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Old 11-06-2019, 11:09 AM
Lance Turbo is offline
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What happens when the Virginia legislature ratifies the Equal Rights Amendment


The Democratic Party won control of both houses of the Virginia legislature last night which will take effect early next year. When they convene they are likely to be the 38th state legislature to ratify the Equal Rights Amendment.

Here's the relevant text on the amendment process from Article V of the U.S. Constitution.

Quote:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.[
Two thirds of both houses of Congress and Virginia will make three quarters of state legislatures. Seems pretty cut and dried.

What's the problem? There are two problems at the forefront.

1) Four states (Idaho, Kentucky, Nebraska, and Tennessee) have rescinded their ratifications, but it is not at all clear that that is a thing that states can do.

2) "Like it's been like a really long time and stuff man," is also an argument that will almost certainly come up, but I'm not seeing any time limits in the Article V text.

There may be other arguments that I'm missing as well.

Does anyone else have any thoughts on this?
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Old 11-06-2019, 11:15 AM
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I think it's unclear as to whether the original 7 year deadline for ratification (long since passed) is still in force and also unclear whether a state may rescind ratification.
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Old 11-06-2019, 11:18 AM
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With all of the federal legislature that has happened since along with case law would the ERA make any meaningful difference now?
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Old 11-06-2019, 11:40 AM
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I think it's unclear as to whether the original 7 year deadline for ratification (long since passed) is still in force and also unclear whether a state may rescind ratification.
Yes, it is unclear. That's the point of this thread. Those are the exact two arguments I brought up in the OP. Are those arguments valid? Is there support for those arguments in the text of the Constitution?


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Originally Posted by Loach View Post
With all of the federal legislature that has happened since along with case law would the ERA make any meaningful difference now?
This, however, is not the point of this thread. Whether or not the ratification of the ERA will actual make a practical difference is interesting but not relevant. What should happen when Virginia ratifies the ERA? What will happen? Those are the thread pertinent questions.
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Old 11-06-2019, 11:46 AM
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2) "Like it's been like a really long time and stuff man," is also an argument that will almost certainly come up, but I'm not seeing any time limits in the Article V text.
Ratification history of the Twenty-Seventh Amendment:

Quote:
Maryland – December 19, 1789
North Carolina – December 22, 1789 (reaffirmed July 4, 1989[18])
South Carolina – January 19, 1790
Delaware – January 28, 1790
Vermont – November 3, 1791
Virginia – December 15, 1791
Kentucky – June 27, 1792[19] (reaffirmed March 21, 1996)
Ohio – May 6, 1873
Wyoming – March 6, 1978
Maine – April 27, 1983
Colorado – April 22, 1984
South Dakota – February 21, 1985
New Hampshire – March 7, 1985 (after rejection – January 26, 1790[20])
Arizona – April 3, 1985
Tennessee – May 28, 1985
Oklahoma – July 1, 1985
New Mexico – February 14, 1986
Indiana – February 24, 1986
Utah – February 25, 1986
Arkansas – March 13, 1987
Montana – March 17, 1987
Connecticut – May 13, 1987
Wisconsin – July 15, 1987
Georgia – February 2, 1988
West Virginia – March 10, 1988
Louisiana – July 7, 1988
Iowa – February 9, 1989
Idaho – March 23, 1989
Nevada – April 26, 1989
Alaska – May 6, 1989
Oregon – May 19, 1989
Minnesota – May 22, 1989
Texas – May 25, 1989
Kansas – April 5, 1990
Florida – May 31, 1990
North Dakota – March 25, 1991
Missouri – May 5, 1992
Alabama – May 5, 1992
Michigan – May 7, 1992
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Last edited by Steve MB; 11-06-2019 at 11:46 AM.
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Old 11-06-2019, 11:51 AM
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If Virginia passes the amendment, this Supreme Court will decide that since state legislatures must ratify the amendment and four state legislatures have rescinded their approval, it is not ratified. The holding will basically mean that 2/3 of states must approve of it at the same time. The court will say that whether a state legislature has ratified the amendment will be a determination made under state law and the current state law in those places is that the amendment is (currently) not ratified. Of course, if the amendment were ratified by a sufficient number of states and adopted into the constitution, states could no longer withdraw their ratification. The mechanism for change then would be another amendment.

