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President Joe Biden he wants people to know that he sees dead amendments. Just before leaving office, Biden declared that we have the 28th Amendment, despite the fact that the measure died in the ratification process years ago.
Not since then the movie “The Sixth Sense” there was a creepier moment. To paraphrase Cole Sear in the movie, Biden doesn’t see failed amendments in constitutional coffins, but ” Walking around as usual [amendments]. They don’t know they’re dead.” Neither does Biden.
President Joe Biden is pictured in front of the US Capitol. (Getty Images)
Biden waited until shortly before leaving office to please the most delusional elements of the Democratic Party by unilaterally announcing that the Equal Rights Amendment was now part of the Constitution. The farcical moment was then amplified by characters like Sen. Kirsten Gillibrand, (DN.Y.), joy and falsely telling women that they can now go to court and enforce an amendment to restore things like abortion rights.
This bizarre group fantasy was triggered by the following statement:
“In accordance with my oath and duty to the Constitution and the country, I affirm what I believe and what three-quarters of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protection under the law regardless of their sex.”
Without naming them, Biden cites dozens of “constitutional experts” who support this absurd claim.
Journalists work outside the US Supreme Court building in Washington, DC. (Photo by Anna Moneymaker/Getty Images) (Anna Moneymaker)
Biden’s last-minute statement is more chilling than the movie because it requires not only a departure from the constitutional process, but also from reality. Despite running as a champion of democracy, Biden simply ignores the fact that the ERA has not been ratified, as the Justice Department, various judges, and his own archivist made clear just weeks ago.
Even the late US Supreme Court Justice Ruth Bader Ginsberg he declared the amendment dead.
Most recently, Archivist Colleen Shogan explained that neither her office nor the White House has the authority to unilaterally announce an amendment or waive the deadline for ratification:
“In 2020 and again in 2022, the US Department of Justice’s Office of Legal Counsel confirmed that the ratification deadline set by Congress for the ERA is valid and enforceable,” she wrote. “The OLC has concluded that extending or removing the deadline requires new action by Congress or the courts.”
“Therefore, the Archivist of the United States cannot legally promulgate the Equal Rights Amendment. As leaders of the National Archives, we will respect these legal precedents and uphold the constitutional framework within which we operate.”
The reason is simple. The underlying argument is utterly ridiculous.
As I am previously writtenERA is as dead as Dillinger.
The deadline for ratification of the ERA was set for March 22, 1979—allowing seven years to secure the necessary approval by three-quarters of the states, or 38 states. That didn’t work. Worse, four states—Nebraska, Tennessee, Idaho, Kentucky—rescinded their previous ratifications. A fifth, South Dakota, stipulated that its ratification would expire if the ERA was not adopted by the 1979 deadline.
Kentucky also had an additional problem because it The Democratic lieutenant governor vetoed the resolution cancellation of ratification when the governor was not in town. However, Article V deals with ratifications by state legislatures.
Namely, not a single country was added during the extended period. Even assuming that the five states could be counted despite the votes to overturn their ratifications, the ERA was still three states short when it missed the second deadline.
President Jimmy Carter addresses a town meeting. An American flag hangs in the background.
Democrats then insisted that states could not reverse their votes, even before ratification was complete. So the Democrats and then-President Carter simply extended the deadline to June 30, 1982. However, in 1981, a federal district court ruled Idaho v. Freeman that Congress could not extend the deadline for ratification of the ERA. (The Supreme Court later stayed that order, but then declared the case moot.)
In 2021, U.S. District Judge Rudolph Contreras ruled that it would be “absurd” for the archivist to ignore the deadline and unilaterally add an unratified amendment to the Constitution. On appeal, a unanimous D.C. Circuit panel rejected Illinois and Nevada’s claims that the archivist should be ordered to publish the ERA, holding: “The State’s argument that the proposing clause is similar to the nonoperative introductory clause in the bill is unpersuasive. . . . because if it were, then the specification of the method of ratification in every amendment in our nation’s history has also been inoperative.”
None of that matters to the defenders of democracy who ignored the vote in those states and rejected constitutional deadlines and procedures. Harvard Law Professors Laurence Tribe and Kathleen Sullivan published a column declaring “ERA is now law!” as if the amplification and exclamation marks would somehow make it true. (This is the same Laurence Tribe who called out Trump be charged with attempted murder former Vice President Mike Pence and insisted the law is clear “beyond a doubt, beyond a reasonable doubt, beyond a shadow of a doubt”).
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Namely, Biden did not issue an executive order to the archivist as many activists wanted. The reason is simple: The White House knew it could be challenged in court and would quickly fail under judicial review. They would prefer Biden to proclaim like Caesar that we have a new amendment and treat it as fact.
With this declaration, Biden gave “the last full measure of loyalty” to the radical left of his party. It was a flattering and, frankly, pathetic moment for a president who is currently one of the least popular presidents leaving office.
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His performance at ERA is a perfect example of why he is viewed as “he failed” president. Biden has always sacrificed principles for the politics of the moment. This was a participation trophy awarded to activists without any substance or basis. This is why voters saw Biden as a greater threat to democracy than Trump.
It’s chilling to think that Biden actually believes this nonsense and sees dead amendments walking through the White House. However, the truth may be even scarier: he just doesn’t care. He sees dead amendments in hopes of bringing his legacy back to life. Both, however, now belong to the rank of corpus mortuus.
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