Author Topic: Has the Equal Rights Amendment been the law for years?  (Read 1006 times)

Poundwise

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Has the Equal Rights Amendment been the law for years?
« on: January 17, 2025, 08:28:24 PM »
Saw this very interesting take on the role of the archivist and the validity of the original deadline that Congress set.
https://contrarian.substack.com/p/the-equal-rights-amendment-at-long

iris lily

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #1 on: January 19, 2025, 08:04:30 AM »
I feel a stirring in the earth coming from St. Louis’ Calvery Cemetary as the grave of Phyllis Schlafly rumbles…
« Last Edit: January 19, 2025, 10:48:31 AM by iris lily »

seattlecyclone

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #2 on: January 19, 2025, 11:02:21 AM »
Yeah, a few issues at play here.

1) Can Congress add requirements for ratification (such as a deadline) that go above and beyond the requirements listed in the Constitution? That seems dubious to me, but I trust our Supreme Court would be able to find a justification for it if they were so inclined.

2) Can a state cancel their ratification decision after the fact? This also seems dubious to me; it would lead to possibilities such as "2nd Amendment canceled after being in effect for 230 years because the legislatures of Massachusetts, Connecticut, Rhode Island, and Delaware decide they don't like it anymore."

3) Does the Archivist need to take action for an amendment to be considered ratified? Arguably no, as the Constitution makes no mention of such position at all. The Archivist could be seen as merely providing the executive branch's opinion on the current text of the Constitution. This opinion would presumably be challengeable in court if someone thought there was an amendment wrongly considered ratified (or wrongly considered non-ratified) and they were harmed by that decision.

bacchi

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #3 on: January 19, 2025, 11:31:32 AM »
Yeah, a few issues at play here.

1) Can Congress add requirements for ratification (such as a deadline) that go above and beyond the requirements listed in the Constitution? That seems dubious to me, but I trust our Supreme Court would be able to find a justification for it if they were so inclined.

2) Can a state cancel their ratification decision after the fact? This also seems dubious to me; it would lead to possibilities such as "2nd Amendment canceled after being in effect for 230 years because the legislatures of Massachusetts, Connecticut, Rhode Island, and Delaware decide they don't like it anymore."

3) Does the Archivist need to take action for an amendment to be considered ratified? Arguably no, as the Constitution makes no mention of such position at all. The Archivist could be seen as merely providing the executive branch's opinion on the current text of the Constitution. This opinion would presumably be challengeable in court if someone thought there was an amendment wrongly considered ratified (or wrongly considered non-ratified) and they were harmed by that decision.

Re 2: Agreed, there's a reason that a new amendment, the 21st, was ratified instead of states just reversing their decision on the 18th. (Of course, given the population distribution, an ERA repeal amendment could fairly easily be done now.)

However, a state reversing a ratification on an amendment that's met the requirements, and is now codified in the Constitution, is different from reversing one that's still waiting for more 'Ayes.' (1)

Regardless, I'm confident that our "originalist" judges in the Supreme Court would ignore some of the awkward Constitutional questions to thread a needle that specifically applies to this one amendment.



(1) Edit: Article 5 only mentions ratification. There's nothing in the Constitution about un-ratification. Further, there is precedent with the 14th where the reversal in 2 states was ignored/not allowed.
« Last Edit: January 19, 2025, 11:38:10 AM by bacchi »

Ron Scott

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #4 on: January 19, 2025, 12:24:35 PM »
I feel a stirring in the earth coming from St. Louis’ Calvery Cemetary as the grave of Phyllis Schlafly rumbles…

Haven’t thought of her in some time. Being motivated by accomplishment is a gift for the ages.

You go girl!

seattlecyclone

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #5 on: January 19, 2025, 12:40:00 PM »
I strongly disagree with the idea that an ERA repeal amendment would be "fairly easy." You'd need two-thirds of both houses of Congress, plus 38 state legislatures to sign on. Not something that has any chance of passing with Republican votes alone, nor is there any chance in hell that a sufficient number of elected Democrats would vote to reduce any Constitutional protection for equal rights for anyone.

bacchi

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #6 on: January 19, 2025, 01:56:18 PM »
I strongly disagree with the idea that an ERA repeal amendment would be "fairly easy." You'd need two-thirds of both houses of Congress, plus 38 state legislatures to sign on. Not something that has any chance of passing with Republican votes alone, nor is there any chance in hell that a sufficient number of elected Democrats would vote to reduce any Constitutional protection for equal rights for anyone.

