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  Is Virginia About To Give Us A 28th Amendment?
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Question: Will The ERA Pass The HoD?
#1Yes  
#2No  
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Total Voters: 27

Author Topic: Is Virginia About To Give Us A 28th Amendment?  (Read 2849 times)
Free Bird
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« on: January 16, 2019, 10:06:00 am »

This story isn't getting a lot of attention which surprises me.
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« Reply #1 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?  
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Free Bird
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« Reply #2 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?
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Sir Mohamed
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« Reply #3 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.
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Free Bird
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« Reply #4 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
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Gass3268
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« Reply #5 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.
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True Federalist
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« Reply #6 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.
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« Reply #7 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.
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#Kavanaugh For Prison
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« Reply #8 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.
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muon2
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« Reply #9 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.
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Virginia Centrist
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« Reply #10 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.
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True Federalist
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« Reply #11 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.
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Virginia Centrist
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« Reply #12 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.
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muon2
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« Reply #13 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?
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« Reply #14 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.
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Devout Centrist
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« Reply #15 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?
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Virginia Centrist
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« Reply #16 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.
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Devout Centrist
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« Reply #17 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.
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True Federalist
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« Reply #18 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.
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« Reply #19 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.
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« Reply #20 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?
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« Reply #21 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.
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« Reply #22 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.
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ExtremeConservative
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« Reply #23 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.
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« Reply #24 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.
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