New Light on the ERA?

A long history of amending resolutions with legal effect.

When Congress proposed the Equal Rights Amendment in 1972, it specified in its joint resolution (86 Stat. 1523), agreed to by two-thirds of each House, that the ERA would become valid "when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress." Not enough states ratified before the seven years elapsed, or even before the end of a three-year extension that Congress tried to grant by simple majority in 1978. So the ERA is generally thought to be dead.

But since then, a few more legislatures have purported to ratify the Amendment anyway, pushing the total number over three-fourths. So whether the U.S. Constitution currently includes the ERA or not partly depends on whether this "within seven years" limit is legally effective—or whether it's an unconstitutional addition to the two-thirds-and-three-fourths requirements of Article V. (It also depends on whether legislatures can rescind their ratifications, as some may have done; for more on that, see Michael Stokes Paulsen's General Theory of Article V.)

While looking for something else, I recently came across some material that might shed new light on the ERA's validity. The idea of putting legally operative language in the joint resolution wasn't an invention of the twentieth century, but a long tradition stretching back to 1803 and before. Not only in proposing the Bill of Rights, but also in proposing the Twelfth and the Seventeenth Amendments, Congress included in the amending resolutions crucial terms specifying the effect of the language that would be added and the parts of the Constitution that would be replaced—terms that, as far as I can tell, courts and scholars haven't yet noticed. This tradition offers a better explanation of Congress's powers vis-à-vis proposed amendments than the twentieth-century Supreme Court decisions that dominate the modern debate. And it suggests that the ERA really is dead.

In the twentieth century, Congress occasionally included time limits in an amendment's text. For example, Section 3 of the Eighteenth Amendment states that "[t]his article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress." Over time, it switched to placing the time limits in the amending resolution's language instead—so as not to "clutter up the Constitution," as Sen. Kefauver put it in 1955.

But the history of operative language in amending resolutions goes back far beyond Sen. Kefauver. When the First Congress proposed the Bill of Rights, it specified that "all or any of [its] articles" could be ratified independently by state legislatures, rather than having to be voted up or down as a package. This binding "procedural instruction" is relatively well known in the ERA debate; the Trump Administration's Office of Legal Counsel cited it in a 2020 opinion rejecting the ERA.

What's less well known is that not long after, when proposing the Twelfth Amendment in 1803, Congress included more instructions, this time of substance and not just of procedure. The opening of its joint resolution (2 Stat. 306) read:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both houses concurring, That, in lieu of the third paragraph of the first section of the second article of the constitution of the United States, the following be proposed as an amendment to the constitution of the United States, which, when ratified by three fourths of the legislatures of the several states, shall be valid to all intents and purposes as part of the said constitution, to wit :—

The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President; and they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice President, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted: the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately by ballot the President. But in choosing the President, the vote shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice President: a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.

This "in lieu of" language wasn't just a preamble or interpretive commentary. It followed the resolving clause rather than preceding it: it was part of what Congress actually adopted, "two thirds of both houses concurring." And it specified which parts of the existing Constitution the new material suggested later on would, if ratified, replace. Anything in the original Article II, Section 1, Clause 3 was, by default, overridden by the new amendment; anything outside that clause was, by default, unaffected.

So "in lieu of" actually contributes to the legal content of the article text that the resolution proposed. Of course it's possible for that new language to have conflicted with other parts of the Constitution, parts it wasn't being adopted "in lieu of." But if it can be read consistently with those other parts of the Constitution, it should be—whereas we shouldn't narrow its new language to preserve what's being explicitly overridden. (In this way the "in lieu of" arguably resembles a non obstante clause, the subject of Caleb Nelson's great work on Preemption.)

And this language wasn't just boilerplate. Members of Congress seem to have thought it mattered. While the first set of amendments and the Eleventh Amendment were all relatively easy to tack on to the end of Constitution, the Twelfth Amendment was performing major surgery to the Constitution's text, with detailed edits to a complicated election scheme. During the deliberations, at least one Senator objected to making any cross-references from the new text to the old, arguing that the proposed amendment "would render it necessary in order to avoid confusion to repeal the section which comes within its purview." An early proposal in the House solved this problem by imposing its new rules only "in all future elections of President and Vice-President." Another draft version in the Senate was even more explicit, providing "That the third paragraph of the first section of the second article of the Constitution of the United States, in the words following, to wit: '[reciting the entire paragraph]:'—be expunged from the Constitution, and that the following paragraph be inserted in lieu thereof, to wit: '[reciting the new language to be added].'" And after a subsequent draft removed this expunged/inserted structure to follow the House's language, the Senate then came up with the final version, in which the "in lieu of" language was deliberately added back in.

Something similar happened a hundred years later in the Seventeenth Amendment. The 1912 joint resolution (37 Stat. 646) read as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That in lieu of the first paragraph of section three of Article I of the Constitution of the United States, and in lieu of so much of paragraph two of the same section as relates to the filling of vacancies, the following be proposed as an amendment to the Constitution, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the States:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

"This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution."

Here, too, the "in lieu of" clauses have legally operative effect. They specify how much of Article I, Section 3, Clauses 1 and 2 remain valid after the amendment's adoption. They make clear, for example, that one-third of the newly elected Senators will still "be chosen every second Year," as Clause 2 had previously provided; that part of Clause 2 isn't about filling vacancies, so its legal effect is preserved. And they also make clear that the new language has nothing to do with, say, Clause 3's requirement that Senators be thirty years old; even if a state's most famous 29-year-old might be "elected by the people thereof," that person still isn't a Senator.

And members of Congress again used this language on purpose. An early draft of the Seventeenth Amendment gave the states full power over the time, place, and manner of choosing Senators. Accordingly, that draft resolution also contained another in-lieu-of clause, making clear that any new text would operate "in lieu of all of paragraph 1 of section 4 of said Article I, in so far as same relates to any authority in Congress to make or alter regulations as to the times or manner of holding elections for Senators."

Other draft amendments put even more significant changes in their resolutions. In 1851, future president Andrew Johnson proposed a set of amendments on a variety of topics: popular election of the President, popular election of Senators, and staggered twelve-year terms for judges. His draft resolution had multiple resolving clauses, letting the states ratify some changes and not others; it also followed James Madison's initial suggestion of revising the existing text of the Constitution rather than tacking on amendments only at the end. For example, the second clause read:

Resolved, that article 1, section 3, be amended by striking out the word "Legislature," and inserting in lieu thereof the following words, viz.: "persons qualified to vote for members of the most numerous branch of the Legislature;" so as to make the third section of said article, when ratified by three-fourths of the States, read as follows:

ARTICLE I.

Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the persons qualified to vote for members of the most numerous branch of the Legislature thereof, for six years; and each Senator shall have one vote.

As this history suggests, there's nothing in Article V that requires our usual tacking-on-the-end approach as opposed to Madison's initial scissors-and-paste approach, or even Johnson's hybrid approach. Whichever way we frame it, two thirds of both Houses have to concur in proposing changes to the Constitution. Anything that follows a resolving clause can be legally operative as part of those changes—whether it adds new language to the Constitution or revises existing language, and whether it does so with or without various conditions or caveats on its legal effect.

