ERA, 28th Amendment Possibly Ratified, now part of constitution

[America Needs a 13-6 Progressive SCOTUS]

If this vote passes (which I expect it will), it will be the final step towards adding the ERA to the constitution.
The amendment would come into effect on 1/15/2022 due to the 2 year delay clause in the text of the Amendment. Until then, all that is left to do is wait it out.

(Title changed due to the uncertainty as to whether the ERA has indeed been ratified.)

[Ebsy]

Well and of course the frenzied litigation and supreme court ruling...

[Mr. Reactionary]

If this vote passes (which I expect it will), it will be the final step towards adding the ERA to the constitution.
The amendment would come into effect on 1/15/2022 due to the 2 year delay clause in the text of the Amendment. Until then, all that is left to do is wait it out.

Its not valid though so this is just a waste of time and $ on virtue signaling. Given that the deadline expired 40 years ago and 4 states have withdrawn their ratification, even RBG said the ERA process needs to be restarted. It possibly wont even be done with court by January 2022. After the AG memo last week I dont see the Archivist accepting the amendment in 2020.

[StateBoiler]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

[Skill and Chance]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

There's no mention of setting deadlines anywhere in Article V.  I don't see how Congress gets to enforce a time limit on the process if there's no time limit on the process anywhere in the constitutional text and there's also the precedent of finishing a ratification in the 1990's that started in the 18th century in the case of the 27th Amendment.

However, if there is no time limit, the argument against state rescissions becomes much weaker.  I think the likeliest outcome is that SCOTUS would rule against enforcing the deadline but in favor of the state rescissions.  If that happens, the amendment would be a live issue, but it would need at least 4 more states to ratify for it to take effect.  If VA ratifies it, it will have been ratified by all states where Democrats currently control the state government.  There are also many ratifying states that currently have Republican legislatures that could vote to revoke. 

[StateBoiler]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

There's no mention of setting deadlines anywhere in Article V.  I don't see how Congress gets to enforce a time limit on the process if there's no time limit on the process anywhere in the constitutional text and there's also the precedent of finishing a ratification in the 1990's that started in the 18th century in the case of the 27th Amendment.

However, if there is no time limit, the argument against state rescissions becomes much weaker.  I think the likeliest outcome is that SCOTUS would rule against enforcing the deadline but in favor of the state rescissions.  If that happens, the amendment would be a live issue, but it would need at least 4 more states to ratify for it to take effect.  If VA ratifies it, it will have been ratified by all states where Democrats currently control the state government.  There are also many ratifying states that currently have Republican legislatures that could vote to revoke.  

That opens another can of worms: can Congress do a rescission?

I feel the Supreme Court would punt on the timelines saying it's a political question, meaning the ERA had only the 7 years plus the additional 3 to pass and that expired because that's the bill that Congress passed at the time. Rescissions however should be given a hard yes or no, although if they punt on timelines, they may deem that moot and not rule.

It would be a good idea to have a constitutional amendment saying that once Congress passes an amendment bill, every state legislature or state-ratifying convention shall vote on approval or disapproval of it in say a 4-year time period.

[StateBoiler]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Or by joint resolution the Senate and House agree to remove the deadline.

I still have to think rescissions though should be deemed valid.

[Tintrlvr]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then Congress by joint resolution could remove the deadline, because the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Now this would require both the Senate and House to agree on this.

I still have to think rescissions though should be deemed legal.

The other argument is that joint resolutions don't have any legal significance whatsoever, which I think is a fairly common view among scholars, and that Congress in fact cannot establish law through joint resolutions, which would include an inability to set a deadline on an amendment (by contrast to putting the time limit directly in the amendment itself, which becomes law upon ratification and then invalidates its own ratification if outside of the deadline).

[StateBoiler]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then Congress by joint resolution could remove the deadline, because the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Now this would require both the Senate and House to agree on this.

I still have to think rescissions though should be deemed legal.

The other argument is that joint resolutions don't have any legal significance whatsoever, which I think is a fairly common view among scholars, and that Congress in fact cannot establish law through joint resolutions, which would include an inability to set a deadline on an amendment (by contrast to putting the time limit directly in the amendment itself, which becomes law upon ratification and then invalidates its own ratification if outside of the deadline).

I can't think the Court would be so brazen as to state that. They have to worry about everything and precedent, not focus on this one narrow case.

I revised my text after you posted, since the state legislatures are not approving a constitutional amendment that has in its text a deadline (as the 18th, 20th, 21st, and 22nd Amendments did) but instead that content was separated into a joint resolution, then I think the time deadline of the resolution would not have standing in this instance, because the states are not approving the joint resolution.

