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General Discussion => Constitution and Law => Topic started by: Free Bird on January 16, 2019, 10:06:00 am



Title: Is Virginia About To Give Us A 28th Amendment?
Post by: Free Bird on January 16, 2019, 10:06:00 am
This story isn't getting a lot of attention which surprises me.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Frodo on January 16, 2019, 10:11:15 am
I would say 'yes', except if states that previously approved the ERA can subsequently rescind it as some have threatened to do, especially in the South (now that it is under Republican control), just how significant a victory would this be?  


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Free Bird on January 16, 2019, 10:15:21 am
I would say 'yes', except if states that previously approved the ERA can subsequently rescind it as some have threatened to do, especially in the South (now that it is under Republican control), just how significant a victory would this be?  

Would it not automatically become law though? Or would there be crap related to the ratification deadline?


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Sir Mohamed on January 16, 2019, 10:15:38 am
Probably passes the HoD, but the constitutional ratification process has to start all over again, right? Doubtful this happens.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Free Bird on January 16, 2019, 10:16:18 am
Probably passes the HoD, but the constitutional ratification process has to start all over again, right? Doubtful this happens.

IIRC that's a big grey area at the moment


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Gass3268 on January 16, 2019, 10:16:45 am
It would really be up to the Supreme Court. They would have to rule on the constitutionality of a state revoking their ratification and the question of the Congress imposed deadline.

It is worth the try however.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 16, 2019, 09:19:25 pm
This is the sixth time this decade that the Virginia Senate has passed this symbolic resolution. While prospects are better for passing the House of Delegates this time. There will be at most 33 States that will have ratified it. I see no way one can equitably state that States can ratify amendments after the period of ratification given by Congress ended (40 years ago this March 22) or that Congress can alter the period for ratification (which in my opinion should require the same supermajority needed to propose an amendment, which the supposed extension lacked) while simultaneously holding that States cannot rescind their ratification before final adoption.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Lechasseur on January 17, 2019, 07:16:28 am
Probably passes the HoD, but the constitutional ratification process has to start all over again, right? Doubtful this happens.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: #Kavanaugh For Prison on January 17, 2019, 10:11:23 am
It would really be up to the Supreme Court. They would have to rule on the constitutionality of a state revoking their ratification and the question of the Congress imposed deadline.

It is worth the try however.

No. I am not sure who would be in charge of determining the answer to these questions when figuring out if a constitutional amendment was successfully ratified but it absolutely must NOT be the Supreme Court. For the Supreme Court, the legal body that is supposed to be determining what violates the constitution to also be blatantly deciding what is in the constitution in the 1st place would be a very disgusting mockery of the principle of separation of powers that defines the workings of the country.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: muon2 on January 17, 2019, 10:30:55 am
It would really be up to the Supreme Court. They would have to rule on the constitutionality of a state revoking their ratification and the question of the Congress imposed deadline.

It is worth the try however.

No. I am not sure who would be in charge of determining the answer to these questions when figuring out if a constitutional amendment was successfully ratified but it absolutely must NOT be the Supreme Court. For the Supreme Court, the legal body that is supposed to be determining what violates the constitution to also be blatantly deciding what is in the constitution in the 1st place would be a very disgusting mockery of the principle of separation of powers that defines the workings of the country.

On questions of the US Constitution, and what laws and government actions are constitutional, SCOTUS has the authority as decided in Marbury v Madison (1803) citing Federalist #78. Since this involves the actions of Congress and the States with respect to the amendment and its text, this clearly falls under its purview.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: The C Word on January 17, 2019, 12:40:15 pm
It'll likely pass the HoD, which is unfortunate.

However I highly doubt this succeeds in becoming part of the constitution, especially since the deadline has passed on it, and several states have rescinded their ratification prior to the original deadline.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 17, 2019, 12:52:44 pm
Muon, Coleman v. Miller provides some but not complete guidance.

1. The Court held in 1939 that whether a State could ratify after after a previous rejection or rescind after ratification was a political question for Congress to decide.

2. The Court also held then that whether Congress considers whether too long has passed is a political decision for Congress to make. It didn't rule whether it would require a majority or a supermajority to make such a decision, as the case concerned the Child Labor Amendment which had no explicit deadline attached, but in light of the previous deadline(s) on the ERA, it would require at minimum an affirmative decision by Congress to accept State ratifications.

So even if the Virginia HoD ratifies this session, the ERA will not immediately become part of the Constitution.

