The October Surprise

 

 

 

 

 

 

 

 

 

 

 

Remember the ERA? It was the Equal Rights Amendment and it almost passed to become part of our Constitution more than 40 years ago.  It's pretty straightforward.

"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.

 
"SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

 
"SEC. 3. This amendment shall take effect two years after the date of ratification."

From the Congressional Research Service:

"The power to amend the Constitution is established in Article V. Article V empowers Congress to propose an amendment when two-thirds of both chambers deem it necessary or on the application of two-thirds of the state legislatures to call a convention for proposing an amendment.  

A proposed amendment becomes part of the Constitution when ratified by the legislatures of three-fourths of the states or by conventions in three-fourths of the states. Following ratification by three-fourths of the states, the Archivist of the United States, pursuant to 1 U.S.C. § 106b, is to identify the ratifying states, publish the amendment, and certify that the amendment has become part of the Constitution.

By the fall of 1977, 35 states had ratified the ERA, three fewer than the 38 needed for adoption. H. J. Res. 638 was introduced in October 1977 to extend the ERA’s ratification deadline until June 30, 1982. Representative Elizabeth Holtzman, the joint resolution’s sponsor, indicated that the extension would provide an “insurance policy to assure that the deadline will not arbitrarily end all debate on the ERA.” H.J. Res. 638 passed the House and Senate in 1978, but no additional states ratified the ERA before the June 30, 1982, deadline.  

However, Nevada ratified the ERA in 2017, and Illinois ratified the amendment in 2018. Virginia became the 38th state to ratify the ERA in 2020.

After Virginia ratified the ERA, supporters of the amendment moved for its inclusion in the Constitution, as it had been ratified arguably in accordance with Article V by three-fourths of the states. The Archivist declined to certify the ERA, however, relying on an opinion by the Department of Justice’s Office of Legal Counsel, which concluded that the amendment’s original ratification deadline had expired and that the amendment was not properly before the states when approved by Virginia, Nevada, and Illinois.  

In January 2020, Virginia, Nevada, and Illinois filed a complaint in federal district court seeking relief that would have ordered the Archivist to publish and certify the ERA as part of the Constitution under 1 U.S.C. § 106b. In Virginia v. Ferriero, the U.S. District Court for the District of Columbia dismissed the lawsuit, primarily on its conclusion that the states lacked standing to invoke the court’s jurisdiction."

What?

The Supremes decide to violate the spirit of the ERA only a year after it finally receives the ratification of the 38th state, thus qualifying it to be part of our Constitution? 

Apparently they did. 

But there's more:

Virginia, Illinois, and Nevada filed an appeal of Ferriero with the D.C. Circuit in May 2021. In February 2022, the court granted Virginia’s motion to be dismissed as a party in the case. Currently, Illinois and Nevada are continuing with the appeal, and oral argument before the D.C. Circuit has yet to be scheduled.

But there's still more:

Between 1973 and 1978, five states—Idaho, Kentucky, Nebraska, South Dakota, and Tennessee—passed legislation to rescind their prior ratification of the ERA.

Legislation to revive consideration of the ERA has been introduced steadily since the 1982 deadline. These measures have generally assumed two approaches. One approach involves restarting the ratification process with a new joint resolution. H. J. Res. 28, for example, proposes a new constitutional amendment relative to equal rights for men and women.” If passed by the House and Senate, the amendment would be presented to the states for ratification.

A second approach contemplates the continued vitality of the 35 state ratifications completed before the ERA’s original ratification deadline. H. J. Res. 17 provides that “notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the United States Constitution whenever ratified by the legislatures of three-fourths of the several States.”  

Is there another third approach? 

Could the President instruct the Archivist to adopt the amendment?

Could he simply appoint an Archivist who will?

The ERA would be the first amendment added to the Constitution in nearly 30 years and the most significant since the Twenty-Sixth Amendment lowered the voting age to 18 more than a half century ago. The Twenty-Seventh Amendment, ratified in 1992, affected only the 535 members of the House and Senate, mandating that congressional salary increases not take effect until after the next election. 

The ERA, by contrast, would confer a new constitutional protection to every American citizen that, unlike current state and federal anti-discrimination laws, would not be vulnerable to the whims of whichever party wields power at a given time. 

Might make a good October surprise. 

 

 

 

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