(I haven't yet run to ground how the states reacted to these provisions. But at least some treated the resolution language the way Congress did, as a fundamental part of the changes to the Constitution under consideration. For example, New Jersey's joint resolution ratifying the Seventeenth Amendment included the "in lieu of" clauses in reciting what Congress had actually resolved upon, before announcing that its state legislature "does hereby ratify the above recited proposed amendment to the Constitution of the United States." And while its act ratifying the Twelfth Amendment didn't mention the in-lieu-of clauses, it did make clear that the legislature was ratifying the thing that Congress had proposed: the act declared that the "amendment to the Constitution of the United States, proposed at the first session of the Eighth Congress, * * * is hereby * * * ratified and made a part of the Constitution of the United States," only then adding "which amendment is in the following words, to wit: * * * .")

All this casts the ERA question in a new light. As far as I know, this practice of including operative language in resolution text has gone almost entirely unnoticed; the Twelfth Amendment's in-lieu-of clause doesn't seem to appear in any law review article or judicial opinion in Westlaw. Instead, most of the current debate—including the D.C. Circuit's recent opinion in Illinois v. Ferriero—focuses on twentieth-century caselaw. In a strangely reasoned opinion in Dillon v. Gloss, the Court rejected a tenuous claim that the Eighteenth Amendment's textual time limit rendered the whole Amendment invalid—not on the straightforward ground that amendments can say whatever they want, but on the wholly unnecessary ground that amendments must be adopted within "some reasonable time," and that this reasonable time is to be set by Congress, which has broad power to supply such "subsidiary matters of detail as the public interests and changing conditions may require." And in an equally strange opinion in Coleman v. Miller, the Court claimed that the Constitution vests "the ultimate authority in the Congress" to determine whether an amendment has in fact been adopted. (Cf. the Biden Administration OLC's 2022 suggestion that courts and Congress can still declare the ERA ratified.)

Both these cases seem wrongly reasoned. Article V makes no reference to any time limit, reasonable or no—which is why the Twenty-Seventh Amendment, proposed in 1789 and ratified in 1992, is valid law. And Article V also contains no ban on time limits, which is why the Eighteenth Amendment's Section 3 is valid law too. There's no need to invent any generic congressional time-limit power to explain this, much less a power that could be exercised by simple majority vote outside the Article V process. And while Congress does have the Necessary and Proper Power, and while figuring out which amendments have been ratified might well be necessary and proper for carrying various things into execution, that doesn't create a generic congressional ratification-declaring power either—especially when the texts of the instruments themselves show it isn't so. (Knowing which statutes were passed and when is necessary and proper to a bunch of things too; but Congress can't avoid ex post facto problems by declaring past statutes to have been enacted earlier than they were, the accurate dates on the enrolled instruments be damned.)

The simpler picture is just that Congress, by a vote of two-thirds of each House, gets to decide what kinds of changes to the Constitution it wants to propose. If it puts those changes in a joint resolution, it can put them anywhere after a resolving clause; all that matters is that the instrument tells us that they've been resolved upon. And it just doesn't matter very much whether the operative language is found in a set of instructions ("strike section 3 and renumber subsequent sections"), in a separate piece of text which these instructions say will be added to the Constitution, or in some combination of the two.

On this picture, the "within seven years" limit in the ERA is plainly valid. Congress can impose a time limit like the Eighteenth Amendment's Section 3, in text that the resolution says will be added to the Constitution. Or it can impose the same time limit the way it did in the ERA, amid the instructions that specify when and whether any text will be added (e.g., "within seven years" or not at all). Or it can impose a time limit without any added text—say, in a resolution to "strike section 3 and renumber subsequent sections, but only if this amendment is ratified within seven years and not otherwise." It's all part of the amendment, the whole thing; everything Congress resolves upon is what's being proposed to amend the Constitution, even if we usually call only the text of an added article "The Seventeenth Amendment."

This picture also makes Congress's 1978 effort to extend the ERA deadline look pretty silly. The resolution is the amendment; changing the resolution ex post is proposing a new amendment without the votes. Could a simple majority in 1912 have added more provisions for the then-pending Seventeenth Amendment to act "in lieu of," erasing them from the Constitution without a two-thirds vote? (And without consulting the states that had already ratified?) If not, how could a mere majority in 1978 say that the then-pending ERA's "within seven years" requirement really means that ten years is okay too?

Is there anything resolution language can't do? Maybe. If, say, the edits in Johnson's proposed resolution hadn't matched the article text that followed, we'd have to decide what to do with an internally incoherent amendment—just as if Sections 1 and 2 of the article text were contradictory. Or if Congress seemed to be manipulating the process through sneaky resolution language (say, proposing an article "in which 'Congress' shall be read to mean 'the President' and vice versa"), maybe we'd say that the states didn't really ratify it, especially if their instruments of ratification fail to mention the bait-and-switch. But the notion that states ratify only the suggested article text, and not the whole suite of changes actually proposed by Congress, is hard to square with the history—which makes clear that resolutions, and not just suggested article text, are what Congress proposes. Besides, if Congress and the states are in such fatal disagreement on what an amendment says, why would the states' version win out, as opposed to the amendment's failing altogether? Both Congress and the states have to act together; the states can't ratify what Congress never really proposed. And the same goes for the ERA, in which what Congress really proposed is an amendment that's valid only if ratified within seven years from its submission.

I don't claim that this kind of resolution language settles the ERA question forever. But it may make it harder for a future Congress—or for the Biden Administration—to reject the sort of language that past Congresses have thought legally significant for hundreds of years.

UPDATE: Draft paper on this topic now available.

Comments

[Krayt]

Should not be valid. Why? Amending the Constitution is done out in the open, and not with little tricks. It is obvious to all.

This would go to court, and you’ve lost by that point immediately.

The power hungry do not get to manipulate it through trickery and suing. It is a wide open process obvious to all, as it must be for The People to have confidence.

As a humorous aside, one claim against the ERA was that it would mandate single-sex bathrooms. That was denied, of course, but now seems irrelevant.

[Dilan Esper]

Should not be valid. Why? Amending the Constitution is done out in the open, and not with little tricks. It is obvious to all.

I think Prof. Sachs' historical argument is correct and this is correct too.

It's not that there can never be any weird procedure at all- after all, the 27th Amendment, with no time limit, was resurrected. But that's because it was generally understood that with no time limit, the amendment can still be ratified by states even if it takes time to do so. So I guess one could call that "trickery" of a sort.

But you can't have the sort of trickery we are talking about with the ERA- Congress clearly intended to impose a ratification deadline and everyone understood there to be one, the deadline passed, the extended deadline (if valid) also passed, and here we are. Indeed, the extension, maybe contrary to what Sachs says about it, proves that everyone understood the deadline was valid. If the deadline wasn't valid, why extend it?

Bottom line, "oops, guess this thing is now in the Constitution" arguments don't fly here.

[Krychek_2]

There’s an argument that it’s a political question the courts would stay out of. Once the Archivist of the United States issues a proclamation that the necessary number of ratifications has been received and the amendment is now part of the Constitution, that may be it.

https://www.archives.gov/federal-register/constitution

But, of course, the issue has never arisen so nobody actually knows.

Just to be clear, I'm not endorsing that argument. Just pointing out that it's there.

[Dilan Esper]

I would assume that since courts would have to enforce such a constitutional amendment, whether it was ratified is ultimately not a political question.

