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August 23, 2019, 11:16:42 am
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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?
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#2No  
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Author Topic: Is Virginia About To Give Us A 28th Amendment?  (Read 2974 times)
muon2
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« 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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muon2
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« Reply #1 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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muon2
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« Reply #2 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

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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.

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

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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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