I'm not sure if the Supreme Court will touch arguments that the approval came too late. My personal take is that amendments are meant to be permanent, barring future constitutional amendments. Congress imposing a seven-year approval period for a Constitutional amendment makes no sense. In fact, there is no specific Congressional authority in the constitution to impose such a timing limit on approval by the states. I think the Supreme Court, if forced to opine on this point, would hold that Congress passed the amendment and whether it was approved was left up to the states from that point forward. The timing requirement would have no effect. Of course, a conservative court that wants to put a final nail in the coffin of the ERA might just say that Congress can impose a ratification deadline and it's too late even if every state re-ratified it tomorrow.

Last edited by Tired and Cranky; 11-06-2019 at 11:54 AM. Reason: removing extraneous subject
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Old 11-06-2019, 12:11 PM
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Quote:
Originally Posted by Tired and Cranky View Post
If Virginia passes the amendment, this Supreme Court will decide that since state legislatures must ratify the amendment and four state legislatures have rescinded their approval, it is not ratified. The holding will basically mean that 2/3 of states must approve of it at the same time. The court will say that whether a state legislature has ratified the amendment will be a determination made under state law and the current state law in those places is that the amendment is (currently) not ratified. Of course, if the amendment were ratified by a sufficient number of states and adopted into the constitution, states could no longer withdraw their ratification. The mechanism for change then would be another amendment.

I'm not sure if the Supreme Court will touch arguments that the approval came too late. My personal take is that amendments are meant to be permanent, barring future constitutional amendments. Congress imposing a seven-year approval period for a Constitutional amendment makes no sense. In fact, there is no specific Congressional authority in the constitution to impose such a timing limit on approval by the states. I think the Supreme Court, if forced to opine on this point, would hold that Congress passed the amendment and whether it was approved was left up to the states from that point forward. The timing requirement would have no effect. Of course, a conservative court that wants to put a final nail in the coffin of the ERA might just say that Congress can impose a ratification deadline and it's too late even if every state re-ratified it tomorrow.
The amendments are meant to be permanent until another amendment makes them not so permanent. But I don’t see how that is relevant here. There is no amendment currently just a proposal. There is also nothing in the constitution that says there can’t be a time limit. There is also nothing in the constitution stating that states can’t rescind their ratification. It wouldn’t matter in the case of an actual amendment since it would take the full amendment process to change. In the case of a proposed amendment it seems to me there isn’t a no backsies clause in the constitution. Those states currently have not ratified the amendment. I think it’s just possible that SCOTUS could rule that it is beyond the powers of Congress to set a time limit on ratification but I’m doubtful they will rule that a state can’t change their ratification prior to an amendment being final.
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Old 11-06-2019, 12:14 PM
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Quote:
Originally Posted by Lance Turbo View Post



This, however, is not the point of this thread. Whether or not the ratification of the ERA will actual make a practical difference is interesting but not relevant. What should happen when Virginia ratifies the ERA? What will happen? Those are the thread pertinent questions.
Fair enough.

See my reply above. I don’t see SCOTUS ruling that states can’t rescind their ratification prior to the amendment being final.
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Old 11-06-2019, 12:14 PM
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So we agree Loach? I'm okay with that.
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Old 11-06-2019, 12:35 PM
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Originally Posted by Loach View Post
I don’t see SCOTUS ruling that states can’t rescind their ratification prior to the amendment being final.
I don't see SCOTUS ruling that either. I do, however, see a textualist argument that states rescinding ratification has no legal weight.

There's nothing in the text about three quarters of the states having currently ratified the proposed amendment. The text is, "when ratified by the legislatures of three fourths of the several states." Should Virginia ratify the ERA it will have been ratified by the legislatures of three fourths of the several states.
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Old 11-06-2019, 12:35 PM
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Ratification history of the Twenty-Seventh Amendment:
Yes but that amendment did not contain a time limit as part of its text.

