Biden Declares Equal Rights Amendment Ratified
On his last weekday as President, Joe Biden has issued the following statement :
I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all.
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.
While I, too, support equal rights for women Biden’s statement is utter nonsense. Indeed, were it otherwise the Amendment would have been declared ratified five years ago—or at some point when Biden’s presidency was not on life support—rather than five years after the Commonwealth in which I reside ratified an amendment that expired when I was in high school. (My 40th reunion has come and gone.)
NPR (“Biden says the Equal Rights Amendment is law. What happens next is unclear“) adds the necessary context:
President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution “the law of the land,” a surprising declaration that does not have any formal force of effect, but that was celebrated by its backers in a rally in front of the National Archives.
The amendment would need to be formally published or certified to come into effect by the national archivist, Colleen Shogan — and when or if that will happen is unclear.
The executive branch doesn’t have a direct role in the amendment process, and Biden is not going to order the archivist to certify and publish the ERA, the White House told reporters on a conference call. A senior administration official said that the archivist’s role is “purely ministerial” in nature, meaning that the archivist is required to publish the amendment once it is ratified.
In response to an NPR question about whether the archivist would take any new actions, the National Archives communications staff pointed to a December statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
“This is a long-standing position for the archivist and the National Archives. The underlying legal and procedural issues have not changed,” the archives’ statement said.
We’ve rehashed the “issues” many times since Virginia’s action but there really is no controversy:
In 2020, the national archivist — who is charged with making constitutional amendments official — declined to certify the amendment, citing an opinion from the Justice Department’s Office of Legal Counsel. The department said it considered the ERA to be expired after a 1982 ratification deadline was missed. In 2022, the Office of Legal Counsel released an opinion affirming that 2020 decision.
It would simply be absurd if an Amendment passed during Richard Nixon’s first term—more than half a century ago—and with a clear expiration date written into it (as had been common by that point) were suddenly declared the law of the land through fiat. The rationale for the deadline is clear: an amendment should reflect a reasonably contemporaneous consensus that the fundamental law of the land should be changed. Indeed, Virginia is only the 37th ratifying state if we ignore the fact that six states that ratified the amendment in the early 1970s subsequently voted to withdraw their approval (five between 1973 and 1979, the original open period, and North Dakota in 2021, after Virginia’s ratification).
Statutory and judicial actions over the last four decades have likely rendered the question moot: for all intent and purposes, gender equality has long been the law of the land. But, if we wish to enshrine it in the Constitution,* it’s easy enough: pass it through Congress again and get 38 states to ratify.
*There are some who argue that doing so would enshrine a binary view of the sexes, which has come under increasing dispute, into the Constitution. Nothing in my reading of the key section (“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) would obviously have that effect, in my estimation.