The Fight to Ratify the ERA

[Fantine]

Senators Romney, Ron Johnson, and Portman have written the archivist asking him (and the archivist who will be appointed April 1) not to add the ERA Amendment to the Constitution.
Equal Rights Amendment: Three Senate Republicans urge archivist not to certify the ERA (msn.com)

It was ratified by the 38th state, Virginia, last year.

Under the Trump Administration, the DOJ's legal counsel said, "So what? Too late." But the amendment voted upon never listed a ratification deadline...

Biden, however, is likely to ask the archivist to add it to the Constitution. 155 Democrats have sponsored a resolution to add the ERA. In the Senate, Murkowski, Collins and one other Republican have concurred.

As I recall from the original fight, anti-ERA groups said the ERA would allow abortion. The words of the amendment do not refer to abortion or any other specific policies or laws at all. This seems like it was a smokescreen to garner opposition.

FAQS — Equal Rights Amendment

In the 21st century, are we really not ready to ratify the ERA? Really? I hope the archivist does the right thing.

 

[Hans Blaster]

While 38 states have ratified it, 6 states withdrew that ratification before the total got to 38 (3/4 of all states).

Though there is no explicit mechanism for withdrawal of ratification there is no prohibition other wise. There is also no requirement for state legislatures to even consider a Congressionally passed amendment, nor any restriction that state legislatures can not revisit a failed ratification vote (as many have in the past).

As such there are only 32 active ratifications, 6 short of the required 38. Unfortunately, I don't see much chance of 6 more (re-)ratifications anytime soon.

 

[tz620q]

Senators Romney, Ron Johnson, and Portman have written the archivist asking him (and the archivist who will be appointed April 1) not to add the ERA Amendment to the Constitution.
Equal Rights Amendment: Three Senate Republicans urge archivist not to certify the ERA (msn.com)

It was ratified by the 38th state, Virginia, last year.

Under the Trump Administration, the DOJ's legal counsel said, "So what? Too late." But the amendment voted upon never listed a ratification deadline...

Biden, however, is likely to ask the archivist to add it to the Constitution. 155 Democrats have sponsored a resolution to add the ERA. In the Senate, Murkowski, Collins and one other Republican have concurred.

As I recall from the original fight, anti-ERA groups said the ERA would allow abortion. The words of the amendment do not refer to abortion or any other specific policies or laws at all. This seems like it was a smokescreen to garner opposition.

FAQS — Equal Rights Amendment

In the 21st century, are we really not ready to ratify the ERA? Really? I hope the archivist does the right thing.

What a strange legal battle! Congress has tried to move a deadline after it has passed. Some say that can't be done. States have both ratified and rescinded their ratification after that deadline. The same people who say they can move the deadline also say a state cannot rescind it's ratification. Seems that they want the power to change the deadline without allowing the states the power to change their minds. A purist would say that the ERA died when the deadline was hit without meeting the 38 states needed.

 

[SavedByGrace3]

How would this amendment affect the young ladies who participate in women's sports but are being destroyed by males competing as women?
Just wondering.

 

[Hans Blaster]

The same people who say they can move the deadline also say a state cannot rescind it's ratification. Seems that they want the power to change the deadline without allowing the states the power to change their minds.

That wouldn't be me. I'm not sure that Congress has the power to place a time limit on ratification. If they do have the inherent power to limit the time, then they also have the power to extend it. Either way, if Congress says that the ratification process is still open, it definitely is. (And if they say it is closed it may not be.)

The states clearly have the power to ratify after a failed ratification vote, so they should definitely have the same power to withdraw that ratification.

 

[Fantine]

To me it sets a terrible precedent to "grant' equal rights and then "rescind them."
I agree that when states ratify and "grant" equal rights they should not be allowed to take them away from those citizens to whom they have been granted.

From ThoughtCo:

1. Do states have the power to rescind amendment ratifications? Article V of the Constitution deals with the process of amending the Constitution, but it deals only with ratification and does not empower states to rescind ratifications. There is legal precedent invalidating the rescission of other amendment ratifications.

As for the time limit, "Proponents argue that if the time limit was in the text of the amendment itself, that restriction would not be subject to alteration by Congress after any state legislature had ratified it. The ERA language ratified by 35 states between 1972 and 1982 did not contain such a time limit, so the ratifications stand."

