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  Constitution and Law (Moderator: True Federalist)
  Is Virginia About To Give Us A 28th Amendment? (search mode)
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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 3119 times)
#Kavanaugh For Prison
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« 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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#Kavanaugh For Prison
Solid4096
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« Reply #1 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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#Kavanaugh For Prison
Solid4096
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« Reply #2 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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#Kavanaugh For Prison
Solid4096
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« Reply #3 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.
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