The Odd Blog

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The ERA: Dead In The Water?

Posted by That Other Mike on 21/11/2008

I was browsing around WordPress in the tag listings when I came across this post, and felt I had to add my own commentary. Mainly because I’m a smartarse, and because I like to show up people who are wrong. It’s called Schadenfreude, and I love it.

There’s a certain amount of political interest there, too, mind. I just am a smartarse first and foremost.

The thing is, while the ERA is probably a great thing to support in principle (although more on that later), the last incarnation of it is dead in the water, being gnawed upon by hungry Constitutional sharks.

That the Madison Amendment passed 202½ years after its submission to the States does not automatically validate the ERA as pending before the States, and I’ll tell you why.

Expiration deadlines.

It became common after 1917 to include a clause in potential Amendments which specified a time frame in which the Amendment had to be ratified, and most of them have done so since, the ERA included.

The original Amendment, proposed in 1973, had a six year deadline for ratification. This was controversially extended in 1978 by Congress by a further three years using a Congressional Resolution, a move which I believe to be un-Constitutional, an opinion which is backed by a Federal District Court, although the Supreme Court later declined to issue a definitive judgement on the issue; their finding was that the question was moot, as a requisite number of States had not validated the Amendment, even during the extended timeline.

The reasoning behind my opinion is based on the text in Article V of the Constitution allowing Amendments, which specifies that:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress [..]

Following the same reasoning used in the case Clinton v. City of New York, the text does not specify that Amendments may be altered following submission; while the Clinton case does not expressly relate to the amending process, the same judicial logic applies.

Lacking the express ability to modify Amendments or even the merest hint thereof, Amendments may not be altered post submission. Furthermore, it explicitly also goes against the principle of Federalism embodied in the Clause: that the States decide if Amendments are passed, and how. This ties into the idea of the Nondelegation doctrine: that significant Constitutional powers may not be delegated outside the appropriate area.

However, this is where it gets a little sticky; the original deadline was not included in the proposed text of the Amendment, but as part of the joint resolution submitting it to the States, specifically, the preamble.

While it is arguable that this leaves the deadline open to change, I believe it doesn’t: included in the Amendment or not, the preamble is part of what is presented to the States and part of what is ratified in many.

Therefore, attempting to alter the preamble post submission is akin to an attempt to alter the Amendment. This, however, is debatable, as I said, and I think should be left to a more recent court decision to set in stone. While the Supreme Court will decline to hear cases on the merits of proposed Amendments’ contents because the question is political rather justiciable, they are more than likely to issue a judgement on the way they are ratified, as this amounts to a controversyand is politically neutral.

In my opinion, though, the ERA in its last incarnation is a non-starter; a more effective campaign might be to take a leaf out of the homophobic playbook, believe it or not.

While concerted efforts to amend the U.S. Constitution to prohibit gay marriage on a Federal level have been about as effective as Jesse Jackson in a Presidential primary, so far 26 States have passed Amendments to their own Constitutions prohibiting gay marriage. Why not attempt to operate along the same lines? If the overall effect is the same, why not attempt to simply get State ERAs passed throughout the country? Right now, 22 States have Amendments similar to the ERA in their Constitutions; if all 50 or even a great majority have equal protection enacted, the Federal ERA could make a more realistic comeback.

My advice to the activists would be to work at the State level until a majority of States have their own ERAs, and then have sympathetic politicians reintroduce the Federal ERA, but as a new resolution. That way, there will be no lingering doubts over its validity, and any issues with expiration can be neatly avoided ahead of time.

It’s a long term plan, for sure, but I think it stands a greater chance of success than the already-failing three States strategy.

That said, I don’t honestly know where I stand on the issue of the Amendment. It’s an odd thing to find myself agreeing with a Republican, even a fictional one, but the position that the 14th Amendment is sufficient is a powerful one: it already guarantees the rights of all citizens, and legislation like the Equal Pay Act further adds to it.

At this point, the Equal Rights Amendment would be little more than a symbolic gesture, a way of encoding a solemn desire and wish into the national consciousness.

Then again, the current judicial interpretation of the 14th Amendment is just that: current. The Supremes have shown themselves willing to turn on a dime before, and laws can be changed. Perhaps the ERA, even as symbolic as it would be now, is the best way for America to go.

Because one day, it might need to be more than a symbol.


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