And I would distinguish the Enrolled Bill Rule, which has to do with Congress determining its OWN procedures (which the Constitution gives it the power to do). The ratification of constitutional amendments is a state law issue, and I don't think Congress can come in and declare a state to have, say, ratified something when it didn't. Under Moore v. Harper, meanwhile, if a state court makes an egregiously wrong ruling as to what a state legislature does on an issue of federal constitutional law, that's reviewable by the Supreme Court. Put that all together and it's SCOTUS' call, not Congress'.

[Krychek_2]

You’re probably right, but here’s the argument on the other side: Tax protesters have been claiming for years that the 16th Amendment was improperly ratified, and to my knowledge they have never been able to get a merits hearing on it. The courts have routinely rejected that argument, whether brought in defense to a criminal prosecution or in a civil action seeking to have the 16 Amendment vacated.

Now, it may be that the courts refused to entertain that argument because it’s tax protesters bringing it, but it’s also possible that that stands for the proposition that whether an amendment has been properly ratified is a political question. Again, we don’t know because there’s no decisional law on it.

[Brett Bellmore]

I think it stands for the proposition that they don't want their paychecks to bounce. 😉

[Zarniwoop]

The Seventh Circuit addressed the "Benson argument" that minor differences in the text approved by various states means the 16th wasn't properly ratified in United States of America v. Kenneth L. Thomas 788 F.2d 1250 (7th Cir. 1986):

TL,DR: after 73 years, arguing that "State" versus "state" in the approved versions of the text means the amendment wasn't ratified is a clear loser. What sort of "merits hearing" do you think the courts should afford a frivolous argument?

https://law.justia.com/cases/federal/appellate-courts/F2/788/1250/300551/

[Krychek_2]

I wasn’t criticizing it; just pointing out that there hadn’t been one and that quibbling over whether a ratification is valid haven’t gone anywhere so probably won’t in this case either.

[Zarniwoop]

OK, I get that. But you wrote:

and to my knowledge they have never been able to get a merits hearing on it

As a clerk in Federal district court I watched a tax protester defendant (pro se, of course) try to present an argument that the gold fringe on the court's flag meant that my judge didn't have jurisdiction. It didn't fly (rimshot).

I'm not even sure what sort of "merits hearing" would even apply to that sort of argument. Returning to the 16th Amd, I think the cases I cited above reasonably addressed the arguments and evidence (such as the were) in the process of soundly rejecting them, at the D.Ct. and Court of Appeals levels.

So yah, what sort of "merits hearing" in the 16th Amd context do you envision? How much more "but but but capitalization!!?!" bool and sheet should a court entertain before putting the hammer down?

[Krychek_2]

That's actually not my favorite tax protester argument. It seems that when Ohio was admitted to the Union in 1803 there was some "i" that wasn't dotted or some "t" that wasn't crossed as part of the admission process; I forget the details. The issue was discovered in the early 1950s and was fixed, with Congress voting to admit Ohio retroactive to 1803.

The 16th Amendment was ratified during the administration of William Howard Taft, who happened to be from Ohio. Tax protesters argue that since Ohio had not been properly admitted at the time, anything that happened during the Taft administration is legally null and void; hence and whereas the 16th Amendment was never properly ratified, and therefore there is no constitutional basis for direct income taxes. You must give them points for creativity; I never would have thought of that, and the courts haven't thought much of it either when the issue has been argued to them.

It's that issue I had in mind, and I'm not aware of any published decision on it (though I haven't looked in probably 20 years so it's possible there is). I am, however, with a couple of instances in which the tax protesters tried to make that argument in the trial court only to have the judge tell that that it was ridiculous and he wasn't going to have his time wasted on it. I was raised by John Birchers and I used to know a lot of sovereign citizens.

To answer your question, I don't think the court needs to waste a week on a full blown trial, but I do think there should be at least one published case on it just so the law is clear that it's a nonsense argument.

[MikeFr]

What should happen if someone brings up a legitimate argument that an amendment was not properly ratified?

For example, the Twenty-seventh Amendment took over 200 years to get ratified. The first ratification (by Maryland) was in 1789. What should happen if someone poring over old state records discovers that actually Maryland did not ratify it - that due to a printing or transcribing error we have an incorrect record of that vote in published documents but that the original documents recording the vote show that the Maryland Legislature actually voted down the Amendment?

[Brett Bellmore]

Then you'd just observe that it was an interesting irrelevancy, as states continued ratifying the 27th amendment even after the Archivist declared it ratified, and it eventually got enough ratifications in the modern era that the old ones weren't needed. In all, only 4 states have NOT ratified the amendment at this point.

A bigger matter of concern for me is that the Court swiftly interpreted it in a manner that left it toothless, allowing Congress to set up a system where their pay goes up unless they vote to reject the increases.

[KenveeB]

"To answer your question, I don’t think the court needs to waste a week on a full blown trial, but I do think there should be at least one published case on it just so the law is clear that it’s a nonsense argument."

There's a lot of things I'd like that on. Sometimes a defendant makes an argument that's just obviously ridiculous, but I can't find ANY caselaw on it and just have to say "well, it is."

[Zarniwoop]

see also US v House

[Brett Bellmore]

Which the Constitution gives Congress SOME power to do. The Constitution actually specifies some of Congress' procedures, such as the requirement for a quorum to do business. The enrolled bill rule represents the Court's decision that it simply won't enforce those constitutional clauses.

[Dilan Esper]

It's not that the Court "won't enforce them". It's that Congress gets to set its own rules, so it can determine whether a bill followed those rules.

I often say this to the Left and I will now say this to you: you can't really have the Court as superlegislature, overriding every other branch of the government. If Congress says it passed a law, well, Congress is democratically elected and if the public is outraged about it, the public can revolt and throw the bums out. So when Congress says "we passed a law", that has enormous legitimacy, whereas 5 of 9 unelected judges saying "you didn't" would have none. The Supreme Court should not write checks it can't cash.

If that means certain constitutional requirements don't get enforced, so be it. The public can always demand enforcement of them from Congress if they care about them. Whereas if the Court swoops in and gets something wrong, we have no recourse at all. So it is proper to let Congress deal with what an enrolled bill is.

And none of that applies to Congress adjudging the acts of state legislatures.

[Brett Bellmore]

" It’s that Congress gets to set its own rules"

Within goddamn limits. They are NOT, constitutionally, permitted to meet with a half dozen members present, pass a law on a voice vote, and have it be a valid law as long as the leadership sign off on it. But under the enrolled bill rule, they can, because the courts will refuse to even look at the proof that they didn't have a quorum present.

[Dilan Esper]

But Brett, you continue to ignore the point that THEY ARE DEMOCRATICALLY ELECTED AND HAVE MASSIVE LEGITIMACY AS TO WHAT BILLS THEY SAY THEY PASSED. And the public can overrule them if they are ticked off about it.

Whereas if you get 5 unelected judges involved in saying they technically didn't pass bills, those judges have zero legitimacy and nobody can hold them to account when they get things wrong.

Think about it in terms of the risk of error: if Congress gets this wrong and the public thinks it important, it is easily corrected. If the Court gets this wrong, it can't be fixed. So it's much better to just keep the power out of the Court.. Maybe Brett Bellmore has a nervous breakdown because he is so mentally unstable he cannot live with what he thinks is in the Constitution being violated, but the country is better off, and the Constitution is supposed to protect the country, not Brett Bellmore's feelings.