 

[chevyontheriver]

I hope the archivist does the right thing.

If they do what you wish it will end up in the Supreme Court and get slapped down 11-4 even with newly appointed Biden Justices. States have rescinded their approval and the time has long ago passed for this proposed amendment. With even the justices now on deck I can't see anything but an 8-1 or 9-0 ruling against such a move to rig the Constitution.

Your best actually legal approach to this would be proposing a brand new amendment. Shoot, there are people who want a whole new Constitutional Convention.

 

[Arcangl86]

If they do what you wish it will end up in the Supreme Court and get slapped down 11-4 even with newly appointed Biden Justices. States have rescinded their approval and the time has long ago passed for this proposed amendment. With even the justices now on deck I can't see anything but an 8-1 or 9-0 ruling against such a move to rig the Constitution.

Your best actually legal approach to this would be proposing a brand new amendment. Shoot, there are people who want a whole new Constitutional Convention.

There actually is some precedent here. The question of a deadline was decided to be nonjusticable, and something only Congress could decide. I don't think there is any precedent on withdrawing ratification, but it's worth pointing out there are multiple places in the Constitution on how to do something, without any explicit discussion on how to undo it.

 

[Opdrey]

I'm not sure if I was aware that the entire US Constitution was not in the hands of the voters and legislators but the whims of a single official (Archivist). That entire swaths of Americans can vote to ratify a constitutional amendment but if the Archivist doesn't want to do it that effectively stops it! It's great to live in an autocracy, I just figured the autocrat would be someone more...exciting?

Either way, it's great that this single person runs the country.

 

[Goonie]

Legally it's dead in the water. Whilst the deadline might not be in the body text, the fact that Congress gave a deadline, and then extended it, but did not extend it again at the time. From what I can see it would never survive a challenge in the supreme court, even before the current conservative dominance.

 

[chevyontheriver]

Legally it's dead in the water. Whilst the deadline might not be in the body text, the fact that Congress gave a deadline, and then extended it, but did not extend it again at the time. From what I can see it would never survive a challenge in the supreme court, even before the current conservative dominance.

Exactly. If people want a new amendment they should go through the process again. That one is dead in the water. Try again instead of that zombie amendment.

 

[Opdrey]

Legally it's dead in the water. Whilst the deadline might not be in the body text, the fact that Congress gave a deadline, and then extended it, but did not extend it again at the time. From what I can see it would never survive a challenge in the supreme court, even before the current conservative dominance.

With the possible exception of the fact that no other amendment was ever given a "deadline" and the 27th amendment which took a whopping 202 years to ratify.

 

[Opdrey]

Exactly. If people want a new amendment they should go through the process again. That one is dead in the water. Try again instead of that zombie amendment.

What about the 27th? 202 years to ratify.

 

[Goonie]

With the possible exception of the fact that no other amendment was ever given a "deadline" and the 27th amendment which took a whopping 202 years to ratify.

Did not know that. Good thing it was still relevant. Though imagine if it was an amendment supporting slavery that suddenly found its 38th state ratifying it 200 years later.....

A time limit is not unreasonable.

 

[Opdrey]

Did not know that. Good thing it was still relevant. Though imagine if it was an amendment supporting slavery that suddenly found its 38th state ratifying it 200 years later.....

A time limit is not unreasonable.

Not unreasonable but does not have precedent.

As for it's applicability, well it seems reasonable that given how the 14th has been circumscribed that the ERA is still needed.

 

[Goonie]

Not unreasonable but does not have precedent.

As for it's applicability, well it seems reasonable that given how the 14th has been circumscribed that the ERA is still needed.

Oh, I wholeheartedly agree on that. Sadly from what I can see resurrecting the ERA amendment is not going to happen, without a new bill. And the republicans are far to busy suppressing minority votes to ever support it.

 

[chevyontheriver]

What about the 27th? 202 years to ratify.

Did it have a deadline built into it? If not, no comparison.

 

[SavedByGrace3]

Legally it's dead in the water. Whilst the deadline might not be in the body text, the fact that Congress gave a deadline, and then extended it, but did not extend it again at the time. From what I can see it would never survive a challenge in the supreme court, even before the current conservative dominance.

Since the principle of the ERA is already in full effect, there is no drive to push it. What would we get that we do not already have? Moot.