Wednesday, March 06, 2019

Federalism in Action

Gerard N. Magliocca

Several states are considering ratification of the ERA. The North Dakota House has taken the opposite tack by voting to rescind its ratification. If adopted by that state's Senate, North Dakota would become the sixth state to rescind with respect to the ERA. While Congress can exercise its non-justiciable authority to ignore these rescissions, my view is that if and when the question comes before Congress the rescissions should be respected.

I was struck by the Supreme Court's per curium opinion reversing a Ninth Circuit decision that counted a decisive vote by Judge Reinhardt after his death. The Court explained, in part, that a judge is free to change his or her vote until an opinion is issued. Legislators, of course, are free to change a vote until the vote becomes final. Why should states not have the same right, especially given that the original deadline for ratification expired 37 years ago?    


Which is why it should be irrelevant anyway.

I suspect the plan is to reach a point where the necessary number of states have at some point ratified, and never mind expirations and rescissions. Then the first time Congress has a majority in favor, the amendment will be declared ratified no matter how many states are opposed at the time.

A dirty win is still a win.

The final question should be academic.

It was "37 years ago" -- the period of contemporaneous ratification has passed and the meaning of the text has significantly changed. The original timeline provided a rough way to ensure this. The rescission issue should be moot. The Congress should not deem it still open to be ratified. I discussed this in the passed.

This is ultimately likely a political question but that should be the approach Congress should take. Looking into the matter when you brought this up before, there is a historical argument for my approach. It is also appropriate on other grounds.

As to the reference to the Supreme Court opinion, what is the force of the comparison? Once the court of appeals formally announces its vote, the decision is final as to them. They don't get to "rescind" while the Supreme Court decides the matter. As noted in Hawke v. Smith involving the 19th Amendment, a state "certified copies of the joint resolution of ratification be forwarded by the Governor to the Secretary of State at Washington and to the presiding officer of each House of Congress."

Or, whatever specific rule is in place now. They "had the same right" as the court of appeals judges to change their mind before doing so. I question if the two things are quite the same but regardless it doesn't get us too far even if they are. Anyway, the whole thing really should be academic. The ERA should not be ratified. The process is stale.

(See, e.g., "Of Synchronicity and Supreme Law")

The laugh out loud part is the the ND Republican legislature declared that "while in agreement that men and women should enjoy equal rights in the law" in their going-out-of-their-way effort to rescind their earlier ratification of the Amendment which says the same...

The problem isn't what the ERA says, it's what the judiciary might use it as an excuse to do.

When the ERA was still a live amendment, (Not a zombie amendment like today.) the arguments that killed it was that the courts would use it to mandate SSM and unisex locker rooms. ERA proponents dismissed this as crazy talk, then after the amendment died, succeeded in getting the courts to read that crazy talk into the 14th amendment.

Nobody knows at this point what the judiciary would use a 'ratified' ERA as an excuse to do. But it would likely be SOMETHING, and we are justly afraid.

1. When did the courts read unisex bathrooms into the 14th?

2. The problem with the argument is that it would apply to anything. The court could read the 2nd Amendment to require subsidized guns be every person's right, for example, does that mean we should've opposed its ratification?

So you concede the SSM point?

In theory the courts could (mis)nterpret the 2nd amendment that way. We happen not to live in that world, though. Instead we live in the world where the courts took the most feared, worst case result of the ERA being ratified, and implemented it in the teeth of it being defeated.

We know which direction they want to go, and are rightly afraid to give them any excuse to go there.

I won't repeat my arguments from previous threads. I'll just note that if the time for ratification has expired, it seems odd that states continue to "rescind". Evidence that maybe the time has *not* passed?

No, it's just evidence that the states currently opposed to the ERA are not confident that the time having passed will be allowed to matter.

You mean "allowed by someone with the power to make it so". If the person/entity/institution "with the power to make it so" deems the time not yet expired, then the time has not yet expired. Rescinding the ratification is therefore evidence that the time hasn't yet expired (because it attempts to dodge the result).

