The 28thAmendment – Finally after 97 years

In 2020, we celebrate the centennial of the Nineteenth amendment granting women the right to vote.  However, Virginia did not ratify until 1952. Alabama waited until 1953. Louisiana only ratified in 1970. And Mississippi did not ratify women’s right to vote until 1984.

While vitally important, even in 1920, the women knew that voting wasn’t enough.  Women had to have constitutional equality for the promise of “we the people” and “with liberty and justice for all” to be realized.  Now that the Twenty-eighth Amendment was ratified on January 27, 2020, we have moved one big step forward to making America the country it promised to be.

Alice Paul, a lawyer and leader in the suffrage movement, wrote the first Equal Rights Amendment (ERA) in 1923. It would have provided that “[m]en and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Later that language was changed to the current version:   “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. SECTION 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. SECTION 3. This amendment shall take effect two years after the date of ratification.”

Article V of the Constitution outlines how the amendment process takes place. First a proposed amendment has to pass out of Congress by a two-thirds majority in both chambers.  It took 49 years for the ERA. When newly elected Representative Martha Griffiths from Michigan chanced upon a manila folder whose tab read “broads,” she determined to get the ERA passed.  She didn’t get it passed the first year and had to use a discharge petition the second, but she got it done in 1972.

According to Article V, three-fourths or 38 states have to then ratify an amendment before it’s valid.  A seven-year timeline was put on the ERA in the preface. When 1979 came and went, another action by a majority vote in Congress extended the timeline to 1982.

In Arizona, Sandra Day O’Connor and Sister Claire Dunn were the two proponents of the ERA.  However, it failed in 1972, 1975, and 1979 and has not been voted on since, though it has been introduced nearly every year since 1990.

The ERA battle was re-ignited by its passage in Nevada in 2017.  Illinois passed it in 2018.  Virginia became the 38^thstate to ratify in January 2020.  In poll after poll for decades, over 90% of Americans support the ERA.  But still today, a small number of opponents, for inexplicable reasons, are trying to stop it.

These opponents first claim it’s invalid because of the timeline.  Article V does not require a timeline.  No timelines were imposed on any amendment until the Eighteenth amendment because they really didn’t want it to pass.  Following that, no timeline was put on the 19^thamendment.  Congress was also inconsistent in the placing of a timeline i.e. in the preface as with the ERA and Twenty-Third, Twenty-Fourth, Twenty-Fifth and Twenty-Sixth Amendments or in the text of the amendment ( Eighteenth, Twentieth, Twenty-First, and Twenty-Second).

The Supreme Court has spoken on the issue in Dillon, 256 U.S. at 376 where they held that Congress’s decision to fix “a definite period for ratification” is “a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification” under Article V. The Constitution gives Congress alone the job of amending the Constitution.  They can determine the procedure.

Dillon held that the ratification of the Eighteenth Amendment was “consummated” on the date that the thirty-sixth State had ratified it, and not thirteen days later when the Acting Secretary of State had proclaimed it under the statutory predecessor to 1 U.S.C. § 106b. See Dillon, 256 U.S. at 376, United States ex rel. Widenmann v. Colby, 49 App. D.C. 358, 360 (D.C. 1920) (“Moreover, even if the proclamation was canceled by order of this court, it would not affect the validity of the [Eighteenth] amendment.  Its validity does not depend in any wise upon the proclamation.  It is the approval of the requisite number of states, not the proclamation, that gives vitality to the amendment and makes it a part of the supreme law of the land.”); Research Department, Minnesota House of Representatives, “United States Constitutional Amendment Process,” p. 13 (April 2016); Modern Constitutional Law § 37:25 (3rd ed.).  Thus it is the ratification by Virginia  on January 27, 2020 that transformed the ERA to the 28^thAmendment.  No further action is necessary.

In 2012, the national archivist had said he understood that Supreme Court ruling to mean that he was to do his administrative duty and certify the 28^thamendment when the 38^thstate ratified it.  But then the Department of Justice issued an opinion on January 6, 2020 contradicting an earlier opinion and opposing the ERA. The DOJ had stated that the ERA was valid regardless of the timeline and that recissions were not allowed.  See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977) (“Constitutionality of ERA Extension”).

But Attorney General Barr now disagrees – illustrating the completely political not legal nature of the claim.  His main argument is that once Congress proposes an amendment, that is the end of their job and they can do nothing more like change timelines. But his argument is internally inconsistent because he also argues that states who have ratified can rescind i.e. Congress only gets one bite of the apple but the States get two.  He also blatantly misstates the holding inIdaho v. Freeman, 529 F. Supp. 1107, 1150–54 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982) claiming that it held that Congress had exceeded its authority by granting an extension. The Supreme Court vacated the district court’s opinion and remanded the cases with instructions to vacate the lower court decision and dismiss the complaints as moot because the ERA had not passed at that time and the timeline had. See Nat’l Org. for Women, Inc. v. Idaho, 459 U.S. 809 (1982).  Most lawyers know that vacated, dismissed, moot cases cannot be used as precedent.

While Barr insists there is a “reasonable time” for ratification, he never mentions the Madison amendment that was first introduced in 1789 and ratified in 1992 – 203 years later.   Congress cannot limit the amount of time that States have to ratify a constitutional amendment because the Tenth Amendment to the United States Constitution provides that all rights not specifically granted to the federal government are reserved to the States, and the United States Constitution nowhere grants to Congress the power to impose extra-textual statutory deadlines on the States. Under the Tenth Amendment, and in light of Article V which states that an amendment becomes valid when three-fourths of the states ratify, the States have authority to ratify, or not, unrestrained by the federal government.

