Effort to sneak Equal Rights Amendment into Constitution 'has failed,' DOJ says

Democratic lawmakers in Virginia, in the majority in the statehouse for the first time in decades, finally have claimed to have ratified the proposed Equal Rights Amendment.

They claim Virginia has become the 38th state to do so, to make the ERA part of the U.S. Constitution.

Not quite, contends an legal opinion from the U.S. Department of Justice Office of Legal Counsel.

"Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the states," the opinion said.

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"Accordingly, even if one or more state legislatures were to ratify the proposed amendment it would not become part of the Constitution and the archivist could not certify its adoption."

The opinion said Congress "may not revive a proposed amendment after a deadline for its ratification has expired."

"Should congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution."

Kristen Waggoner, a spokeswoman for the Alliance Defending Freedom which has opposed efforts to resurrect the ERA, said: "The Department of Justice is correct in its conclusion that the Equal Rights Amendment's ratification deadline passed a long time ago. The ERA not only undermines women's rights and opportunities, it falls far short of the requirements to amend the Constitution.

"As it stands today, the ERA is legally dead and has been for the last 40 years because its proponents failed to achieve the required support from the states. Women deserve to be treated with equality and fairness under the law, but that’s not what the ERA does.

"If its proponents wish to convince the American people of its merits, they must follow the process laid out in the Constitution. Following that process by starting over respects the American people and the integrity of the Constitution. And that’s good no matter what side of the aisle we find ourselves," she said.

The opinion pointed out the ERA never got the approval of three-fourths of the states as required.

And Congress cannot go back in time and un-do a deadline it had imposed itself.

"Because Congress and the state legislatures are distinct actors in the constitutional amendment process, the 116th Congress may not revise the terms under which two-thirds of both Houses proposed the ERA Resolution and under which thirty-five state legislatures initially ratified it," the legal document said.

"Such an action by this Congress would seem tantamount to asking the 116th Congress to override a veto that President Carter had returned during the 92nd Congress, a power this Congress plainly does not have."

Democrats in Congress already have discussed having a simple vote to lift the original deadline, but the legal opinion said that would not be allowed by the Constitution itself.

"Congress's authority to fix a 'definite period for ratification' is 'an incident of its power to designate the mode of ratification.' Congress may fix such a deadline for a proposed amendment 'so that all may know what it is and speculation on what is a reasonable time may be avoided.' Congress would hardly be setting a 'definite period for ratification' if a later Congress could simply revise that judgment, either by reducing, extending, or eliminating the deadline that had been part of the proposal transmitted to the states."

The concept first was proposed in the U.S. House in 1923, but it didn't gain congressional action until the 1970s. But that legislation included a ratification deadline, which was extended once but that action happened before the time had expired.

Recently, three states sued to keep the ERA corpse in its grave.

AP reported South Dakota, Louisiana and Alabama have filed a federal case to block the ERA should there be support.

The lawsuits seeks to prevent the U.S. archivist, David Ferriero, from accepting a new ratification from a state.

South Dakota's attorney general, Jason Raynsborg, explained: "The South Dakota Legislature ratified the ERA in 1973, but in 1979 passed Senate Joint Resolution 2 which required the ERA be ratified in the original time limit set by Congress or be rescinded. Because thirty-eight states failed to ratify the amendment by [the deadline], the South Dakota Legislature rescinded its ratification of the ERA."

He said it's an issue "of following the rule of law, the rules that our Founding Fathers put into place to protect us from government making decisions without the consent or support of 'we the people.'"

"If Congress wants to pass an updated version of the ERA, taking into consideration all the changes in the law since 1972, I have no doubt the South Dakota Legislature would debate the merits in a new ratification process. An amendment to the Constitution should not be done by procedural nuances decades after the deadline prescribed by Congress, but through an open and transparent process where each state knows the ramifications of its actions."

WND reported a new move in Congress purports to "remove" the deadline that Congress set.

And a House Republican leader is warning fellow members against supporting that resurrection plan.

Rep. Doug Collins, R-Ga., said in a statement as a House committee considered H.J. Res. 79 that Congress "doesn't have the constitutional authority to retroactively revive a failed constitutional amendment and subject citizens in all 50 states to the current political trend in just one state."

Collins noted the ERA failed to be ratified by three-quarters of the states under a congressionally mandated deadline.

During the original time period, only 35 states approved it. In recent years, and after the deadline, two more did.

But ratification votes by Nebraska, Tennessee, Idaho, Kentucky and South Dakota were withdrawn.