Is the ERA part of the Constitution?

In today’s episode, Sarah and David discuss the Supreme Court’s decision not to enjoin the ...

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In today’s episode, Sarah and David discuss the Supreme Court’s decision not to enjoin the New York vaccine mandate for health care workers and focus on a very interesting, super-intriguing dissent. Then, they have a conversation with Virginia Solicitor General Michelle Kallen about the Equal Rights Amendment, its ratification by Virginia, and whether the ERA is now part of the Constitution. Finally, with the help of a listener, they finally realize that Sarah’s name is a sentence.

Show Notes:

–Dr. A v. Hochul

–Virginia v. Ferriero

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Comments (60)
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  1. Avatar photo
    Hawks Law Office

    Sarah and David, FYI, the D.C. Circuit opinion on this ERA case just came out on Friday: https://www.cadc.uscourts.gov/internet/opinions.nsf/1D7BCC9C5AF51F968525896400549E2C/$file/21-5096-1987839.pdf

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  2. Avatar photo
    AC Kansas

    2 points: at the 50 minute mark, the VA solicitor general insinuates that the 14th and 15th amendments were ratified by states that tried to rescind their ratifications. Looking at the timeline, both amendments were still ratified by that time with the ratification of other states. So their possible recessions were moot. It would be likely as a principle of constitutional law that a state can rescind their ratification up to the point that an amendment reaches the requisite number of states needed to ratify.

    2nd point, I think if this matter made it all the way up to the Supreme Court, they would punt this under the political question doctrine. The Constitution clearly leaves amendments and their ratification up to the political branches, so I don't think the Supreme Court would wade into the issue of met the time to ratify or not.

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  3. Douglas Dean Johnson

    This December 16, 2021 episode with Virginia Solicitor General Michelle Kallen as guest, discussing the 1972 Equal Rights Amendment, was my first exposure to Advisory Opinions. As one who has spent 40 years as an advocate against the 1972 Equal Rights Amendment in legislative bodies, rather knowledgable also about the ERA's history with respect to the federal courts and actions of the Executive Branch, I found the discussion among Sarah Isgur, David French, and Ms. Kallen to be badly skewed and -- dare I say it -- woefully uninformed on a number of key issues.

    In the entire program, I believe there was only one reference to a federal court decision, and it was Ms. Isgur's dismissive reference to a ruling handed down on March 5, 2021, by respected U.S. District Judge Rudolph Contreras (an Obama appointee), rejecting the claims advanced by Virginia, holding the ratification deadline contained in the 1972 ERA resolution to be valid and Virginia's legislative "ratification" to be without effect. The listener received no clue that legal advocates of ERA-resuscitation doctrine have suffered an absolutely unbroken 40-year string of defeats before federal judges of every political stripe. By my count, 23 federal judges and justices have now rejected ERA-revival claims, substantive and/or procedural (and that number is soon to increase). Documentation here:
    https://www.nrlc.org/uploads/era/FederalJudgesScornERAResuscitation.pdf

    Sarah Isgur repeatedly embraced the position that Article V merely allows Congress to propose the text of constitutional amendments, and she gave short shrift to the holding by Judge Contreras that Congress has a power to set binding ratification deadlines under its power to specify the Mode of Ratification of a proposed amendment. Ms. Isgur (at 47:30): "I will say that I found that kind of unpersuasive. Because you don't have to select a mode of ratification, because if either one happens [approval by three-fourths of legislatures, or by three-fourths of state conventions], it is ratified. There is nothing like, 'Oh, and then Congress must raise its hand and say which way this is going to be ratified,' when it proposes it, for instance. So there is really no three-step process, and least on the Article V I'm looking at."

    Well, here's what Article V actually says: "The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution...which...shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress..."

    "The one or the other." How about that?

