A moment in history arrived on Wednesday with Virginia in the spotlight as the state House and Senate both ratified the Equal Rights Amendment (ERA) 50 years after the constitutional amendment was proposed. And now the question is whether it can become part of the Constitution.
Congress proposed and passed the ERA in 1972, and added a deadline of ten years for ratification that expired in 1982 with only 35 of the 38 states necessary to reach the three-fourths threshold.
However, in 2017 and 2018, Nevada and Illinois both ratified the ERA, sparking renewed momentum to finally push it past the finish line.
And on January 15, 2020, women cheered after Virginia became the 38th state to ratify it, making history in the process, something only possible because voters placed Democrats in the majority.
The moment is certainly special to Eileen Filler-Corn, who became the first female Virginia House Speaker after Democrats took over the legislature. “For the women of Virginia and the women of America, the resolution has finally passed,” Filler-Corn declared.
But now the question is whether the ERA can finally take its rightful place as the 28th Amendment to the Constitution.
According to Article V of the Constitution:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.
The Constitution makes no mention of arbitrary deadlines or whether or not a state can rescind ratification, only that an amendment becomes part of the Constitution upon ratification by three-fourths of the states. That’s it. And any conservative judge who claims to be a constitutional constructionist or originalist would have to agree unless they really want to demonstrate that they are hypocrites.
Of course, Trump’s Justice Department has previously released a memo claiming that ratification has to start from scratch because of the arbitrary deadline that came and went nearly forty years ago. And the Supreme Court once held up such a deadline in 1917, which applied to the 18th Amendment.
It should also be pointed out that unless Chief Justice John Roberts acts as a swing vote and does the right thing, the conservative wing of the high court that includes two Trump appointees would likely vote against the ERA being ratified even though the Supreme Court has no role in amendment ratification as described in the Constitution.
By all rights, the ERA should be declared the newest Constitutional amendment, which National Archives archivist David Ferriero could do since he is the keeper of the ratifications and has the power to certify it.
Starting from scratch, however, would likely doom the ERA since many of the states that previously ratified it are now anti-women red states, including Tennessee, Louisiana and Kentucky, which have filed a lawsuit to prevent certification claiming that their rescinding of their ratifications of the ERA should count against it. If allowed, then only 35 states will have ratified it. And we all know Senate Republicans will never agree to pass a renewed proposal.
However, the Constitution also does not say anything about states rescinding ratification. Once an amendment is ratified, the ratification is counted and kept in the records by the archivist at the National Archives. Thirty-eight states have ratified the ERA, therefore, it should be certified.
Even if it’s only a symbolic victory, women across the nation had a reason to smile at a time when Republicans are viciously trying to take their rights away from them at the state and federal level. If starting from scratch is necessary, women have the power to make the process easier by ousting the GOP from power, not just from the U.S. Senate and the White House, but from state legislatures as well. Then we can all watch progress move forward swiftly and we won’t have to wait another 50 years for the ERA to be ratified again.
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