Democrats in Congress are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive an amendment that would explicitly guarantee sex equality as a way to protect reproductive rights in post-Roe America.
Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri are set to introduce a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.
It is a novel tactic for pursuing a measure that was first proposed in Congress 100 years ago and was approved by Congress about 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v. Wade.
“In light of Dobbs, we’re seeing vast discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated as second-class citizens. This is more timely than ever.”
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While almost 80 percent of Americans supported adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, there is little chance that the effort will draw the 60 votes necessary to overcome a Republican filibuster in the Senate. But the Democrats’ push is their latest effort to spotlight G.O.P. opposition to social policy measures with broad voter approval, and to call attention to the party’s hostility to abortion rights, which hurt Republicans in the midterm elections.
“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would succeed only in a different environment than we have. It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”
This is Democrats’ second attempt this year to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove an expired deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the resolution.
Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year, which overturned the constitutional right to abortion. Credit...Anna Rose Layden for The New York Times
Now, Ms. Gillibrand and Ms. Bush are trying a different approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the E.R.A. is already the law of the land.
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“This is an opportunity to start fresh with a legitimate legal theory that has basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. “I believe President Biden can just do this. I’m going to make the legal and political argument over the next several months that this is something he can do.”
At issue is the complex procedure for adding an amendment to the Constitution, which requires passage by both houses of Congress and ratification by three-quarters of the states, in this case, within a seven-year deadline. Congress passed the Equal Rights Amendment in 1972, and subsequently enacted a law extending that deadline to 10 years. But by 1982, only 35 states had ratified. Since then, three more states — Nevada, Illinois and Virginia — have ratified the amendment, surpassing the threshold, but some others have rescinded their ratifications.
That has left the amendment in a legal and political limbo, its fate left in the hands of Congress and the courts.
Russ Feingold, the former Wisconsin senator who serves as president of the American Constitution Society, said he supported the Democrats’ new strategy.
www.nytimes.com
Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri are set to introduce a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.
It is a novel tactic for pursuing a measure that was first proposed in Congress 100 years ago and was approved by Congress about 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v. Wade.
“In light of Dobbs, we’re seeing vast discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated as second-class citizens. This is more timely than ever.”
Advertisement
SKIP ADVERTISEMENT
While almost 80 percent of Americans supported adding the Equal Rights Amendment to the Constitution in a 2020 Pew Research Center poll, there is little chance that the effort will draw the 60 votes necessary to overcome a Republican filibuster in the Senate. But the Democrats’ push is their latest effort to spotlight G.O.P. opposition to social policy measures with broad voter approval, and to call attention to the party’s hostility to abortion rights, which hurt Republicans in the midterm elections.
“This is a political rather than a legal struggle,” said Laurence Tribe, the constitutional scholar and professor emeritus at Harvard Law School. “It would succeed only in a different environment than we have. It’s not going to pass. The real question is what political message is being sent. In a political environment like this, you throw at the wall whatever you can.”
This is Democrats’ second attempt this year to advance the Equal Rights Amendment; in April, Senate Republicans blocked a similar resolution that sought to remove an expired deadline for states to ratify the amendment. Only two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, voted for the resolution.
Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year, which overturned the constitutional right to abortion. Credit...Anna Rose Layden for The New York Times
Now, Ms. Gillibrand and Ms. Bush are trying a different approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the E.R.A. is already the law of the land.
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“This is an opportunity to start fresh with a legitimate legal theory that has basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. “I believe President Biden can just do this. I’m going to make the legal and political argument over the next several months that this is something he can do.”
Ms. Bush, a founder of the E.R.A. caucus in the House, said that “for us, it is already done. The E.R.A. is the 28th Amendment. We just need the archivist to publish it.”At issue is the complex procedure for adding an amendment to the Constitution, which requires passage by both houses of Congress and ratification by three-quarters of the states, in this case, within a seven-year deadline. Congress passed the Equal Rights Amendment in 1972, and subsequently enacted a law extending that deadline to 10 years. But by 1982, only 35 states had ratified. Since then, three more states — Nevada, Illinois and Virginia — have ratified the amendment, surpassing the threshold, but some others have rescinded their ratifications.
That has left the amendment in a legal and political limbo, its fate left in the hands of Congress and the courts.
Russ Feingold, the former Wisconsin senator who serves as president of the American Constitution Society, said he supported the Democrats’ new strategy.
Democrats Try a Novel Tactic to Revive the Equal Rights Amendment
Proponents of the measure to enshrine a guarantee of sex equality into the Constitution are using a creative legal theory to try to resurrect the long-stalled amendment.
