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  #51  
Old 11-07-2019, 08:20 PM
Max S. is online now
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Originally Posted by DrDeth View Post
To all those who think a state can rescind- how about if a state wants to now rescind their approval of say, the 13th & 14th Amendments? It doesnt specifically state they cant do that, now does it?
Those are already part of the constitution, and therefore the highest law of the land. According to the Supremacy clause, states cannot unilaterally change the constitution.

~Max
  #52  
Old 11-08-2019, 08:50 AM
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Yes, it does say that. Once an amendment becomes part of the Constitution, the process for that amendment is finished, and if a state wants to remove the amendment, the process starts over.

See, for instance, the Eighteenth and Twenty First Amendments.

Regards,
Shodan
  #53  
Old 11-08-2019, 10:25 AM
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The Constitution doesn't say that an amendment will go into effect after ratified by three-quarters of the states; it says that it goes into effect when ratified by three-quarters of the states. There needs not only be a time when 38 ratifications are in the past; there needs to be a time when 38 ratifications are in the present.
I think this is deep into dubious grammatical nitpickery. It is pretty much the norm that that construction means "when X has happened."

Really the only question of interest is the 7-year deadline, later extended to 10.5 years. My Google-fu is weak this morning; I can find the language of the proposed amendment itself, but not that of the text that includes the 7-year deadline.

I notice that Amendments 18, 20, 21, and 22 include the 7-year deadline as part of the text of the Amendment itself, while the deadline for the ERA is not included in that text. I'd be interested to know what the legal eagles here think about whether and in what ways that difference might matter.
  #54  
Old 11-08-2019, 01:10 PM
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Originally Posted by Shodan View Post
Yes, it does say that. Once an amendment becomes part of the Constitution, the process for that amendment is finished, and if a state wants to remove the amendment, the process starts over.

See, for instance, the Eighteenth and Twenty First Amendments.

Regards,
Shodan
Yes, I meant individual states cannot unilaterally change the constitution by revoking an amendment.

~Max
  #55  
Old 11-08-2019, 02:33 PM
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Originally Posted by Lance Turbo View Post
Two yes or no questions...

Did the Nebraska legislature ratify the ERA on March 29, 1972?

Did the Nebraska legislature ratify the ERA?
According to a possible interpretation of the law, the answer to the first question is yes, the answer to the second question was yes until it was recinded at which point the answer became no.

In the same way the question
Did Michgan pass a law against serving alcohol on Sunday in 1998? Yes.
Does Michigan have a law that makes it illegal to serve alcohol on Sunday? No.
  #56  
Old 11-08-2019, 02:51 PM
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Since the Constitution doesn't define "ratify", presumably the way to answer this question will be to look at historical uses of the word and determine if it was a one-way process that couldn't be revoked or if it was the other thing.

From a practical point of view, it seems weird to me that you'd want an Amendment process to be a ratchet that could only move inexorably toward conclusion. Do we really want to have an Amendment to the Constitution happen if one current state legislature thinks it should even if others that previously thought it was a good idea have officially changed their minds, or been voted out by The People who didn't want that Amendment? I find that to be pretty hard to square with my understanding of early American political history.

Quote:
Originally Posted by Alexander Hamilton, Federalist #85
And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment, that amendment must infallibly take place.
Seems pretty hard to argue that states that rescinded their approval decades ago are part of a group of states "united in the desire of a particular amendment".
  #57  
Old 11-08-2019, 04:07 PM
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Quote:
Quoth RTFirefly:

I think this is deep into dubious grammatical nitpickery. It is pretty much the norm that that construction means "when X has happened."
"When everyone has arrived, we can start the meeting."
Jane arrived five minutes early, but then had to duck out to use the restroom. Seven minutes later, everyone else is here, but Jane hasn't gotten back yet. Do we start the meeting?
  #58  
Old 11-08-2019, 11:40 PM
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Originally Posted by Buck Godot View Post
According to a possible interpretation of the law, the answer to the first question is yes, the answer to the second question was yes until it was recinded at which point the answer became no.

In the same way the question
Did Michgan pass a law against serving alcohol on Sunday in 1998? Yes.
Does Michigan have a law that makes it illegal to serve alcohol on Sunday? No.
It's weird that you changed the verb there. Did you think no one would notice?
  #59  
Old 11-08-2019, 11:41 PM
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"When everyone has arrived, we can start the meeting."
Jane arrived five minutes early, but then had to duck out to use the restroom. Seven minutes later, everyone else is here, but Jane hasn't gotten back yet. Do we start the meeting?
In my experience that meeting starts without Jane.
  #60  
Old 11-09-2019, 01:23 AM
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Originally Posted by Loach View Post
The amendments are meant to be permanent until another amendment makes them not so permanent. But I donít see how that is relevant here. There is no amendment currently just a proposal. There is also nothing in the constitution that says there canít be a time limit. There is also nothing in the constitution stating that states canít rescind their ratification.
Thereís also no rule that a dog canít play basketball.
  #61  
Old 11-09-2019, 05:27 AM
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Originally Posted by Chronos View Post
"When everyone has arrived, we can start the meeting."
Jane arrived five minutes early, but then had to duck out to use the restroom. Seven minutes later, everyone else is here, but Jane hasn't gotten back yet. Do we start the meeting?
Yes.
  #62  
Old 11-09-2019, 05:47 AM
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Seems pretty hard to argue that states that rescinded their approval decades ago are part of a group of states "united in the desire of a particular amendment".
I'd agree with that if not for the precedent of the 27th Amendment. Congress passed this amendment back in the 1700s, and the first 7 states to ratify did so back then as well, with an 8th state ratifying in the 1800s.