If you're a legal realist, any abuse is ok if the right person commits it. Power is all that matters.

That sort of power depends on other people accepting it. It's the only thing that matters right up to the moment when it simply vanishes with that acceptance.

The "worse case" cited against the 14A might have been the idea of social equality, including interracial marriage.

This would logically follow from the text and wider purposes, but the critics as a whole [exceptions applying] were assured this was not so. In fact, it was a bit silly. The great dissenter (Plessy v. Ferguson), e.g., went along with a greater penalty for interracial fornication. It seems by the logic provided that if in c. 1920 or something an amendment was proposed to expressly say "equal protection of the laws should apply to political, civil and social rights" but failed Loving v. Virginia might be illegitimate.

The rejoinder being that the 14A clearly covered interracial marriage (and a few minority opinions on the point around the time of ratification can be found) but this might be begging the question. The lack of a clear statement requiring social equality greatly delayed equal protection in that area. Likewise, not ratifying a clear statement like the ERA delayed a full protection of sex equality and that is still the case today in a few areas including recognition of citizenship of children born abroad.

It is to be noted as well that states already have ERAs in their state constitution but that alone wasn't enough to bring same sex marriage or unisex bathrooms, the latter still not a thing. As to locker rooms, that is still a matter in flux in regard to trans students, and the debate over "sex" in statutory law alone underlines the passage of the ERA wouldn't settle the question. It would move the needle but how much if unclear.

[I personally want one equal protection provision and am satisfied with the one we had. I don't support a ERA singling out one classification especially after four decades of development made it that much less necessary. The idea it will be ratified while no one is paying attention, so the speak, to me is a bit ridiculous.]

Still, the meaning of the text changed so much over time that it underlines one reason why the ERA shouldn't be ratified without starting the process overall. As to Mark Field's comment, the question of expiration is realistically a political question. So, a state rescinding it now is in effect a symbolic act trying to influence Congress and perhaps the courts, which might deem the amendment process now somehow a judicial question.

I agree that it's an attempt to influence Congress and/or the Court. That's partly my point -- if the "expired" argument were clear, they wouldn't need to do that.

And, of course, I enjoy trolling Brett. But more seriously, the argument I'm making is one that gets made all the time in the pseudo-originalism that passes for historical analysis. It also gets made in statutory construction cases.

IANAL, but I don't think there is language in the constitution that would give any legal weight to a rescission. The text allows states to either vote FOR or AGAINST, and once they vote FOR, that is all that counts, textually. If states want the ability to rescind a vote, they can always pass an amendment that grants that ability...

Secondly, a past Congress cant constrain a future Congress so all a present Congress has to do is remove the expiration clause and the amendment will have cleared the legal hurdles.

I think Bad Wolf is right as far as it goes except that the text of Article V is hazy enough that it isn't quite clear-cut. And, Congress could remove the expiration clause as far as I can tell though as a matter of constitutional principle, I think it a lousy idea.


People try to influence others all the time in cases where someone has the raw power to do something even though they lack the right to do it.

Query: If Congress were to proposes an amendment to the Constitution (per Article V) without an expiration date, might a future Congress decades later , before ratification, impose an expiration date? Would either eliminating or adding an expiration date require compliance with Article V?

Once the amendment leaves Congress, their part in the process is over. I don't believe that they can remove an already proposed amendment from the reach of the states by a second vote.

So Congress can't rescind, but a state legislature can?

Shouldn't we be consistent here?

"Once the amendment leaves Congress, their part in the process is over."

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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

I quoted something earlier about the process used to ratified the 19A, which included Congress officially receiving certifications of passage by state legislatures. If such a certification was deemed deficient, perhaps per the procedural format Congress set up for the ratification process [the Necessary and Power Clause provides the power for Congress to set forth such rules], Congress very well might have the power to reject it.

Anyway, the mere ministerial function alone shows their "part" is not over. As to Shag's question, it is a bit academic, but Dillon v. Gloss (1921) noted:

Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; 12 and article 5 is no exception to the rule.

