but no one has ever been confused. Even little kids understand just fine.

                    That said, your argument against SSM basically boils down to “but tradition!”, ignoring that the “tradition” for most of American history was that two men or two women trying to get married would have been grounds to throw them in prison using sodomy laws.

                    As far as “out of the blue”, gay folks have been trying to get married in the United States since the first state did away with it’s sodomy law. And even before then, we’ve been having non-legally-binding ceremonies that were easily recognizable as “marriages”, and doing what we can with the legal system to secure the rights and responsibilities.

                    It was only “out of the blue” if you ignored that gay folk existed. Which, admittedly, most of America tried to.

                  2. Man-woman was also a part of the meaning of “voter” at one time. And of “property owner.”

                    Those times were the “good old days,” in the judgment of some.

                  3. This is a stupid argument. The acceptance came from somewhere, originally. Straight marriage and miscegenation came “out of the blue” at some point. If you think they should not have (or gay marriage should remain illegal) make your case.

            2. First, when you are talking about “[r]ecognizing the historic nature of an institution” you mean denying to gay couples the substantive legal rights afforded to people who have not-gay marriages. You may not think this is “humiliation” but it doesn’t matter. It is at least as invasive to the gay couples as the state’s equal treatment is to those opposed to gay marriage.

              Second, don’t change the subject to “constitutionalizing gay marriage”. We weren’t talking about that. We were talking about your plea for outgroup protection for those “opposing gay marriage” with no thought to the people who wanted to get gay married. Whether they have the constitutional right, or not, is secondary to whether the state should, or should not, discriminate against them in the first place.

              Third, I don’t know why you think Masterpiece has anything to do with this. Masterpiece involved an anti-discrimination law, not a law permitting “gays to marry”. There are states that do not have Colorado’s anti-discrimination laws, but still recognize gay marriage. While you could argue that Colorado’s anti-discrimination law targets an “outgroup” (people who want to personally discriminate against gays), it also attempts to protect a different outgroup. A law requiring equal treatment by the state of gays and straight people does not have the effect of humiliating any outgroup. It doesn’t require private citizens to do anything.

              1. 1. I dont think every issue that people label The Civil Rights Issue of Our Era is on par with the civil rights of blacks. If you cant recognize a distinction between prohibiting interracial marriage and prohibiting polygamy (the latter being legit) then idk what to say.

                2. That was just an aside and it speaks to the fact that those who support freewheeling substantive due process like rulings have no leg to stand on criticizing the jurisprudence of their ideological opponents.

                3. Above I discussed the reassurances gay marriage supporters made pre-2014 that those who opposed the institution wouldnt be forced to support it in anyway. Cases like Masterpiece show that to be a lie. The law (as applied by the antidiscrim commission) forces the baker to lend his artistic abilities to an institution which he has legitimate (legally legitimate per Justice Kennedy) reasons to be op-osed to. (and not every situation is on par with that of blacks and civil rights, the moral arc doesn’t bend towards whatever your policy preferences are)

                1. 1. The issue is not the difference between miscegenation and polygamy. It’s the difference between miscegenation and gay marriage. If you’re not willing to articulate (beyond “historical”) why you think anti-miscegenation and anti-gay marriage are morally different, I’m not going to waste time arguing with you. I’d rather you just tell me what it is you think is objectionable (or not “legit”) about gay people getting married, so I can respond to that.

                  2. The original discussion was not about “freewheeling substantive due process”. Neither is your side bar about Masterpiece. In fact that’s a weird sidebar to make if your enemy is “substantive due process”, since Masterpiece was a decision enforcing substantive due process on behalf of a religious objector. And if the case had gone the other way, it wouldn’t have had anything to do with “substantive due process” since exactly nobody has argued that the 14A requires Colorado’s private anti-discrimination law. I think you’re confused about what Masterpiece held and are making category errors.

                  3. Your timeline is all fucked up. The law at issue in Masterpiece was enacted in 2008, long before Obergefell or legal gay marriages in Colorado. Colorado’s anti-discrimination law has nothing to do with whatever “reassurances” you think you received from “gay marriage supporters”. As to moral arcs, you’re right, they bend towards moral ends. My position is that it is morally impermissible for the state to discriminate against gay people. The basis for my position is that being gay is as morally innocent as being black, or preferring green socks to blue socks, or believing that Jesus Christ is the savior, and so in the absence of a moral reason to discriminate, the law (and people) should not. If you think the moral arc bends towards treating gays like second class citizens, just state so and explain yourself. I’m not making the moral (or political) case for Colorado’s anti-discrimination law. You brought that shit up, not me. But: I think some ugly bigot should be allowed to not sell cakes to gay people and that the state shouldn’t prohibit gays from getting married, if it allows straight marriages.

                  1. No category errors. When I was talking about reassurances people wouldnt be forced to participate in the institution I wasnt making an argument restricted to any legal doctrine. Conservatives were (it turns out rightfully) worried that upon constiutionalization of gay marriage any number of laws would force them to lend support to the institution. This has been borne out.
                    Masterpiece was a First Amendment case. Just because you might think the activity at issue isnt within its ordinary scope doesnt somehow transmogrify it into a 14A unenumerated right substantive due process case.

                    I dont think prohibiting polygamy would constititue treating polygamists like 2nd class citizens, the same for gays. It owuld recognize that two institutions arent alike with traditional heterosexual marriage.

