President Joe Biden wants people to know that he sees dead amendments. Just before leaving office, Biden declared that we have a 28th Amendment, despite the fact that the measure died in the ratification process years ago.
Not since the movie “Sixth Sense” has there been a more creepy moment. To paraphrase Cole Sear in the film, Biden does not see failed amendments in constitutional coffins but “Walking around like regular [amendments]. They don’t know they’re dead.” Neither does Biden.
Biden waited until shortly before leaving office to pander to the most delusional elements of the Democratic Party in unilaterally announcing that the Equal Rights Amendment is now part of the Constitution. The farcical moment was then amplified by figures like Sen. Kirsten Gillibrand, (D-N.Y.), rejoicing and falsely telling women that they can now go to court and enforce the amendment to restore such things as abortion rights.
This bizarre group fantasy was triggered by the following declaration:
“In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
Without naming them, Biden cites dozens of “constitutional experts” to support this absurd claim.
Biden’s last-minute declaration is more creepy than the movie because it requires not just the departure from the constitutional process, but also from reality. Despite running as the champion of democracy, Biden is simply brushing aside the fact that the ERA was not ratified, as made clear by the Justice Department, various judges, and his own archivist just weeks ago.
Even the late U.S. Supreme Court Justice Ruth Bader Ginsberg declared the amendment dead.
Archivist Colleen Shogan recently explained that neither her office nor the White House have the authority to publish the amendment unilaterally or waive the deadline for ratification:
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” she wrote. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
The reason is simple. The underlying argument is utterly ridiculous.
As I have previously written, the ERA is as dead as Dillinger.
The deadline for ratification of the ERA was set for March 22, 1979 — allowing seven years to secure the required approval by three-quarters of the states, or 38 states. It failed to do so. Even worse, four states — Nebraska, Tennessee, Idaho, Kentucky — rescinded their prior ratifications. A fifth, South Dakota, set its ratification to expire if the ERA was not adopted by the 1979 deadline.
Kentucky also had an additional problem because its Democratic lieutenant governor vetoed the resolution rescinding the ratification when the governor was out of town. However, Article V speaks of ratifications by state legislatures.
Notably, during the extended period, not a single state was added. Even assuming that the five states could be counted despite the votes to rescind their ratifications, the ERA was still three states short when it missed the second deadline.
Democrats then insisted that states could not rescind their votes, even before ratification was finalized. So, Democrats and then-President Carter simply extended the deadline to June 30, 1982. However, in 1981, a federal district court ruled in Idaho v. Freeman that Congress could not extend the ERA’s ratification deadline. (The Supreme Court later stayed that order but then declared the matter moot.)
In 2021, U.S. District Judge Rudolph Contreras ruled that it would have been “absurd” for the Archivist to disregard the deadline and unilaterally add the unratified amendment to the Constitution. On appeal, a unanimous D.C. Circuit panel rejected the claims of Illinois and Nevada that the Archivist should be ordered to publish the ERA, holding, “The States’ argument that the proposing clause is akin to the inoperative prefatory clause in a bill is unpersuasive…because if that were the case, then the specification of the mode of ratification in every amendment in our nation’s history would also be inoperative.”
None of this matters to the defenders of democracy who ignored the votes in these states and dismissed constitutional deadlines and procedures. Harvard Law professors Laurence Tribe and Kathleen Sullivan ran a column declaring “The ERA is Now Law!” as if amplification and exclamation points would somehow make it true. (This is the same Laurence Tribe who called for Trump to be charged with the attempted murder of former Vice President Mike Pence and insisted that the law was clear “without any doubt, beyond a reasonable doubt, beyond any doubt”).
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Notably, Biden did not issue an executive order to the archivist as many activists wanted. The reason is simple: The White House knew that it could be challenged in court and would quickly collapse under judicial review. They would prefer Biden to declare Caesar-like that we have a new amendment and treat it as a fact.
With the declaration, Biden gave “the last full measure of devotion” to the radical left of his party. It was a pandering and, frankly pathetic, moment for a president who is currently one of the least popular presidents in leaving office.
His action on the ERA is a perfect example of why he is viewed as a “failed” president. Biden has always sacrificed principle for the politics of the moment. This was a participation trophy given to activists that lacked any substance or basis. It is also why voters saw Biden as a greater threat to democracy than Trump.
It is chilling to think that Biden actually believes this nonsense and sees dead amendments walking around the White House. Yet, the truth may be even scarier: He simply does not care. He sees dead amendments in the hope of restoring life to his legacy. Both, however, now belong to the ranks of the corpus mortuus.
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