A later opinion, Coleman v. Miller (1930s), had a divided bench but is generally understood to accept this general principle but leaving it to Congress to enforce a "contemporaneous" principle. This is not clear-cut in the text but is a reasonable implication. Again, I cited one article that provides some argument. FWIW.

Joe, regarding my questions, I believe that if such changes were permissible, a two-thirds vote by both Houses would be required by Article V. I assume Dillon's "subsidiary matters of detail" would require such two-thirds votes.

Looking it up, in 1978, Congress passed (by simple majorities in each house), and President Carter signed, a joint resolution with the intent of extending the ERA ratification deadline to June 30, 1982. Was this constitutional?

Article V grants states the power to perform one act - to ratify. There is no power to rescind past ratifications.

For example, states can no more resind a ratification, than the Supremes can rescind a past court ruling. You have to go through the process again.

"Looking it up, in 1978, Congress passed (by simple majorities in each house), and President Carter signed, a joint resolution with the intent of extending the ERA ratification deadline to June 30, 1982. Was this constitutional?"

It was indeed unconstitutional. An early sign of the determination to push the ERA through even if the rules had to be bent.

A little off topic, but Professor Tushnet has just posted an article above, and I thought it was worth commenting on.

"I post this to provide some information relevant to current discussions of free speech controversies on campus. A member of the Federalist Society at Yale Law School wrote an on-line article about a recent episode there. (I'm going to quote from the article, with some interpolations, but not link to it.)"

After hunting it down, I can see why he didn't link to it. He, I assume deliberately, misrepresented what the writer had thought was "over the top". Not the part that he quotes, which the writer described as "relatively tame", but what preceded it.

I'm not bringing this up because of what it says about Professor Tushnet; Regular readers at Balkinization will expect this sort of thing. But it is a good reminder that it's virtually always worth tracking down the source material when an account avoids linking to it.

"So you concede the SSM point"
Do you the unisex bathroom point? As to SSM that was decided primarily on DP grounds, so it wouldn't matter what a hypothetical off the rails court would do with the ERA which everyone now says they agree with the facial language of.

As to the Tushnet article, he provided exact quotes so it was exceedingly simple to track down the article. I don't think he misrepresents it, if anything he plays down the hysterical victimhood language that riddles the piece.

The Federalist Society and its invited speaker ADF are working to make it easier to exclude gays from civil society and government protections to that effect. Then when people think that those groups who are working to exclude their colleagues, classmates, friends should themselves be told they're not welcome the latter goes into the same hysterical victimhood narrative that, when someone else does it, the conservative groups would dismiss/ridicule.

I'm unsure if it is "unconstitutional" myself.

Art. V says a certain supermajority is required to propose an amendment.

The deadline itself is not part of the text of the amendment. There actually are amendments where this is the case. Take the 22A: "This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress."

That is part of the actual amendment so changing the deadline would clearly require proposing a new amendment. This is a more debatable situation with experts on both sides.

Brett's dictum on source material is okay though at times he is hoist on his own petard.

As to the substance, first, perhaps Tushnet might want to fix the formatting.

The article says something is "over the top" and then starts describing what happened. I'm not sure what part Mark Tushnet left out that is misleading. Brett's assertion (a word overused but applicable if a bare allegation is made without substantive argument) doesn't clarify.

It would be helpful if these posts had comments though past experience suggests why one rather not have them.

The over the top bit was right before the part he did quote:

"The first condemnation was from Outlaws, the law school’s LGBTQ group. They attacked the Federalist Society for inviting ADF to campus and called for a boycott of the event. Over the next 24 hours, almost every student group jumped onto the bandwagon and joined the boycott.

The emails were a veritable alphabet soup of identity groups, including: APALSA (Asian Pacific American Law Students Association); BLSA (Black Law Students Association); SALSA (South Asian Law Students Association); LLSA (Latinx Law Students Association); MLSA (Muslim Law Students Association); MENALSA (Middle Eastern and North African Law Students Association); and JLSA (Jewish Law Students Association).