By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: The C Word on January 17, 2019, 12:56:42 pm
By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.
I know this was addressed to Muon, but doubtful they actually go for it (at least not this session). The ERA is part of a bigger agenda for these folks, one that doesn't actually do what advocates here want it to.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: muon2 on January 17, 2019, 01:18:24 pm
Muon, Coleman v. Miller provides some but not complete guidance.

1. The Court held in 1939 that whether a State could ratify after after a previous rejection or rescind after ratification was a political question for Congress to decide.

2. The Court also held then that whether Congress considers whether too long has passed is a political decision for Congress to make. It didn't rule whether it would require a majority or a supermajority to make such a decision, as the case concerned the Child Labor Amendment which had no explicit deadline attached, but in light of the previous deadline(s) on the ERA, it would require at minimum an affirmative decision by Congress to accept State ratifications.

So even if the Virginia HoD ratifies this session, the ERA will not immediately become part of the Constitution.

By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.

Was there any guidance as to what the default is should Congress not act in the case of a rescission by a state (or ratification after initial rejection)? I can't imagine a divided Congress coming to a conclusion either way, so it would seem that the Congressional aspect would be in limbo until unified control is established. And then would SCOTUS still have to resolve the question you raised earlier about the level of support needed in Congress to change the date of ratification?


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: #Kavanaugh For Prison on January 17, 2019, 01:25:17 pm
If the amendment was ratified by the House of Delegates, it would not cause the amendment to take legal effect instantly. Rather, it would set the amendment to go into effect 2 years from the date of ratification due to a rule set in place in the text of the amendment itself. Coincidentally, we are at a point almost exactly 2 years before the winner of a future presidential election will be inaugurated. Whether or not it gets implemented will therefore almost certainly depend on who wins the 2020 presidential election, and if they decide that there is an issue with rescission and with the deadline.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Devout Centrist on January 17, 2019, 04:23:54 pm
By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.
I know this was addressed to Muon, but doubtful they actually go for it (at least not this session). The ERA is part of a bigger agenda for these folks, one that doesn't actually do what advocates here want it to.
What agenda is that?


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: The C Word on January 17, 2019, 04:37:01 pm
By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.
I know this was addressed to Muon, but doubtful they actually go for it (at least not this session). The ERA is part of a bigger agenda for these folks, one that doesn't actually do what advocates here want it to.
What agenda is that?
A lot of advocates for it here are under the false assumption that this will protect abortions.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Devout Centrist on January 17, 2019, 05:13:43 pm
By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.
I know this was addressed to Muon, but doubtful they actually go for it (at least not this session). The ERA is part of a bigger agenda for these folks, one that doesn't actually do what advocates here want it to.
What agenda is that?
A lot of advocates for it here are under the false assumption that this will protect abortions.
I don't think I've ever heard that particular take before.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 17, 2019, 05:28:12 pm
Muon, Coleman v. Miller provides some but not complete guidance.

1. The Court held in 1939 that whether a State could ratify after after a previous rejection or rescind after ratification was a political question for Congress to decide.

2. The Court also held then that whether Congress considers whether too long has passed is a political decision for Congress to make. It didn't rule whether it would require a majority or a supermajority to make such a decision, as the case concerned the Child Labor Amendment which had no explicit deadline attached, but in light of the previous deadline(s) on the ERA, it would require at minimum an affirmative decision by Congress to accept State ratifications.

So even if the Virginia HoD ratifies this session, the ERA will not immediately become part of the Constitution.

By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.

Was there any guidance as to what the default is should Congress not act in the case of a rescission by a state (or ratification after initial rejection)? I can't imagine a divided Congress coming to a conclusion either way, so it would seem that the Congressional aspect would be in limbo until unified control is established. And then would SCOTUS still have to resolve the question you raised earlier about the level of support needed in Congress to change the date of ratification?

No guidance as to a default as they referenced the ratification process of the 14th Amendment where Congress was able to come to a clear decision. As I see it, if Virginia were to "ratify" and Congress were to "accept" that would start the two-year countdown , during which I would expect challenges to resolve all these questions.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: #Kavanaugh For Prison on January 17, 2019, 07:15:30 pm
Muon, Coleman v. Miller provides some but not complete guidance.

1. The Court held in 1939 that whether a State could ratify after after a previous rejection or rescind after ratification was a political question for Congress to decide.