                    And I dont think any “moral arc” exists just to be clear. I think its ironic that some many noinal secularists are also whig historians

                    1. Conservatives were (it turns out rightfully) worried that upon constiutionalization of gay marriage any number of laws would force them to lend support to the institution.

                      Even if you want to argue that non-discrimiation laws are “forc[ing] them to lend support to the institution”, they were doing so regardless of SSM.

                      SSM is irrelevant to non-discrimination cases.

                    2. Stop changing the subject. It was substantive due process, now “unenumerated” SDP. Masterpiece is a fucking SDP case. Full stop. Leave it alone.

                      Anti discrimination laws don’t rely on SDP. States have the right to prohibit discrimination against groups even if those groups are unprotected by SDP. You keep making category errors. You plainly don’t understand the interests and rights at issue.

                      Prohibiting polygamy treats polygamists as second class citizens. So does prohibiting gay marriage. Or straight marriage. How is this a debate? If the state said straight people were legally never allowed to get married, wtf do you think the state is doing?

                2. Uppity women, uppity gays, uppity agnostics, uppity black, uppity atheists . . . If there’s anything a conservative like sam123 can’t stand, it’s all of this damned American progress.

                3. Above I discussed the reassurances gay marriage supporters made pre-2014 that those who opposed the institution wouldnt be forced to support it in anyway.

                  Elane Photography was started in 2005. The whole “selling a service is the same as support!” argument was already being refuted as bullshit in courts.

                  And importantly, it was already being done so before same-sex marriage was legal.

                  Non-discrimination laws that cover sexual orientation do not depend on or need same-sex marriage, and same-sex marriage does not force a state to adopt non-discrimiantion laws that cover sexual orientation.

                  Cases like Masterpiece show that to be a lie.

                  Masterpiece Cakeshop got started in 2012 when Jack Phillips refused to sell a cake for a reception of a marriage that was taking place across the country.

                  The legal status of SSM in Colorado was irrelevant.

                  Which is the theme you see repeated: conservatives try to blame the non-discrimination cases on SSM, but those cases often pre-date SSM, and none of them rely on SSM.

                  So no, it wasn’t a lie, you were just ignorant.

                  The law (as applied by the antidiscrim commission) forces the baker to lend his artistic abilities to an institution which he has legitimate (legally legitimate per Justice Kennedy) reasons to be op-osed to.

                  The law, as applied in anti-discrimiantion cases, doesn’t care about SSM.

          2. “Setting aside that permitting gays to marry does not require anybody to “support the institution””

            Tell florists and bakers that.

            1. We have.

              That conservatives keep confusing non-discrimination cases that got started before SSM in their states with SSM requiring anything is entirely at the feet of conservatives who are intentionally conflating the issues.

            2. The state’s non discrimination against gays has no effect on bakers or florists. You’re complaining about anti discrimination laws. Legalizing gay marriage is not an anti discrimination law.

        2. But look what has happened.

          I have.

          Have you? Specifically, have you looked at a timeline?

          Hint: Elane Photography (the eponymous “photographer” in “Bakers, photographers and florists”) got it’s case started in 2005. It had already finished it’s way through the New Mexico courts before New Mexico got SSM in 2013. It was denied cert by the SCOTUS in 2014. Obergefell v. Hodges wasn’t decided until 2015.

          Non-discrimination in public accommodation lawsuits are irrelevant to same-sex marriage, and their lawsuits have never depended on it.

          The willful conflation of the two distinct topics by conservatives is pretty transparent.

  13. The ERA would not be any harder to interpret than the Fourteenth Amendment.

    Unfortunately too many Americans would oppose the it if it were resubmitted today. Probably even more than opposed it in the 1970s.

    1. When the 14th amendment was ratified, it was assumed it would be interpreted in the manner of ordinary legal text.

      By the time the ERA came along, people were beginning to notice that the courts were using constitutional text as an excuse to legislate from the bench, and decided not to write the courts another blank check.

      1. It is true that people who thought Brown v. Board of Education, Gideon v. Wainwright, Griswold, etc., were wrongly decided, were not in favor of such a sweeping amendment. Though only a small minority of Americans were that legally knowledgeable.

        In a college class our professor cited the recent confirmation hearing testimony of John Paul Stevens, who said that passing the ERA would be mostly a symbolic gesture because existing law was enough to ensure equality. At the time I disagreed violently (being a passionate young guy) but in retrospect I think he was mostly correct.

        1. The fact that I have glass windows on my house is enough to render it possible to break into it. That doesn’t imply that it’s pointless for me to lock the front door.

        2. I was in the Stevens camp, back when. What turned me into a supporter of the ERA was listening to opponents argue against it. It helped me understand that Stevens argument was purely legal, but the opposition was so various, numerous, and vociferous that the existing law alone would never deliver equality.

          I don’t know what to make of this argument insisting that without contemporaneous ratification, the amendment fails. Are there other amendments, already ratified, which no longer enjoy contemporaneous super-majority support from the states? If so, should those amendments be in question? Does the super-majority character of the congressional amendment process pre-ratification imply a need for a super-majority congressional repudiation now, to undo the process completely?

  14. The other reasonable path to amendment is the Article V Convention already required. See Lynn M. Boughey and Honorable Bruce M. Van Sickle, “Lawful and Peaceful Revolution: Article V and Congress’ Present Duty to Call a Convention for Proposing Amendments,” 14 Hamline Law Review 1 (1990).

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