This is episode 136 of the Baehr and Curadh podcast. We are going to talk about the Equal Rights Amendment.
President Biden on Friday declared that he considers the Equal Rights Amendment to the Constitution "the law of the land". What does that mean?
"The Equal Rights Amendment is the law of the land -- now!" Biden said in a speech to the U.S. Conference of Mayors. "It's the 28th Amendment to the Constitution -- now."
The amendment would need to be formally certified by the national archivist, Colleen Shogan, to take effect.
The first draft of the ERA, written by suffragist Alice Paul, was introduced in Congress by Senator Charles Curtis, a Kansas Republican in 1923.
Paul’s original amendment text stated: "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation."
The Equal Rights Amendment now states that "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex."
Congress set a deadline of 1979 for ratification; it was later extended to 1982.
For an amendment to go into effect and officially become part of the Constitution, three-quarters of state legislatures or 38 of the 50 states, need to ratify it.
In 2020, Virginia became the 38th state to do so. Only 35 states had ratified the ERA by the time the deadline set by Congress hit in 1982. 3 states short.
5 states who ratified had subsequently voted (before the deadline) to rescind their ratifications due to pressure by conservatives.
There is debate on whether states can actually rescind approval of constitutional amendments.
It has long been taken for granted that the deadline killed the ERA, but a technical argument is that deadlines are not part of constitutional ratification.
If Biden had actually been serious about fighting and trying to win a legal battle to make the amendment go into effect, he should have done this years ago.
The Trump administration is very unlikely to take up the cause.
Even if a legal challenge were to work its way to the Supreme Court, the current court's makeup is exceedingly conservative.
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