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The Controversy about the ERA Amendment Process

It seems likely that another constitutional controversy will soon emerge. Next year, the Virginia Legislature seems poised to ratify the Equal Rights Amendment, which Congress first proposed nearly a half century ago. Under one way of counting, Virginia’s approval would be the 38th state ratification for the ERA, giving it the requisite three quarters of the states needed for ratification. Thus, it might seem like the ERA is about to become law. In my view, however, even if Virginia votes to ratify, it will not bring the ERA into effect.

The story of the ERA is a long and complicated one, but on one level it is simple. Once the ERA was initially unable to secure ratification, advocates of the Amendment have engaged in one questionable act after another in an effort to enact it. I say this despite my support of at least some versions of an equal rights amendment—specifically, versions that have a relatively determinate meaning.

In 1972, Congress proposed the ERA by the required two thirds of each house of Congress. The resolution proposing the amendment provided:

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 the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

ARTICLE —

SEC 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

SEC. 3. This amendment shall take effect two years after the date of ratification.

(second italics added).

What is peculiar about this resolution is that the seven-year limitation was contained in the resolution proposing the amendment, but not in the text of the amendment itself. While many constitutional amendments, such as the 20th, 21st, and 22nd have also had seven-year limitations, those limitations were placed in the text of the amendments.

Unfortunately for the ERA, it did not receive the required 38 state ratification by the end of he seven year limitation in 1979. As the deadline was about to run, Congress passed by a simple majority of each house (and then signed by the President), a provision attempting to extend the deadline until 1982. But no additional states ratified the amendment prior to the 1982 deadline.

Although the amendment seemed to be dead, additional states began to ratify the amendment in 2017. Illinois and Nevada have now passed ratifications. If Virginia (or another state) passes a ratification next year, many ERA proponents are likely to argue that the Amendment has been ratified.

But the argument for this conclusion is very weak. First, even if these three ratifications had occurred during the 1979-1982 period when Congress had passed an extension by statute, they would not be valid. One cannot use a statute to modify a proposed constitutional amendment. A proposed constitutional amendment requires a two-thirds vote of both houses. A statute requires only a majority vote of both houses.

Moreover, even if Congress had passed the extension with two-thirds of each house, that would be insufficient. The ratifications that had occurred prior to the extension were to a proposed amendment that had a 7-year limitation. One cannot count those ratifications for a proposed amendment with in effect a 10-year limitation, since we don’t know that the states that had ratified the amendment with the 7-year limitation would have ratified an amendment with a 10-year limitation. This (hypothetical) amendment with a 10-year limitation that was passed by two thirds of each house would only be ratified if 38 states approved it.

This discussion assumes that the ratifications beginning in 2017 were passed during a period for which Congress extended the ratification window. But Congress has not extended the ratification window either by statute or by proposed amendment since 1982. So what possible argument is there for counting the three new ratifications and adding them to the prior ones?

The best arguments appear to be that the time limitation in the original ERA was not binding and therefore can be ignored. One possible reason is that the ERA time limitation was not in the amendment itself, but only in the resolution proposing it. But this argument is open to an objection. The Constitution merely states that Congress should propose an amendment and it is not clear why limitations in the resolution proposing the amendment should not be considered as part of Congress’s proposal. Still, this argument against enforcing the time limitation cannot be rejected out of hand.

Another possible reason why the time limitation might not be binding, even if it were in the constitutional text, is the argument that the Constitution does not allow Congress to set a time limit. Under this view, Congress’s only role in the amendment process is to propose an amendment and then to determine whether it is ratified by state conventions or state legislatures. I have some sympathy for this argument. But again there are problems. First, many constitutional amendments have included time limitations in the text and therefore there is a strong precedent for concluding they are valid. Second, even if Congress has no authority to do anything other than propose the amendment and specify whether state conventions or state legislatures should make the ratification decision, Congress placed the time limitation in its proposal, and it certainly has the power to make proposals. So one must decide whether the time limitation was a legitimate part of the proposal.

But let’s imagine that we accept the argument for the continuing life of the proposed ERA on these issues and conclude that Congress could not—in the text or the resolution—place time limits on the amendment. What would be the consequence of this conclusion? It would indicate that the time limitation was unconstitutional. If so, one might conclude that the proposed ERA itself is unconstitutional and therefore of no force or validity. That would hardly help the prospects of the ERA.

The response to this conclusion would presumably be that it is only the time limitation that is unconstitutional. Therefore, that portion of the proposal is of no effect, but the remainder of it is. This amounts to a severability argument—the unconstitutional portion of the proposal can be severed from the remainder, leaving it of full force and effect.