2. The Court also held then that whether Congress considers whether too long has passed is a political decision for Congress to make. It didn't rule whether it would require a majority or a supermajority to make such a decision, as the case concerned the Child Labor Amendment which had no explicit deadline attached, but in light of the previous deadline(s) on the ERA, it would require at minimum an affirmative decision by Congress to accept State ratifications.

So even if the Virginia HoD ratifies this session, the ERA will not immediately become part of the Constitution.

By the way, as long as the Virginia Assembly is considering old amendments, it would be nice if they'd go ahead and ratify the Child Labor Amendment.

Was there any guidance as to what the default is should Congress not act in the case of a rescission by a state (or ratification after initial rejection)? I can't imagine a divided Congress coming to a conclusion either way, so it would seem that the Congressional aspect would be in limbo until unified control is established. And then would SCOTUS still have to resolve the question you raised earlier about the level of support needed in Congress to change the date of ratification?

No guidance as to a default as they referenced the ratification process of the 14th Amendment where Congress was able to come to a clear decision. As I see it, if Virginia were to "ratify" and Congress were to "accept" that would start the two-year countdown , during which I would expect challenges to resolve all these questions.

How would they challenge it if congress accepted?
The courts have no ability to intervene in such matters considering how separation of powers works in the US.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: muon2 on January 17, 2019, 09:07:03 pm
The other interesting legal question that I see comes from the text of the ERA which reads

Quote
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

The form of the text had evolved from the original 1921 concept, and was eventually based on the 15th and 19th amendments which apply to voting rights.

Quote
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Quote
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

The language of these amendments is arguably stronger than the 14th amendment which speaks of laws but not rights.

Quote
[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 19th amendment was needed in part because the protection of the right to vote had only been extended to race and not sex. The text of the ERA can be read to extend the 19th amendment to all rights, not just the right to vote. Nominally that leaves equal protection on the basis of race with only 14th amendment protection, not the stronger language that would come by extending the 15th amendment in the same way as the ERA extends the 19th amendment. What if a case arises that pits a person's rights based on race against one whose rights are based on sex?


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Beet on January 17, 2019, 09:13:18 pm
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: The C Word on January 17, 2019, 09:57:35 pm
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Pro-Life Single Issue Voter on January 17, 2019, 10:30:32 pm
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.

The pro-life movement has a lot of concerns about how courts would interpret it with respect to abortion.  And that includes pro-life women.  Now, this amendment sounds nice, so most people who don't know every detail about its potential effects probably support it, but that is mostly surface-level support.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Beet on January 17, 2019, 11:13:25 pm
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.

The pro-life movement has a lot of concerns about how courts would interpret it with respect to abortion.  And that includes pro-life women.  Now, this amendment sounds nice, so most people who don't know every detail about its potential effects probably support it, but that is mostly surface-level support.

Well yeah, the abortion rights debate is about women's rights. The more people realize that, the more support for the pro-life movement will collapse.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 18, 2019, 02:27:54 am
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.

The pro-life movement has a lot of concerns about how courts would interpret it with respect to abortion.  And that includes pro-life women.  Now, this amendment sounds nice, so most people who don't know every detail about its potential effects probably support it, but that is mostly surface-level support.

Well yeah, the abortion rights debate is about women's rights. The more people realize that, the more support for the pro-life movement will collapse.

Back in the 1970s, the perception that supporters of the ERA shared that viewpoint is what galvanized opposition and led to its defeat.  That's one reason supporters today insist that ratifications can't be rescinded and that there's no need to start over from square one. Even if the ERA could get the necessary two-thirds of each house of Congress, there's no way it gets 38 states to ratify it today. If the ERA is tied to abortion, its support for the ERA that collapses, not the pro-life movement.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: MarkD on January 18, 2019, 09:41:58 am
Is it inevitable that if the ERA gets ratified, the Supreme Court will infer abortion rights from it? That is, will the Court view anti-abortion laws as being anti-women laws and discriminatory?


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 18, 2019, 09:53:05 am
Is it inevitable that if the ERA gets ratified, the Supreme Court will infer abortion rights from it? That is, will the Court view anti-abortion laws as being anti-women laws and discriminatory?
While I've not looked into the claim to see if it's an exaggeration, I do know that anti-abortion activists claim that two State Supreme Courts (NM & CT) ruled that State ERAs in their State Constitutions did so. However, IIRC, the cases involved whether legal abortions should be funded the same as other medical procedures and not whether abortion should be legal.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Wolverine22 on January 18, 2019, 01:42:33 pm
I have no idea if a state is able to rescind its ratification and I won’t try to answer that question. However I do believe the Congress-mandated deadline is unconstitutional. The constitution simply states that if 3/4 of the states ratify the Amendment, it becomes a part of the constitution.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on January 18, 2019, 04:34:52 pm
I have no idea if a state is able to rescind its ratification and I won’t try to answer that question. However I do believe the Congress-mandated deadline is unconstitutional. The constitution simply states that if 3/4 of the states ratify the Amendment, it becomes a part of the constitution.

