On Friday, Joe Biden declared the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution, even though it has not been officially ratified. The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex,” and grants Congress the power to enforce this through legislation. However, there are currently only 27 ratified amendments to the Constitution.
Biden made his remarks during a farewell ceremony for the Department of Defense Commander in Chief, where he emphatically claimed, “The Equal Rights Amendment is the law of the land now! It is the 28th Amendment to the Constitution now!” However, this is not accurate. Vice President Kamala Harris echoed this assertion, stating, “The Equal Rights Amendment is the 28th Amendment, and it is the law of the land.”
Despite these claims, the ERA has not been certified as ratified. Originally passed by Congress in 1972, it requires ratification by three-quarters of the states (38). Virginia became the 38th state to ratify the ERA in 2020 after decades of inaction. However, the amendment’s ratification deadlines expired long ago, and five states have rescinded their approval. This raises legal questions about whether the amendment can be recognized more than 50 years after its initial passage. The decision to certify and publish the ERA would fall to the U.S. archivist, Dr. Colleen Shogan, but a legal battle is expected due to the lapsed deadlines and contested state rescissions. Legal experts argue that the process is far from straightforward, with unresolved issues surrounding the validity of the amendment’s ratification.
COMMENTARY:
President Biden and Vice President Harris’s recent claims about the Equal Rights Amendment (ERA) being the 28th Amendment to the United States Constitution have sparked significant controversy. Their assertions are not grounded in constitutional fact, as the ERA has not been formally ratified or certified as an amendment. The U.S. Constitution outlines a precise process for adding amendments, and any deviation from that process undermines the integrity of our legal framework. Declaring an amendment as “law of the land” without meeting these requirements sets a dangerous precedent.
The ERA, originally passed by Congress in 1972, aims to guarantee equality under the law regardless of sex. While the intent is laudable, the path to ratification has been fraught with challenges. To amend the Constitution, three-quarters of state legislatures, or 38 states, must ratify the proposal. Although Virginia became the 38th state to approve the ERA in 2020, the ratification deadline expired decades ago, complicating the amendment’s status. Additionally, five states have rescinded their ratification, further muddying the waters.
Legal experts and constitutional scholars have pointed out that reviving the ERA requires addressing these legal hurdles. The expiration of the ratification deadline, set by Congress in the 1970s, presents a significant obstacle. While some argue that Congress could extend or remove the deadline retroactively, others contend that such actions would violate constitutional principles. The matter remains unresolved and highly contentious.
Biden and Harris’s statements suggesting that the ERA is already an official amendment bypass these legal complexities. Their rhetoric misrepresents the status of the amendment and misleads the public about the constitutional process. Such statements could erode public trust in the government’s commitment to following established legal procedures. The Constitution is not a document to be reshaped by executive opinions or declarations; it requires adherence to strict guidelines to maintain its legitimacy.
One concerning aspect of this controversy is the potential politicization of constitutional law. By unilaterally declaring the ERA as ratified, Biden and Harris risk turning constitutional amendments into political tools rather than legal instruments representing the collective will of the states. This undermines the balance of power between the executive, legislative, and judicial branches and threatens the Constitution’s role as the foundation of American governance.
Critics have also noted the historical implications of such claims. Past constitutional amendments, such as the 19th Amendment granting women the right to vote, underwent rigorous debate and formal ratification processes. These milestones required bipartisan support and adherence to constitutional guidelines. Ignoring these precedents devalues the sacrifices made by those who fought for these rights and the legitimacy of the process itself.
Moreover, the claims made by the president and vice president could invite legal challenges. Opponents of the ERA could argue that these statements amount to executive overreach and demand judicial intervention. Courts may ultimately have to decide whether the ERA’s ratification process can be revived or if the expired deadlines and rescinded ratifications render it null. This could lead to prolonged legal battles and further polarization on the issue.
The role of the U.S. archivist, currently Dr. Colleen Shogan, is also critical in this situation. As the official responsible for certifying and publishing amendments, the archivist would need to determine whether the ERA meets the constitutional requirements for ratification. Without this certification, the ERA cannot be considered a valid amendment, regardless of executive declarations. The archivist’s decision could become a focal point in the broader debate over the amendment’s status.
Congress, too, has a role to play in resolving this controversy. Some lawmakers have introduced resolutions to eliminate the ERA’s ratification deadline, but these efforts face significant political opposition. While many Americans support the principles behind the ERA, the question of whether it can be retroactively ratified remains divisive. A more constructive approach would involve open dialogue and bipartisan cooperation to address these issues within the framework of the Constitution.
Public discourse surrounding the ERA also highlights the importance of civic education. Many Americans may not fully understand the constitutional amendment process, leading to confusion when leaders make unfounded claims. This underscores the need for greater transparency and education about how the Constitution works and why its processes matter.
The controversy also raises broader questions about executive accountability. If elected officials can declare constitutional amendments unilaterally, what other actions might they take without proper legal authority? Upholding the rule of law requires holding leaders accountable for their statements and actions, ensuring that they respect the limits of their power.
Biden and Harris should retract their statements about the ERA’s status and clarify the amendment’s actual legal standing. Doing so would demonstrate a commitment to the Constitution and the rule of law. It would also help restore public confidence in their administration’s ability to govern responsibly and within the bounds of their authority.
This incident should serve as a wake-up call for Americans to engage more actively in the democratic process. The debate over the ERA reflects broader tensions in American politics, where competing priorities and interpretations of the law often clash. Citizens must remain vigilant and informed to ensure that constitutional principles are upheld.
While the goals of the ERA are admirable, achieving them must occur through lawful means. Bypassing constitutional procedures, even with good intentions, risks undermining the very principles the amendment seeks to protect. Biden and Harris’s missteps in this matter should prompt a renewed focus on respecting the Constitution and preserving its integrity.
Ultimately, the ERA’s future depends on a careful balance of legal, political, and public considerations. Resolving the amendment’s status requires a concerted effort to address its legal challenges, engage in bipartisan dialogue, and uphold the rule of law. Anything less would compromise the legitimacy of the Constitution and the democratic process.
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