The problem here is that it is extremely questionable that the unconstitutional portion is severable. Applying severability to constitutional provisions (as opposed to statutes) is novel and questionable. In addition, there is no severability clause. Finally, there is a strong argument that the provision is not severable, because the Congress might not have voted for it without the unconstitutional portion. Members of Congress might have sought a genuine consensus of the country and not one that was only secured over a half century.

There is also another severability problem at the state level. When states ratified the Amendment prior to 1979, they too might have sought a genuine consensus within a seven-year period. Thus, they might have rejected an amendment with an unlimited ratification period.

Finally, there is one last problem with concluding that only one more state is needed to ratify the ERA. Since five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) have rescinded their ratifications, if those rescissions are operative, then an additional five states will be needed for ratification. It is not clear that these recissions are valid, but my tentative view is that they are valid on the ground that recissions are valid so long as they are passed before the requisite three quarters of the states are reached.

Overall, there are numerous problems with the claim that only one more state is needed for the ERA. In my view, there is much to be said for an equal rights amendment that has a determinate meaning and even more to be said for effecting constitutional change by constitutional amendment rather than judicial updating. But declaring the original ERA ratified when one more state approves it might create a constitutional crisis and would certainly damage the credibility of the Constitution.

Reader Discussion

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on December 20, 2019 at 13:48:22 pm

"But declaring the original ERA ratified when one more state approves it might create a constitutional crisis and would certainly damage the credibility of the Constitution."

And that ain't the half of it, brother. Wait until the Courts get a hold of it and determine that those ignorant Legislators REALLY, I mean REALLY meant gender not biological sexual endowments.

Oh this will be fun to watch in my dotage!

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gabe
on December 20, 2019 at 16:02:49 pm

Can someone explain to me how an amendment prohibiting abridgment by the states of equal rights differs in any meaningful sense (and I don't mean any sense a tenure-seeking legal "scholar" can dream up) from the existing prohibition of denial of the equal protection of the laws? Especially as, for many decades now, the Equal Protection Clause has been dyslexified into the Protection of Equal Laws.

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QET
on December 20, 2019 at 18:13:22 pm

Nope- can't do it!

But it will make certain people FEEL BETTER ABOUT THEMSELVES - thus, in their eyes it must be passed.

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gabe
on December 21, 2019 at 08:57:38 am

“And that ain’t the half of it, brother. Wait until the Courts get a hold of it and determine that those ignorant Legislators REALLY, I mean REALLY meant gender not biological sexual endowments.”

True, but this does not change the fact that even if they desire to deny the fact that man was Created by God, equal in Dignity, while being complementary as a beloved son or daughter, by making the claim that gender is now whatever you desire it to be, that still does not change the reality that in order to affirm the equality of the inherent Dignity of every beloved son or daughter, one cannot condone the engaging in of sexual acts, that regardless of the actor’s or the actor’s desires, are acts of depravity. They will need to demonstrate exactly how acts of depravity, which, regardless of the actors, or the actor’s desires, can serve for The Common Good, when we can know through both our Catholic Faith and Reason, that acts of sexual depravity, in all cases, amongst all people, are a perversion of Love, and thus, in all cases, amongst all people, acts of sexual depravity, are devoid of Love.

The issue with “A Fairness For All Bill”, which claims to serve to protect certain sexual conduct under the false assumption that only by protecting certain sexual conduct, can we obtain “fairness for all”, is obvious.

In all cases, among all people, regardless of one’s beliefs, desires, inclinations, orientation, acts of depravity are always a perversion of authentic Love, which is always rightly ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love and thus devoid of Lust.

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Nancy
on December 21, 2019 at 12:17:24 pm

“But it will make certain people FEEL BETTER ABOUT THEMSELVES – thus, in their eyes it must be passed.”

But we all know that sexual acts of depravity in every case, among all people, in every location, are physically, psychologically, emotionally, and spiritually harmful and demeaning and thus cannot possibly make Human persons feel better about themselves.

“5For (this ) cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh. 6Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder.”

(this) being singular, proximate, demonstrative.

The marital act is Life-affirming and Life-sustaining, and can only be consummated between a man and woman united in marriage, as husband and wife. It is possible for those who are chaste in their thoughts, in their words, and in their deeds, to exist within a marriage that strives to be Holy, and thus strives to remain in communion with God.

“28 But I say to you, that whosoever shall look on a woman to lust after her, hath already committed adultery with her in his heart.”

Even a man and woman united in marriage as husband and wife, however, can end up denying Christ’s teaching regarding lust and the sin of adultery, and thus deny the inherent Dignity of being, in essence, a beloved son or daughter.

All same sex sexual acts deny the inherent Dignity of a beloved son or daughter by denying Christ’s teaching regarding lust and the sin of adultery.