[Brett Bellmore]

And you're continuing to ignore that the Constitution actually SAYS they have to have quorum present to conduct business, and if enacting legislation isn't "conducting business", what is?

The point I'm making is that, no, the Constitution does NOT give Congress unlimited latitude on how to conduct it's affairs, it actually does dictate a few details. It's just that the courts refuse to enforce those parts of the Constitution.

Doesn't mean they're not there.

[Dilan Esper]

So what?

Brett, there's no God who can come down and enforce the Constitution. There's an unelected Supreme Court that is unaccountable to anyone. And as a result, we have to constrain its power to overrule democratic institutions. If that means the Constitution isn't technically followed, THAT JUST ISN'T IMPORTANT.

Indeed, the political question doctrine and related rules is exactly what protects the judicial review that you WANT for stuff like Second Amendment issues. Want to know what would actually threaten the Second Amendment? Well, if SCOTUS lost its legitimacy and could no longer enforce its decisions, that would do the trick.

[Brett Bellmore]

You really think the Supreme court would lose legitimacy if it dropped the enrolled bill doctrine, and insisted that Congress actually have a quorum when they enact legislation? Seriously?

[Dilan Esper]

I think an aggressive political question doctrine, which includes not reviewing pardons, not reviewing impeachments, not reviewing wartime decisions, etc., is crucial for court legitimacy. The enrolled bill doctrine is by far not the most important aspect of it, but it's of a piece with the rest of it and certainly keeps the Court from getting into a needless confrontation with Congress.

[Brett Bellmore]

Dilan, overturning the Enrolled bill doctrine doesn't require a particularly aggressive political question doctrine. Whether or not a quorum was present isn't much of a judgment call.

I repeat: The founders identified a legislative abuse that they were so concerned about preventing that they wrote a prohibition against it into the Constitution, and the enrolled bill doctrine led to the judiciary permitting that abuse. This is would be about the least controversial situation in which they could limit that doctrine imaginable.

[Krychek_2]

Brett, you are essentially arguing that every wrong must have a remedy, and that's just not true. There are plenty of wrongs for which the legal system has nothing to offer. That's just the way life is.

The whole point of the political question doctrine, or the Rooker Feldman doctrine, or any number of other doctrines under which the courts don't get involved just because they don't want to, is that *even if* the plaintiff is right, the court will not hear the case for one reason or another. Sometimes there are valid institutional reasons to not hear it; sometimes the court just doesn't want to deal with it.

And I agree with Dilan. Whether or not Congress actually passed a law is a question for Congress.

[Brett Bellmore]

"Whether or not Congress actually passed a law is a question for Congress."

Which is entirely beside the point, because "the leadership of Congress" isn't "Congress".

What we've got here is the courts enabling an abuse that the founders went out of their way to explicitly prohibit. It's about the worst possible case of political question doctrine imaginable.

[NvEric]

However, Congress, while keeping to the word of the Constitution regarding the number of members in the House, have nonetheless created a number which has not changed in 100 years, saving the increments due to Alaska and Hawaii. Thus, We the People are becoming less and less impotent to the ratio of around 1 in 20 when the original design of 30K per rep was established.

Public Law 62-5, another one of those turn of the Century "democracy" fumbles, has locked stagnation in Congress and devalued Citizenship. Moreover, since there's a fixed number of reps., each is more prone to being bought by money or special interests and not capable in listening to over 600,000 constituents, which equates to around 30 seconds per person per 2 year term assuming spending 8 hours a day during that 2 years to bother listening to each one. 365 x 2 x 8 x 60 = 350,400 minutes.

[Rossami]

Saying that "it's a political question" starts with the premise that this is within Congress's authority to decide at all. Interpretation of the ratification counts is not within Congress's authority so I don't see any way that the Political Question doctrine gets the Court off the hot seat.

[Krychek_2]

Because political questions don’t only apply to Congress; they also apply to political appointees such as the national archivist. The executive branch makes just as many political decisions as Congress does.

[Kazinski]

Absurd argument that ministerial actions of a bureaucrat are a political question. A ministerial act according to wikipedia is
"performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment."

Political questions are acts of constitutional institutions using their constitutionally granted powers.

If the archivist is using their discretion, then its a question the courts can address.

[Bob from Ohio]

"Archivist of the United States issues a proclamation"

The all powerful Archivist , eh?

The idea that a minor functionary can conclusively determine what is in the Constitution is insane.

[Krychek_2]

Not nearly as insane as the idea that 400,000 Wyoming voters can cancel out 32 million Californians in the Senate, but there we are.

Maybe the archivist shouldn’t have that kind of power, but as I read the link I provided, s/he does. The archivist determines whether there are sufficient ratifications and if they are valid. Whether the courts can then review it is the question.

[Krychek_2]

"It has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive." From the link in my initial posting.

[Brett Bellmore]

Then maybe we need to get off our keisters and unestablish that insanity.

[Kazinski]

Here is the full sentence:

"The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive."

And tellingly no footnote to show just what authority "established" that the Archivist's authority is final and conclusive.

Excuse me for suspecting it was the Archivist themselves that determined their authority was final and conclusive.

[MikeFr]

Making the Archivist of the United States, an obscure post whose appointees normally receive little or no scrutiny the arbiter of what is in our Constitution does not seem a very good idea. It also opens up all sorts of problems. What happens if the next Archivist of the United States declares that the previous Archivist made an error and the Amendment was not actually ratified and is not part of the Constitution?

However, to remove all doubt, I think future amendments with time limits should include the time limit in their text - "This Amendment shall be valid and enforceable if and only if it is ratified before the DD day of MONTH, YYYY."

[MatthewSlyfield]

Why include text in the amendment itself that will be superfluous if the amendment is ratified?

[Martinned]

Amending the Constitution is done out in the open, and not with little tricks. It is obvious to all.

It may surprise you, but not everything that is done out in the open is thereby automatically constitutional.

[Dan Schiavetta]

Coleman v. Miller, 307 U.S. 433 (1939): there is no time limit on states ratifying proposed Constitutional Amendments (here, a Child Labor Amendment) unless Congress has set a deadline (this summary was posted here by me on June 5)

[Krayt]

This is the one thing in favor of the 27th, given Congress regularly added time limits to later amendments, to claim it has an implicit one is more weasely than a 200 year delay. And yes, that people in states that ratified it are long dead and completely replaced, and so it hardly represents a contemporaneous sense of The People, is also a problem.

Of course, not much chance of states that approved it trying to roll it back, given its nature, but other more contentious and long term attempts may stumble on it.

It’s hard to imagine considering an amendment approved because half the 37 have since unapproved it. Again, failure of obvious and open and lack of trickies.

[The Margrave of Azilia]

The Supreme Court already ratified it. What should the states do so, too?

[Drewski]

Are you drunk?

[The Margrave of Azilia]

No - the Court enforces most of the ERA already. The male-only draft is left, but it's probably going to be short-lived. What else, pray tell? Sober up before you answer.

[Kazinski]

"Well, they ask me why I'm drunk all the time. It levels my head and eases my mind"

-Bob Dylan
I Shall Be Free, 1963

[The Margrave of Azilia]

Omitting a comma makes one drunk?

Try this: "The Supreme Court already ratified it. What, should the states do so, too?"

[Longtobefree]

What's in the "amendment" that is not already in practice by the sex and "gander" extremists?

