President Biden Affirms the Passage of the ERA
Today I’m affirming what I have long believed and what three-fourths of the states have ratified:
The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.
Kamala Harris released a Statement from the White House:
Equality is a fundamental promise of our democracy. That is why the Equal Rights Amendment belongs in our Constitution. It makes our nation stronger, and it is the law of the land because the American people have spoken in states across our nation.
History teaches us that civil rights are fought for and won with every generation. That continues to be true today, which is why I have spent my career fighting for freedoms and to expand opportunities for women and girls. It has always been clear that when we lift up women, we lift up children, families, communities, and all of society. Now, Americans must continue to fight for a more equal and just nation where everyone has the opportunity to realize the promise of America.
Joe Biden also announced it in a speech covered by C-Span:
Today, I affirm the Equal Rights Amendment has cleared all the necessary hurdles to be added to the U.S. Constitution, now! The Equal Rights Amendment is the law of the land, now! It’s the 28th Amendment to the Constitution, now!
We’re in garbage time now, the third-stringers are running the socials.Report
Oh I didn’t read all the way to the bottom — maybe they’re also writing the speeches?Report
I wanted to embed the video in the post, but C-Span doesn’t make that easy.
My tax dollars paid for that video!Report
Pointless gesture.Report
Can someone explain this for a foreigner? As I understand it, an amendment has either been ratified by sufficient states or it hasn’t, and the President doesn’t really have a role here?
Are there sufficient states to ratify or not? If so, why is this being announced by Biden, by tweet, now? If not, what the hell is he playing at?Report
The bill that passed the ERA in Congress specified a seven-year deadline for ratification. That expired decades ago. Furthermore, five of the states that ratified it before the deadline have since rescinded their ratification.
The theory that it was actually properly ratified depends on two questionable assumptions, both of which must be true:
1. The deadline is invalid, because it was not specified in the actual text of the amendment, but in the text of the bill prefacing the text of the proposed amendment.
2. States cannot rescind ratification of an amendment.
As for what Biden and/or his handlers are thinking, nobody outside the administration really knows.Report
The Supreme Court ruled in Dillon v. Gloss (1921) that (1) Article V of the Constitution implies that amendments must be ratified, if at all, within some reasonable time after their proposal. (2)
Under this Article, Congress, in proposing an amendment, may fix a reasonable time for ratification. (3) The period of seven years, fixed by Congress in the resolution proposing the Eighteenth Amendment was reasonable.
A couple of years ago Illinois sued the Archivist to get an order record the ERA and lost. (Illinois was one of the states that didn’t ratify timely) While the court recognized that perhaps some aspects of Dillon might be dated, there was no support for the premise of the lawsuit that “Congress lacks the authority to set deadlines for ratification, including the seven-year deadline in the ERA.”Report
I’m not sure I understand the argument for the defense in Dillon v. Gloss. Dillon claimed that the seven-year expiration made the 18th Amendment invalid, but the 18th Amendment was ratified in a bit over a year, so the expiration never came into play.
Hypothetically, if the last required state had not ratified the 21st Amendment until more than seven years after its passage by Congress, and a bootlegger had been arrested after 3/4 of states had ratified it, the bootlegger might plausibly claim in his defense that the 21st Amendment was in force because the deadline for ratification was unconstitutional. That would make more sense.
I guess the argument was that since the Constitution didn’t explicitly authorize Congress to set a deadline, the entire bill proposing the 18th Amendment was invalid, and not just the portion setting a deadline?Report
Yes, that was the argument. The 18th Amendment was the first time a deadline was given for ratification, and Defendant was arguing that the inclusion of a deadline invalidated the Amendment and by extension the criminal statute that enforced the Amendment against him. Even if the deadline was somehow improper, it would still have posed an additional question to be addressed as to whether the remedy would be to void just the deadline or the whole amendment.Report
Um, the 27th amendment would like a word with you.
We are 100% sure that amendments do not _implicitly_ expire.
The question is if they can _explicitly_ expire, if having a time limit makes them expire.Report
The President has no role in the Constitutional Amendment process. The Archivist of the United States (who does not answer to the President) is responsible for recording Amendments which are ratified and she said that she is doing no such thing. This is the equivalent of Biden announcing an amendment to the New Zealand Constitution, preferably one that has some thin controversy around it.Report
My sources say that the marshal of the supreme court has already started installing the amendment.Report
Ah, so this is a strange as I thought it was, thank you both.Report
Do we have any members of the ABA?
Statement from President Joe Biden on the Equal Rights Amendment.
Report
A fairly explosive accusation made here by Johnson. If this is true… well, it’s another piece of evidence that we don’t have a new amendment.
Report
For those who think it’s obvious the amendment can’t be considered ratified because the time lime is passed, there are two reasons why time limits are not valid:
The first is that expiration is part of the preamble and not the amendment itself. Preambles don’t actually do anything. This is the one people seem to know.
The second is…the constitution, extremely clearly, says amendments _will_ be part of the constitution if enough states say so. Not ‘Will part if the conditions in the amendment are meet’. An amendment gets no say in whether or not it is made part of the constitution, because it is, duh, not part of the constitution yet.