Article V outlines two ways for new amendments. The first is 2/3 of Congress, as you wrote. The other is for Congress, upon request by 2/3 of the states, to call a convention. That's not impossible in the current political climate; Republicans have total control of 27 of the state legislatures and 5 are mixed. If we lurch more to the right, it becomes feasible that Republicans will take control of more states.

This is where the "no time limit" theory is problematic. If 2/3 of the states propose an amendment, no matter how batshit crazy, it can sit and simmer for decades even if the initial ratifying states have long moved past that issue.

There also isn't a Constitutional time limit for calling a convention. There are 19 states that have agreed with the Convention of States Project for a convention based on conservative ideology. Michigan and Colorado have agreed and New Mexico has passed it one chamber. Those states may want to rescind their agreement but are now locked in forever?

seattlecyclone

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #7 on: January 19, 2025, 03:14:08 PM »
Article V only requires two-thirds of the states to call a convention, yes. Any amendments proposed at the convention still must be ratified by three-quarters of the states. Do you think the legislature of Minnesota is going to agree to repeal the ERA? New Jersey? Illinois? Assume the 12 states that voted most strongly against Trump in November vote against this amendment, and all three of these I listed would have to vote in favor. I just don't see it happening.

As to whether a state can retract its call for an Article V convention...nobody knows. We've never done one before, and certainly never had litigation to firm up the edge cases regarding the formation of such a convention.

bacchi

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #8 on: January 19, 2025, 03:52:35 PM »
Article V only requires two-thirds of the states to call a convention, yes. Any amendments proposed at the convention still must be ratified by three-quarters of the states. Do you think the legislature of Minnesota is going to agree to repeal the ERA? New Jersey? Illinois? Assume the 12 states that voted most strongly against Trump in November vote against this amendment, and all three of these I listed would have to vote in favor. I just don't see it happening.

As to whether a state can retract its call for an Article V convention...nobody knows. We've never done one before, and certainly never had litigation to firm up the edge cases regarding the formation of such a convention.

I haven't checked all of the states that Harris won but I'll change my mind and agree. It would be tough for an ERA repeal.

Re: MN, control of the MN legislature is on a knife's edge so, yeah, it could ratify a future, imaginary, ERA repeal at some point. There are slim Democrat majorities in Maine and Virginia too. (State ratification rules might make it harder than a simple majority, of course.)

However, that's the problem with no time limits and no rescindment. All it takes is one rogue group of politicians and then, even if the voters throw the bums out, they're stuck with an unwanted decision.

I'm definitely leaning towards the SC voiding the ERA process and also making it clear that Congress can set a timeline.

Poundwise

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #9 on: January 19, 2025, 08:22:56 PM »
So apparently last year the American Bar Association voted to adopt a resolution urging federal, state, local,
territorial, and tribal governments to support implementation of the Equal Rights Amendment.

The resolution with an explanatory report follows.
https://www.americanbar.org/content/dam/aba/administrative/news/2024/am-res/601.pdf

Poundwise

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #10 on: January 29, 2025, 07:23:29 PM »
I feel a stirring in the earth coming from St. Louis’ Calvery Cemetary as the grave of Phyllis Schlafly rumbles…

Haven’t thought of her in some time. Being motivated by accomplishment is a gift for the ages.

You go girl!

This is not spoken like somebody who has claimed elsewhere to be other than MAGA.

iris lily

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #11 on: January 30, 2025, 12:25:49 PM »
I feel a stirring in the earth coming from St. Louis’ Calvery Cemetary as the grave of Phyllis Schlafly rumbles…

Haven’t thought of her in some time. Being motivated by accomplishment is a gift for the ages.

You go girl!

This is not spoken like somebody who has claimed elsewhere to be other than MAGA.

  I think we’re allowed to joke about Phyllis without being full bore a Phyllis Schlafly fan.

OzzieandHarriet

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Re: Has the Equal Rights Amendment been the law for years?
« Reply #12 on: January 30, 2025, 04:06:02 PM »
I feel a stirring in the earth coming from St. Louis’ Calvery Cemetary as the grave of Phyllis Schlafly rumbles…

Haven’t thought of her in some time. Being motivated by accomplishment is a gift for the ages.

You go girl!

This is not spoken like somebody who has claimed elsewhere to be other than MAGA.

  I think we’re allowed to joke about Phyllis without being full bore a Phyllis Schlafly fan.

The woman was a stain on humanity.