[Estragon]

“Gander”

Wow. You went to the trouble to put in the scare quotes and still couldn’t get it right! You are a silly goose

[Brett Bellmore]

Trans athletes seem to be getting a gander in the locker rooms, from what I've heard.

[Estragon]

Pathetic

[Brett Bellmore]

Yeah, it's pretty pathetic, forcing women to allow naked men to share a locker room while they're changing, but there you go, it's happening.

[Estragon]

“It’s happening”

Not nearly as much in real life as it is happening in your head. But sure. Knock yourself out with the fantasy anecdotes.

The locker room panic is going to look so foolish in 10 years. It’s a shame, because if you really want to talk about trans athletes I think there are some difficult issues to grapple with. But instead it’s this facile locker room bullshit, with its implication that all trans people are leering pervs. Spare me.

[Brett Bellmore]

No, the express point is that some leering perves call themselves "trans", and the trans mafia insist that they be treated as though they were women, or else.

[Estragon]

Again. Knock yourself out with the fantasy anecdotes.

[Brett Bellmore]

Knock yourself out pretending real world events are just fantasy. It's funny, we're continually accused of denying the existence of such people just because we won't pretend they're women, but you're the one apparently denying the existence of Lia Thomas.

'It's definitely awkward because Lia still has male body parts and is still attracted to women,'

[Longtobefree]

Goose, gander, gender; it's all the same now, as I understand it.

[Estragon]

“as I understand it.“

I think I see the problem

[Longtobefree]

I refer you to the mushroom articles - - - - - -

[Estragon]

Oh?

[Rev. Arthur L. Kirkland]

The important practical point is that misogynists (like racists) have been steadily and substantially losing ground in America for more than 100 years. Conservatives' intolerance (sometimes driven by stale superstition; example: homophobia) and insularity have been routed by inclusivity, reason, science, progress, freedom, and education at the modern American marketplace of ideas.

Our dwindling supply of old-timey bigots have been reduced to childishly looking for chances to publish racial slurs, desperately striving to carve out safe spaces for their misfit bigotry, and pining impotently for "good old days" that never existed.

Women can own property, wear pants, use contraceptives, vote, get abortions, execute contracts, etc. The "handmaiden" model is dead in America, except in desolate corners of the south and midwest, in dying churches, and in an office or two at the Supreme Court.

I prefer to celebrate the progress rather than to focus on the Equal Rights Amendment. In time, conservatives will try to arrange an Equal Rights Amendment for religious, bigoted, uneducated clingers.

[MaddogEngineer]

Oh I don't know, I think misogynists had a pretty good bounce back year in 1999, when Bill Clinton was acquitted in his impeachment trial about lying under oath about his relations with Monica Lewinsky. It was, after all, just about sex. That is what a misogynist would say.

Quite an accomplishment that a misogynist got the National Organization of Women to rally behind him. They've come a long way, baby.

[Krychek_2]

The NOW understood that for all of Bill Clinton's faults, he was better on their issues than either George Bush or Bob Dole would have been. I voted for him on the same theory.

[Davy C]

Was he better than Al Gore would have been?

[Life of Brian]

The important practical point is that misogynists (like racists) have been steadily and substantially losing ground in America for more than 100 years.

Artie apparently thinks as he's instructed and thus doesn't view the recent wave of multi-dimensional subjugation of actual women to men pretending to be women as misogynistic in the least.

Back in the real world, if the shameless behavior of this latest and greatest untouchable grievance group is left unchecked, we're going to lose at least half a century of progress in the actual gender equality Artie's ilk claimed to want but clearly just stood behind when convenient/useful.

[Rev. Arthur L. Kirkland]

Artie was banned by Prof. Volokh for poking fun at, and criticizing, conservatives a bit too deftly for the proprietor's taste.

I am Arthur. And I doubt your style of old-timey bigotry and backwardness is going to make much of a comeback in modern, improved America. But you get to rant about all of this damned progress, reason, inclusiveness, and modernity as much as you like.

[Life of Brian]

Nice try, Artie -- but no amount of wiggling, twisting, or yammering will distract from the fact that you have no response to my simple and straightforward point of the modern-day resurgence of misogyny cloaked in the soothing language of progressivism.

Man up and face the fact that your team of so-called betters have wreaked utter havoc and devastation on the very women they used to pretend to care about in order to harness their votes and then cast them aside like garbage. You spineless coward.

[Rev. Arthur L. Kirkland]

You continue to focus on making life tougher for gays and transgenders, seething against reason, modernity, and inclusiveness, taking potshots against the mainstream concerning who the "real" bigots are these days.

Other Americans will focus on arranging reasonable terms for interactions as our society forges improved conditions for most people. And on continuing to defeating conservatives' stale, ugly preferences, creating a society that treats fewer people like dirt, provides less unearned privilege, etc.

Try to enjoy the next few decades of the glorious American culture war -- I know I will!

Of course, that's easy for me to say. I'm on the winning side.

[Life of Brian]

Another several paragraphs of desperate deflection, you coward. You have no cogent response, because there is none. Shame on you for your tacit approval of the actual modern-day war on women -- and your desperate attempt to fan the flames of eras past to distract from that.

[Rev. Arthur L. Kirkland]

You're a worthless bigot who deserves every bit of the stomping you and the other clingers are getting from the American mainstream.

Maybe go pray on it a spell, with the other gullible dumbasses and prudish, intolerant, doomed wingnuts.

[Life of Brian]

How exactly does it feel, Artie, as the realization sinks in that you and your buddies have painted you into such a corner that you literally can't say a word in your defense and have to keep trying to project and distract?

Apparently pretty damn emasculating, given this exchange.

[Brett Bellmore]

Yeah, I think everybody knows that, by any sensible legal standard, the ERA is dead. What's intended here isn't a normal operation of law, but just to provide Congress an excuse to declare it ratified and dare the courts to contradict them.

[Dan Schiavetta]

The ERA was defeated by the Republican Party, which had put support for it in its party platforms every presidential year from 1940 through 1976.

[Ed Grinberg]

Save it for the schoolkids who don't know any better. ("It was those evil male Republicans, who hate women and all that's decent & good, who defeated the Equal Rights Amendment!")
https://en.wikipedia.org/wiki/Phyllis_Schlafly

[mydisplayname]

Arthur Machen (a Democrat) made clever use of the Fourteenth Amendment to dispute that validity of the Fifteenth Amendment. Machen based his argument on the only express limitation on the federal AC [amendment clause] still in effect: "that no State, without its consent, shall be deprived of its equal suffrage in the Senate". He argued that "a state" is its people, particularly its citizens and voters, which immediately after the Civil War meant the white people of a state: the right of the white people of a state to elect two senators (by way of the state legislature) is taken away by the enfranchisement of blacks, especially in states like South Carolina where blacks outnumbered whites in 1870 when the Fifteenth Amendment was ratified. Machen states that "The Fifteenth Amendment amounts to a compulsory annexation to each state that refused to ratify it of a black San Domingo within its borders."

The Supreme Court has never directly ruled on the validity of the Fifteenth Amendment; interestingly, however, refusal by the Senate to seat one who, upon the face of the returns, has been elected to the Senate and who has a certificate from the Governor of his state to that effect, presents himself to the Senate claiming the right of membership, does not deprive the state of its "equal suffrage in the Senate" within the meaning of Article V of the Constitution [Barry v. United States ex Rel. Cunningham, 279 U.S. 597 (1929)].