This is actually pretty easy to prove with just basic logic. Here’s the preamble, for reference, which is the ‘law’ that is Congress passing the amendment, and not the actual amendment itself:
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: (The actual amendment follows)
Now, I ask people, what if that had said that it would be part of the constitution when ratified by one-half of the states? Or nine-tens? Congress, very obviously, cannot do that. It wouldn’t matter what they wrote there, they cannot redefine the constitutional requirements for an amendment.
So why would they be able to add a time limit?
In fact, Congress is not in charge of the amendment process at all. It’s a process that requires enough of both the states and Congress to pass an amendment, but there’s no requirement that Congress does it first. Yes, Congress has generally written them, but states can also. It is a dual process, equally shared by Congress and the states.
So this would be Congress not only trying to set rules for something laid out explicitly in the constitution that it has not authority to change, but setting rules for the _individual state governments_ part of the process! One of the areas that states have actual constitutional sovereignty. Holy crap.
Congress really, really cannot do that. I cannot stress that enough. Congress cannot alter the amendment process of states by writing things next to amendments as they pass them. (In fact, you might have better logic in arguing that conditional passages like that don’t count as actual passage…and exactly that was argued in Dillon v. Gloss. It failed. 100 years ago.)
Now, whether or not States can _rescind_ the passage of the amendment is another issue, one that doesn’t impact their sovereignty. The constitution is silent on that. I would argue no, because it’s rather unclear why they could only rescind _unpassed_ amendments and not passed one., and that way lies madness. But that one is debatable.Report
You need to tell Colleen Shogan to add the amendment! Call her at her office! Send pizzas to her house COD!Report
JD Vance tweets:
He is being criticized for using the “s” word.Report
Vance has always been an internet troll disguised as a responsible public official.Report
Oh, good! You’re a lawyer! Are you a member of the ABA?Report
Yes, I am. I belong to most of the relevant trade associations. Lots of useful services and CLE. Some good parties too.Report
Do they speak for you? Like, when the ABA drops a statement, can it be assumed that you’re probably in agreement? Or, instead, is it something like “hey, I’m a member of a professional organization, not a *CULT*… if they say something, maybe I agree, maybe I don’t”?
And if it’s the latter, did you see their position on the 28th Amendment?Report
Why would you think a silly thing like that? I haven’t seen their position on the 28th Amendment and am not greatly interested in it. I haven’t done the work necessary to develop one for myself and no client has a dog in that fight, so I don’t have to. David TC does a good job laying out the complexities. It’s one of those procedural issues about which it’s far more important to have some definite answer than any particular answer, so if, ultimately, the ABA and I come to different answers, no big deal. It’s not as though they endorsed Jim Crow laws.Report
So it’s the latter?
If you haven’t seen it, Biden talked about it with one of his White House press releases. I linked to it above but here’s the relevant part:
I ask about this because, in the past, you’ve said stuff like “let the experts opine about this stuff” to amateurs opining and I’m wondering if your opinion of the ABA is that they are the experts to whom amateurs need to defer or if they’re just another bunch of people out there who have legal opinions or what.Report
If that’s what you wanted to know, you could have asked. So here’s what I think on that. I don’t know how much homework the ABA put into this, but they usually do a good job. Right or wrong, their view likely is much better founded than that of barstool blowhards. But it’s one of those issues that actual experts disagree about, so barstool blowhards, or anyone else, can think what they want. Doesn’t mean they’re not barstool blowhards or that what they think is worth considering. At least if you’re concerned with what’s so.Report
How do we determine the difference between well-founded wrong opinions among experts and right opinions?
For that matter, how do we determine the difference between opinions that people should leave to the experts and opinions that anybody should be able to hold?Report
1. That’s what experts are for.
2. Who said people should not be able to hold whatever opinions they damn please, no matter how silly or ill-founded?Report
1. Seems like it’s also a way to determine that people who were claimed to be “experts” weren’t really experts.
2. The people who say “leave this sort of thing to the experts”.Report
1. Well, yes. If the experts say that X isn’t an expert, X isn’t. Of course experts are sometimes wrong and some random non-expert isn’t, if only by accident. But random non-experts aren’t the way to bet.
2. Most of us leave things we don’t understand to experts and we’re right to. And we don’t even think it’s an issue. Sometimes, usually for bad reasons, we think differently. When we do, we get laughed at. As we should. And that’s usually it. That’s how it works.Report
1. Huh. “Random”. I wonder if there is a tendency to say something like “people like me are experts (and expert experts) and people like you are random people who have random opinions”.
If there is, that’ll eventually result in experts not being seen as such… after a sufficiently large flub.
2. Is stuff like “Constitutional issues” stuff like “statistics” or “biology” insofar as laymen should fear being laughed at for their interpretations or are they sufficiently non-complex that even rando commando can look at something and say “that’s not how that works”?