    Moreover, in proposing constitutional amendments, Congress has never failed to employ a Proposing Clause. The First Congress proposed 12 constitutional amendments all in a batch, with a single Proposing Clause at the top, specifying that ratification would be by state legislatures, and further spelled out that the states could ratify "all" or "any" of the 12. Operating on that important specification by Congress, the state legislatures rather promptly ratified not all 12, but only 10 of the batch, which became the Bill of Rights. Did the First Congress act on a non-textualist understanding of Article V, and actually lack the power to make that "all or any" specification in the Proposing Clause? Was it actually an all-or-nothing deal?

    Also unmentioned was the fact that a unanimous U.S. Supreme Court in 1921 (in Dillon v. Gloss) held that Article V did indeed grant power to Congress to set a firm deadline for ratification of an amendment, and that this power was implicit in the requirement to set the Mode of Ratification.

    David French seemed taken with the observation that at one time, Congress had placed ratification deadlines with the proposed constitutional text. But he seemed unaware that since 1960, Congress has proposed six constitutional amendments, and has included a ratification deadline in the Proposing Clause in all six. So, did Congress propose six amendments that were fundamentally flawed under Article V? If so, were those measures validly proposed by Congress at all? (The ratification deadline was a key compromise that allowed the ERA to achieve the required two-thirds congressional majorities.) Four of these six proposals, flawed under what Ms. Isgar and Ms. Kallen held forth as a "textual" analysis, nevertheless are now deemed to be part of the Constitution. Alas, such points as these went undiscussed in the mutual-admiration chit-chat.

    In truth, the record is quite clear the shift of deadlines into the Proposing Clauses was done merely to avoid "cluttering up" the constitutional text itself with deadline clauses. This was explained by Prof. Ruth Bader Ginsburg in a 1979 article, in which she wrote that "The change [in location of the ratification deadline] from text to proposing clause" for amendments after the 22nd "was effected largely to avoid 'cluttering up' the Constitution with vestigial provisions serving no function once an amendment is ratified." This history was conceded even by the Democratic-controlled House Judiciary Committee in its Jan. 16, 2020 report advancing an (unconstitutional) ERA "deadline removal" measure.(page 9, footnote 51)

    Speaking of Ginsburg, given her long prominence as a champion of the ERA, perhaps it would have been instructive to cite her public statements expressing sharp skepticism regarding claims that the 1972 ERA remains viable. For example, on Feb. 10, 2020 (three days before a scheduled vote in the House of Representatives on a measure purporting to "remove the deadline" on the long-expired ERA), Justice Ginsburg said, "I would like to see a new beginning. I'd like it to start over. There's too much controversy about latecomers -- Virginia, long after the deadline passed. Plus, a number of states have withdrawn their ratification. So, if you count a latecomer on the plus side, how can you disregard states that said, 'We've changed our minds'?"

    Both Ms. Kallen and Ms. Isgur understated the sweep of the change in law that many ERA proponents envision. Ms. Isgur suggested it would be "superfluous," even as prominent ERA-advocacy and pro-abortion-rights groups are shouting from the rooftops that quick insertion of the ERA into the Constitution is the only thing that can save federal constitutional "abortion rights." Nor were the words "disparate impact analysis" ever mentioned during the program, although anyone following the discourse of would-be ERA-based litigators know that is a big part of what they have in mind.

    Finally, it was a little odd that there was no mention that, effective January 15, 2022, Michelle Kallen presumably will no longer be involved in representing Virginia in its ERA-resurrection appeal at the D.C. Circuit. The incoming Virginia attorney general, Jason Miyares, voted against the ersatz "ratification" resolution in the Virginia House in 2020. His incoming solicitor general, Andrew Ferguson, has previously served as counsel to Senate Republican Leader Mitch McConnell, and before that, counsel to two other ERA-skeptical U.S. senators.

    Perhaps, down the road, Advisory Opinions will take another shot at the topic of ERA resuscitation, but with a guest inclined and equipped to challenge the premises and opinions we heard in this one-sided and rather tendentious presentation.

    Douglas Johnson
    Director, ERA Project
    National Right to Life Committee


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  4. Frederick F

    I believe the word Sarah was looking for around the 14 minute mark would be sardonic, derisive, or something related.

