Schumer’s zombie ERA vote is just a political stunt
David Freddoso
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Senate Majority Leader Chuck Schumer (D-NY) is trying to get a simple Senate majority to retroactively extend a deadline that it lacks the power to extend. But Republicans who vote for Schumer’s resolution, even if they do support adoption of the Equal Rights Amendment, are suckers.
The joint resolution sending the ERA to the states passed both Houses of Congress in 1972 with the requisite two-thirds majorities needed for it to be sent to the states for ratification. It read as follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress: ARTICLE — 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.”
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In 1978, shortly before the seven-year deadline arrived, a simple majority in Congress voted to extend the deadline in this original resolution from 1979 to 1982. This illegal move is what Schumer is now attempting to replicate, except retroactively.
Despite liberals’ attempts to pull one over in 1978, no new states ratified ERA in the new time window they purported to create through 1982. Several federal courts subsequently ruled that the extension was illegal, although the Supreme Court ultimately decided that the passing of the new 1982 deadline rendered it moot whether Congress could change such a resolution, which had required a two-thirds vote to pass, with a simple majority vote. Also outstanding is the legality of the move by five states either to rescind their ratification of the amendment (Idaho, Nebraska, Tennessee, and Kentucky) or to sunset it as of the original deadline (South Dakota), all before the original 1979 deadline.
Within the last couple of years, Democrat-controlled legislatures in Nevada, Illinois, and Virginia voted to ratify the ERA anyway, decades after the deadline.
Again, every court to consider this issue has ruled that Congress would have to start over if it wanted to add the ERA to the Constitution. The Supreme Court would likely do the same if Democrats were to force this issue now.
This legal reality was also acknowledged by no less a left-wing legal authority than the late Supreme Court Justice Ruth Bader Ginsburg. Ginsburg commented during a 2020 event at Georgetown University, “I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it.” She pointed out that a complete do-over was required and that any attempts to ratify the old 1972 ERA run into too many legal obstacles involving states that voted for the ERA outside the deadlines and the ones that rescinded their ratifications. “I would like to see a new beginning,” Ginsburg said. “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 have said, ‘We’ve changed our minds?’”
If this is the reasoning of Ginsburg, who very sincerely supported the ERA, then it stands to reason that other justices will feel the same way — perhaps all nine of them.
It is also worth mentioning, in case someone tries to argue that the deadline was not a substantive part of the amendment, that it was included specifically as a compromise in order to get the two-thirds majority support it needed to pass. Sen. Mike Lee (R-UT) brought this up during the committee hearings for this current resolution.
“It’s important to remember that when Congress proposed this amendment in 1972, it didn’t happen in a vacuum,” Lee said. “When Congress went to propose it, it didn’t have the votes that it needed. It added the seven-year limitation in order to secure the consensus necessary to achieve a two-thirds supermajority vote in both houses. In other words, there were members of Congress [who] needed to vote for it, who weren’t willing to vote for it without that provision. … We can’t just ignore that.”
Indeed, not all constitutional amendments are drafted with written deadlines. For example, the 27th Amendment (which deals with the pay of members of Congress) contained no such time limit. Thus, although it was sent to the states by Congress in 1789, it was ratified only in 1982.
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If Schumer wants to pass an equal rights constitutional amendment, he has to propose it and secure the requisite two-thirds support for it in both houses of Congress. What he is doing this week has nothing to do with passing ERA — rather, it is a political stunt designed to send a message. Perhaps this vote is the means for exploiting the Dobbs decision for whatever he thinks Democrats can get out of it by attacking Republicans who vote against it. Or perhaps he is just papering over Democrats’ current attempts to reduce women to mere “birthing persons,” “menstruators,” and “uterus-havers.”
Either way, if you support the ERA (and you shouldn’t, but that’s a whole different topic), then you should urge Schumer to go through the actual legislative process that can make it part of the Constitution. As long as he sticks to political stunts, even liberal Republicans such as Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) should refuse to play along.