I don't know who has the final say? Doesn't seem like the Supreme Court- they only decide what the Constitution means, not what goes into it. Congress? Suppose House and Senate disagree? Can't be the president, he has no role in the amendment process.
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Old 11-06-2019, 12:39 PM
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If you ever hear someone describing constitutional interpretation as "calling strikes and balls," in CJ Roberts's words, point them to this thread and ask them which is which.
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Old 11-06-2019, 12:44 PM
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Originally Posted by BobLibDem View Post
Yes but that amendment did not contain a time limit as part of its text.

This one doesn't either.

Full text...

Quote:
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.
Well, there is a time limit in there, but I don't think that's what you meant.
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Old 11-06-2019, 01:54 PM
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In 1981, a federal district court, in the case of Idaho v. Freeman, ruled that the extension of the ERA ratification deadline to June 30, 1982, was not valid and that, ERA had actually expired from state legislative consideration more than two years earlier on the original expiration date of March 22, 1979. On January 25, 1982, however, the U.S. Supreme Court "stayed" the lower court's decision.

After the disputed June 30, 1982, extended deadline had come and gone, the Supreme Court, at the beginning of its new term, on October 4, 1982, in the separate case of NOW v. Idaho, 459 U.S. 809 (1982), vacated the federal district court decision in Idaho v. Freeman, which, in addition to declaring March 22, 1979, as ERA's expiration date, had upheld the validity of state rescissions. The Supreme Court declared these controversies moot on the grounds that the ERA had not received the required number of ratifications (38), so that "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here."

In the 1939 case of Coleman v. Miller, the Supreme Court ruled that Congress has the final authority to determine whether, by lapse of time, a proposed constitutional amendment has lost its vitality before being ratified by enough states, and whether state ratifications are effective in light of attempts at subsequent withdrawal. The Court stated: "We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment." However, this case was one where the Congress had not explicitly set a deadline, unlike the ERA proposal which explicitly contained a seven year limit. The Court, in 1939, upheld Congressional authority to determine in 1868 that the Fourteenth Amendment was properly ratified, including states that had attempted to rescind prior ratifications.

So, it reads to me as if the Supreme Court has already ruled that the EPA has "failed of adoption", but that it is up to Congress to ultimately determine whether states can rescind ratification.
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Old 11-06-2019, 01:59 PM
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Definitely not a Constitutional lawyer, but my take on how it ought to work is:

1. Legislatures that ratify amendments should be able to revoke that ratification. The legislature is the branch of government closest to the people, and an appropriate way for the people to respond to a legislature that votes something in that they don't want is to vote in a new legislature that will do what they want. Obviously at some point the Amendment is approved and it's too late to take it back. But it doesn't seem like making every ratification a fait accompli is a good process.

2. Congress should be able to set a time limit. Essentially, they're saying "We approve it for this long." Just like a later legislature should be able to retract an approval, a current one should be able to specify a limit.

So, both of those reasons mean that Virginia ratifying the ERA shouldn't do anything. I have no way to determine whether those two points are valid legal arguments.
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Old 11-06-2019, 02:33 PM
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So, it reads to me as if the Supreme Court has already ruled that the EPA has "failed of adoption", but that it is up to Congress to ultimately determine whether states can rescind ratification.
I don't read it that way. I think SCOTUS instructed the lower court to rule that the question was moot because 38 states had not ratified. That no longer applies if 38 have ratified.

The ratification of the 14th Amendment included ratification by the the states of New Jersey and Ohio. Both states ratified the amendment and then later attempted rescission. Both those attempts to rescind ratification were ignored.
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Old 11-06-2019, 03:38 PM
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There is proposed legislation in the US congress to extend the ratification deadline. It needs to get through the Senate, and Mitch McConnell has made that his fiefdom where laws go to die.

So, in addition to Virginia passing the ERA, we probably need the US congress to get behind it, too, before it can be viable as a permanent amendment. This just underscores the dramatic effect of booting McConnell from his position as Majority Leader would have.

