Yesterday, Democrats tried to use a deeply underhanded trick to add an amendment to the Constitution.
It all involved the proposed Equal Rights Amendment (‘ERA’), which if ratified would say the following:
SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
One way to add amendments to the Constitution is to have two-thirds of Congress propose an amendment, and then seek ratification in the states. If that proposal is ratified by three quarters of the states, then it becomes part of the Constitution.
That brings us to yesterday, when the Democrats in the Senate attempted a truly dastardly end-run around the amendment process. They tried to say it was already properly ratified, even though it wasn’t. Senator John Kennedy of Louisiana (R) explained why he voted against this (by voting to keep a filibuster going):
I voted 'no' on the ERA.
I was not going to help some members in the U.S. Senate, in effect, to try to cheat to change our Constitution. pic.twitter.com/PfE06Ms9Q9
— John Kennedy (@SenJohnKennedy) April 27, 2023
To expand on his point, when the ERA was first proposed, the resolution sending it to the states also contained the following language:
That the following article … which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress[.]
(Emphasis added.) So, they had seven years to ratify it, and since it was first proposed in 1972, that meant that three quarters of the states had to ratify it within that seven-year timeline—and the ERA did not reach that threshold.
But in 2020, Virginia purported to become the thirty-eighth state to ratify it, even though that is well past the deadline—one of three states to attempt to ratify it after the deadline had passed. Furthermore, some states that did ratify the amendment on time have purported to rescind their ratification. So, what did advocates of the ERA do? Well, they attempted to ignore all of that, proposing a resolution during this Congress that said:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution is valid to all intents and purposes as part of the Constitution, having been ratified by the legislatures of three-fourths of the several States.
In short, they wanted to cheat and pretend that the initial time limit didn’t matter and make the ERA the Twenty-Eighth amendment to the Constitution. Wheeeee!!!
Whatever one feels about the ERA, this is wrong. In the view of the advocates for the ERA no time limit is valid and no vote to rescind any ratification is allowed. By that logic, Article V of the Constitution, which is supposed to make it difficult to amend the Constitution, is turned into an almost inevitable process once an amendment is proposed. After all, if America lasts one thousand years, then it is almost inevitable that any proposed amendment will become part of the Constitution, however ill-advised. After all, you would only need thirty-eight states to say ‘yes,’ once in that thousand-year period.
It is also fundamentally unfair. How many state politicians voted to ratify the amendment not because they actually believed in it, but because they correctly estimated that it would never be ratified in seven years and therefore it was safe to pretend they supported it? Would the resolution even make it out of Congress without the time limit on ratification?
In other words, there are good reasons to oppose this move that have nothing to do with whether you want to see this amendment ratified.
But, of course, the spin is that this is because of evil, sexist republicans:
100 years after the Equal Rights Amendment was first introduced, we are still fighting for gender equality in our Constitution.
We’re marching to the Senate floor to demand Congress finally passes the #ERA. pic.twitter.com/jJCF53f1Co
— Congresswoman Rashida Tlaib (@RepRashida) April 27, 2023
Except Congress can’t pass it. That’s not how amendments work.
Alas, we hear from others:
Men and women should be treated equally under the law, and there should be no time limit on equality.
It is far past time for Congress to act, and to remove the deadline for ratification of the Equal Rights Amendment. https://t.co/NS8SPI4m43 pic.twitter.com/yC0lOxBuN4
— Sen. Lisa Murkowski (@lisamurkowski) April 27, 2023
The Equal Rights Amendment is long overdue
There is still sex-based discrimination and gender-based violence in our great country
We owe it to future generations@SenBlumenthal lays it out: pic.twitter.com/nDanhJuKTT
— Senate Democrats (@SenateDems) April 27, 2023
For the first time in 40 years, the Senate just voted on the Equal Rights Amendment. While it did not pass the Senate, this vote is a result of the momentum we have built for constitutional gender equality.
The fight to affirm the ERA as the 28th Amendment is alive and well. pic.twitter.com/YqyKepZtws
— Congresswoman Cori Bush (@RepCori) April 28, 2023
We are here standing united with @SenatorCardin, @RepCori, and more for the Equal Rights Amendment
We will fight side-by-side to establish the full Constitutional equality women deserve
This vote was one more step in the march for equality, and we'll keep fighting until we win pic.twitter.com/2X50HIoxyx
— Chuck Schumer (@SenSchumer) April 27, 2023
Schumer ended up technically voting against it for strategic reasons (it gives him the ability to bring it up for a new vote in the future).
It's a shame that 100 years after the Equal Rights Amendment was first introduced, we are still fighting for gender equality in our Constitution.
So today, we marched to the Senate floor to demand Congress finally pass the #EqualRightsAmendmenthttps://t.co/Bqgy0iUJ3V pic.twitter.com/wzmnTgS1ak
— Congresswoman Summer Lee (@RepSummerLee) April 27, 2023
Republicans are given every opportunity to do the right things, and they fail to do so every single time.https://t.co/y5BHb5hOBd
— The Lincoln Project (@ProjectLincoln) April 28, 2023
President Lincoln should rise from his grave and sue the Lincoln Project for misappropriation of his name.
This dishonestly even includes the alleged ‘moderate’ Senator Manchin:
Today, I proudly voted to remove the procedural barrier blocking the ratification of the Equal Rights Amendment and to affirm the bedrock principles of our democracy. https://t.co/HdstyAHoXn
— Senator Joe Manchin (@Sen_JoeManchin) April 27, 2023
It goes on in this fashion for a while.