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  5. Avatar photo
    George.Skinner

    The discussion regarding passing the moribund ERA decades after the initial deadline expired seemed a bit like "Hey, modify the constitution using THIS ONE WEIRD TRICK!" The lawyerly discussion of legal issues was interesting, and I could follow a chain of logic to make a case for claiming the ERA should be ratified. However, none of this seemed to address the political question of whether it would actually be a good idea. The constitution is supposed to be the bedrock of political and legal arrangements, the things that everybody agrees with. Notwithstanding the argument over the merits of the ERA itself, it seems like trying to sneak in a change without resolving the debate that led to its failure back in the '70s. The last thing needed right now is another reason for Americans to start arguing over the legitimacy of constitutional law.

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  6. Avatar photo
    George.Skinner

    What irks me about vaccine exemptions for sincerely held religious belief is that I suspect those demanding them aren’t particularly religiously sincere. Rather, they probably hold of the typical anti-vaccine sentiments and hold them sincerely, but since that doesn’t avail them of much legally, they turn to a religious freedom argument that can usually prevail. That’s a problem, as it undermines the credibility of religious freedoms in other contexts. It also brings to mind the San Francisco school district’s list of offensive school names, much of which seemed based on a faulty grasp of facts, etymology, and history. What seemed to matter was that people decided they were sincerely offended by some mistaken inference, and that was more important than whether they were actually correct on the facts of their inference. So it is with the sincere religious belief test, where some nutjob can misread a bad interpretation of a holy book and claim a freedom to something. I understand why courts don’t want to get into adjudication of religious belief, especially given that most faiths involve some elements of the supernatural that wouldn’t fare well in an age fixated on rationality. However, it seems like this is being used as a cheat code to continue arguments when other paths have led to legal dead ends.

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    1. GregS

      Yep exactly.
      Consider the other side of this, which is the accusation by conservatives that "wokeness" is now basically a religion. Well if it *is* a religion, then do you really want "woke" subsets of people asking for and getting exemptions from generally applicable laws because they violate their woke beliefs?
      This way lies madness.

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  7. GregS

    So David in your reading, Gorsuch Thomas and Alito were against pre-enforcement injunctive relief for SB8 but for it on NY vaccine mandate, while Sotomayor, Kagan and Breyer had the opposite posture.
    Do you still think Gorsuch, Thomas, and Alito would deny pre-enforcement injunctive relief for a CA law modeled on TX SB8 affecting guns?

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  8. GregS

    Gah! Once can be chalked up to accident, but since you said it twice, let me point out that the gallbladder isn't vestigial.
    That it can get diseased and be removed without significantly harming a person does not make it vestigial. If these were the criteria for "vestigial" then a partial list of vestigial body parts would be: the descending colon, up to half of the small intestine, most of the stomach, the spleen, most of your salivary glands, any one of the lobes of your lungs, half of your tongue, your index fingers, breasts, and either one of your testicles/ovaries.
    Appendix, coccyx, canine teeth: maybe.
    Gallbladder: no.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Wait, I use my canine teeth every day!!

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      1. GregS

        That's why I said "maybe" :)
        It's not entirely clear that the appendix is vestigial either. There's some theories that it serves as a reservoir of bacteria to repopulate the normal gut flora in case they are wiped out.

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  9. DJ

    I've been thinking lately that the Constitution should be amended more often. The last amendment drafted and ratified in a reasonable time frame was 1971. That's 50 years ago. (I'm leaving out the 27th because of the exceedingly strange circumstances under which it was ratified.)

    In the period between the Bill of Rights and the 26th amendment, we amended the Constitution an average of once every 11.4 years. But for 50 years we haven't had the political alignment or incentives to add any more amendments.

    I'd like to see amendment that changes electoral votes to be proportional rather than winner-take-all. While that's almost the same as popular vote, it's not 100% the same and would incentivize candidates to campaign in states beyond the same half-dozen swing states every year. James Madison came to support this approach too.

    What other amendments would people like to see?

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  10. Avatar photo
    Finlie Brezter

    Augury Opinions

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    1. Avatar photo
      Seth B

      Call in the haruspex!

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