Unsurprisingly, Democrats Call on Biden to Break the Law Before Leaving Office

The Equal Rights Amendment is dead. Not, as Miracle Max put it in “The Princess Bride,” “mostly dead,” but “all dead.” ERA advocates, however, just won’t let it rest in peace.

Forty-six Senate Democrats have written President Joe Biden, asking that he help perpetuate the ERA myth even as he leaves office, requesting that he “direct the archivist of the United States to certify and publish the Equal Rights Amendment (ERA) as the 28th Amendment …” It won’t work.

Let’s first get the Civics 101 lesson out of the way. Article V of the Constitution provides that two-thirds of the House and Senate can propose a constitutional amendment, which becomes part of the Constitution “when ratified by … three-fourths of the several states.”

Congress proposes an amendment by passing a resolution that has two parts. The first is a procedural clause that includes rules for how the states must consider ratification, such as whether they must use their legislature or a convention, and any ratification deadline Congress chooses to impose. The second part of the resolution is the text of the amendment being proposed. Congress takes one vote on the entire resolution, which is then forwarded to the states.

The states have ratified 27 of the 33 amendments Congress has proposed. Eight of them had a ratification deadline, four appearing in the proposed amendment’s text and four in the procedural clause. No one in Congress, or any state legislature, has ever even suggested that Congress lacks authority to set a ratification deadline when it proposes an amendment or that the deadline’s location—in the procedural clause or the amendment text—makes any difference whatsoever.

After the 1920 ratification of the 19th Amendment, which prohibits sex discrimination in voting, women’s groups started pushing for an amendment guaranteeing general legal equality between men and women. The first ERA resolution to reach the two-thirds threshold was House Joint Resolution 208, introduced by Rep. Martha Griffiths, D-Mich., in March 1972. It proposed this language: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

Two years earlier, the House passed a Griffiths resolution with this language, but the Senate did not vote on it. Griffiths sought to add a seven-year ratification deadline, saying it would help “gain united support for the amendment.” Women’s groups all supported the addition, which Griffiths placed in the procedural clause of Resolution 208. She predicted, however, that the states would ratify the 1972 ERA “in record time.”

She was wrong. While 30 states ratified the 1972 ERA in the first year, only five more did so by the March 1979 deadline—and five of those ratifying states rescinded their approval. Congress passed a controversial resolution adding 39 months to the original deadline, but no additional states got on board. The Congressional Research Service has repeatedly said that, as a result, “the ERA formally died on June 30, 1982.”

Just as everyone knew that the 1972 ERA’s ratification deadline was valid, everyone knew that the deadline passing with no more than 35 ratifying states meant the ERA’s demise. When asked about the 1972 ERA’s status on “The Oprah Winfrey Show” in January 1986, feminist leader Gloria Steinem explained that “because it was not ratified in the nine years allotted to it, it now has to start the process over again, and … be passed by the House and the Senate and go through all of the states’ ratification process.”

While no one disputed Steinem’s conclusion back then, advocates pretend that she never said it, urging more states to ratify the 1972 ERA today, even though it has not been pending before them for more than 40 years. When three states—Nevada in 2018, Illinois in 2019, and Virginia in 2020—passed resolutions purporting to ratify this nonexistent amendment, advocates claimed the three-fourths constitutional threshold had been reached and the ERA was now part of the Constitution.

Well, not so much. A federal judge in 1982 ruled that the 1972 ERA’s ratification deadline was valid and, therefore, it was no longer pending before the states and could not be ratified. More recently, three lawsuits by states seeking to force the archivist of the United States to formally publish the 1972 ERA all failed. The Justice Department’s Office of Legal Counsel, during administrations of both political parties, has issued opinions affirming Congress’ power to set a ratification deadline for a proposed amendment and to place it anywhere in the proposing resolution. The latest opinion, in 2020, concluded that, because the 1972 ERA’s ratification deadline expired, it “is no longer pending before the States.” In addition, it said that “Congress may not revive a proposed amendment after the deadline has expired.”

Which brings us back to the Senate Democrats’ letter to Biden. They want him to order the archivist to do what his own Justice Department argues the archivist has no obligation to do. Their letter notes that Article V does not impose a time limit for ratification of a proposed amendment but never mentions the Supreme Court’s unanimous conclusion that Congress may do so. The letter argues that the archivist must publish the 1972 ERA as the 28th Amendment because his predecessor published a previous proposal as the 27th Amendment. The letter skips the part where the 27th Amendment was pending indefinitely because it had no ratification deadline, while the 1972 ERA expired when its deadline passed with insufficient state support.

When it suits them, ERA supporters loudly deny that it has anything to do with abortion. In a hearing on April 30, 2019, for example, Rep. Carolyn Maloney, D-N.Y., the ERA’s longtime primary House sponsor, flatly insisted that “the Equal Rights Amendment has absolutely nothing to do with abortion …. It has nothing to do with abortion.” Today, the opposite position suits them, and the Senate Democrats’ letter to Biden argues that the ERA “is the most effective means at our disposal to prohibit restrictions on women’s reproductive care nationwide.”

The letter has a laundry list of problems and issues that, it claims, the ERA would solve: “equal pay and opportunities … reproductive rights … domestic violence and harassment … gender and pregnancy discrimination.” In hearings, ERA advocates have also included economic inequality, “victim-blaming,” maternal mortality, equality for “marginalized genders,” and even “intergenerational wounds.” No constitutional provision, and certainly not the ERA, can address any of these things. Unlike legislation, which applies to people, the Constitution applies only to government.

No one likes to lose. ERA advocates gambled in 1972 that the ratification deadline would prove irrelevant when 38 states quickly ratified Griffiths’ ERA resolution. That gamble failed and, as a result, the 1972 ERA is not mostly dead, it is all dead. Attempting to perpetuate this fraud undermines the Constitution, misleads the American people, and ultimately discredits the ERA advocates’ cause.

Senate Democrats’ demand is especially bizarre because the Biden Justice Department has already rejected it. In its brief defending the archivist against the states suing for the very same thing Senate Democrats want, the DOJ argued that the states “have not identified any relevant legal authority requiring the Archivist to certify the adoption of an amendment ratified after a deadline imposed by Congress.” Neither did Senate Democrats in their letter.

The late Justice Antonin Scalia’s description of a discredited Supreme Court precedent applies today to the Equal Rights Amendment. It is like “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

If the ERA ever had a justification, it was achieved decades ago without amending the Constitution, and the attempt to add this unnecessary amendment failed. The ERA is dead. It’s time that its supporters woke up to that reality.

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