Friday, June 22, 2018

Draft Paper on the Equal Rights Amendment

Gerard N. Magliocca

Here is my draft article on the status of the proposed Equal Rights Amendment to the Constitution. I welcome any and all comments.


I think this matter has been belabored enough here. But ...

Going by the abstract. Congress has the raw power, including under the political question doctrine as recognized by the Supreme Court as applied here, to waive the expired ratification deadline. They should not do it. If there is support, re-submit.

It would cause some legitimacy concerns though if there is enough popular support probably be limited. Requiring 2/3 of both houses of Congress, a rule not in Amendment V in this context, is an artificial rule there. Reference to a single case, a controversial one at that, doesn't do much for me there (the so-called 14A precedent). If the votes are there, there should be a similar vote to re-submit. "Legitimacy" is some kind of political judgment call at any rate. It isn't some constitutional demand.

The rescissions should not be given this much attention. The real problem, and this is reflected by concerns cited in the past & generally speaking (not tied to one amendment) is that the process is much too stale. Too much time has passed. There could no rescissions at all and the latest few states should not have counted. There has to be an at least somewhat contemporaneous ratification of the states & over thirty years has passed. To make matters worse, the text means something different given changing law.

See: Of Synchronicity and Supreme Law: [time limits]

Realistically, again, Congress has the power to waive that aside & there very well might be broad popular support for it. There is much more support of equality for women these days than in 1980. Conservatives are out there supporting trans rights. etc. The best republican practices there would be to again re-submit the amendment. Though I rather them not.

This was noted at one point: "The only other state rescission prior to the ERA came when New York repealed its ratification of the proposed Fifteenth Amendment." Coleman v. Miller was cited. There was some debate though on the 19A, including the TN House "non-concurring" after the fact. Leser v. Garnett held:

"As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts."

The Court could had decided the question narrowly, in part because two other states ratified to make the matter moot, but decided upon a broader rule. The ability of Tennessee to "rescind" once the resolution of ratification was officially accepted seems blocked.

A supermajority vote of Congress to ignore rescissions would do nothing at all to lend the amendment legitimacy. If states are entitled to rescind, then Congress has no power to override this decision. If they don't, there's no reason a supermajority would be needed.

This is a gestures vs rules conflict. Guestures don't override rules, or they're not rules to begin with.

In any event, if the amendment has supermajority support in Congress, why not just issue the amendment again? The question answers itself: Supporters don't think they could get enough states to ratify today, they NEED the rescinded and expired votes.

Brett, a non-lawyer layman, "creates" new legal norms at this Blog, including at 11:24 PM:

"This is a gestures vs rules conflict. Guestures [sic] don't override rules, or they're not rules to begin with."

Brett seems to fear "Ladies Day," which may account for his having gone "international" several years ago, long before the #metoo! movement. The upcoming midterms may provide the momentum to renew the "equality" amendment so that "equality" is specifically spelled out in the Constitution to augment the 13th, 14th, 15th and 19th As rather than rely upon SCOTUS' belated post-19th A reinterpretation/construction of the 14th A.

Gerard's draft is 59 pages long. I'm not going to read it because of eyesight plus time limitations. What's needed are more narratives on the need for the "equality" amendment to enhance midterm voting to make Ladies Day and LGBT permanent.


I note this at the Legal History Blog's "weekend" feature:


From the Washington Post's "Made by History" section: Allison K. Lange (Wentworth Institute of Technology) on the Equal Rights Amendment - is it on "the verge of a comeback"?;


Unfortunately I had used up my monthly "freebies." I wonder it it adds to this post and its thread.

This comment has been removed by the author.

"Legitimate" has various nuances and one is where something that divides the people involved in various ways is settled by agreement (such as supermajority means, a standard approach) even if some will still think the rules were unjustly broken.

I have noted in the past that I oppose the ERA but think re-submission is that best approach even if one does support it. I have not seen supporters address GM's proposal, which is his own, one who using this as an academic exercise. So, it is not like he is saying "ha ha! I'm against the ERA, so I'll propose this method, since it will fail! Sneaky, ain't I?"

It is far from clear that c. 2020 that re-submission of the ERA will be a failure. There is broad acceptance of equality of the sexes these days & after forty years of legal developments (which non-passage of the ERA helped make a more steady process, a specific clear text akin to the First Amendment -- which expresses something many in 1789 figured existed anyhow -- changing the process), the ERA would have much less effect.

BTW, there is a way if you remove cookies or something from your browser to get free articles. And, it is notable too that relatively few people are probably aware that there is some talk of the ERA being so close. This sorta helps my overall argument.

The better course would be for late ratifying and rescinding states to bring suit after ratification to get a definitive ruling on the powers granted under Article V.

Better if you just want an ERA 'ratified', and don't care how it's accomplished.

Like the Supreme court that perpetrated Obergefel is really going to undo the ERA if there's any basis at all for claiming it ratified. They've 90% implemented it without even the excuse of an amendment!

Give them the least excuse to claim it was ratified, and they'll take it, so they can move from 90% to 180%.

Brett's screed confirms his fears of the "equality amendment" not only his fears of "Ladies Day" but all other aspects of equality, also confirms Brett's zero sum game approach on so many colorful subjects.

I'm not looking forward to the scenario of what SPAM considers the better approach, as that could take up a lot of time and energy that could be even more divisive whatever SCOTUS might decide. An equality for all amendment is called for. We need more narratives on this rather than competing constitutional scholars dancing on the point of a pin; rather they should sit down.

Brett's early morning comment might suggest he has returned from his business trip to Germany. On an earlier thread I suggested he might take in Holocaust sites while there to perhaps understand concerns here in the US of A of neo-nazis. I have no idea if Brett has done so. Of course a cynic might say that such visits by Brett might lead to the Trumpian "some nice people" support for that group. Obviously those responsible for the Holocaust had no interest in any sort of equality beyond Nazi superiority.

Indeed, I am home, having spent Saturday traveling.

And it was a business trip, red eye to Germany Saturday night, Sunday to recover from jet lag, and flying back Saturday. I had no time for side trips, I barely found time to walk around town in the evenings. (Rinteln is very scenic, but the only reason they don't roll up the sidewalks after 6 is that they're cobblestone. Try finding a souvenir for the family when all the shops close as you get out of work!)

Anyway, this is just your usual sly, (In your own mind, anyway.) insinuations about anybody who's got the nerve to disagree with you. They were boring the first time I encountered them, they've not aged well.

No doubt there are some thousands of neo-Nazis (In a country of well over 300 million!) who'd profit mightily from a visit to one of those death camps. And many times as many self-proclaimed communists who might profit from visiting the gulag. (But who'd probably just take notes, instead.)

That's got nothing to do with anyone you argue with here.

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