Again though, this says nothing for rescissions. And if rescissions are not legal, then we have decades ago passed the threshold for an Article V Convention to be called by Congress and held.

[Pandaguineapig]

Most of the mainstream legal world (ie people outside Twitter law) understand that the ERA needs to start over, even RBG. All this sound and fury over a futile attempt to revive a dead amendment is funny, especially considering that the modern interpretation of the 14th amendment (and the 1964 CRA) makes the ERA redundant

[Tintrlvr]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then Congress by joint resolution could remove the deadline, because the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Now this would require both the Senate and House to agree on this.

I still have to think rescissions though should be deemed legal.

The other argument is that joint resolutions don't have any legal significance whatsoever, which I think is a fairly common view among scholars, and that Congress in fact cannot establish law through joint resolutions, which would include an inability to set a deadline on an amendment (by contrast to putting the time limit directly in the amendment itself, which becomes law upon ratification and then invalidates its own ratification if outside of the deadline).

I can't think the Court would be so brazen as to state that. They have to worry about everything and precedent, not focus on this one narrow case.

I revised my text after you posted, since the state legislatures are not approving a constitutional amendment that has in its text a deadline (as the 18th, 20th, 21st, and 22nd Amendments did) but instead that content was separated into a joint resolution, then I think the time deadline of the resolution would not have standing in this instance, because the states are not approving the joint resolution.

Again though, this says nothing for rescissions. And if rescissions are not legal, then we have decades ago passed the threshold for an Article V Convention to be called by Congress and held.

I think the court would be inclined to say that Congress can't act in a legally binding manner by joint resolution generally (if asked in a context totally unrelated to amending the Constitution), so this doesn't seem like an issue. Congressional resolutions are not typically binding law (although usually that's in part because they're not subject to Presidential veto, while the President doesn't have any involvement in Constitutional amendments).

The rescissions point is separate, I agree, although I think it's plausible that a ratification can't be rescinded but a call for a convention can be (a ratification being a one-time approval of an action of Congress to amend the Constitution that, once approved, can't be taken back (unless maybe the text of the amendment says it can be), but a call for a convention is not an approval of something specifically authorized by Congress but rather an action sua sponte by the state for which solely state law would determine whether it can be rescinded).

[America Needs a 13-6 Progressive SCOTUS]

Update: Its been successfully ratified, coming into effect on 1/15/2022.

[President Johnson]

Hopefully the ERA will ever be enacted into the constitution.

[America Needs a 13-6 Progressive SCOTUS]

By the way, the vote to ratify was BIPARTISAN in BOTH chambers.

4 Republicans voted to ratify in the State House, and 7 voted to ratify in the State Senate.

[Pandaguineapig]

Hopefully the ERA will ever be enacted into the constitution.

Spoiler; it won't

[McNukes™ #NYCMMWasAHero]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

[Tintrlvr]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

[McNukes™ #NYCMMWasAHero]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

You need to actually read about how a deadline works and not just go "Huh, we ratified the 27th!" The 27th never had a deadline because Congress proposed it without assigning a deadline. The ERA had a deadline set by Congress when it was proposed, and that deadline has passed. Even if an amendment is actually passed after its passage, then that simply means that it doesn't have any effect.

[Pandaguineapig]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

You need to actually read about how a deadline works and not just go "Huh, we ratified the 27th!" The 27th never had a deadline because Congress proposed it without assigning a deadline. The ERA had a deadline set by Congress when it was proposed, and that deadline has passed. Even if an amendment is actually passed after its passage, then that simply means that it doesn't have any effect.

Forget it, he's rolling

[Tintrlvr]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

You need to actually read about how a deadline works and not just go "Huh, we ratified the 27th!" The 27th never had a deadline because Congress proposed it without assigning a deadline. The ERA had a deadline set by Congress when it was proposed, and that deadline has passed. Even if an amendment is actually passed after its passage, then that simply means that it doesn't have any effect.

I’m not saying this is the case, but I am saying there could be, if this were litigated, a reasonable judicial interpretation that the deadline in the resolution was always unenforceable non-law because it was contained in a joint resolution, which plausibly a court could rule cannot by itself establish law. That hypothetical ruling would not invalidate the amendment itself, only the portion of the resolution that set a deadline. Read my other posts on the topic.

[True Federalist (진정한 연방 주의자)]

This is going to drive so many Supreme Court decisions of unanswered questions, which is not a bad thing.

