Equal Rights Amendment Has Been Ratified - Is It Valid?

The Equal Rights Amendment (giving women rights equal to those of men) has finally been ratified by the appropriate number of states. That should make it officially the 28th Amendment to the United States Constitution. But sadly, now there is a dispute over how long it took for enough states to ratify it -- and some say that means it is not valid. 

Here is just a small part of how Jesse Wegman describes the controversy in The New York Times:

Even if you are a political junkie, there’s a good chance you didn’t realize that the United States Constitution grew 58 words longer this week. 

Those words, which begin, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” are the text of the Equal Rights Amendment. Section 3 of the amendment states that it takes effect two years after its ratification, which happened on Jan. 27, 2020, when Virginia became the 38th state to sign on. By its own terms, then, the 28th Amendment went into force on Thursday. American women are, at long last, equal to men in the eyes of the law. Hallelujah.

Or maybe not.

New printings of the Constitution will not include a 28th Amendment. The Supreme Court will not treat it as part of the nation’s fundamental law. There will be no command from on high that women and men must be treated the same. And yet on Thursday, President Biden called on Congress “to act immediately to pass a resolution recognizing” that the E.R.A. has been properly ratified and is part of the Constitution. What’s going on?

The argument that the E.R.A. is now the law of the land is straightforward and compelling. Under the explicit terms of Article V of the Constitution, an amendment “shall be valid to all intents and purposes” when two-thirds of both houses of Congress approve it, followed by three-quarters of the states. The E.R.A. easily passed Congress in the early 1970s, and it has been ratified by 38 states, or just over three-quarters of 50.

“The Constitution is clear: You need to do two things. We did it,” Representative Carolyn Maloney of New York, a longtime E.R.A. proponent, told me. Indeed, no amendment that has cleared Article V’s two high bars has ever been excluded from the Constitution — until now.

The technical reason for this is that the archivist of the United States, David Ferriero, has declined to certify the Equal Rights Amendment, despite a federal law requiring him to do so whenever an amendment has satisfied “the provisions of the Constitution.”

His refusal is based on a 2020 memo by the Justice Department’s Office of Legal Counsel, which provides legal advice to the executive branch. The memo contended that the E.R.A. is no longer valid because it failed to meet the seven-year deadline that Congress initially set and then, when the ratification effort fell three states short, extended until 1982. (The last three states — Nevada, Illinois and Virginia — all ratified after 2016, spurred by the election of Donald Trump.) The O.L.C. memo also noted that five states that approved the amendment later tried to back out by rescinding their ratifications. As a result of the missed deadline, the memo said, the E.R.A. “has expired and is no longer pending before the states.” If its supporters want it ratified, they need to start over.

The supporters’ retort: The Constitution says not a word about either deadlines or rescissions. It says two-thirds of Congress and three-quarters of the states, nothing more. In a 2012 letter to Ms. Maloney, Mr. Ferriero appeared to agree with this interpretation. As soon as at least 38 states have ratified an amendment, he wrote, the National Archives publishes the amendment along with his certification “and it becomes part of the Constitution without further action by the Congress.” He also said he did not consider any of the rescissions to be valid.

But following the 2020 Justice Department memo, Mr. Ferriero balked, triggering our current constitutional conundrum. Complicating matters further, the O.L.C. on Wednesday issued a new memo that called into question the reasoning of the 2020 memo and stated that “whether the E.R.A. is part of the Constitution will be resolved not by an O.L.C. opinion but by the courts and Congress.”

The E.R.A. has thus become the Schrödinger’s Cat of amendments — simultaneously part of and not part of the Constitution.

There is much more, and it's well worth reading.