Biden’s Shocking Claim on the ERA

President Biden’s shocking claim that the Equal Rights Amendment is American law could have one potential silver lining — the prospect of a legal battle reaching the Supreme Court that will put to rest the canard that the parchment has been amended. The president claims that three-quarters of the states have ratified the hoary amendment, but omits that they did not do so by the statutory deadline, and several have retracted their ratification. That the parchment can be amended by a president’s say-so is as far from the intent of the Framers as it is possible to land. The ERA, which aims to ban discrimination on the basis of sex, was passed by both houses of Congress in 1972. An amendment to the Constitution requires the assent of three-quarters of the states, meaning 38. The deadline to secure that number was originally 1979, then 1982. That expired with only 35 states signed on. Not only that, but five states subsequently withdrew their ratification, though the amendment’s partisans reckon that such an about-face is void. Three states in the intervening decades have ratified — with the latest being Virginia in 2020. That makes 38, if the withdrawals are not considered valid. The Congressional Research Service, though, reckons that the ERA “formally died on June 30, 1982.”That is the crux of the matter — even if the tally included the states that rescinded their ratification before the deadline, the deadline passed with too few votes. Mr. Biden is not alone in maintaining that the reports of the ERA’s demise are exaggerated. Some Democratic attorneys general asked the District of Columbia Circuit to consider the ERA ratified. The judges who ride that circuit declined to instruct the archivist to do so.That didn’t stop Democrats. The American Bar Association over the summer urged “federal, state, local, territorial, and tribal governments to implement the Equal Rights Amendment.” In 2020, the Department of Justice issued an opinion that the ERA was well and truly dead. No less an authority than Gloria Steinem told Oprah Winfrey in 1986 that the clock ran out and that advocates would “have to start the process over again.”Now Mr. Biden declares that “the 28th Amendment is the law of the land.” Last month, though, America’s honest archivist, Colleen Shogan, concluded that the ERA “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions” and that she “cannot legally publish the Equal Rights Amendment.” Even that has not stopped some of America’s liberals from posturing that the ERA is part of the Constitution.The president of the American Constitution Society and erstwhile senator, Russ Feingold, told the Times on Friday that he believes and “many believe that whether or not the archivist certifies it or not doesn’t matter.” He calls the archivist’s role “merely ministerial,” as if that and not the failure of ratification is the issue. Then there is professor Laurence Tribe, who offers Mr. Biden his “undying gratitude “ for this constitutional vigilantism.These pages have returned to the ERA with frequency because the amendment’s fate illuminates for Americans the left’s constitutional drift toward illiberalism. Mr. Biden’s eleventh-hour ersatz claim that the amendment is part of the law of the land puts into sharp relief the importance of the due process of ratification. After years of Democrats wheeling on the Supreme Court, it appears they have found a new mark — the parchment itself.Correction: Three-quarters of the states are required to approve an amendment to the Constitution. An earlier version misstated the required proportion.

Biden’s Shocking Claim on the ERA

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