ERA, 28th Amendment Possibly Ratified, now part of constitution (user search)
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  ERA, 28th Amendment Possibly Ratified, now part of constitution (search mode)
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Author Topic: ERA, 28th Amendment Possibly Ratified, now part of constitution  (Read 9082 times)
StateBoiler
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« on: January 15, 2020, 08:03:16 AM »
« edited: January 15, 2020, 08:07:58 AM by 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.
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StateBoiler
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« Reply #1 on: January 15, 2020, 09:20:23 AM »
« Edited: January 15, 2020, 10:07:17 AM by 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.
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StateBoiler
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« Reply #2 on: January 15, 2020, 09:58:12 AM »
« Edited: January 15, 2020, 10:22:16 AM by StateBoiler »

Wikipedia:

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

Quote
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:

Quote
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.
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StateBoiler
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« Reply #3 on: January 15, 2020, 10:39:41 AM »

Wikipedia:

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

Quote
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:

Quote
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.
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StateBoiler
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« Reply #4 on: January 16, 2020, 02:41:53 PM »
« Edited: January 16, 2020, 03:04:21 PM by 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.
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StateBoiler
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« Reply #5 on: January 16, 2020, 02:58:26 PM »
« Edited: January 16, 2020, 04:42:22 PM by 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/
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StateBoiler
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« Reply #6 on: January 22, 2020, 08:21:29 AM »

can someone explain how life would be different if it were to pass?  What rights are not equal in 2020?

Women should absolutely be required to sign up for the draft because men are. Now we don't really draft people today, but if you don't sign up for the Selective Service, you're not eligible for a bunch of college scholarships.

In theory, I can see an argument of a father stopping a mother that wants an abortion because based on the amendment he should have equal parenthood rights to the child.
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StateBoiler
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« Reply #7 on: February 07, 2020, 08:50:47 AM »

...so anything going on with this?
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StateBoiler
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« Reply #8 on: February 08, 2020, 04:04:45 PM »

Given the lack of action by the Archivist so far, I think it's safe to say that until Congress passes a joint resolution to eliminate the deadline, there will be no action from that office and maybe not even then. Sadly, this means not until 2021 at the earliest, since even if there are enuf Senate Republicans to vote to do so, Mitch will not allow a vote on anything seen as being even marginally critical of Trump or beneficial to Democrats.

It was argued earlier in the thread that joint resolutions have zero meaning. Once Congress passes a bill off to the states, they have no role.
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StateBoiler
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« Reply #9 on: February 10, 2020, 08:59:44 AM »

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

It's not that they were disallowed inasmuch they were completely silent on the issue. It's a question that requires an answer from the Supreme Court either for or against recissions having any legal meaning.
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StateBoiler
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« Reply #10 on: February 10, 2020, 09:04:06 AM »

No previous constitutional amendment allowed states to rescind their ratifications, so why should an exception be made for the Equal Rights Amendment? 

...Incidentally, Idaho v. Freeman 529 F. Supp. 1107 (1981) found that both state rescission was valid and that Congressional deadline extension was invalid. SCOTUS first stayed, then declared moot that decision of the United States District Court for the District of Idaho because there were not yet enuf states that could be argued to have ratified the ERA for it to be a case properly before the courts. Still, I think there's little doubt that the current SCOTUS would rule in favor of allowing at least South Dakota's sunset provision to be valid. Since at present, that's all it would take to reduce the number of ratifications below thirty-eight, that might be as far as it rules.  In any event, I can't see SCOTUS addressing whether Congress can extend the ratification deadline of an amendment, and if so whether it can do so by a simple majority without first finding that States can't revoke ratifications of outstanding amendments.

To support True Federalist here, this is from the article I linked on the previous page in relation to this:

Quote
Between March 22, 1979, and the highly questionable “extended” deadline of June 30, 1982, no state legislatures added their approval of ERA. As a matter of fact—in a negative reaction to the alleged deadline “extension” to June 30, 1982—South Dakota lawmakers adopted a resolution on March 1, 1979, to clarify that, while not going quite so far as to rescind that state’s 1973 ERA ratification, nevertheless, that 1973 ratification would only remain valid for the next 21 days, which was the originally agreed upon deadline of March 22, 1979. From March 23, 1979, and moving forward, South Dakota’s approval of ERA—as far as South Dakota’s 1979 lawmakers were concerned—should be considered as having lapsed and understood to be sunsetted. This is a bit different from a rescission.

On December 23, 1981, Federal Judge Marion Callister ruled in Idaho v. Freeman that Congress was without authority to adjust a previously established ratification deadline and, further, that a state’s legislature indeed has authority to change its mind from “yes” to “no”—and to rescind a previous ratification—as long as that is done before the proposal receives the approval of the necessary 38th state.

On January 25, 1982, the Supreme Court “stayed” the Idaho v. Freeman ruling, which did not reverse the lower court’s conclusions and holdings—nor negate Judge Callister’s findings on any of the case’s merits—but merely suspended Idaho v. Freeman from having any effect, in an apparent effort to allow state legislatures in session during the first half of 1982 an opportunity to continue pondering ERA by the “extended” deadline of June 30, 1982.