NALSA (Native American Law Students Association) said ADF employees were not welcome on their “ancestral lands.” The Yale Law Women, Yale Law Student Alliance for Reproductive Justice, and the Women of Color Collective joined, as did the American Constitution Society, the Yale Law Democrats, and the First Generation Professionals.

In addition to the boycott, some students said people who supported ADF’s position should no longer be admitted to the law school. One student emailed a list of the Federalist Society board members (publicly available information) so students would know whom to “thank” for this event."

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Tushnet summarized all of that. He didn't need to quote it. And none of the events described in Brett's post qualify as "over the top". The only possible use for that phrase in the context of this incident is the invitation itself.

A foundation for the establishment of the Federalist Society was concerns of members with the judicial activism of the Warren Court. A foundational decision of the Warren Court was, of course, Brown v. Bd. of Educ. (1954, Unanimous), which impelled the civil rights movement and the enactment of the Civil Rights Acts of the mid 1960s, driving the momentum for the growth of the Federalist Society. The "over the top" four paragraphs quoted by Brett [I didn't check for accuracy] seem to confirm the animus of the Federalist Society for civil rights (other than for conservative libertarians), not to mention Brett's personal "over the top" animus.

He did quote the last part:

"In addition to the boycott, some students said people who supported ADF’s position should no longer be admitted to the law school. One student emailed a list of the Federalist Society board members (publicly available information) so students would know whom to 'thank' for this event."

Tushnet says a "large number of student groups organized a boycott." Brett lists them.

The "over the top" part -- reading the article -- is the whole thing. Which Mark Tushnet did summarize. I don't see any specific deliberate misrepresentation & yes, reading the piece helps confirm this. So, though doing so each time is time consuming -- especially if one reads blogs to skim over a lot of material -- it is helpful.

Query: Were those "Papa John's" pizza boxes, the "official" Federalist Society pizza?

He omitted the most over the top part, IMO.

And, yeah, it was remarkably over the top for an invitation which shouldn't have created any stir at all.

I'm curious as to why Brett did not include an "IMO" with respect to his closing sentence at 11:41 AM as if that closing sentence bears factuality. IMO Brett is demonstrating his animus for certain groups or that he's just a troll. Anyone for Papa John's slices?

Joe, at 9:10 AM exposed Brett's feeble efforts to denigrate Mark Tushnet for alleged omissions. Why had Brett failed to note what Tushnet did address, via quotes and in general? I'm not expecting Brett to even give thought to walking in the shoes of the students in the groups that objected, as Brett isn't that colorful.

Why should I walk in the shoes of people who are offended by the mere prospect that somebody they don't agree with would have a chance to speak somewhere near them? That's not a perspective I have any respect for at all. Nobody should respect it.

I don't care how much you're offended by somebody's views, trying to shut them up is BS. And the ADF aren't some fringe group like the Aryan nation. Their views are entirely mainstream, if you're offended by them, you're offended by something like a third of the entire population.

So, yes, the reaction to the invitation was over the top.

But, do you have a good excuse for not linking to the essay? I don't see it. Basically, you don't link to the source material when you don't want people reading it in context, and making their own evaluations.

Objecting to the speech of someone else is called …. speech. As Prof. Tushnet pointed out. Happens every day.

I understand why Brett would not want to walk in the shoes of these minority groups of students who have lots of verbal garbage thrown at them and they are, as Mark Fields highlighted, exercising their 1st A rights, just as Brett is exercising his. As to "over the top," IMO that was what Brett did a few years ago in his complaint that when he was a youngster he couldn't compete with Mexican farm workers in pulling red radishes back in Northern Michigus [sic]. Maybe Brett would have better luck with white radishes.

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"Why should I walk in the shoes of people who are offended by the mere prospect that somebody they don't agree with would have a chance to speak somewhere near them? That's not a perspective I have any respect for at all. Nobody should respect it."

So your opinion on those who criticize, protest, boycott and urge others to boycott the NFL because a handful of players quietly kneeled during the National Anthem and the NFL wouldn't fire them (though it did blackball at least one quite obviously)? What about a President who urges such behavior?

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