The Senate can unilaterally decide it wants to composed only of white males! 🙂

[Sigivald]

Arthur Machen?

I can't think who you actually mean, but there's no Arthur Machen I can find involved in American politics.

There's a famous one, but he's a Welsh author of Strange Tales, from the late 19th century.

[Magister]

Arthur W. Machen, Jr., Is the Fifteenth Amendment Void?, 23 HARV . L. R EV. 169 (1910)
(“Now, could a constitutional amendment without the consent of the government’s South Carolina, or of those persons who constituted that state, and necks to their body politic the large black majority in their midst and give those blacks--who South Carolina had never recognizes for citizens--the power to outvote the whites in the election of members of the state legislature and dusty indirectly in the choice of two United States senators? Would not such a constitutional amendment deprive the people whom alone the original constitution of the United States and the laws of South Carolina recognized as constituting that state--would it not deprive them of their “equal suffrage,” or indeed of any suffrage in all, in the senate?”).

https://deliverypdf.ssrn.com/delivery.php?ID=967113064118004117126098000111028122030015030047000031018016078096021079028003011106026119119003010032035024092031018104003068121007043047074116000125004096025088009023022028087086022015087004012065006003123082111006127087101009028105084018118088112&EXT=pdf&INDEX=TRUE

[Martinned]

Given that South Carolina ratified the 15th Amendment on March 15, 1869, presumably it gave whatever consent might otherwise be required?

[David Nieporent]

He argued that “a state” is its people,

A frivolous argument for multiple reasons, but in particular before the 17th amendment.

[Bob from Ohio]

Platforms don't even bind the president who runs on them, why would they bind independently elected legislators?

Phyllis changed the party's mind. The original political Girl Boss!

[Rev. Arthur L. Kirkland]

Phyllis Schlafly wanted to improve America . . . and did, by helping to ensure that conservatives -- especially prudish religious conservatives -- would lose the culture war.

[mydisplayname]

Awesome work and a nice companion to Suber's The Paradox of Self Amendment (at https://dash.harvard.edu/bitstream/handle/1/23674879/Suber%20-%20Paradox%20of%20Self-Amendment%202.pdf?isAllowed=y&sequence=1) Among other things, "law can absorb and tolerate even a real (unsolved and undissolved) logical paradox because law is what is accepted as law, not a logical system afflicted with entangling content." Suber's Game of Nomic is one that should be played!

[See also Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942]

Unrelated, but part of Suber's work, is the insight from 1 Corinthians 15:27 that "For he hath put all things under his feet. But when he saith all things are put under him, it is manifest that he is excepted, which did put all things under him." This is relevant to the differentiation between an Officer and a Commander In Chief.

[Dan Schiavetta]

Good catch.

[Area Man]

People are making this way more complicated than it is. Ruth Bader Ginsburg–a.k.a., the Notorious RBG–said the ERA submitted in the 70s is dead and its backers needed to start over. Since the Left declared her a god, her word is law. (Anyone who doesn’t recognize her divinity is a woman-hating heretic.) Ergo, since the God-Empress RBG said it is dead, it’s dead.

[Rev. Arthur L. Kirkland]

Empress RBG said it is dead, it’s dead.

But its spirit is still stomping the bigoted shit of our our vestigial misogynists and other right-wing malcontents.

The Volokh Conspirators and their fans get to continue to whine about all of this damned progress as much as they like, of course, so long as they continue to comply with the preferences of better Americans.

[MaddogEngineer]

Hillary did a great job stomping the bimbo eruptions.

[Rev. Arthur L. Kirkland]

You seem cranky, angered in particular by the great arc of modern American progress, MaddogEngineer.

Why are you so sympathetic toward our vestigial bigots and the stale, ugly thinking of culture war casualties?

[loki13]

I don't have much to say on this subject, but I did enjoy watching Mrs. America (currently streaming on Hulu) starring the incomparable Cate Blanchett, which dealt with the passage of the ERA and aspects of the rise of the modern right.

While it obviously had to create fictional elements, it was still a great miniseries.

[Sigivald]

You'd think the people who Really Want The ERA, and Think It's Super Popular, would just ... propose it AGAIN as a new amendment.

That they do not makes me think they know it would fail (at least in part by being no longer necessary except perhaps - as they often admit, half un-realizing - as a pure symbol).

Both American culture and current Federal jurisprudence about the Constitution are firm, as I understand it, in holding that the law can't treat people differently based on their sex - the ERA is gilding the lily.

[Brett Bellmore]

It would fail because so much of what the opponents of the ERA warned it would do, and the proponents insisted were absurd, have already come to pass through the Court reading a sex discrimination ban into the 14th amendment, that a lot of people just freak out at what actually ratifying that amendment might be used as an excuse to do.

[Rev. Arthur L. Kirkland]

It would fail because so much of what the opponents of the ERA warned it would do, and the proponents insisted were absurd, have already come to pass

The injustice and intolerance that permeated American society a half-century or so ago was so entrenched that it was easy to consider many of the improvements we take for granted today far-fetched. But better Americans continue to solve that problem.

Here is an illustrative example from 1988 (it may be off with respect to a few particulars but certainly conveys the gist of what occurred 35 years ago):

In 1988, [U.S. District Court Judge Hubert] Teitelbaum became the subject of worldwide attention[3] because of his behavior, during a trial, toward an attorney named Barbara Wolvovitz.

Specifically, in a court proceeding on Friday, July 8, 1988, Judge Teitelbaum ordered Wolvovitz, who used her maiden name as her surname, to use instead her husband's surname as her surname.[4] Judge Teitelbaum told Wolvovitz that, if she did not comply with his order, she would "sleep in the county jail" that night.[5] He then held Wolvovitz's co-counsel, Jon Pushinsky, in contempt of court for objecting to his order, sentencing Pushinsky to 30 days in jail, with the sentence to begin after the conclusion of the trial.[5] During the same proceeding, Judge Teitelbaum also barred Pushinsky from using the title "Ms." when referring to a particular woman who had testified, saying later in the proceeding, "I ordinarily do not allow anyone to use that 'Ms.' in this courtroom."[4]

When the trial reconvened on Monday, July 11, 1988, Wolvovitz moved for a mistrial.[6] Judge Teitelbaum responded, "What if I call you sweetie?"[6] He then said that he would address her as "counselor."[6][7] He also vacated his contempt citation of Pushinsky.[5]

On Wednesday, July 13, 1988, the Pittsburgh Post-Gazette published a front-page article about the court proceeding that had occurred the previous Friday.[8] The following day, the Associated Press published an article about Judge Teitelbaum's conduct during the trial.[9] Also on July 14, 1988, the Pittsburgh Post-Gazette published an editorial denouncing Judge Teitelbaum's behavior, calling it "blatant verbal bullying" and "shockingly sexist treatment."[10]

On Friday, July 15, 1988, while the trial's jury was deliberating, Judge Teitelbaum apologized to Wolvovitz, saying, "I have always referred to married women by their married name. This is the way my generation was taught. I recognize your right to be addressed in any manner in which you see fit, and I apologize for my comments and the resulting situation."[11]

On November 10, 1988, Judge Teitelbaum said that, three weeks earlier, he had told Maurice Blanchard Cohill Jr., the Chief Judge of the United States District Court for the Western District of Pennsylvania, that he would transfer most of his cases to other judges.[12] He stated that he would keep his courtroom and would hear appeals in Social Security cases and appeals in criminal cases involving routine constitutional issues.[12] Judge Teitelbaum said that he had taken this step "on [his] own volition and not because of anything connected with Ms. Wolvovitz."[12] He stated, "I'm 73 years old and I think it's about time I ease up my trial schedule. There's no other reason."[12]

To all of our Hubert Teitelbaums: Good riddance.

