The unratified undead: Democrats move to declare the ERA the 28th Amendment

Madison, Jefferson, Adams, Franklin: The names of great constitutional figures are etched in the minds of every schoolchild. But soon, if Democrats in Congress have their way, they will add one more: David Ferriero.

Who is David Ferriero, you ask? He is 10th Archivist of the United States. He also may be the man who unilaterally declares the long-dead Equal Rights Amendment (ERA) not just alive but now part of our Constitution as the 28th Amendment. 

Democratic leaders like Rep. Carolyn Maloney (D-N.Y.), chair of the House Committee on Oversight and Reform, want Ferriero to simply publish the ERA in the Federal Register as a ratified amendment. It isn’t, of course. However, these Democrats insist that a unilateral decision from Ferriero declaring it ratified would mean it is ratified … at least until some courts say otherwise. And they are calling on President Biden to support this dubious move toward amendments by archival acclamation.

Such muscle plays have become common in the last two years. Democratic members and advocacy groups have pushed to pack the Supreme Court with an instant liberal majority. They have sought to negate state election laws and impose their own federal election standards on states.

These efforts have one thing in common: They avoid having the issues addressed by the voters directly or by the states.

This one makes the other efforts look restrained by comparison, however. Rather than submit a new ERA to the states, Democratic leaders want Ferriero to just declare it a done deal.

The reason is that Democrats have good reason to doubt whether an ERA would be ratified today. Before and after the ERA was passed by Congress in 1972, a variety of state and federal laws have been passed to enforce prohibitions on discrimination on the basis for gender and enforce equality rules in pay, promotions and programs. Moreover, many people today may see the equal or greater need for the protection of other groups viewed as discriminated against under current laws, calling for the inclusion of transgender individuals, atheists, undocumented persons, and others.

Yet, before Ferriero has his Colin Clive moment of declaring “It’s moving … IT’S ALIVE,” he may have to check the vitals again. The ERA is neither alive nor moving.

The deadline for ratification of the act was set for March 22, 1979 — an ample seven years to secure the required approval by three-quarters of the states, or 38 states. But it fell short of that constitutional threshold. Not only that, but 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 adds a different wrinkle 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. 

Democrats argued that states could not rescind their votes, even before the threshold number of states is reached. Yet, they still fell short. So, Democrats and then-President Carter simply extended the deadline to June 30, 1982. 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.)

While the extension continued to be questioned constitutionally, it did not matter: Not a single new state was added during that extended period. 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 again insisted that deadlines and the state rescissions could be ignored. In 2017, Nevada went ahead and ratified the dead amendment while Illinois did so in 2018. Then, in 2020, Virginia passed a ratification resolution for the ERA. And then — poof! Democrats declared the ERA passed, 41 years after the original deadline and 38 years after the second deadline. 

Yet, in the end, the Office of the Federal Register must confirm the “facial legal sufficiency and an authenticating signature” of the state documents and confirm that they are “in good order.” Now, the ERA ratification may be many things, but “in good order” is not one of them. Indeed, the record looks like an interstate pileup.

To find this all “in good order,” Ferriero would have to accept that the first deadline is immaterial. Then he would have to ignore the second deadline. Then he would have to ignore five states that negated their ratification votes long before Virginia voted.

In demanding that Ferriero act, the Democrats often sound like the Nike slogan — “Just Do It.” Rep. Maloney explained that Ferriero “told us how much he believed in the ERA, that he wanted to be the archivist that would make it happen, to deliver it and do his ceremonial job and ratify it.”

Rep. Jackie Speier (D-Calif.) insists that “many scholars” believe there is no deadline that can apply to an amendment. It can literally take hundreds of years, and it does not matter if states later rescind their votes — it literally never dies. Speier added that Ferriero should act to fulfill the wishes of the late Supreme Court Justice Ruth Bader Ginsburg in declaring the ERA ratified.

The problem is that Ginsburg herself dismissed these claims and declared that Virginia’s vote came “long after the deadline passed.”

Ginsburg was not the only one dismissive of these theories. The Justice Department’s Office of Legal Counsel (OLC) issued an opinion on Jan. 6, 2020, that the ERA was as dead as John Dillinger.

Democrats then pushed the Biden administration to change that legal opinion. On Jan. 26, 2022, OLC issued a second opinion that did not withdraw the earlier opinion but added obscure language on how Congress may disagree and “the federal courts may soon determine or shed light upon several unsettled matters.” All the opinion stated was the obvious: OLC opinions are not binding on Congress or the courts.

That was enough to demand certification from Ferriero. Eleanor Smeal, head of The Feminist Majority, declared: “The fact that we have declared, because it is true, that the ERA has met all requirements, it is law. The certification is a symbol but we deserve that symbol.”

So, an amendment that died decades ago, arguably eight states short of ratification, simply would be published as law by fiat of the archivist.

Democrats are particularly eager to get Ferriero to do so before he retires in April, or to guarantee that his replacement is ready to make that declaration. At the same time, Democrats — with the support of Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) — are pushing to lift the deadline for a third time.

For those who commonly invoke the need to support democracy, the refusal to concede defeat over decades of contrary state votes is a rather curious position. Yet Democratic members just want the declaration of life: It is alive because Ferriero will declare it alive.

It may be a tad early to add the name of David Ferriero to our pantheon of great constitutional figures, though. The Federal Register is no work of fiction. As Justice Ginsburg said not long before her death, you neither improvise nor despair as advocates for equal rights. You “start over.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.