Imagine if the New England Patriots, the losing team of the 2018 Super Bowl, went into the 2019 Super Bowl with the 33 points they earned in their losing game in 2018. That’s the current Democrat game plan on how to implement the deceptively simple-sounding Equal Rights Amendment.
The ERA was first proposed in 1972 and died ten years later, on June 30, 1982, after it failed to gather enough support from the states following an initial seven years for ratification and an additional 39 months. It reads in part, “Equality of rights under law shall not be denied or abridged … on account of sex.” After it failed, ERA supporters started the process over with identically worded amendments introduced into the House and Senate in 1983.
What do those words mean? What do they imply? How would Congress interpret it today, since the last House and Senate hearings were held in 1983 and 1984? Some of the concerns raised in the House Judiciary Committee included objections that the ERA would mandate legal abortion, tax-funded abortions, unisex school sports, women in combat, same-sex marriage, regulation of private entities such as schools, and equal insurance premiums for men and women.
By 1983, several states had adopted identical language from the federal ERA into their state constitutions, and many of the concerns Congress expressed then have turned out to be justified, given how state courts interpreted the law.
When the House of Representatives voted on the 1983 identical version it was done under “suspension of the rules,” a process normally used to consider non-controversial measures because it allows only 20 minutes of debate for each side and no amendments. Still, the ERA lost because it failed to obtain the two-thirds support needed for passage.
In 1983, the Senate also considered the ERA proposed by Democratic Sen. Paul Tsongas, which was identical to the 1972 ERA. Republican Sen. Orrin Hatch pressed Tsongas over its legal effects on veterans’ preference for jobs, the Hyde Amendment prohibiting federal tax money for Medicaid abortions, tax exemption for churches with male-only clergy, abortion “rights” for women, private and single-sex public schools and universities, separate classes for teaching sex-education in schools, and other concerns. To each of Hatch’s queries, Tsongas responded by saying that the issue would be decided by federal courts.
Of course, some may say many of these concerns are now law. Yes, but are they constitutional? Congressional progressives continue to pillory current Supreme Court nominee Brett Kavanaugh, because they know that legal support for abortion and same-sex “marriage” rest on the predilections of liberal Supreme Court justices, not the text or meaning of the Constitution. If the Constitution did expressly protect these behaviors, no justices could threaten their legality by judicial interpretation. This is why the ERA is of paramount importance to progressives.
That is why Democratic Sen. Ben Cardin and Democratic Rep. Jackie Speier are proposing “rules” they believe will ensure an ERA “victory.” These irregular and unconstitutional ERA machinations intend to breathe life into the ERA corpse by merely announcing that the 41- to 46-year-old ERA ratifications from 35 states now count today and into the future towards making the ERA part of the Constitution, even though Congress has refused to reauthorize state approval of the ERA since 1982.
Cardin and Speier think they can “add” two more states that allegedly “ratified” the null ERA in 2017 (Nevada) and 2018 (Illinois). They also want to count five states that rescinded their prior approval of the ERA: Nebraska, Tennessee, Idaho, Kentucky, and South Dakota.
Cardin and Speier’s resolutions do not identify any of the radical legal effects of the ERA. And their resolutions ignore the fact that the original seven-year ratification time limit was proposed by the chief ERA House sponsor, Democratic Rep. Martha Griffiths, who said, “this amendment will be ratified … as quickly as was the 18-year-old vote. … it should not be hanging over our heads forever.” Now, Cardin and Speier want no ratification deadline.
Twenty-four state legislatures that ratified the ERA included the seven-year limit when they voted to add the ERA to the Constitution. How are 41- to 46-year-old state “ratifications” valid today?
Liberal legal icon Lawrence Tribe, who supported the ERA and its congressional extension procured by a majority vote, told the Senate Judiciary Committee in 1978 that if the seven-year limit expired before “Congress took action to extend that limit or before the 38th state took action purportedly ratifying the ERA, it would be arguable that the amendment should be regarded as incapable of such belated resurrection.”
“In my view, that duty would call upon Congress to declare the amendment dead if the seven years had passed with neither the requisite number of ratifications nor a timely decision by Congress to extend that period,” he added.
I was similarly advised in 1994 while in the Virginia General Assembly, by the Virginia’s Attorney General’s office: “Because the Equal Rights Amendment was not ratified within either the original or the extended time limit established by Congress for its ratification, it is no longer before the states for ratification, and any action by the General Assembly to ratify it now would be a nullity.”
ERA supporters believe that the highly unusual ratification of the 27th Amendment justifies the resurrection of the ERA. The 27th Amendment was part of the first 12 amendments submitted to the states by the First Congress in September 1789 to address objections which initially caused several state conventions to balk at ratifying the Constitution. It finally passed in 1992.
