Monday, July 6, 2020
Law Professors File Amicus Arguing Question of Equal Rights Amendment Ratification is a Political Question
Julie Suk, Who Decides the Future of the Equal Rights Amendment?, Take Care blog.
In January 2020, the Virginia legislature voted to ratify the Equal Rights Amendment to the U.S. Constitution, almost forty years after the ratification deadline.
Has the Constitution been amended? In a lawsuit filed in DC federal court, Virginia says that the ERA is now part of the Constitution. But the defendant National Archivist won’t publish the ERA in the Constitution, in deference to the Trump Administration’s opinion that the deadline for states to ratify the ERA expired in 1979.
Who is right, Virginia or the Archivist? More importantly, who decides?
Last week, I filed an amicus brief in the case, joined by constitutional law colleagues Erwin Chemerinsky, Noah Feldman and Reva Siegel. Supporting none of the litigants, we argue that whether the ERA is part of the Constitution under these unprecedented circumstances is a political question for Congress in the first instance, not the courts or the Executive Branch.
Virginia, Nevada, and Illinois – the states that ratified after Congress’s deadline -- are asking a court to decide that the ERA was validly ratified and order the Archivist to publish it. Five states that did not ratify the ERA, or that ratified and rescinded their ratifications, have intervened. Their Answer tells the court that “[n]o state could have ‘ratified’ the Equal Rights Amendment in recent years because the deadlines for ratifying that amendment expired years ago.” The Archivist seems to think it’s up to the Executive Branch. If the court reaches the merits of the ERA’s validity, more members of the sitting federal judiciary, on the DC Circuit and the Roberts Court, will eventually decide the fate of the ERA. But Congress should be the first mover on whether an amendment is ratified, particularly when states disagree.
The question of who decides matters, for the long-term legitimacy of the amendment in the eyes of the American people. In Congress, the House passed a resolution lifting the deadline on ratification in February, and a similar resolution has been introduced in the Senate with 48 sponsors so far. Thirty-five Senate seats are on the ballot this November. Consistent with Coleman v. Miller, which affirmed Congress’s power to determine reasonable time frames for the ratification of constitutional amendments, a court should not prematurely pronounce on whether the ERA has been or can yet be ratified.
Although the prospect of getting a federal judge to add the ERA to the Constitution now may have immediate appeal for ERA proponents, much can be gained by persuading Congress to lift the deadline, validate late ratifications, and reject rescissions. An amendment’s procedural path makes a difference to its meaning and transformative potential. The legislative process by which Congress is weighing the ERA’s timeliness provides opportunities for the ERA’s meaning to be updated for the twenty-first century. These opportunities help legitimize a constitutional amendment after a generation has gone by. Moreover, congressional debate about the broad range of issues implicated by the ERA– rather than court adjudication of the states’ Article V theory – is more likely to produce an ERA with the bite that its proponents seek.
Amicus Brief of Constitutional Law Professors Erwin Chemerinsky, Noah Feldman, Reva Siegel, in Virginia v. Ferriero (D.D.C.) is here.