However, It is not The Faithful who are guilty of denying the respect, compassion, and sensitivity due to those persons who desire to overcome their disordered same-sex sexual attractions, and are called to fulfill God’s Will - that all persons experience authentic Salvational Love in their lives, no, it is those who insist that a disordered same-sex sexual attraction is “the very deepest part of their being”, unreachable from “That Light That Shines In The Darkness”, The Power And The Glory Of God’s Transforming Love, and can not tolerate the fact that accepting Salvational Love, God’s Gift Of Grace And Mercy, which is available to all those who desire to believe The Good News, repent, and atone for our sins, will heal the wounds of our beloved, as they learn to develop healthy and Holy relationships and friendships, which are respectful of themselves and others, in public and in private, and thus grounded in authentic Life-affirming and Life-sustaining Salvational Love.

Only our acceptance of Life-affirming and Life-sustaining Salvational Love, “can make all things new again”.

Godspeed!

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Nancy
on December 21, 2019 at 12:55:44 pm

https://www.lifesitenews.com/opinion/the-anti-church-has-arrived-and-it

And now, that the anti Church has arrived, as it is no longer just bishop v. Bishop, cardinal v. Cardinal, but pope v. every other previous validly elected Pope, I am concerned for all my beloved and cannot help but have moments of fear and trembling, Praying for our Holy Father Benedict, surrounded by so many wolves in sheep’s clothing, members of The Great Falling Away. You can only have A Great Apostasy from The True Church, Christ’s One, Holy, Catholic, And Apostolic Church, outside of which there is no Salvation, due to The Unity Of The Holy Ghost; It Is “ Through Christ, With Christ, And In Christ, In The Unity Of The Holy Ghost, that Holy Mother Church exists.

“It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, Who affirms the fact that There Is Only One Son Of God, One Word Of God Made Flesh, One Lamb Of God Who Can Take Away The Sins Of The World, Our Only Savior, Jesus The Christ.

A schismatic, who, prior to his election as pope, claimed that sin done in private was not sin, Jorge Bergoglio, who denied Christ’s teaching regarding sexual sin and thus The Sanctity of the marital act within The Sacrament Of Holy Matrimony, and thus, having opposed every previously validly elected Pope, cannot possibly be The Vicar Of Christ.

This is what Jorge Bergoglio said, in regards to same-sex sexual relationships, and thus same-sex sexual acts, prior to his election as pope, on page 117 of his book, On Heaven And Earth, demonstrating that he does not hold, keep, or teach The Catholic Faith, and he continues to act accordingly:

“If there is a union of a private nature, there is neither a third party, nor is society affected. Now, if the union is given the category of marriage, there could be children affected. Every person needs a male father and a female mother that can help shape their identity.”- Jorge Bergoglio, denying The Sanctity of the marital act within The Sacrament of Holy Matrimony, and the fact that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage.

“1849 Sin is an offense against reason, truth, and right conscience; it is failure in genuine love for God and neighbor caused by a perverse attachment to certain goods. It wounds the nature of man and injures human solidarity. It has been defined as "an utterance, a deed, or a desire contrary to the eternal law."121
1850 Sin is an offense against God: "Against you, you alone, have I sinned, and done that which is evil in your sight."122 Sin sets itself against God's love for us and turns our hearts away from it. Like the first sin, it is disobedience, a revolt against God through the will to become "like gods,"123 knowing and determining good and evil. Sin is thus "love of oneself even to contempt of God."124 In this proud self- exaltation, sin is diametrically opposed to the obedience of Jesus, which achieves our salvation.125“

One need not be a prophet, just a Catholic who desires to be Faithful to Christ and His Church, to recognize that the election of a man to the Papacy, who does not hold, keep, and teach The Catholic Faith, cannot possibly be valid.

“An enemy has done this.”

Who shall we send to remove our Holy Father, Benedict, from this Den Of Thieves?

God Save our Pope!

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Nancy
on December 21, 2019 at 13:18:11 pm

J.M.J.

Pray that Our Blessed Mother, Mary, Ark Of The Covenant, Queen Of The Holy Angels, Destroyer Of All Heresy, Who, Through her Fiat, affirmed The Filioque, and thus the fact that There Is Only One, Jesus The Christ, will Intercede for us.

“Ave Crux, Hail The Cross, Our Only Hope.”

“Come Holy Ghost”.

https://m.youtube.com/watch?v=3yzQaRG7NL8&list=PLCxTgkhMKRzK3JwYOWoWhUNe03Va4CkH2&index=23&t=0s

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Nancy
on January 30, 2020 at 06:01:32 am

[…] The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty] […]

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Image of The Equal Rights Amendment expired. Can it be revived? | Overlawyered
The Equal Rights Amendment expired. Can it be revived? | Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.