The End Of An ERA, No Matter What Biden Does

No matter how many times it’s died, some people won’t let go of the Equal Rights Amendment. Having explained why it’s dead, and dead, and dead, before, even though I supported its adoption back in the good old days when there was still a possibility of ratification, there is no reason to explain it again. And yet, that didn’t stop the New York Times from including New York’s junior senator, Kirsten Gillibrand’s, disdain for democracy in its end of Biden’s presidency wish list.

Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment. This would mean that the amendment has been officially ratified and that the archivist has declared it part of the Constitution.

There are a few magical powers ascribed to President Biden, from forgiving student loan debt to adding a constitutional amendment by presidential decree.

The E.R.A. has met the requirements for certification — it passed two-thirds of Congress in 1972 and was ratified by three-quarters of the states as of 2020. Only a flawed Trump Justice Department memo prevented its certification as a constitutional amendment. The memo contended that the E.R.A. is no longer valid because it failed to meet the seven-year deadline that Congress initially set and then, when the ratification effort fell three states short, extended until 1982.

But the deadline was meaningless. The Constitution says nothing about a deadline for amending it.

This is a rather curious statement, not the least for its baselessness and utter vapidity (Kirsten’s brand, if you will). but for its blithe dismissal of the conditional ratification requirement incorporated into the amendment by . . . Congress! Is a senator calling Congress’ express condition “meaningless”? Usually, that’s the president’s job, but here’s Gillibrand doing the heavy lifting.

No doubt this would be argued in the courts; right-wing legal challenges would follow the archivist’s certification and publication. But there is strong legal backing for our position.

The ABA says so? Larry Tribe says so? You know who doesn’t say so? The National Archivist.

The national archivist on Tuesday preemptively stated she could not legally certify the Equal Rights Amendment as part of the Constitution, an unusual move that effectively shut down a campaign by Democrats to pressure President Biden to add it before he leaves office.

While the lead for the zombie amendment is Gillibrand, it’s not as if others haven’t joined in her call for President Biden to command the National Archivist to resurrect this dead amendment and assert “It’s ALIVE!!!”

Last month, 45 senators, including Chuck Schumer of New York, the majority leader, signed a letter to Mr. Biden calling on him to take action on the amendment. A group of about 100 House Democrats is also expected to send a similar letter to Mr. Biden, urging him to take action in the final days of his presidency.

But on Tuesday, the archivist, Colleen Shogan, and her deputy, William J. Bosanko, issued a statement saying that the Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”

The primary thrust of the Democratic Party’s campaign for the presidency has been that the election of Trump spells the death of democracy. And indeed, it’s not as if Trump hasn’t conclusively proven that his concern for law and constitutional rights runs the gamut of stunning ignorance to flagrant disdain, But the flip side is the tone-deafness of the Democrats, who are busy undermining democracy for their own purposes whenever it serves their interest, all the while pointing the finger at Trump, saying, “but he’s worse.” Just because a president has immunity from criminal prosecution for some actions doesn’t make them any less a crime.

But for a party claiming the high ground on standing for democracy, demanding that the National Archivist obey a command from the president to call a zombie amendment ratified reflects no less faithlessness in the law and Constitution. And thankfully, Colleen Shogan cares enough about the law and the Constitution to refuse to violate them.

In a statement, Ms. Gillibrand said that Dr. Shogan was “correct that she has a responsibility to uphold the law.” But she added that “by refusing to certify the E.R.A., she is wrongfully inserting herself into a clear constitutional process, despite the fact that her role is purely ministerial.”

There is a clear constitutional process, and Colleen Shogan is “correct that she has a responsibility to uphold the law.” That responsibility demands that she not pretend a dead constitutional amendment is ratified because the president, and supporters of the amendment, demand otherwise. As we re-enter the Trump years of commands that will almost certainly involve myriad unlawful and unconstitutional actions, we rely on those individuals in the federal government who refuse to be party to the murder of democracy for the purpose of achieving unlawful goals.

We need more Dr. Shogans. And we need to appreciate Colleen Shogan’s devotion to law and Constitution, as opposed to the Democrats’ call to violate and ignore them to achieve their ends much as they condemn Trump for doing the same.


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5 thoughts on “The End Of An ERA, No Matter What Biden Does

  1. Miles

    It’s been awfully quiet around this here hotel this week. No bar specials? And where’s the bouncer? Skink, you around?

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