[ReaderY]

Subsequent interpretations of the 14th Amendment not only rendered the ERA irrelevant, they did most of the things the ERA’s supporters promised the ERA itself wouldn’t do. And more.

There remain a few cases where the nominally different standards for sex discrimination and racial discrimination produce different results. But they are becoming relics. The situation is somewhat like the cases, also few in number in recent times, where the Supreme Court has said something is outside Congress’ Commerce power.(As something of an indicator of this, the formerly critical modifier “interstate” is now rarely even used).

[SMP0328]

Subsequent interpretations of the 14th Amendment not only rendered the ERA irrelevant, they did most of the things the ERA’s supporters promised the ERA itself wouldn’t do. And more.

What the Supreme Court giveth (Roe v. Wade), the Supreme Court can taketh away (Dobbs v. Jackson Women's Health Organization). The ERA today is meant to lock in place SCOTUS wins by the Left dealing with women and LGBT people (e.g., Obergefell v. Hodges).

[Brett Bellmore]

Well, that, and provide an excuse for finishing the job.

[Frank Drackman]

If the ERA is ratified next they'll have women in Marine Corpse combat units!

[Rev. Arthur L. Kirkland]

Why knows?

Maybe we would win a war more often than once every 75 years.

[Frank Drackman]

I think you're confusing Amurica's war record with Penn State's National Championships,
and Coach Sandusky never served, (Homo, here he's much better now though)

Frank

[Rev. Arthur L. Kirkland]

America hasn't won a war since the mid-'40s.

Instead, Americans have settled for a series of vague draws with ragtag irregulars despite providing staggering resource advantages to our military.

We have, however, watched plenty of American military personnel engage in war crimes and turn into disgusting mercenaries.

We need to attract a better class of person to our military.

[Martinned]

I'm not sure how this came up, because I have the other person in this dialogue muted, but Grenada would like a word:

https://en.wikipedia.org/wiki/United_States_invasion_of_Grenada

[Rev. Arthur L. Kirkland]

That was an unforced error, not a win.

We did have one moment of pride, though.

[Frank Drackman]

Well they wouldn't let you join, so that's a start.

[Zarniwoop]

I suggest that we've won the "war" parts of our last few conflicts. No one in the Iraqi army thinks they did anything but lose catastrophically in 2003.

It's winning the "peace" part that was a lot harder. Nation building can be a much more difficult nut to crack than destroying an opposing military.

[Krayt]

We do win. It's just the last 3, the other side learned they wouldn't win conventionally, so hunker down and wait for the US to get bored and take its football home. Then the kleptocrats can rise up and take over.

It's a great, evolved business model.

[Rev. Arthur L. Kirkland]

That we picked some stupid fights, and botched them, contributed to the record.

[Martinned]

Interesting post. The one thing that seems weird to me is that you'd ever put the "in lieu" language anywhere but in the body of the Amendment. That's what an amendment is: sometimes it's an instruction to add something, but often it's an instruction to take something out and put something else in its place. That seems like the quintessential thing you'd put in the last section of the Amendment. Assuming you'd considered the issue at all, why would you ever put the repealing language anywhere else?

[Brett Bellmore]

I don't see how it really makes a difference, so long as the whole thing passes Congress with the obligatory super-majority.

Which the purported extension to the time for the ERA to be ratified did not, of course.

[Martinned]

Because if everyone was more careful in drafting US Constitutional Amendments, we wouldn't need to have the conversation we're now having. The Amendment is law, everything around it is persuasive at best.

[Brett Bellmore]

Look, we're not having this conversation because of bad drafting. We're having it because the ERA proponents aren't willing to admit the amendment was rejected, and are trying to arrange for a back door pseudo-ratification.

[David Welker]

Who says the 27th Amendment is valid law???

I don't agree that it is. Article V has to be interpreted in a manner that effectuates the obvious purpose of super-majority requirements. A super-majority is supposed to be "hard" to gather, not "eventually inevitable."

When Congress or state legislatures pass laws, everyone present votes at the same time. We don't say that 1st district says yes, and the 2nd district says no. But after an election or two or ten, when the 1st district now would say no, and the 2nd district would now say yes, the new representative of the 2nd district can switch their vote vote to yes, but the new representative for the 1st district is bound by the old representative who would have voted no.

If we did things this way, then practically any proposed law might become law eventually, even if only a minority of the legislature (and ultimately the people) supported it at all possible times. This would not be democracy. It would instead shift power to whomever had influence on proposing votes on legislation.

The way the 27th Amendment was "supposedly" ratified is positively ridiculous. There was no national consensus in favor of it, as clearly envisioned by Article V.

This shows that we DO need to look occasionally look at the intent underlying text to properly effectuate the law, otherwise you end up with harmful absurdities. Of course, this assumes good faith on behalf of the interpreter. For example, an interpreter who looked at the three-fourths ratification provision as being a way to make it easier to ratify amendments who perversely decided that states could not reverse their yes votes, but could always reverse their no votes would undermine the intent of the three-fourths requirement.

So, here is one major objection I have to the way the Sachs went about his analysis. He did not start from the obvious place, which was noting that the two-thirds requirement and three-fourths requirement are intended to make amending the constitution challenging, not easy.

I believe that maybe that is because there is some textualist taboo against mentioning intent or something going on here. But the Constitution absolutely cannot be correct interpreted relying on its text alone. For example, there is no text in the Constitution specifying that a majority vote is sufficient to pass so-called ordinary legislation. Instead, the Constitution specifies excepts where supermajorities are required.

Well, given the absence of text on this issue, if you were an alien divorced from all context, you might think that the cases where super majorities are required is actually when it is EASIER for Congress to do things. You might think that passing ordinary laws requires a consensus. (Maybe your context as an alien is that humans are very agreeable or that Congress should hardly ever pass ordinary legislation or that if Congress wants to change the law, it should usually do so by taking the "easier" route of amending the Constitution rather than passing ordinary legislation.)

So, Sachs goes through his analytical process, which is fine. But he doesn't bother with the most important and obvious point of all, which is that the purpose of the super-majority process is to make amending the Constitution more difficult.

Not only should he have mentioned it, he should have started with it. And because he didn't start with it, he bizarrely makes a concession that the 27th Amendment is valid law.

If I were to run for Congress, one of my promises to my constituents would that I would propose legislation increasing my salary, to go into effect immediately. And if I were elected and this legislation were miraculously passed, I would immediately sue.

The 27th Amendment DOES NOT EXIST. I don't understand Sachs when he concedes that it does.

[SMP0328]

Your reasoning seems to follow Dillon v. Gloss, 256 U.S. 368 (1921). That case said that for an amendment to be valid it had to be adopted within a "contemporaneous consensus" and that Congress or the Supreme Court could determine whether the requisite consensus existed throughout the Article V process. Dillon determined that seven years counted as a contemporaneous consensus and that long ago proposed amendments (including what became the 27th Amendment) had lapsed.