Because, I gotta say, the experts who are in charge of deciding such things haven’t demonstrated a whole lot of competence when it comes to deciding who can and who can’t say something without being laughed at.Report
1. Yes, because it’s true.
2. Nobody “decides” who gets laughed at. They just laugh, and the laughter lands or it doesn’t. If you “fear” being laughed at, that’s on you.Report
1. Sure!
2. If that’s the dynamic, we’d probably see a lot of effort going into trying to set rules about what is and what is not funny, whether comedy should avoid certain targets, and so on. I reckon the people who fear being laughed at the most would be the ones who scream about the laugh rules the most.
But I’m not a comedy expert. More of a layperson.Report
1. Ok then.
2. Is your point that that isn’t the dynamic and, therefore, there is someone who “decides” who gets laughed at, or that that is the dynamic and that some folks aspire to the non-existent office of Master of the Revels (or Comedy Central)? Either way, people laugh at what they laugh at, which — surprise– changes over time, catches the Bobby Bittmans of the world unaware, and leaves them blaming the audience when the old jokes don’t land.Report
No, just looking at the game around the game. Like, imagine if someone made fun of Biden affirming the 28th Amendment. Like, not even disagreeing. Just out-and-out mockery.
What’s the best play? “Call the mocker a troll” is probably the best play.Report
So we agree. Good to know.Report
It’s a hell of a lot easier than arguing for the 28th Amendment!
It also gives cover for later “I never said that the 28th Amendment passed”. (Or, for that matter, “I never said that it didn’t.”)
You can just say “leave opining to the experts”, say “that’s not funny” to the people making jokes, and never actually giving your own expert opinion.
It’s a really strong position. Tactically, I mean. Strategically… eh. Once you see it, you can’t unsee it.Report
Why should I argue for or against the 28th Amendment? I’m not obliged to have a hot take on a difficult legal issue just because someone wants one. Are you really puzzled that someone prefers not to talk about something until he has something to say? I guess that’s the difference between experts and barstool blowhards.Report
Well, for one, it doesn’t seem like *THAT* difficult of a legal issue.
Colleen J. Shogan, for example, seems to have indicated that it is a settled legal issue.
I mean “you can’t pass Constitutional Amendments by tweet!” doesn’t seem like *THAT* hot of a take.
Good Lord. We’re hours into the Trump administration. You’d think that “you shouldn’t do Constitutional stuff over an SMS messaging service” would be icy cold.Report
It may not seem so to you. but people who don’t know things often think they’re easier than they are.Report
Could you explain what Ms. Shogan got wrong, then? I mean, if it’s so complicated.Report
Why don’t you tell me what she said? You might even get it right, though your reference to not amending the Constitution by tweet doesn’t inspire confidence.
Ms. Slogan, the Archivist, has the base in
knowledge and experience that her views on the subject, whatever they may be, are entitled to the respectful attention of anyone interested in the topic — an expert, if the notion doesn’t offend you.
If and when I have the time and motivation to do the kind of deep dive necessary to develop an opinion worth airing on the subject, I will certainly look into what she has to say. Until then, I will accept your implicit answer to my last question.Report
Would it take an expert expert to pick between Ms. Shogan and the ABA?Report
You still haven’t told me what she said and what the ABA said and where they differ if they do. Off past form, I know better than to rely on whatever account you give and I’m not interested enough to take a homework assignment a review them for myself.
That said, it doesn’t take an expert to “pick” between them if they actually disagree. But so what? I can “pick” the best soccer team without being an expert, and I might accidentally be right in the end, but nobody would take my “pick” seriously, and they’d be right not to.Report
Do I need to tell you what she said? Is this one of those things where I can link to her nomination testimony or will you only accept my paraphrase of her testimony?
I assume that you’re familiar with her testimony, of course. Do you want me to link to it?
I can link to it, if you need me to.
I was assuming that you didn’t need me to… because of your expert status.
Was that a mistake on my part?Report
I won’t address what you think your needs are, but I’ve told you more than once that I don’t know what she said and don’t care enough to look. I’m not sure how I can be clearer than that, so, yes, that was a mistake on your part.Report
I’m not the one making requests, CJ.
Also: If you don’t care enough to look, why would you ask me about it?
If you don’t care about it, why would you care what *I* would say about it?!?!?
Wait. Maybe it has nothing to do with what is true on a tactical level. Maybe we can get him to confirm that he doesn’t care what is true on a tactical level…Report
Way back almost eight hours ago, I said I had no opinion on the status of the 28th Amendment, hadn’t done the work necessary to have a responsible opinion, and wasn’t interested in what others had to say about it. We could have left it there, but you’ve insisted on flushing out views I don’t have and don’t have any pressing reason to do the considerable work I’d need to do to develop them. I keep trying to explain this, but you seem to think I have some strategic or tactical reason for not doing serious uncompensated legal research on demand. You are the one making requests, and I respectfully decline. I’ve said, repeatedly, all I have to say. If you want to keep pursuing this, knock yourself out.Report
See, if this was a question about whether the people in Tonga be allowed to have poker nights on Fridays, I would expect you to be able to say “what in the hell does that have to do with me?”
But it’s a question about the Constitution of the United States.
Are you currently in Canada or something? Have I been assuming that I’ve been talking to an American for the last few years?Report