In Coleman v. Miller, 307 U.S. 433 (1939), the Supreme Court left it to Congress to decide the reasonableness of the length of the ratification period. In fact, in Miller, four justices signed a concurring opinion stating that Congress has “sole and complete control over the amending process, subject to no judicial review.”  There was a fight about the 14^thAmendment too.  Allegedly there were irregularities in the ratification of Oho and New Jersey but the House and Senate adopted concurrent resolutions declaring the Fourteenth Amendment part of the Constitution.  See Proclamation No. 13, 15 Stat. 708, 709–10 (1868). Congress has passed H.J.Res 79 that eliminates the timeline. The Senate has a mirror resolution (S.J.Res 6) with 48 co-signers including Senator Sinema.  Once that passes, there will be no timeline for the opposition to complain about.

Five states purport to have rescinded (KY, TN, NE, SD, ID).  But Article V of the Constitution gives no such power to a state.  Congress has consistently read Article V to grant state legislatures only a ratification power.  (Walter Dellinger, TheLegitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev.386, 419-20 (1983)). Once a state legislative body has ratified an amendment pursuant to Article V, its constitutional role is complete as the court said inColeman. This interpretation avoids the confusion and lack of confidence in the amendment process that would result by reading Article V as granting the power to ratify with the caveat “but we might revoke this ratification at any time.”

Others also completely contradict Barr that a state can rescind at all. Charles K. Burdick, The Law of the American Constitution 39 (1922) Jameson, A Treatise on Constitutional Conventions § 585 at 634 (“[T]he Federal Constitution, from which Congress alone derives its power to submit amendments to the States, does not provide for recalling them upon any event or condition; and . . . the power to recall cannot be considered as involved in that to submit, as necessary to its complete execution. It therefore cannot exist.”).

In 1868, Ohio and New Jersey attempted to rescind their ratifications of the Fourteenth Amendment.  Both states were needed to add up to the required total for the Fourteenth Amendment to become a part of the Constitution.  Congress and the Secretary of State ignored Ohio’s and New Jersey’s attempts to rescind and “affirmed the amendment’s passage.”  (W.F. Dodd, Amending the Federal Constitution, 30 Yale L.J. 321, 346 (1921).

Similarly, in 1869, New York attempted to rescind its ratification of the Fifteenth Amendment.  In response, then-Secretary of State Hamilton Fish issued a proclamation certifying that the Amendment had been ratified by the requisite three-fourths of the states and listing the states.   The list included New York—the state “claiming to withdraw the said ratifications.” Hamilton Fish, U.S. Sec’y of State, Announcement of Fifteenth Amendment Ratification (March 30, 1870), https://millercenter.org/the-presidency/presidential-speeches/march-30-1870-announcement-fifteenth-amendment-ratification.

In another failed attempt at rescission, West Virginia purported to rescind its ratification of the Nineteenth Amendment in 1920.  The Secretary of State ignored the rescission and certified the Amendment. Constitutional Amendment Process, Federal Register, https://www.archives.gov/federal-register/constitution (last updated Aug. 15 2016).  In short, efforts to rescind have historically failed.  In Leser v. Garnett (1922), the Supreme Court upheld the constitutionality of the NineteenthAmendment with language supporting the claim that a state’s ratification of a federal amendment ends its ability to further participate in that amendment’s ratification process. Tennessee, the final state needed to ratify the 19th Amendment guaranteeing women’s right to vote, approved the amendment by one vote on August 18, 1920. The Tennessee House then “non-concurred” on August 31, but the Secretary of State had already announced the amendment’s inclusion in the Constitution on August 26 (now celebrated as Women’s Equality Day). The state does not get two bites at the apple.

Before Virginia even ratified the ERA to make the thirty-eighth state, three attorneys general  (AL, LA, SD) had filed a case in Alabama asking for an injunction to prohibit the national archivist from certifying Virginia’s ratification. But since the national archivist had already said he would not certify without a court order because of the Barr memo, there was no case or controversy as required by Article III. That case has since been dismissed. The archivist has already recorded NV and IL as having ratified the ERA.

On January 20, 2020, after the Virginia ratification, three attorneys general from NV, IL, and VA filed a complaint in D.C. (Commonwealth of VA, State of NV and State of IL v. David. S. Ferriero, 1:20-cv-00242) to declare the ERA ratified and to order the national archivist to certify Virginia’s ratification. The suitdirects the archivist to perform his ministerial duty under 1 USC 106b to publish and certify the 28^thamendment. The group from the Alabama case has moved to intervene. A separate case has been filed in Massachusetts likewise to order the archivist to certify.

For many years, the ERA was endorsed by both major political parties. The Republicans put it into their platform in 1940 and the Democrats in 1944. In September 1960, then Vice-President Nixon issued a statement encouraging “widespread support for our [party’s] platform declaration in behalf of an equal rights amendment to our Constitution which would add equality between the sexes to the freedoms and liberties guaranteed to all Americans.” In 1980, the Republicans removed it from their platform.

It’s hard to imagine what todays opponents are thinking.  Do they really think that women are inferior?  Or that women do not deserve constitutional equality under the law? Or that women want men’s faux “protection”? Or that women will stop their struggle to gain full and equal status and representation? Demographics are not with them. Ninety-nine percent of Millennials favor the ERA.

The national ERA Coalition will continue on its strategy to get every state to ratify – not 64 years later like Mississippi and women’s right to vote, but now.  So Arizona, you are not off the hook.  The balance of law, the balance of justice, the balance of truth means that fairness will win and leave a heritage of equality for a better future for women and men, girls and boys.

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