However, you need to look at Coleman v. Miller, 307 U.S. 433 (1939). That case rejected Dillon's claim that the Supreme Court could determine if a proposed amendment had lapsed when Congress did not subject the proposal to a deadline. Under Coleman, if Congress does not provide a time limit on ratification, then there's no time limit. It is because of Coleman that the 27th Amendment is considered part of the Constitution. Congress never provided a deadline on the amendment's ratification, so it remained before the States for a little over 200 years waiting for the ratification that would allow it to reach three-fourths threshold.

[David Welker]

In Coleman v. Miller, the Court never said there was no time limit if Congress did not put one there. Instead, it said that the question before it was a political question that it wasn't going to answer at the moment. And it was fine that the case was not decided, since whether Kansas was considered to have ratified or not, the Child Labor Amendment was not anywhere close to enough votes to have succeeded.

Ultimately, the decision in Coleman was a decision to not decide. The state officials were allowed to certify. But the legal effect, if any, of that certification was not decided.

Combining the votes of those long dead with a minority of the living in the present time is a "cute trick" to create a supermajority. But it is obviously not legitimate. Also, keep in mind that the period in Coleman was only 13 years, not 200 years. There was really no live possibility of "ambush" here.

If there was a proper case before it, the Supreme Court would be required to decide on this question and shouldn't still dodge based on the political questions doctrine.

I believe that Congress should vote for a $100 raise, to go into effect immediately. And then each member of Congress would have standing to sue for the money if it were withheld by the Treasury.

Constitutional amendment by ambush should be rejected as a doctrine.

[David Nieporent]

Were you high when you posted this?

[David Welker]

Mr. Neiporent:

Do you believe that Article V should be interpreted in a manner that does not require a broad and contemporaneous consensus among the states for a constitutional amendment to go into effect?

Recall that the Ohio and New Jersey were not allowed to rescind their ratifications of the 14th Amendment.

This implies a one-way ratchet that undermines the requirement that a supermajority of three-fourths of the states actually agree, does it not?

If the 27th Amendment is such a good idea, why not have it be proposed by Congress and ratified by the states now???

[David Nieporent]

Do you believe that Article V should be interpreted in a manner that does not require a broad and contemporaneous consensus among the states for a constitutional amendment to go into effect?

I believe that Article V should be interpreted based on the text of Article V. Which says nothing about the need for the requisite 3/4 tally to be completed within a certain period of time.

To be sure, I do think states can rescind their ratifications. It's true that the federal government chose to treat NJ's and OH's rescissions of the 14th as inoperative, but (a) that doesn't mean that they were (it set no legal precedent); and (b) it doesn't affect the validity of the 14th; all it would've meant was that the 14th amendment was not ratified until two weeks later than it is credited with having been ratified.

[David Welker]

The text says right there that 3/4ths of the states must agree.

Saying that we can undermine that text by adding up agreements from 200-years ago with agreements from today isn't exactly textualist, in my view.

Also, text must be read in context.

We aren't talking here about reaching deep down into penumbras and emanations in order to "overcome" the Constitution. We are just talking about interpreting the text in a manner that effectuates the 3/4ths requirement. The word "contemporaneous" is not in the Constitution, but adding up the votes of dead people with the votes of living people to come to a super majority is patently absurd.

[Rossami]

Hmmm… Even assuming everything about your approach, I can’t reach the conclusion that the 27th A is invalid.

While later states could endorse what became the 27th Amendment, there was nothing preventing the early-voting states from changing their minds and revoking their endorsement. No state did so. And they had plenty of time to do so between 1982 (when Gregory Watson started lobbying for it) and 1992 (when it finally passed the certification threshold). In other words, the one-way ratchet you’re worried about didn’t exist for the 27th A process.

Or to say it differently, a prior vote “yes” is assumed to still be a vote “yes” until and unless we have evidence otherwise – as shown, for example, by a subsequent vote. Therefore, since none of the “yes” voters changed their minds but some of the prior “no” voters did, you now have a “contemporaneous consensus”. The Dillon majority was simply wrong.

[David Welker]

Actually, you may or may not be correct that states can rescind their ratifications. To say so would have possibly caused problems for the 14th Amendment. Consider the following excerpt from the Supreme Court:

Historic instances are cited. In 1865, the Thirteenth Amendment was rejected by the legislature of New Jersey which subsequently ratified it, but the question did not become important as ratification by the requisite number of States had already been proclaimed. The question did arise in connection with the adoption of the Fourteenth Amendment. The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. Ohio and New Jersey first ratified and then passed resolutions withdrawing their consent. As there were then thirty-seven States, twenty-eight were needed to constitute the requisite three-fourths. On July 9, 1868, the Congress adopted a resolution requesting the Secretary of State to communicate ‘a list of the States of the Union whose legislatures have ratified the fourteenth article of amendment’, and in Secretary Seward's report attention was called to the action of Ohio and New Jersey. On July 20th Secretary Seward issued a proclamation reciting the ratification by twenty-eight States, including North Carolina, South Carolina, Ohio and New Jersey, and stating that it appeared that Ohio and New Jersey had since passed resolutions withdrawing their consent and that ‘it is deemed a matter of doubt and uncertainty whether such resolutions are not irregular, invalid and therefore ineffectual’. The Secretary certified that if the ratifying resolutions of Ohio and New Jersey were still in full force and effect, notwithstanding the attempted withdrawal, the amendment had become a part of the Constitution. On the following day the Congress adopted a concurrent resolution which, reciting that three-fourths of the States having ratified (the list including North Carolina, South Carolina, Ohio and New Jersey), declared the Fourteenth Amendment to be a part of the Constitution and that it should be duly promulgated as such by the Secretary of State. Accordingly, Secretary Seward, on July 28th, issued his proclamation embracing the States mentioned in the congressional resolution and adding Georgia. Coleman v. Miller, 307 U.S. 433, 448–49 (1939)

[Brett Bellmore]

Withdrawn ratification is hardly the issue there. The real issue is the reason the ratification was so swiftly withdrawn: The original ratification was obtained, literally, at gun point.

That's why I continually warn that it's a bad mistake to take Civil war era precedents as valid: The Radical Republicans were barely even pretending to be following the Constitution at the time.

[Brett Bellmore]

Add to which, states continued ratifying the 27th amendment after it passed the threshold counting the early votes, and it soon enough had passed counting only modern ratification votes.

[The Margrave of Azilia]

For future reference, in case there are any more amendments, put the ratification deadline in the text of the proposed amendment itself. So if it's ratified too late, it will by its own terms become void.

[The Margrave of Azilia]

Now let’s strip citizenship from any American who accepts a title of nobility, or gets an emolument from a foreign government without consent of Congress:

https://prologue.blogs.archives.gov/2020/01/30/unratified-amendments-titles-of-nobility/

That proposed amendment was in 1810, but I suppose it’s outdated now because citizens have found so many other methods to corrupt themselves. Plus there’s no detail on how the trial of an accused would be conducted.

(Fun fact: The most up-to-date conspiracy theorists think this amendment has already been ratified and would revoke lawyers' citizenship. It's been covered up, of course. /sarc)

[David Nieporent]

(Fun fact: The most up-to-date conspiracy theorists think this amendment has already been ratified and would revoke lawyers’ citizenship. It’s been covered up, of course. /sarc)

The "Missing Thirteenth Amendment" folks! I remember them from my usenet days.