The ERA Solidifies Women's Rights in the Constitution as the 28th Amendment

[boston bean]

Will the validity of the 28th Amendment be litigated?

Most Likely. The process of amending the Constitution is incredibly difficult. This is why it has only been previously amended 27 times. Throughout U.S. constitutional history, procedural questions and doubt around ratified amendments have been the norm and, over time, there have been concerns about the validity of many amendments that are now securely in place as accepted parts of the Constitution. Although the ERA has met all the requirements laid out in Article 5 to become an amendment, it is very likely its validity will be challenged in court. However, the Constitution affords no role in the ratification process to the Supreme Court. In a 1939 case, four justices in a key decision on another amendment strongly suggested that disputes over amendments were fundamentally political questions better left to the political branches—not the courts. The ERA has strong legal arguments to overcome the procedural claims against it, which is why the American Bar Association—an independent, nonpartisan association of the nation’s lawyers—passed a resolution in August affirming that the ERA has been appropriately ratified as the 28th Amendment. Plus, there is no role in Article 5 whatsoever for the judicial branch in the amendment process. If the U.S. Supreme Court intervenes to remove a ratified amendment from the Constitution, such a move would be unconstitutional and run counter to long standing precedent.

Who does the 28th Amendment cover?

All people. The full text of the operative section of the 28th Amendment reads in full, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” In nonlegal, terms this means it will cover anyone who experiences discrimination on the basis of sex—women, men, and anyone on the gender spectrum, including trans people. It will also cover people who experience discrimination on the basis of sexual orientation.

https://www.americanprogress.org/article/the-era-solidifies-womens-rights-in-the-constitution-as-the-28th-amendment/

[Irish_Dem]

1. Will the courts support this amendment?

Or will the SC use 16th century law to nullify it?

[boston bean]

2. They should have zero say in what becomes an amendment. Otherwise they are our rulers.

[Seeking Serenity]

8. So the Archivist of the United States is the final authority on what gets certified and printed

As part of the Constitution? Yes? No? Who is our "ruler" on these matters?

[boston bean]

9. She cannot deny it. She has a duty at this time

To certify.

[Seeking Serenity]

10. She doesn't see her duty that way

[Hekate]

18. No, the Archivist has no authority in the matter. Her function is to make it public...

As for the Archivist, her function is “ministerial” — that is, regardless of her opinion, her function is to “publish” the material, that is, to make it public. Just like the Vice President’s function with the ratification of Electoral College votes: there is no power, implied or otherwise, to hold up or change anything.

Please read this in full — it is not very long:
https://www.democraticunderground.com/100219915969

[NoMoreRepugs]

3. Should the courts get involved and overturn it - it will open the windows and doors to EVERYTHING being in play IMO.

[valleyrogue]

14. The court cannot overturn a constitutional amendment. n/t

[SickOfTheOnePct]

20. True

but this isn’t an amendment, so…

[Think. Again.]

4. I read that there was a deadline (1986 I believe)....

...by which a certain amount of states had to have ratified it by, and that this deadline had past before the needed number of states did ratify it.

Am I mistaken?

[snot]

5. I have this same question.

.

[hueymahl]

6. No, you are not mistaken. The Amendment is dead

It I love that Biden is Trolling the repukes on his way out!

[Think. Again.]

7. Excellent point!

[valleyrogue]

12. You don't know what you are talking about. It never was "dead." n/t

[hueymahl]

23. I hope you are correct

After reviewing your other posts, and references therein, I don’t think you are correct, but I hope you are!

[valleyrogue]

13. You are totally wrong. See my post below. Time limits are not binding per 1982 USSC decision. n/t

[Hekate]

17. The Tribe/Sullivan article is very understandable. Ratification process is a one-way ratchet

States cannot take it back. There is also no time limit in the Constitution — the original time limits to the passage of the ERA were stated to be advisory in nature at the outset.

Please read at link:
https://www.democraticunderground.com/100219915969

[valleyrogue]

11. It's valid. People need to stop with the "time limit" nonsense.

The reason Congress didn't extend it after 1982 is because the USSC said any time limit was not binding on the amendment and was only advisory. That is direct from the horse's mouth, Laurence Tribe, who went before the court in the case National Organization for Women v. Idaho. The media did a total hatchet job then and now because they don't understand anything about it. They had a narrative Phyllis Schlafly, a right-wing hack who was also supported by the likes of the insurance industry, and her minions in the Eagle Forum and Stop ERA, "defeated" the amendment. They did no such thing.