One shouldn’t be surprised to see bias and even dishonesty from activists and politicians, but the news media should be fair. Not that we actually expect them to be fair, but we’re describing the ideal, regardless of reality. If they are honest, the discussion would be around the end-run around the ratification process the Democrats are attempting and whether that is valid. Instead, we get this sort of thing:
"I don't think it's a failure at all," says actress and activist Alyssa Milano, as the U.S. Senate fails to pass an Equal Rights Amendment that would've guaranteed gender equality nationwide.
"We are not going to stop until the ERA is in the Constitution," Milano adds. pic.twitter.com/QTTrQOnSBe
— CBS News (@CBSNews) April 27, 2023
Apart from Alyssa Milano’s commentary, notice that they are talking about it as if Congress can just pass an amendment.
Senate GOP blocks measure looking to prohibit sex discrimination in Constitution https://t.co/Tke2gkrhX9
— POLITICO (@politico) April 27, 2023
Fifty-one years ago in the Maryland House of Delegates, when Sen. Ben Cardin (D-Md.) voted to ratify the ERA the first time. Now, he is leading the charge in the U.S. Senate alongside Sen. Lisa Murkowski (R-Alaska) to allow the ERA to move forward. https://t.co/YbghKZ2SpS
— The Washington Post (@washingtonpost) April 27, 2023
US Equal Rights Amendment blocked again, a century after introduction https://t.co/3XlXKJebIp pic.twitter.com/HI5XcKHnbO
— Reuters (@Reuters) April 27, 2023
Rueters is referring to the fact that the amendment was first introduced in Congress in 1923, long before Congress properly proposed it as an amendment to the Constitution.
Senate GOP blocks Equal Rights Amendment https://t.co/Nt4PNWQNvH pic.twitter.com/krb2pKAapd
— The Hill (@thehill) April 28, 2023
And even… Newsmax?!
The Senate on Thursday fell short of the votes needed to enshrine equal rights for women in the Constitution, a century after a guarantee of gender equality was proposed in Congress. https://t.co/nrxdkSUcWE
— NEWSMAX (@NEWSMAX) April 28, 2023
And the Washington Times?
Equal Rights Amendment fails again as Senate Republicans mount filibusterhttps://t.co/uy5oymJNEz pic.twitter.com/Y2dyKLItZF
— The Washington Times (@WashTimes) April 27, 2023
These news outlets are supposed to be able to avoid liberal media bias, but apparently they got suckered in.
As if that isn’t strange enough, we get a pretty neutral headline from CNN:
The Senate has failed to advance a resolution to remove the deadline for ratification of the Equal Rights Amendment, a proposed amendment to the Constitution https://t.co/BcocwjlJtB
— CNN (@CNN) April 27, 2023
And the AP? Being fair? We are legitimately surprised:
Latest push to revive Equal Rights Amendment fails in Senate – The Associated Press: Latest push to revive Equal Rights Amendment fails in Senate The Associated Press https://t.co/6noSykQENw #AndyVermautLovesAP #Whatsapp0032499357495
— Andy Vermaut (@AndyVermaut) April 28, 2023
Thankfully Fox News is not completely lost, yet:
Schumer sets up vote aimed at adding Equal Rights Amendment to the Constitution https://t.co/05gex1Wh6n
— Fox News (@FoxNews) April 25, 2023
Still, a much better blurb comes from the Washington Examiner:
"@SenSchumer is trying to get a simple Senate majority to retroactively extend a deadline that it lacks the power to extend. But Republicans who vote for [it], even if they do support adoption of the Equal Rights Amendment, are suckers."
–@freddosohttps://t.co/U3DxCsiBvF— Washington Examiner (@dcexaminer) April 27, 2023
However, it is shameful how many outlets that profess to be neutral or even conservative are just misrepresenting the issue.
Finally, a reasonable person might ask: Should we ratify the ERA now? Assuming the correct Article V procedures were followed, should it become part of the Constitution?
We believe broadly in equal opportunity for men and women but we think this amendment would be a mistake—at least, as it is written.
You have to start with the law as it is now. At the moment, people are actually protected from most forms of sex-based discrimination by the government. Right now, the courts will only uphold such discrimination if the it serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives.
That means most forms of forms of discrimination by sex are illegal, but some discrimination by sex is still tolerated—which is not a bad thing. For instance, separate bathrooms by race are correctly seen as vile discrimination. But most rational people see separate bathrooms by sex as a reasonable measure to protect men’s and women’s privacy. Racial segregation in prison is wrong, but sex-based segregation in prison is seen by rational people as a means to protect women from sexual abuse at the hands of men. Race-based separation in sports leagues were eliminated as invidious discrimination, but separation in sports leagues by sex is seen by rational people as a measure to ensure that women have a chance to participate in those sports. If the Equal Rights Amendment is properly ratified as is, discrimination by sex will likely be treated like discrimination by race, meaning an end to separation in bathrooms, locker rooms, prisons and sports leagues.
Indeed, the Supreme Court has interpreted the Civil Rights Act of 1964’s prohibition on sex discrimination as prohibiting discrimination against transgender individuals. The ERA is likely to be interpreted the same way. And advocates for and against the amendment believe it will make abortion a constitutional right again—Senator Schumer saying so in his speech above. It would certainly give the liberal justices ideological cover for reinstituting Roe v. Wade (or worse). They could say ‘even if there wasn’t a right to an abortion in the previous twenty-seven amendments, it is in this new twenty-eighth one!’
One solution to these problems is to rewrite the amendment, to carve out rational exceptions to address these kinds of issues. However, it seems unlikely that we could get the kind of broad-based agreement on such exceptions needed in the amendment process. Does anyone believe that a constitutional amendment allowing segregation of bathrooms by sex would get the two-thirds vote in congress needed to even propose an amendment—let alone ratification by the states? In this day and age, it seems unlikely.
So at least as it is written now, the ERA should not become part of the Constitution. And, despite the underhanded tactics of the Democrats, it does not look like it will be added anytime soon.
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