From here.
Quote:
Legislation from Rep. Jackie Speier (D., Calif.) eliminating the deadline is expected to pass the Democratic-led House easily. But bipartisan legislation from Sens. Ben Cardin (D., Md.) and Lisa Murkowski (R., Alaska) likely faces a tougher fight in the GOP-led Senate...
The Senate bill so far has support from two Republicans: Ms. Murkowski and Sen. Susan Collins of Maine. Its backers hope election-year pressure could help it gather more support, particularly from vulnerable GOP senators running for re-election next year in swing states.
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Old 11-06-2019, 04:13 PM
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But if/when Dems regain control of both houses, the time limitation, such as it is, could still be lifted.

A WaPo article adds another consideration… [all bolding mine]

Quote:
...the 27th Amendment, originally proposed in 1789 without a time limit, was finally ratified in 1992. Like that amendment, and unlike some other amendments, the text of the Equal Rights Amendment itself sets no ratification deadline. Because the states ratified the text and not Congress’s separate deadline resolution, some legal scholars have argued that Congress’s time limit does not bind the states.
The same WaPo article notes that New York rescinded approval of the 15th and West Virginia the 19th Amendment, and the U.S. secretary of state overruled both, indicating states can't rescind ratification.

But what about those five rescinding states?

Quote:
After these withdrawals, scholars clarified that nothing in Article V of the Constitution expressly grants the states this reversal power. Some have therefore argued that the Supreme Court could void these five reversals. While in Chandler v. Wise (1939), the court suggested that it couldn’t rule on a rescinded ratification, it did leave the issue to the Congress, which has clear plenary power to overrule the states.
...
If approved, the ERA would probably be challenged in the courts. But it would be uncharacteristically bold for the federal courts to reverse their own decisions and overturn the amendment, thereby directly confronting Congress.
Looks to me like the ERA will probably become an amendment eventually. The question may be whether any of us will still be around to see it.
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Old 11-06-2019, 04:24 PM
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The text is, "[W]hen ratified by the legislatures of three fourths of the several states [...]"

The text is not, "[W]hen the number of states that have ratified the amendment minus the number of states that have sent 'just kidding' letters meets or exceeds three fourths of the total number of states [...]"
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Old 11-06-2019, 08:03 PM
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Sorry, is this about what happens if Virginia ratifies the ERA, or what happens when the ERA is acknowledged to be passed? No opinion on the former.
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Old 11-06-2019, 08:37 PM
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Sorry, is this about what happens if Virginia ratifies the ERA, or what happens when the ERA is acknowledged to be passed?
You don't have to read very far into this thread to get the answer to this question. We'll be here should you decide to participate.
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Old 11-06-2019, 09:30 PM
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You don't have to read very far into this thread to get the answer to this question. We'll be here should you decide to participate.
I wouldn't have asked if I hadn't needed to. I am slightly Asperger's and sometimes have trouble parsing the intent of things depending on how they're worded. So humor me please. I guessing it's about whether Virginia's ratification would be held to have passed the amendment; but what do I know?

Last edited by Lumpy; 11-06-2019 at 09:33 PM.
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Old 11-06-2019, 11:19 PM
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Wild card: Congress grants US Virgin Islands statehood, thus requiring a 39th ratification of the ERA. That's after Scientologists take over the place.
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Old 11-06-2019, 11:39 PM
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I wouldn't have asked if I hadn't needed to. I am slightly Asperger's and sometimes have trouble parsing the intent of things depending on how they're worded. So humor me please. I guessing it's about whether Virginia's ratification would be held to have passed the amendment; but what do I know?
The thread is about, "What happens when the Virginia legislature ratifies the Equal Rights Amendment".

Do you have any thoughts on, "What happens when the Virginia legislature ratifies the Equal Rights Amendment"?
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Old 11-07-2019, 01:11 AM
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With all of the federal legislature that has happened since along with case law would the ERA make any meaningful difference now?
Yes, i think so, there are solid argument it would. I started a GD page about that some time ago: https://boards.straightdope.com/sdmb...d.php?t=878676

What with the dirty tricks trump, McConnell and the GOP have pulled, and stuff like the various states with their ridiculous restrictions on abortions, I think that the ERA is needed now, more than ever.
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Old 11-07-2019, 01:17 AM
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Yes, i think so, there are solid argument it would. I started a GD page about that some time ago: https://boards.straightdope.com/sdmb...d.php?t=878676

What with the dirty tricks trump, McConnell and the GOP have pulled, and stuff like the various states with their ridiculous restrictions on abortions, I think that the ERA is needed now, more than ever.
Not to mention that it would codify LBGT rights in a way that isn't subject to the whim of a future Supreme Court.
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Old 11-07-2019, 01:43 AM
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I don't see SCOTUS ruling that either. I do, however, see a textualist argument that states rescinding ratification has no legal weight.