But unlike the ERA, the Pay Amendment never contained a ratification deadline. Democratic Rep. Don Edwards, who supported the 39-month ERA extension as well as the Pay Amendment, noted, “It should be clear that this [Pay Amendment] is an exception, not a precedent.”
In extending the ratification time 39 months, ERA advocates defeated an effort allowing states to formally rescind previous or future ERA ratifications, claiming that a future Congress could not be bound by a previous Congress to accept rescissions. Yet ERA supporters also claimed that if a state legislature approved the ERA, that act bound the future state legislature from reversing itself. Why?
ERA ideologues contend the Constitution only allows states to ratify amendments but not to rescind them. Arguing that rescissions of prior state approvals of amendments cannot be allowed would logically mean that if an amendment had been ratified by 37 states and then rescinded by the same 37 states, it could still become part of the Constitution if one more state (the 38th) ratified it.
James Madison did not support the claim that states can only ratify, but not later reject constitutional amendments:
Each state, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. (Federalist 39)
The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. (Federalist 45)
The Constitution did not give states any powers. The states ceded certain of their powers to the central government, denied themselves some powers and retained others. The powers which the Constitution denies to states are listed in Art. 1, Sec. 10. Prohibiting states from reversing ratifications of amendments is not mentioned as one of the powers denied to states. Article V only allows Congress to determine the mode of ratification of amendments either by legislatures or conventions. It says nothing about nullifying state rescissions. And the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States … ”
In Coleman vs. Miller (1939) the Supreme Court had to decide whether the Child Labor Amendment, passed in 1924 without a deadline for ratification, was still viable in 1937. The court held the timeliness of ratification was a question for Congress. And also in Coleman, the “solicitor general argued that states could constitutionally reverse their former acts of rejection or ratification until such time as three-fourths of them had ratified.”
In Idaho v. Freeman a U.S. District court ruled (1981) that states could rescind ERA approvals, and Congress could establish a time period, but only if passed by a two-thirds vote and Congress could not change the time limit. The pro-ERA National Organization for Women and the Administrator of the U. S. General Services Administration, which tracks the progress of amendments, filed an appeal.
Solicitor General Lawrence Wallace prepared a memo (July, 1982) noting, “The Amendment has failed of adoption … and the Administrator informs us that he will not certify to Congress that the Amendment has been adopted.” Lawrence suggested the issues were moot with no additional ratifications. The Supreme Court agreed, and Lawrence Tribe, counsel for NOW, was informed on Oct. 4, 1982 of the Court’s decision to dismiss the case as moot.
ERA advocates say the history of the 14th Amendment argues against allowing rescissions. Congress proposed the 14th Amendment when just 25 of 36 states were represented in Congress. The Southern states, which allegedly never left the Union, nevertheless had to “approve” the 14th Amendment to have their House and Senate members seated in Congress. (West Virginia was carved out of Virginia in violation of Article IV, Sect. 3, para 1.)
The bottom line is that when Congress voted to proclaim the 14th part of the Constitution, because Georgia ratified the 14th Amendment on the day of the congressional vote, there were three-fourths of the states in support, so there was no need to include Ohio and New Jersey, which had rescinded their ratifications.
Republican Rep. Jonathan Bingham, who was the author of the 14th Amendment, introduced a bill which made it unlawful for the secretary of state to process a notice from a state rescinding a prior approval of an amendment. It imposed fines from $2,000 to $10,000 and prison sentences of two to ten years on state officials who attempted to rescind a prior approval of an amendment. Bingham’s law was approved by 130-54, with 46 not voting. The bill died in the Senate.
Republican Sen. George Williams introduced Senate Resolution 69, a constitutional amendment to direct the secretary of state to only recognize ratifications of constitutional amendments, and not rescissions. This measure also failed.
If state legislatures have no inherent authority to rescind their approval of amendments, why were these aforementioned proposals even drafted? The only correct conclusion is that until three-fourths of 38 states have ratified amendments in the time specified and not rescinded them, no amendment becomes part of the Constitution or is binding on the states.
For liberals, “due process” is any process which procures their goal, without regard for the means used, including breaking their oath of office, or impugning the motives of those who merely disagree with their policies or question their approach to achieve them. How far Democrat ERA zealots will go to impose this massive fraud on the public, and how Republicans in Congress will respond to stop the swindle is anyone’s guess.
Candidates for Congress on November’s ballot must let voters know where they stand on the latest unconstitutional ERA machinations. Political revolutions do not always need sheer force to succeed, but can happen when those who know better do nothing.