Is Virginia the 38th State to Ratify the ERA?
Many of you might remember the School House Rock videos, which aired during Saturday morning cartoons and taught kids multiplication tables, grammar, science, American history, and economics. The episode I hear mentioned the most is called “I’m Just a Bill,” which tells the story of how a bill becomes a law, and since one of my amazingly talented kids was in the play version of this episode, it also happens to be one of my favorites. Unfortunately, there wasn’t an episode that explained the lengthy, confusing, and often bewildering process of how an amendment is added to the U.S. Constitution, which might have proved helpful in trying to figure out whether Virginia ratifying the ERA earlier this month actually means that it will become the 28th Amendment. Since we can’t take the easy way and look to School House Rock for answers, here’s my take…
How a Proposed Amendment is Ratified
The authority to amend the Constitution is derived from Article V of the Constitution, which provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Congress then proposes an amendment in the form of a joint resolution, which is forwarded directly to the National Archives and Record Administration’s (NARA) Office of the Federal Register (OFR) for processing and publication. As for the actual ratification process, well, the Constitution doesn’t describe this procedure in detail. Instead, the Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985. This means that after the OFR verifies that it has received the required number of authenticated ratification documents (38 of 50) and then it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.
So, is Virginia the 38th State?
The Equal Rights Amendment was first introduced to Congress in 1923 by Alice Paul, but it didn’t received approval by both houses of Congresses until 1972. However, it still needed the approval of 38 state legislatures, and a seven-year deadline was imposed to achieve this goal. In 1979, President Carter extended the deadline to 1982, but the amendment never received the necessary state ratifications.
Fast forward to 2020, where Democrats have declared that Virginia has become the 38th state to ratify the ERA after both chambers of the General Assembly separately approved ratification procedures. Nevertheless, there are four issues that make this declaration premature. First, Alabama, Louisiana and South Dakota filed a lawsuit challenging the Archivist of the United States David Ferriero’s handling of the amendment. Specifically, the suit maintains that a seven-year deadline for the ratification of the amendment has passed, and Ferriero is acting illegally by continuing to hold open the ratification process. The suit further asserts that five states (Idaho, Kentucky, Nebraska, South Dakota, and Tennessee) voted to rescind their ratification of the ERA between1972 and 1982, which means all five did so within the specified deadlines. Additional court battles are expected to pop up over the long-passed deadline that was set by Congress, especially since Congressional Democrats are working to pass a bill removing the deadline.
Second, there’s a debate as to who exactly determines whether an amendment is official – is it the Executive Branch or the Congress who certifies the amendment? In the case of the 27th Amendment, the Archivist of the United States, who works for Congress, certified the amendment, but this is the only time that this decision was ever made by the archivist. While the answer to this question is unclear, what is clear is that there will be a judicial fight over the validity of the ERA, and it will be very intense and highly explosive.
Third, the day after Virginia Democrats declared the Commonwealth the 38th state to ratify the ERA, the National Archives issued a statement noting that the Archivist will not take steps to certify the adoption of the ERA unless otherwise directed by a final court order.
Fourth, Virginia Attorney General Mark Herring is partnering on a lawsuit with fellow Democratic attorneys general from Illinois and Nevada to recognize the ERA as the 28th Amendment to the U.S. Constitution. The lawsuit was filed in U.S. District Court for the District of Columbia and contends that U.S. laws do not give the archivist the power to decide whether to certify an amendment. Instead, the suit claims, the archivist’s duty to certify the amendment is “mandatory and purely ministerial.” Additionally, the suit maintains that the deadline introduced by Congress is not binding because the time limitation was in a resolution preamble and not in the text of the article that was sent to the states for consideration. Furthermore, the attorneys general note that the U.S. Constitution doesn’t explicitly give Congress the power to set a timeline for states to ratify an amendment.
Justice Ginsberg Throws a Curve Ball
Earlier this month, Supreme Court Justice Ginsberg surprised the pro-abortion feminists by telling them that they will need to start over again if they want to get the ERA passed. Ginsberg further noted, “there is too much controversy about late comers” and she added Virginia’s vote came “long after the deadline passed.”
Ginsberg has always been a staunch supporter of the ERA so her public comments regarding whether Virginia is or isn’t the 38th state provide the left with a bleak look at what’s to come if they continue their path to the Supreme Court.
Consequences of the ERA
If the ERA does, in fact, become the 28th Amendment, there are three consequences that will negatively impact the nation. To begin with, probably the most significant effect of passing the ERA is that it could invalidate all restrictions on taxpayer funded abortion and, effectively, any other law that distinguishes between abortion and other medical procedures. The argument the Left makes for this is that since only women seek abortions, any government policy that restricts access to abortion, or that treats abortion differently than those procedures performed on men is a violation of women’s rights. Hence, the Hyde Amendment will go right out the window. Next, it would eliminate legal recognition of sex differences. In doing so, gender-segregated bathrooms and showers would be considered illegal in public buildings, men would be permitted in women’s prisons, and men would be able to participate in women’s sports. Finally, it would put women’s shelters that are funded by the government at risk. This would negatively impact those shelters that are specifically designed for women who are victims of domestic violence.