There's nothing in the text about three quarters of the states having currently ratified the proposed amendment. The text is, "when ratified by the legislatures of three fourths of the several states." Should Virginia ratify the ERA it will have been ratified by the legislatures of three fourths of the several states.
I get that. I also get the precident argument. But if you believe the Court won't go for it, then I don't see why it matters if there is a valid argument. They decide what happens.

I personally continue to hold out hope that the conservative justices will consider the law without regard to their politics. But I think that's unlikely in a case like this where they have wiggle room. They'll either decide the states can rescind, or, to avoid overturning precedent, decide that Congress can set time limits.

(Note this is not the same thing as considering the law without regards to their morals, in case someone thinks I'm contradicting my earlier claim that morals are important.)
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Old 11-07-2019, 01:50 AM
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But the precedent is that rescission is not valid.

And the textual argument is that rescission is not valid.

So why would, for example Neil Gorsuch, bound by the text and by precedent rule against the ratification of the ERA?
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Old 11-07-2019, 08:56 AM
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Textualist arguments are based on what is in the text, and there is nothing in the text that says "states may not rescind their ratification".
Quote:
Originally Posted by Lance Turbo
The text is, "[W]hen ratified by the legislatures of three fourths of the several states [...]"
That begs the question of whether or not a state can rescind its ratification.

The Constitution doesn't say they can, and it doesn't say they can't. So there is no textualist argument either way.

Regards,
Shodan
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Old 11-07-2019, 09:03 AM
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What the hell does the ERA have to do with abortion?
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Old 11-07-2019, 09:35 AM
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Textualist arguments are based on what is in the text, and there is nothing in the text that says "states may not rescind their ratification". That begs the question of whether or not a state can rescind its ratification.

The Constitution doesn't say they can, and it doesn't say they can't. So there is no textualist argument either way.

Regards,
Shodan
10th amendment argument could be made.
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Old 11-07-2019, 11:36 AM
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Textualist arguments are based on what is in the text, and there is nothing in the text that says "states may not rescind their ratification". That begs the question of whether or not a state can rescind its ratification.

The Constitution doesn't say they can, and it doesn't say they can't. So there is no textualist argument either way.

Regards,
Shodan
The text is, "[W]hen ratified by the legislatures of three fourths of the several states [...]"

The text is not, "[W]hen the number of states that have ratified the amendment minus the number of states that have sent 'just kidding' letters meets or exceeds three fourths of the total number of states [...]"

There is no textual argument for even considering what a state may or may not have done after that state has ratified a proposed amendment.
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Old 11-07-2019, 12:34 PM
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Again, that begs the question of whether or not a state can rescind the ratification. The text of the Constitution does not say they can, nor that they can't.
Quote:
There is no textual argument for even considering what a state may or may not have done after that state has ratified a proposed amendment.
There is no textual argument for not considering it either. The text doesn't address the issue.

Regards,
Shodan
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Old 11-07-2019, 12:41 PM
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The text doesn't address the issue.
The text addresses the issue of what is required for an amendment to be ratified. When the requirements specified in the text are met the proposed amendment becomes part of the constitution.

The text is, "[W]hen ratified by the legislatures of three fourths of the several states [...]"

The text is not, "[W]hen the number of states that have ratified the amendment minus the number of states that have sent 'just kidding' letters meets or exceeds three fourths of the total number of states [...]"
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Old 11-07-2019, 01:23 PM
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Where in the text does it say "such ratification may never be rescinded"? If you want to make a textualist argument, you will have to cite such a text.

The closest we've come so far is octopus' point about the 10th Amendment, but that doesn't bolster your point at all - just the opposite. Since the Constitution does not assign the power to decide if ratification can be rescinded, then the power should remain with the states or the people.

