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OpEdNews Op Eds    H3'ed 2/11/20

Yes, the ERA Has Been Ratified

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Constitution We the People.
Constitution We the People.
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On January 15, Virginia became the 38th state to ratify the Equal Rights Amendment. According to the US Constitution, that makes the ERA part of "the supreme law of the land."

But, say others, not so fast: When Congress proposed the amendment to the states in 1971, it set a 1979 deadline (later extended to 1982) for ratification. It ended up taking nearly 50 years to reach the ratification threshold, and the US Department of Justice has advised the Archivist of the United States against recognizing the ERA as a new addition to the Constitution.

I personally don't have a strong opinion either way on the Equal Rights Amendment itself. On one hand, we seem to be making good progress toward equality of the sexes without it. On the other hand, what could it hurt?

What I do have a strong opinion on is holding governments to their own supposed rules.

In the case of the government of the United States, those rules are set forth in the Constitution, Article V of which provides Congress with no power to set ratification deadlines on constitutional amendments.

Congress gets to decide (requiring a 2/3 vote of both houses) to propose amendments to the states.

Congress gets to decide how the states ratify those amendments (by votes of their legislatures, or by conventions called to consider ratification).

But Congress doesn't get to tell the states how long they can consider the matter.

The states took 202 years to mull the 27th Amendment before ratifying it (it says that changes to congressional salaries don't take effect until after the next election).

They get as long as they care to take.

Congress doesn't have to like it. That's how it is whether Congress likes it or not.

Supreme Court Justice Ruth Bader Ginsburg -- an ERA supporter -- disagrees, saying "there is too much controversy about late comers." That's discouraging, since settling such controversies in accordance with the Constitution, instead of just rubber-stamping whatever whim happens to take the legislative branch, is her job description.

Next time Congress proposes a constitutional amendment, will it include a clause requiring state legislators to vote while riding unicycles and strumming ukuleles? It has as much authority -- that is, none at all -- to do that as it has to set ratification deadlines.

Virginia did its part. Now David Ferriero, Archivist of the United States, should do his job and proclaim ratification of the 28th Amendment to the Constitution.

 

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Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.


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2 people are discussing this page, with 7 comments  Post Comment


Starbuck

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Nope. You dont get to have it both ways. Either acknowledge that the ERA expired in 1982, or acknowledge that at least 3 states recinded their ratifications. Either way, the ERA is DOA.

Submitted on Wednesday, Feb 12, 2020 at 5:11:21 PM

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Thomas Knapp

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Reply to Starbuck:   New Content

Looking for the part where the states get to rescind their ratifications.


Nope, no magic time machine there. Once they've ratified it, they've ratified it.

Submitted on Wednesday, Feb 12, 2020 at 9:16:42 PM

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Nice try but nothing in Article V either grants or prohibits rescinding. Nor does it grant or prohibit establishing or removing deadlines. Show me where it says they CAN'T rescind. If you cant find it, then look at the 10th Amendment. It spells out what happens when a power is NOT granted to the federal government. Nothing gives the feds the right to prohibit rescinding. States win.

Submitted on Wednesday, Feb 12, 2020 at 11:43:38 PM

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Thomas Knapp

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"Nice try but nothing in Article V either grants or prohibits rescinding."


If the power isn't granted, it's prohibited.

Submitted on Thursday, Feb 13, 2020 at 12:12:17 AM

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Reply to Thomas Knapp:   New Content

If a power isnt granted it is prohibited. Yes..to the FEDERAL GOVERNMENT. But not to the states.


No sir, the purpose of the Constitution was mostly to restrict the power of the federal government.


"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


So no. If its not covered in the constitution, the power is in the hands of the states. I grant you there are some that prefer to ignore this amendment. But it is pretty clear. You are correct as your contention applies to the federal government. The situation is reversed as it applies to the states per the 10th Amendment.


Submitted on Friday, Feb 14, 2020 at 10:38:12 PM

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So if New York, Massachusetts, Connecticut, and Maine decide to rescind their ratification of the 1st Amendment, it's gone, then?

Submitted on Friday, Feb 14, 2020 at 11:21:34 PM

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Didn't realize I needed to get down to that level of detail. Once it becomes law, game over. But the game isn't over until someone wins.


In any case, I think its a bit moot now. Even Ruth Bader Ginsberg appears to have written it off, although in my view for the wrong reason. You might notice I have NOT argued about the expiration issue. Here is why:


I don't see anything in the constitution that allows the feds to set a deadline on state ratification. So if you were to argue its still alive based on that, I would sort of agree (though precedent says otherwise, so I would guess that will be the basis for the death of the ERA from the courts). I also don't see anything for or against rescinding ratification before the amendment passes. But the 10th amendment does put the power in the hands of the states where not otherwise specified in the constitution. To me that answers the question of whether they can rescind BEFORE the 38 state ratification is complete. Once it is complete, game over it becomes law.


All that said, my prediction is it will go to the Supreme Court, and get shot down at least 6-3 over the expiration date, and even possibly 9-0 given even the most liberal judge on the court seems inclined to kill it.


And since this article has fallen off the front page, I bow out with that view. We're probably the only ones left watching :).


Happy writing.


Submitted on Saturday, Feb 15, 2020 at 4:53:23 PM

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