President Biden, the ERA, and Constitutional Vandalism

A deeply mistaken decision on the way out of office.

Three days from the end of his term, President Biden just announced that he has "long believed" the Equal Rights Amendment to be valid law:

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

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

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

Although nothing has changed legally for the ERA since 2020, Biden has never taken this position before. He isn't ordering the Archivist of the United States to publish the amendment (which she has said she cannot lawfully do), and under his Administration the Department of Justice declined to assert the ERA's validity and defended the decision not to publish it.

One way to explain this hesitancy to endorse the ERA as lawful is that, well, it isn't. As I've discussed here before, Congress can and has placed legally operative language in amending resolutions, not just in proposed article text. The implication is that the ERA's seven-year time limit is valid—and that the ERA is not. Or, as I argue in forthcoming draft work:

The Twelfth Amendment and the ERA

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. Should Congress or the Executive ignore the deadline, the ERA's doubtful validity could provoke a minor constitutional crisis.

But there may be a clear legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to add.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA, were it ratified, would be incapable of making any valid change to the Constitution's text. The current lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution's text carries an especially high cost; the National Archives is the wrong place to play with fire.

If there's one thing that Americans are entitled to expect from their law professors, to paraphrase Justice Robert Jackson, it's rules of law that enable them to tell whether the Constitution has been amended, and if so, how. Unfortunately, whether the Equal Rights Amendment is, right now, part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, the minimum number under Article V's three-fourths ratification requirement. If these ratifications were valid, the ERA would have come into effect on January 27, 2022. But three of the states acted only after the lapse of the ERA's seven-year deadline, a deadline that Congress included in its resolution proposing the Amendment fifty years earlier. Four other states had purported to rescind their ratifications even before the deadline expired, and a fifth did so upon its expiration. Nonetheless many members of Congress (indeed, the majority of the Democratic caucus in both Houses), joined by influential groups such as the American Bar Association, have proclaimed the Amendment valid—and they've called on the Archivist of the United States to accept it as valid also. If Congress or the Executive were take the ERA as indeed part of the Constitution, its doubtful validity could provoke a minor constitutional crisis.

This makes the ERA's validity an urgent question for constitutional scholars. If its proposed text really were valid, and the seven-year deadline really were void, then officials, lawyers, and academics alike would all be obliged to proclaim them so. By contrast, if the deadline really were valid, and the proposed text really were void, then urging the ERA's recognition might be seen as a shocking act of constitutional vandalism, one that threatens to destroy one of the last remaining areas of consensus in American law: our agreement on the Constitution's text.

But there may be a clear legal answer. Underappreciated historical evidence suggests that Congress was right to think it could place legally operative language in a proposing resolution—and that this language would be legally effective even without being repeated in a proposed article's text. Not only in the Bill of Rights, but also in the Twelfth and Seventeenth Amendments, Congress included operative language in proposing resolutions that specified which changes were to be made in the Constitution, altering the legal force of the newly added text or repealing contrary language in the existing Constitution. Congress's language was deliberately chosen; it was repeated by states in their instruments of ratification; and it seems to have been accepted as legally effective at the time. Yet despite its importance, this historical practice—spread across the eighteenth, nineteenth, and twentieth centuries—appears to have gone almost entirely unnoticed by legal scholars.

This practice also suggests a different understanding of the amendment process, one that might seem counterintuitive today but that's more consistent with the actual provisions of Article V. The "Seventeenth Amendment" isn't just the 134 words that follow that heading in a standard copy of the Constitution; it's a particular change worked in the text of the Constitution, a change proposed by Congress in a joint resolution in 1912 and then agreed to by the states in 1913. As a legal matter, the resolution is the amendment. When acting under Article V, Congress isn't limited to proposing pieces of extra language to be tacked on at the end; it can make detailed edits, can delete provisions of the existing Constitution, and can add conditions for its various proposals' validity. Each of these options would carry the same legal force as a proposed article's text, and each would be equally immune from future alteration by ordinary legislation passed by simple majority vote.

This understanding of Congress's powers under Article V entails that, while the text of our familiar printed Constitutions is correct, some familiar editorial notes might be in error: some provisions of the 1788 Constitution have been repealed, and not just superseded or "affected," by subsequent amendments. This understanding also entails rather straightforwardly that the ERA has failed to alter the Constitution's text. Whether or not states can rescind ratifications, the original deadline in Congress's resolution renders the article it proposes permanently invalid; that article forms no part of the Constitution, and the only way of adding it is for another amendment to the same effect to be proposed and ratified. In other words, despite succeeding in attracting ratifications from thirty-eight different states, the ERA makes and can make no valid change to the Constitution's text, no matter how many states might choose to ratify it in the future.

Finally, this view suggests that the current lobbying for the ERA is seriously misguided. In a deeply divided society, in which legal experts already disagree on key questions of constitutional law, losing consensus even on the content of the Constitution's text could be quite dangerous. While the best legal account of that text is one thing and popular belief another, any competing account needs to be supported by adequate evidence—and on the arguments presented here, this evidentiary bar is one the ERA simply can't clear. Advocates of the ERA should take note of this evidence and should identify a different path for pursuing their constitutional goals. The National Archives is the wrong place to play with fire.

See my prior post for more -- and will be updating this post with the new draft when it's available.