Ask yourself why Congress didn't extend the amendment time limit further. There is NO answer but the USSC's decision on time limits re constitutional amendments. That is it.

States can't also change their minds once they have ratified an amendment. The only way a constitutional amendment can be overturned is with another one.

There are people here and over at Tribe's Substack who have the nerve to question whether he knows what he is talking about. He does, he argued the above case, and so does the American Bar Association, which Biden consulted.

There is really nothing else to talk about. People need to stop with the misinformation.

[SickOfTheOnePct]

15. You've said this repeatedly

about the 1982 case, NOW v. Idaho, and it is simply not true. SCOTUS never said the time limit wasn’t binding. In fact, they dismissed the case (which was as related to Idaho’s attempt to rescind their previous ratification) as moot because the 1982 ratification deadline had passed, so the rescinding issue was moot.

That’s the opposite of saying the deadline was sent valid - it’s an implicit acknowledgment that the deadline was binding.

The question is why do you continue to say something that is demonstrably untrue?

[Hekate]

16. The article by Tribe & Sullivan is very clear. Link here...

https://www.democraticunderground.com/100219915969

[SickOfTheOnePct]

19. Yes I've read the Tribe article

At the bottom of the case summary below is the opinion from SCOTUS on that case:

The Court has generally followed the Coleman [ v. Miller (1939)] approach whenever it has been asked to interpret the Constitution's Article V, leaving questions regarding the article's interpretation to Congress. Consider NOW v. Idaho(1982) in which the issue was a 1978 act of Congress that extended the original deadline for state ratification of the Equal Rights Amendment from 1979 to 1982. The act also rejected a clause that would have permitted state legislatures to rescind their prior approval. In the wake of a strong anti-ERA movement, the state of Idaho, which had passed the amendment in the early 1970s, decided to ignore federal law and retract its original vote. The National Organization for Women (NOW) challenged the state's action, and in 1982 the Court docketed the case for argument. But, upon the request of the United States, it dismissed the suit as moot: the congressionally extended time period for ratification had run out, and the controversy was no longer viable.

OPINION:

Upon consideration of the memorandum for the Administrator of General Services suggesting mootness, filed July 9, 1982, and the responses thereto, the judgment of the United States District Court for the District of Idaho is vacated and the cases are remanded to that court with instructions to dismiss the complaints as moot.

https://edge.sagepub.com/epsteinshort9e/student-resources/chapter-1-the-living-constitution/now-v-idaho-1982

If SCOTUS rejected the validity of the deadline, why did they dismiss the case once the deadline had passed?

[wnylib]

21. You are correct, as I understand it.

I am fully in favor of the ERA. But to make it law as the 28th amendment, we need to follow the facts.

I am linking an article on the legal issues of the ERA from the Alice Paul Institute, which advocates for the ERA. Alice Paul was a suffragette.

I am posting this from my phone, so I can't copy and paste. I will summarize parts of it and people can read it for themselves.

The Coleman v Miller decision that Congress has the power to set time limits in ratification of amendments still stands. But, it is open to question because another amendment, the Madison Amendment, was ratified after 203 years. That fact challenges the reasoning of the Coleman decision.

But, regardless of whether or not SCOTUS reverses the Coleman decision, Congress does have the power to decide on accepting ratification after the deadline. This is important because it is the best chance of getting the ERA into the Constitution, via pressure on Congress from constituents. IMO grass roots organization in the states and demonstrations in DC would be a good focus for action to get Congress to accept ERA as the 28th amendment.

This article also says that states cannot rescind their ratification. The Constitution does not allow for that.

Here is the article.

https://www.equalrightsamendment.org/pathstoratification#:~:text=A%201921%20Supreme%20Court%20decision,a%20three%2Dfourths%20majority%20ratifies.

[SickOfTheOnePct]

22. Exactly

I want the ERA to become law as well, but it needs to be done the right way.

I have no doubt this will end up before SCOTUS, as someone will file a suit based on their rights being violated under the “28th Amendment”, at which time SCOTUS will have to decide whether or not there actually is a 28th Amendment. It’s just a matter of who files, how soon they file, and upon what rights were purportedly violated.