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[Syfir]

This is not a question about whether or not the Equal Rights Amendment is needed, or a good idea, etc. The following is a discussion about the process and whether or not it should be considered ratified as the 28th Amendment to the Constitution.

It appears that the following arguments have been put forth on both sides.

1. The deadline for the ratification has passed.
a. Opposing views - Either the deadline is unenforceable or Congress has the authority to extend or remove the deadline by a simple majority.

2. Five states have revoked their ratification.
a. Opposing view - Once a state has ratified an amendment that ratification is final, it cannot be revoked.

QUESTIONS FOR DISCUSSION -

1. Is the deadline a barrier to ratification as the amendment was originally proposed?

2. Should states be able to revoke their ratification prior to an amendment being certified?

3. What changes, if any, would you make to the amendment process?

To keep this post simple I will post my thoughts to these questions below.

In my opinion the Equal Rights Amendment as it currently stands is dead.

First of all the deadline has passed. When a process is defined a person, or state, acts based on the information defined. If that information were different it might result in different actions on the part of the person or state. For example South Dakota did not revoke their ratification when the Congress voted to extend the deadline, they simply voted to explain that their ratification was only valid under the original terms. If three more states had voted to ratify the amendment after South Dakota's vote but before the original deadline of March 22, 1979, the amendment would have be ratified with South Dakota's approval.

Second aside from South Dakota's expired ratification, four other states have rescinded their ratification. Some have argued that a State is not allowed to change it ratification. Once you vote yes you are done. However this ignores the fact that some state's have changed their ratification vote from No to Yes on other Amendments. If you can change from No to Yes, you should be able to change from Yes to No.

To throw out another example, the so-called Corwin Amendment. It is one of the four remaining pending amendments without a deadline.

"The Corwin Amendment is a proposed amendment to the United States Constitution that would shield "domestic institutions" of the states from the federal constitutional amendment process and from abolition or interference by Congress. Although the Corwin Amendment does not explicitly mention slavery, it is designed specifically to protect slavery from federal power."

The chances of this amendment passing are so vanishingly small as to render it effectively dead. However, let's say that this proposed amendment had fallen one state short at the time at 24 voting Yes. Do you think we should prevent those states, include the 5 states that actually did ratify it, from rescinding their ratification, including two of those who actually have rescinded their ratification?

I think that allowing a deadline and the ability to rescind a ratification are good things. It is especially important in the case of the ability to rescind a ratification (prior to the amendment being certified). That in particular allows the people to get involved. If the state legislature is not on the same page as popular sentiment, it allows the people to elect new representation who can then correct the states ratification.


What changes would I make?

I would set a 7 year deadline on all proposed amendments and remove the automatic certification that currently takes place immediately upon the 38th state ratification. All amendments would only be certified if 2/3rds of the states were currently ratifying the amendment on the deadline, allowing the people of each state more say in the process.

[Blackstone]

1. Is the deadline a barrier to ratification as the amendment was originally proposed?

Most definitely. It was part of the original proposal, and I have absolutely no idea where in the fresh hell this notion came from that Congress can alter the terms of an amendment proposal through ordinary legislation. That is just plain ridiculous on its face.

2. Should states be able to revoke their ratification prior to an amendment being certified?

As literally worded, this question almost sounds like it belongs under question 3. But I'll interpret it to mean, do states currently have that ability under the existing rules? All I can do is try to answer the question with another question: if one house of Congress approves a bill, but then votes against it (let's say a small change in membership either through resignation or something tips the balance the other way) before the other house has a chance to vote on it, but the other house does approve it, is it validly passed by Congress? I don't know for sure, but I believe the answer would still be yes. If anyone else has any information on that I'd be curious to know.

3. What changes, if any, would you make to the amendment process?

I agree with the idea of a 7-year deadline, and allowing states to rescind their ratification before the 3/4 limit is reached.

However, I'm not sure what exactly you mean by this:

All amendments would only be certified if 2/3rds of the states were currently ratifying the amendment on the deadline, allowing the people of each state more say in the process.

Do you mean on the deadline as opposed to before the deadline?

[Syfir]

3. What changes, if any, would you make to the amendment process?

I agree with the idea of a 7-year deadline, and allowing states to rescind their ratification before the 3/4 limit is reached.

However, I'm not sure what exactly you mean by this:

All amendments would only be certified if 2/3rds of the states were currently ratifying the amendment on the deadline, allowing the people of each state more say in the process.

Do you mean on the deadline as opposed to before the deadline?

So first let me correct a mistake I made. It should read "if 3/4ths of the states" rather than 2/3rds as I incorrectly noted.

What I mean that the amendment would only be ratified or not at the end of the 7-year deadline regardless of voting prior to that.

Lets say that there is an Amendment proposed to do away with local elections. All state legislators in office when the Amendment is ratified become Legislator for life.

Lets also say it is sent to the states on January 1, 2020, with an expiration date of December 31, 2027.

While I would hope this wouldn't have a chance of passing in real life, lets say that that 38 states have legislators that are corrupt enough to vote for it on January 2nd, 2020.

Boom. It is law and a legal coup has occurred.

However under my suggested change, it would not become law until December 31, 2027 and states would have the right to rescind their ratification. So do you think the legislators who voted for the amendment would survive the next election? The people would vote in new legislators who had vowed to rescind the ratification.

Seeing as how legislators in my example could theoretically wait until December 31, 2027 to vote in support of the amendment again after previously having voted against it I would change my original suggestion so that if, at anytime during the last 3 years of the ratification period, there was a point when 3/4ths of the states had voted "No" at the same time the amendment would be considered dead. There are probably other tweaks that would be needed to help avoid gaming the system but that is the basics.

These changes to the process would allow the supporters/detractors time to build a consensus and support among the actual voters.

The reasoning behind this is several examples where voters had to do an end run around a state legislature through the referendum process to get a popular (among the voters but not among the legislators) change to the law. Even then there have been times the legislatures try to kill the change, either through passing other bills meant to gut the referendum, or by simply not funding it, defending it in court, etc.


I guess if you really wanted to make it more representative you could remove the legislators and force the states to put the amendment on the ballot every year. You could shorten the time frame to 3 or 4 years. That would still allow time for consensus building but would be less likely to make people jaded and tired of voting for/against it.

[Blackstone]

The specific scenario you describe I don't see ever happening. It would trigger widespread civil disobedience (at best) and the powers-that-be know it. The only way they could stop it is with a massive domestic military response in order to impose direct rule. And if they could pull that off, then they wouldn't need to go through the process of amending the Constitution. They could just do it.

That said, your idea still has something going for it. It may very well have been able to prevent that disastrous bender with Prohibition. The only drawback is that sometimes amendments may need to be adopted sooner than 7 years. Maybe there could be a means whereby it could be adopted sooner, but would expire at the end of the 7 years unless ratified again at that time.