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  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 2823 times)
True Federalist
Ernest
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« 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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True Federalist
Ernest
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« Reply #1 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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True Federalist
Ernest
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« Reply #2 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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True Federalist
Ernest
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« Reply #3 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.
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True Federalist
Ernest
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« Reply #4 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.
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True Federalist
Ernest
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« Reply #5 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.
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True Federalist
Ernest
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« Reply #6 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.
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