As the tail end of June is typically the same time that the Supreme Court departs Washington, D.C. for about three months of annual hiatus, the justices made themselves unavailable to more extensively review Idaho v. Freeman until their 90-day sabbatical ended and they returned to work on October 4, 1982; at this time—given that the disputed June 30, 1982, ERA “extended” ratification deadline had already come and gone—the high court took the easy way out and simply ruled that the entire controversy was moot by that point, thus skirting any need to address the core issues raised by the district court in Idaho v. Freeman.
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StateBoiler
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« Reply #11 on: February 11, 2020, 08:32:13 AM »

Justice Ruth Bader Ginsburg is advising Equal Rights Amendment supporters to start over from scratch:

Ginsburg: Equal Rights Amendment backers should start over

Yeah. Pandaguineapig on January 15th on page 1 stated this.
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StateBoiler
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« Reply #12 on: February 13, 2020, 09:32:04 AM »

Frankly I hope people still try and push this in court, just for the Supreme Court can rule on amendment timelines and/or recissions.
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StateBoiler
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« Reply #13 on: February 29, 2020, 06:07:19 PM »

From the March 2020 Newsletter of the State Legislators' Article V Caucus

Quote
Could the ERA Movement Impact the BBA Effort? –

On February 11 Josh Blackman of The Volokh Conspiracy talked about current efforts to put the Equal Rights Amendment (ERA) in the Constitution and postulated, “If states cannot rescind their ratification proposals, then 2/3 of the states may have already voted to call an Article V Constitutional Convention for the Balanced Budget Amendment.”
 
 There are a couple of court cases currently being litigated about the ERA proposal.  Blackman notes that among other things, representatives of the state of Virginia argue “that states cannot rescind their ratifications of the Equal Rights Amendment.  If Virginia is correct, and ratifications cannot be rescinded, then we may be standing on the precipice of an Article V constitutional convention” because “[a]ccording to the Balanced Budget Amendment Task Force, 28 states have passed resolutions calling for an Article V convention to propose a balanced budget amendment,” and “several states that voted to call for [a BBA-focused] convention subsequently repealed their resolutions.”
 
If, as Virginia argues, states cannot rescind their prior Article V ratifications, the BBA movement has well more than the 34 states needed.  Stay tuned.  Read Blackman’s piece HERE. https://reason.com/2020/02/11/the-ratification-of-the-equal-rights-amendment-could-lead-to-an-article-v-constitutional-convention/
 
 Meanwhile the “staleness” of the ERA ratification process is a separate legal question.  Many constitutional scholars believe the 1972 Congressional proposal of the ERA expired in 1979 based on its wording. 
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StateBoiler
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« Reply #14 on: March 15, 2021, 02:35:29 PM »
« Edited: March 15, 2021, 02:53:36 PM by StateBoiler »

https://www.cnn.com/2021/03/06/politics/equal-rights-amendment-virginia-lawsuit/index.html

Quote
(CNN)A federal district judge on Friday dealt a blow to advocates of the Equal Rights Amendment in ruling that the deadline to ratify the ERA "expired long ago" and three states' recent ratifications of the amendment arrived "too late to count."

Virginia, Illinois and Nevada had sued the archivist of the United States last year to "carry out his statutory duty" of publishing and certifying the ERA as the 28th Amendment to the Constitution. The ERA stands as a century-long dream for many women and activists as it would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.

The three states had recently ratified the ERA, with Virginia claiming to be the 38th state -- and final state -- to ratify the amendment in 2020.

In their complaint, the three states' Democratic attorneys general argued that Congress' imposed deadline to ratify the ERA has not lapsed, because the time frame is not included in the amendment's body text. They also argued that the Constitution doesn't give Congress the power to dictate when a state ratifies an amendment and that a state's ratification is "a one-time event."

1. To the bolded, good to know they read me here. Smiley
2. The second point is clearly that rescission is meaningless, but also was South Dakota's sunset provision.

Seriously, this argument was pretty much written in this thread. Our legal advice was free while state lawyers cost Illinois, Virginia, and Nevada a pretty penny.

Quote
In his opinion Friday, Judge Rudolph Contreras in Washington, DC, wrote that a "ratification deadline in a proposing resolution's introduction is just as effective as one in the text of a proposed amendment."

"Plaintiffs' ratifications came after both the original and extended deadlines that Congress attached to the ERA, so the Archivist is not bound to record them as valid," he concluded.

The judge dismissed the case, also writing that the plaintiffs "lack standing to sue" because the archivist's "refusal to publish and certify the ERA thus does not cause them a concrete injury that could be remedied by ordering him to act."

Attorney General of Virginia says they are considering all actions, including appeal.
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StateBoiler
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« Reply #15 on: April 02, 2021, 02:07:13 PM »

From the Article V Convention monthly newsletter I get. It covers the ruling a couple posts above but also contains the news that the North Dakota legislature passed a resolution on March 19th notifying Congress that its ratification in 1975 lapsed at 11:59pm on March 22nd, 1979. There was also a Boston Herald opinion piece written by Wendy Murphy that "derided Biden by not placing a simple phone call to the archivist" and publishing the ERA and "Biden refuses to act".
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StateBoiler
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« Reply #16 on: February 17, 2022, 10:50:45 AM »

We're past the 2-year timeline. Considering the only reason the civil court system exists in this country anymore is for big organizations to game them as a bypass around the legislature to create law, has any individual funded by a big organization sued someone else yet?
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