This blatantly goes against the text as far as length of time, so do deadlines apply in constitutional amendments being approved? For the Equal Rights Amendment to stand, the answer has to be no.

Does a legislature rescinding previous approvals have any standing? For the Equal Rights Amendment to stand, the answer has to be no.

The rescending approvals answer has a lot to deal with the call for an Article V Convention.

There's no mention of setting deadlines anywhere in Article V.  I don't see how Congress gets to enforce a time limit on the process if there's no time limit on the process anywhere in the constitutional text and there's also the precedent of finishing a ratification in the 1990's that started in the 18th century in the case of the 27th Amendment.

However, if there is no time limit, the argument against state rescissions becomes much weaker.  I think the likeliest outcome is that SCOTUS would rule against enforcing the deadline but in favor of the state rescissions.  If that happens, the amendment would be a live issue, but it would need at least 4 more states to ratify for it to take effect.  If VA ratifies it, it will have been ratified by all states where Democrats currently control the state government.  There are also many ratifying states that currently have Republican legislatures that could vote to revoke. 

In the case of the 27th amendment, no time limit was ever specified, so its not relevant to this case, where not only was a time limit given, but it was extended while it was being ratified. Even if one accepts that Congress can extend a time limit during a ratification period, given the explicit ban in the Constitution on ex post facto laws, I don't see how Congress could do so after the limit has expired. The only way the ERA can be considered as ratified is if time limits are invalid and state recissions during ratification are invalid. I think it extremely unlikely both will be accepted by either the current Congress or SCOTUS.

[brucejoel99]

Personally, I'm of the opinion that SCOTUS will rule that state rescissions after ratification are indeed invalid merely on the basis that Article V, while obviously mentioning ratification, simply doesn't mention rescission, so once a state has ratified, its role in the process is at an end. Plain & simple, end of. (And re: the invalidity of rescission, see also: the ratification of the 14th Amendment, wherein 2 state legislatures rescinded previous ratification, yet those moves were rejected & those states counted toward ratification anyway.)

As for the deadline, I have a feeling that SCOTUS will also rule the original deadline unconstitutional on the basis that there's no text within the actual amendment referring to the date, meaning its ratification will be argued as valid regardless of whether or not it occurred after the "deadline."

It may seem unlikely if you think of it in ideological terms, but just by looking at the letter of the law, it seems clear that the ERA's status as the 28th Amendment is coming.

[Bojack Horseman]

The deadline and rescinded ratifications are unconstitutional and unenforceable IMO. The constitution states that if 3/4 of the states ratify the amendment, it is placed in the constitution. 3/4 of the states have now ratified the amendment. Ergo, we now have a 28th Amendment.

[StateBoiler]

Personally, I'm of the opinion that SCOTUS will rule that state rescissions after ratification are indeed invalid merely on the basis that Article V, while obviously mentioning ratification, simply doesn't mention rescission, so once a state has ratified, its role in the process is at an end. Plain & simple, end of. (And re: the invalidity of rescission, see also: the ratification of the 14th Amendment, wherein 2 state legislatures rescinded previous ratification, yet those moves were rejected & those states counted toward ratification anyway.)

As for the deadline, I have a feeling that SCOTUS will also rule the original deadline unconstitutional on the basis that there's no text within the actual amendment referring to the date, meaning its ratification will be argued as valid regardless of whether or not it occurred after the "deadline."

It may seem unlikely if you think of it in ideological terms, but just by looking at the letter of the law, it seems clear that the ERA's status as the 28th Amendment is coming.

If rescissions have no value, fine, but the Supreme Court will need to actually make that determination, as well as whether the Congress-imposed deadline has any meaning. Those two questions which are presently unanswered for all constitutional matters - not just the ERA - must both be answered "no" for the ERA to take effect in the Constitution. And no one here can realistically state they know how the Supreme Court will rule.

I do find it good though these questions will get answers. Whether this becomes an amendment or not I don't really care, as another person stated, the 14th applies to everything nowadays so this is just symbolism bullsh**t. I find the most value in this of the Supreme Court will rule on deadlines and rescissions.

[StateBoiler]

The Article V Caucus website (if rescissions are ruled to have no legal bearing, I am absolutely going to apply that line of thinking to an Article V Convention) links in their January Newsletter a December article from Gregory Watson - the individual that is responsible for the 27th Amendment being ratified in the 1980s and early '90s - on what if at the time of the article's writing Virginia approved the ERA, what would happen next.

http://articlevcaucus.com/news/january-2020-newsletter/

https://texasscorecard.com/commentary/commentary-could-1972-equal-rights-amendment-have-new-life/