Since the text does not say whether or not the ratification can be rescinded, there is no textualist argument to be made. Repeating yourself is not textualism.

Regards,
Shodan
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Old 11-07-2019, 01:30 PM
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The text addresses the issue of what is required for an amendment to be ratified. When the requirements specified in the text are met the proposed amendment becomes part of the constitution.

The text is, "[W]hen ratified by the legislatures of three fourths of the several states [...]"

The text is not, "[W]hen the number of states that have ratified the amendment minus the number of states that have sent 'just kidding' letters meets or exceeds three fourths of the total number of states [...]"


But they haven't sent "just kidding" letters, they have signed legislation saying that they were no longer ratifying the amendment. A case could be made that this later legislation overrules the previous legislation and thus they had no longer ratified the amendment. As Shodan said, this is unsettled law, but my guess would be that the the revocation of the repeal would be valid. I think that it is clear that the framers intended that 3/4 of the states agreed with the amendment at the time it is ratified, not that it was possible to cobble together a set of agreements over the course of decades even if there was never a time when 3/4 would agree simultaneously.

Last edited by Buck Godot; 11-07-2019 at 01:31 PM.
  #37  
Old 11-07-2019, 01:49 PM
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Where in the text does it say "such ratification may never be rescinded"? If you want to make a textualist argument, you will have to cite such a text.

The closest we've come so far is octopus' point about the 10th Amendment, but that doesn't bolster your point at all - just the opposite. Since the Constitution does not assign the power to decide if ratification can be rescinded, then the power should remain with the states or the people.

Since the text does not say whether or not the ratification can be rescinded, there is no textualist argument to be made. Repeating yourself is not textualism.

Regards,
Shodan
You mistake me. I 100% agree that states can rescind ratification. I just don't think there's anything in the text to indicate that such rescission should be given any legal weight. I said is much in post #10.

I have cited the text three times that specifies what should be counted when determining the ratification of a proposed amendment.

Furthermore, I have shown that the precedent is to ignore rescissions.

The argument that the text is silent on rescission therefore it should count doesn't make much sense. The text is also silent on whether or not states with flags that feature animals should be double counted, therefore... what? The text is silent on essentially an infinite number of things. It's absurd to consider any of them.
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Old 11-07-2019, 01:50 PM
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What with the dirty tricks trump, McConnell and the GOP have pulled, and stuff like the various states with their ridiculous restrictions on abortions, I think that the ERA is needed now, more than ever.
You forget that the ERA itself lets Congress define "equality" - for example, "all abortions are illegal, whether the person having the abortion is a man or a women." (One response to, "No, because men can't have abortions anyway," is, "Women who 'identify as men' can - are you saying they aren't men?")

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Not to mention that it would codify LBGT rights in a way that isn't subject to the whim of a future Supreme Court.
What effect would "not abridiging equality under the law on the basis of sex" have on LGBT? For example, "You can only marry someone of the opposite sex" applies equally to men as it does to women.

The second section of the ERA - "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article" - could actually be used against women. What if somebody comes up with the crazy idea that, say, a public university cannot ban men from its "women's basketball" team, defining "equality" as "not taking gender into consideration whatsoever"?
("That's not what 'equality' means!" - er, Section 2 of the ERA seems to say that it means whatever Congress says it means.)
  #39  
Old 11-07-2019, 01:59 PM
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The argument that the text is silent on rescission therefore it should count doesn't make much sense. The text is also silent on whether or not states with flags that feature animals should be double counted, therefore... what?
Therefore there is no textualist argument that states with animal flags should be double-counted.
Quote:
The text is silent on essentially an infinite number of things. It's absurd to consider any of them.
Including the idea that states may not rescind their ratification. Because the text is silent on that.

The text says that three quarters of states have to ratify an amendment. Three quarters have not ratified - five of them have rescinded their ratification. There is nothing in the text that says they can't do that. Therefore the question cannot be settled on textualist grounds.

Regards,
Shodan
  #40  
Old 11-07-2019, 02:02 PM
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Therefore there is no textualist argument that states with animal flags should be double-counted.
Including the idea that states may not rescind their ratification. Because the text is silent on that.