Two of them reaffirmed their ratification in the late 20th century, but the other six did not. It's hard to see how they - or the Congress, for that matter - could have been "united in the desire for a particular amendment" given that everyone in the Congress that sent the Amendment to the states was long dead when the amendment was determined to have been ratified, as were the people in the state legislatures that voted to ratify in the 1700s and 1800s.

I think the ratification of the 27th was a bad precedent to set, but it's a done deal. The need to be "united in the desire of a particular amendment" is no longer a requirement.

There are surely arguments for the validity of states' rescinding their approval that aren't undermined by the ratification of the 27th Amendment, but ISTM that the history of the 27th kills this argument.
  #63  
Old 11-09-2019, 09:46 AM
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Did any states rescind their approval of the 27th? If not, then we assume that they remained in approval of it, because if they no longer approved, they would have rescinded it.
  #64  
Old 11-09-2019, 10:37 AM
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Originally Posted by Chronos View Post
Did any states rescind their approval of the 27th? If not, then we assume that they remained in approval of it, because if they no longer approved, they would have rescinded it.
Why should we assume that? The passage of a century or two is enough so that there's no reason to assume that the state, institutionally, has any stand at all on the amendment. And where simple inertia suffices to explain inaction, reading motivation into it seems inappropriate.

Whatever it means to be "united in the desire of a particular amendment," it's got to be something stronger than legislatures going "not sure how we feel about it, so we're not doing anything one way or the other."

Besides, Congress weighed in on rescissions back in 1868, when it declared the Fourteenth Amendment to be a part of the Constitution at a point in time when two states (Ohio and NJ) that had ratified the Amendment had already rescinded their ratification. Given that only 27 of the 37 states at the time had ratified and not rescinded their ratifications, one of these states needed to be counted as having ratified. (The issue was made moot days later when Congress got word that Georgia had ratified, bringing the total to 28 without Ohio and NJ, but Congress acted without that knowledge.)

Last edited by RTFirefly; 11-09-2019 at 10:38 AM.
  #65  
Old 11-09-2019, 11:41 AM
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Since this thread is about actions the new Virginia legislature might take, can I ask a related question? Are they likely to pass the National Popular Vote Interstate Compact?
  #66  
Old 11-11-2019, 11:59 AM
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Originally Posted by RTFirefly View Post
I'd agree with that if not for the precedent of the 27th Amendment. Congress passed this amendment back in the 1700s, and the first 7 states to ratify did so back then as well, with an 8th state ratifying in the 1800s.

Two of them reaffirmed their ratification in the late 20th century, but the other six did not. It's hard to see how they - or the Congress, for that matter - could have been "united in the desire for a particular amendment" given that everyone in the Congress that sent the Amendment to the states was long dead when the amendment was determined to have been ratified, as were the people in the state legislatures that voted to ratify in the 1700s and 1800s.
I agree with Chronos's comment on this one.

We generally accept that when a legislature passes something, the thing that they've passed remains in effect and is "the will of the people" until they officially change their mind (or until a time limit that they originally specified passes). I'm not saying that's perfect. Obviously, there are lots of old laws that people probably don't really agree with but no one ever bothered to repeal. But there's already a mechanism for legislatures to make an official decision that only lasts for a while unless re-affirmed. If they don't use it, then it lasts until it's specifically undone.

The people of those states that ratified that amendment had plenty of time to disapprove of it and apparently didn't.

We don't ask states in general to re-affirm their other laws. Should we assume that Delaware might not have any particular position on murder because they haven't reaffirmed their murder statute for 100 years (or whatever. I'm making up the state and time period. There are plenty of laws that people are still generally in favor of that haven't been updated in the lifetime of anyone currently voting on them).
  #67  
Old 11-11-2019, 03:48 PM
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As far as what-if the ERA is held to now be in effect, my guess is that there would be a huge number of lawsuits by genderqueer individuals claiming that statutes presuming gender to be binary violate their rights. And yes this would be exactly an example of the unforeseen consequences opponents of the amendment were concerned about when the ERA was first proposed.
  #68  
Old 11-11-2019, 06:23 PM
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Come on guys, the court will decided on the basis of their personal beliefs and cook up their reasons after. BTW, this isn't something that only conservative judges do; I think a liberal court did with Roe, much as I agree with their decision.
  #69  
Old 11-11-2019, 07:35 PM
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Originally Posted by Lumpy View Post
As far as what-if the ERA is held to now be in effect, my guess is that there would be a huge number of lawsuits by genderqueer individuals claiming that statutes presuming gender to be binary violate their rights. And yes this would be exactly an example of the unforeseen consequences opponents of the amendment were concerned about when the ERA was first proposed.
Can you give an example of a statute you think would be challenged on this basis, and what the nature of the complaint would be? And, maybe, an argument for why the complaint should not be heeded?
  #70  
Old 11-11-2019, 07:41 PM
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Originally Posted by Hari Seldon View Post
Come on guys, the court will decided on the basis of their personal beliefs and cook up their reasons after. BTW, this isn't something that only conservative judges do; I think a liberal court did with Roe, much as I agree with their decision.
i dont think so. Mostly it is law and case history. Only one I dont trust is Kavenaugh. It's true they lean one way or the other on close cases, but in general, they follow the law.
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