The two are essentially the same question. Does the amendment process have to stay strictly within the literal wording of Article V? Note that some previous amendments with a time limit had them included within the text of the amendment itself, which would both be obviously permissible under Article V and be not subject to extension of the time limit by Congress. The 22nd to 26th amendments as well as the ERA had the time limit included in the joint resolution sending it to the States rather than the text of the amendment itself. Probably in reaction to the attempted extension of the ERA, the DC Voting Rights Amendment returned to the earlier practice of including a time limit in the text of the amendment itself. So even if States were to start ratifying it like has lately been done with the ERA, it would be pointless.

Incidentally, of the four amendments that are unambiguously before the States, only the Child Labor Amendment has any real chance of passage. Article the First, with its defective language, is unworkable as sent to the States and pointless if interpreted as it had been originally drafted. No one is worked up about foreign Titles of Nobility these days, and I can't see the Corwin Amendment ever being adopted unless its weaselly language was desired to protect some other "domestic institution" such as heterosexual marriage.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: #Kavanaugh For Prison on January 18, 2019, 04:55:58 pm
I have absolutely no idea of how the ERA would affect abortion jurisprudence; not even which side it would work towards the advantage of, and anyone who claims to know is deceiving themselves.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Beet on January 22, 2019, 08:29:51 am
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.

The pro-life movement has a lot of concerns about how courts would interpret it with respect to abortion.  And that includes pro-life women.  Now, this amendment sounds nice, so most people who don't know every detail about its potential effects probably support it, but that is mostly surface-level support.

Well yeah, the abortion rights debate is about women's rights. The more people realize that, the more support for the pro-life movement will collapse.

Back in the 1970s, the perception that supporters of the ERA shared that viewpoint is what galvanized opposition and led to its defeat.  That's one reason supporters today insist that ratifications can't be rescinded and that there's no need to start over from square one. Even if the ERA could get the necessary two-thirds of each house of Congress, there's no way it gets 38 states to ratify it today. If the ERA is tied to abortion, its support for the ERA that collapses, not the pro-life movement.

Yes I'm aware of that, but it's not the 1970s anymore. Most people today are very leery of being tied towards sexism - even pro-lifers will try to claim they support womens' equality, that their position is about the fetus, etc. I've noticed a lot of centrist people even buy into it.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: The C Word on January 22, 2019, 10:54:24 am

()


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Storr on January 22, 2019, 11:01:35 am
Well, it seems it's dead in Virginia for 2019 at least.

https://wtop.com/virginia/2019/01/va-wont-ratify-era-this-year/ (https://wtop.com/virginia/2019/01/va-wont-ratify-era-this-year/)

"WASHINGTON — The bid to make Virginia the final state needed to ratify the Equal Rights Amendment was stopped in the House of Delegates Tuesday morning."

"A House subcommittee on privileges and elections voted 4-2 along party lines to recommend killing the House and Senate resolutions that would have ratified the amendment, which declares that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”"

"The Virginia House recommendation means it is almost certain the resolutions will not make it to the House floor."



Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: Flyersfan232 on January 27, 2019, 12:17:08 pm
If the Democrats were smart they would make a big push for this. It may be symbolic, but it'll remind people of where Republicans stand on women.
Plenty of women don't support the ERA.

The pro-life movement has a lot of concerns about how courts would interpret it with respect to abortion.  And that includes pro-life women.  Now, this amendment sounds nice, so most people who don't know every detail about its potential effects probably support it, but that is mostly surface-level support.

Well yeah, the abortion rights debate is about women's rights. The more people realize that, the more support for the pro-life movement will collapse.
if a real life abortion is even film on every tv in this country it would surge.


Title: Re: Is Virginia About To Give Us A 28th Amendment?
Post by: True Federalist on February 02, 2019, 05:40:20 pm
Implying all women should be pro-choice is as idiotic as implying that all pro-life men think women aren't capable of rational thought. Please keep the hyperbole down.