From banning alcohol all the way to legalizing alcohol, the 33 amendments tacked onto the end
of the US Constitution are a beautiful reminder to writers like us that first drafts don’t
have to be perfect. While these amendments are generally accepted to be settled law,
having gone through Congressional and state approval to be there, there’s one amendment that’s
spent years in a legal limbo. One that, despite having fulfilled all constitutional requirements,
backwards and wearing heels, is missing from today’s Constitution. I’m talking
about a little old piece of legislation known as the Equal Rights Amendment. And before you
blow up the comments section with why we don’t need the ERA in our modern day and age, I’m not
here to take a stance on controversial issues like whether human beings deserve civil rights.
We’re here to explain the complex rabbit holes of its governmental and legal constraints, like
any YouTube education channel worth its snuff. For all of the controversy it’s inspired, the
Equal Rights Amendment is less than 30 words long and simply mandates the “equality of law shall
not be denied or abridged by the United States on account of sex.” And I know what you’re thinking:
didn’t the ERA fail decades ago? Well, some of you were thinking that. The rest of you were probably
thinking “I actually don’t know what the ERA is, but I like that you thought I knew what it was.”
And you’re right. Technically, the ERA expired in 1982, three states short of being added to the
Constitution, thanks in large part to conservative activist Phyllis Schlafly, a woman who
courageously proved that in this modern world, a woman can oppress women just as well as a man can.
As you may remember from AP Gov if you’re an American, or from AP US Hegemony if you’re not
an American, under Article V of the Constitution, Congress proposes constitutional amendments
with a two-thirds majority, and then it’s up to three-fourths of the states to ratify it. Congress
passed the ERA in 1972 with a 10-year expiration written into it, since there were 38 states
pretty keen on ratifying. But even though Congress extended the expiration to 1982 a few years later,
Schlafly’s efforts stopped the amendment just three states short of the 38-state ratification
threshold. Later on, several judges ruled Congress’ deadline extension as unconstitutional,
so the ERA seemed dead in the water. But in the past five years, something strange
started happening. The Spanish government started investigating Shakira for financial crimes. Also,
unrelatedly, Nevada, Illinois, and Virginia successively passed the ERA in 2017, 2018,
and 2020, after grassroots efforts from state representatives put it on each state’s ballot.
These states limped the ERA across the finish line to the 38-state threshold,
but the amendment’s expiration date put these ratifications in a legal gray area
that government branches disagree on. After amendments reach the three-forth threshold, the
United States Archivist is charged with issuing a formal certification according to a 1984 law,
and in past cases, amendments that the archivist can’t decide on have been decided by Congress—like
this amendment that took 203 years to pass. And all of this legalese was complicated by
the actions of Tiffany Trump’s father, Donald Something. In January 2020, just before Virginia
became the 38th state to pass the ERA, the Justice Department took action to preempt Congress by
issuing an opinion stating the ERA died in 1982 alongside discotheques and bell-bottoms. The thing
is, the DOJ’s decision-making process is secret, but what we do know is that it’s not objective or
neutral—the Chief Justice of the Supreme Court even referred to the department’s opinions
as those of the “president’s lawyers,” which means even though they’re technically not law,
they carry the force of law… kind of like Robocop. Now you’d probably assume that in a situation like
this, there’s a prominent elected official—or better yet, an elected body—that can sort out
whether something is or is not an amendment to the founding document of the most powerful
country on earth. Nope! It’s just decided on by David. Say hi David! Specifically,
David S Ferriero, the US Archivist, who caved under the slightest hint of pressure, and refused
to certify Virginia’s ratification or add it to the Constitution until a federal court weighed in,
even though he previously accepted Nevada’s and Illinois’ ERA passages as legitimate,
despite the amendment’s 1982 expiration. The good news is, Nevada, Illinois, and Virginia
didn’t take this news lying down. Without Virginia’s ratification, the ERA was doomed
to amendment purgatory—so, like any red-blooded American, they sued the archivist. They argued
that it wasn’t up to David to decide whether women would have Constitutionally-protected
civil rights. Instead, the archivist’s certification simply needed to align with
the states’ collective will to approve it. And while the case is still being litigated,
the political landscape has changed dramatically since 2020. With Dark Brandon in office,
backed by his own Department of Justice and a Democrat-controlled Congress, passing the Equal
Rights Amendment should’ve been a slam-dunk. So why hasn’t the ERA’s status changed along with the
political winds? Well, it’s because of everyone’s favorite reason: weird government bureaucracy
stuff! Last January, the Office of Legal Counsel said that the amendment’s 1982 deadline meant
the ratification process had to start over, even though Biden himself publicly supports the ERA’s
ratification. Biden could also direct the Attorney General to put the ERA on the Constitution, since
that 2020 Department of Justice opinion denying Virginia’s ratification still stands. There’s
a new sheriff in town named Merrick Garland who could issue another opinion overturning
the previous one altogether. This would legally require the newly-minted archivist to put the ERA
on the Constitution, but Garland hasn’t done it yet, seemingly because it’s not a good look for
the DOJ to overturn their predecessor’s memos for ostensibly political reasons, even if the initial
memos were also written for ostensibly political reasons. Even if Biden won’t act before 2024,
Congress still could. Since they authored the original expiration dates in 1979 and 1982,
Congress could pass a bill repealing them altogether, which would clear the way for
the ERA’s passage. The problem is, only two Republican senators support the ERA,
and when it was up for a vote, the GOP’s male senators filibustered the amendment. Bottom
line is, unless there’s a nationwide push to get the ERA codified in law, it’s unlikely
the amendment will make it past the bureaucratic hurdles endemic to the swamp of Washington, DC,
which is either good or bad depending on how many things you think women should be allowed to do.
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