The text says that three quarters of states have to ratify an amendment. Three quarters have not ratified - five of them have rescinded their ratification. There is nothing in the text that says they can't do that. Therefore the question cannot be settled on textualist grounds.

Regards,
Shodan
But those five did ratify the amendment. Maybe they can rescind that ratification (or maybe they can double it with magic powers?), but that determination will have to be made by the courts. Just saying "ratification doesn't count if X happens" doesn't mean that ratification doesn't count because X happens. It's a fact of history that those states ratified the amendment.
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Old 11-07-2019, 02:09 PM
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Two yes or no questions...

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

Did the Nebraska legislature ratify the ERA?
  #42  
Old 11-07-2019, 03:02 PM
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Yes to the first, No to the second.

Now your turn -

Did the Nebraska legislature rescind its ratification on March 15, 1973?

Did the Nebraska legislature rescind its ratification?

Regards,
Shodan
  #43  
Old 11-07-2019, 03:12 PM
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Yes to the first, No to the second.

Now your turn -

Did the Nebraska legislature rescind its ratification on March 15, 1973?

Did the Nebraska legislature rescind its ratification?

Regards,
Shodan
Your answers are logically inconsistent.

My answers to your questions are yes and yes, but I've said all along that states are free to rescind ratification.

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I 100% agree that states can rescind ratification.
  #44  
Old 11-07-2019, 03:21 PM
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Saying they are free to do it, but it doesn't have the force of law, is a meaningless statement.

Regards,
Shodan
  #45  
Old 11-07-2019, 03:24 PM
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Saying they are free to do it, but it doesn't have the force of law, is a meaningless statement.
This is bizarre. It has a very specific meaning. It also has historical precedent to back it up.
  #46  
Old 11-07-2019, 06:26 PM
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I don't see SCOTUS ruling that either. I do, however, see a textualist argument that states rescinding ratification has no legal weight.
You do, I don't. The Tenth Amendment reserves all rights not mentioned to the states and the people, and I think the right for a state to make a time sensitive offer is within their prerogative.

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Originally Posted by Lance Turbo View Post
There's nothing in the text about three quarters of the states having currently ratified the proposed amendment. The text is, "when ratified by the legislatures of three fourths of the several states." Should Virginia ratify the ERA it will have been ratified by the legislatures of three fourths of the several states.
There is no such "when ratified by the legislatures of three fourths of the several states" if, at the time of Virginia's ratification, more than one fourth of the states refuse to endorse the proposal. "Three fourths of the several states" is calculated at the instant of the latest ratification, not when the amendment was originally proposed. To say that ratification of the legislatures of three fourths of the several states simultaneously refers to the "several states" of today, and their long outdated opinions from decades ago, is to twist the text of the constitution on its head.

~Max
  #47  
Old 11-07-2019, 06:39 PM
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Originally Posted by Shodan View Post
..
The text says that three quarters of states have to ratify an amendment. Three quarters have not ratified - five of them have rescinded their ratification. There is nothing in the text that says they can't do that....
But there's nothing that says they can rescind either. Thus, it doesnt appear they can, however obviously it will be up to SCOTUS.
  #48  
Old 11-07-2019, 06:47 PM
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You do, I don't. The Tenth Amendment reserves all rights not mentioned to the states and the people, and I think the right for a state to make a time sensitive offer is within their prerogative.


There is no such "when ratified by the legislatures of three fourths of the several states" if, at the time of Virginia's ratification, more than one fourth of the states refuse to endorse the proposal. "Three fourths of the several states" is calculated at the instant of the latest ratification, not when the amendment was originally proposed. To say that ratification of the legislatures of three fourths of the several states simultaneously refers to the "several states" of today, and their long outdated opinions from decades ago, is to twist the text of the constitution on its head.

~Max
Very weird.
  #49  
Old 11-07-2019, 06:54 PM
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Did Nebraska ratify the amendment? Yes.

Is the amendment ratified by Nebraska? No.

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.
  #50  
Old 11-07-2019, 06:57 PM
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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?
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