Yes.
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.
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 If not, then we assume that they remained in approval of it, because if they no longer approved, they would have rescinded it.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a part of the Constitution at a point in time when two states (Ohio and NJ) that had ratified the Amendment had already rescinded their ratification. Given that only 27 of the 37 states at the time had ratified and not rescinded their ratifications, one of these states needed to be counted as having ratified.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.)
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?
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).
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.
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.
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?
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.
Bumped with an update.
What would the ERA actually contribute in this day and age? At this point it appears to me to be a solution in search of a problem
Personally I don’t care one way or the other whether it gets ratified so I don’t have a side in the matter.
Wikipedia: The Equal Rights Amendment is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. Proponents assert it would end legal distinctions between men and women in matters of divorce, property, employment, and other matters.
Would this expand on anyone’s rights in any fashion?
It invites new lawsuits. And some lawsuits that weren’t necessarily started because of the amendment may be decided differently because of it.
So it would contribute something to someone.
I don’t think the impact would be zero. I think the impact is unknown.
There are law review articles on what the impact should be. But that doesn’t tell us how the actual Supreme Court would rule.
Consider that since the amendment was drafted, the meaning of the word sex has changed. And also consider that many, perhaps most, of the cases relating to the amendment would concern trans issues.
This is an amendment where, due to passage of time, original intent vs. living constitution interpretations would divide the court from the first.
Do you have any examples where there are legal distinctions between men and women that this amendment would remedy? Not doubting you. Just collecting data.
You may have seen a few stories in the news over the past several decades involving whether someone can marry someone else based on being a man or woman.
Of course. Then SCOTUS took them to the back forty and put bullets in their heads. Prior to that the ERA would have been a remedy. Today, no.
Are there any current situations where the ERA would be useful?
The 2015 Court did. Considering that the 2022 Court looks ready to wipe its ass with Roe v. Wade, i foresee a potentially urgent need to enshrine in the Constitution certain freedoms thay are currently only guaranteed by judicial precedent.
I have no idea what the outcome would be, but I’m pretty sure that somebody somewhere would think that it overturns the “entertainment” hiring model that Hooters et al. have managed to carve out for themselves.
Remedy? If I gave the impression of being in favor of the ERA, that was a mistake. I meant to be saying that the effects of ERA passage are unknowable because of shifting definitions of sex, and changing Supreme Court composition. Laws whose effects are unpredictable seem to me, for that reason, mistaken.
Lots of good decent American have their pride in country linked to sweeping feel-good principles incorporated in the U.S. constitution, and maybe they are right. However, I don’t have much faith in broad parchment promises, the ERA being an example.
Constitutional amendments don’t apply to private businesses.