Wednesday, January 15, 2020

The 28th Amendment!

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

Today, Virginia became the 38th state to ratify the Equal Rights Amendment, a proposed amendment to the Constitution of the United states designed to guarantee equal rights for all American citizens regardless of sex.

The text of the Equal Rights Amendment states:
Section 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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.  

I've been watching this for some time, as it was just last year that Illinois became the 37th state to ratify the proposed amendment.

For a proposed amendment to become a part of the Constitution, one method is for it to be ratified by three-fourths of the states.  Or thirty-eight states.

The Equal Rights Amendment has had a torturous path toward those thirty-eight ratifications.  Thirty five of them ratified within the original deadlines.  Nevada, Illinois, and Virginia have only ratified in the last three years.

Here, though, is where things get even more interesting.  First, the Amendment initially came with a built-in deadline for ratification, initially March 22, 1979 and extended to June 30, 1982.  That deadline has obviously passed without the requisite ratifications, so there is some thought that even with another state ratifying, the Amendment would not go into effect.  The Supreme Court, in Coleman v. Miller, 307 U.S. 433 (1939), has ruled that the supreme authority to determine whether, by a lapse of time, a proposed amendment lost its vitality before being ratified lies in Congress.  Put another way, the decision regarding whether the deadline is controlling is in Congress' hands.  And there have been several proposals on the floor over the years to revive the Equal Rights Amendment and to remove the deadline.  It's also important to note that the deadline was passed in a separate message, not included in the proposed amendment itself.  Given those circumstances, the deadline itself may not even be constitutional.

Secondly, four or five states that initially ratified the Amendment have rescinded their ratification (with South Dakota's being most questionable).  The Constitution is silent on whether or not a ratification can in fact be rescinded.  And while the Supreme Court has heard arguments on the validity of a rescinding, it has not ruled directly on their validity.  The issue in NOW v. Idaho, 459 U.S. 809 (1982), was decided on procedural grounds.

It presents a very interesting situation. With Virginia ratifying, the amendment arguably should be the Twenty-Eighth Amendment to the United States Constitution.  It will result in much debate and political maneuvering to achieve such a result.  There will be constitutionality cases, there will be great political theater.  Likely, you will see those that support it act like it automatically becomes a part of the Constitution and those that oppose it pretend it does not.  It will be fascinating to watch.

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