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Thursday, January 09, 2020

The Rule of Recognition for Constitutional Amendments

Who decides whether a proposed constitutional amendment is ratified? Up until now, the answer was "the elected branches." In other words, the Executive Branch and Congress must concur that an amendment is ratified. Once they do, that decision is treated as final by the courts. At times, the Executive and Congress have sparred over which elected branch should make the determination, but never with any consequence.

The ERA presents a new problem. The OLC is taking the position that Congress may not recognize the current ERA proposal as ratified. (I'll talk more about why the OLC is wrong about that in a later post.) But suppose Congress reaches the opposite conclusion. Then the Supreme Court will be asked to weigh in about who is right.

I doubt that the Court wants to decide whether a constitutional amendment is part of the Constitution. That opens up a big can of worms. They could respond in this scenario by simply saying that it's up to the elected branches. If they are divided, then an amendment is not ratified. If they concur, then it is. That probably makes more sense than getting into the weeds on the ratification process. But we'll see if and when we reach that point.

Posted by Gerard Magliocca on January 9, 2020 at 09:57 AM | Permalink


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Posted by: SlimyMed | May 13, 2020 7:27:16 AM

Rule of Recognition Law and Legal Definition. Rule of recognition is a central part of H.L.A. Hart's theory on legal positivism. ... According to Hart, rule of recognition arises out of a convention among officials whereby they accept the rule's criteria as standards that empower and govern their actions as officials.

Posted by: www.krogerfeedback.com | Jan 16, 2020 5:38:31 AM

I am also confused on what the ERA would actually do. I have read articles comparing it to various state ERAs, but the federal Constitution (which is the framework it would dwell in) is much different from state constitutions in that it mostly states what the federal government *cannot* do, government of limited powers and so forth. Like Anthony Beesusan said, a lot of what the ERA set out to do has already been covered by various cases interpreting the Equal Protection Clause or, in the case of Roe/Casey/abortion-related cases, the Due Process Clause. It wouldn't suddenly require that Congress be half-female, that the Obama era Title IX regulations are suddenly part of the Constitution, or any other substantive rule. It doesn't even have an enforcement clause, like the Reconstruction Amendments do, empowering Congress to pass legislation to enforce the amendment. It would seem the only thing it actually would mandate is that a hypothetical military draft include both men and women.

I am aware of the debate that it would provide an alternative to Roe, turning reproductive/abortion rights from a privacy matter involving a woman and her doctor into an equality matter, but if advocates for Roe believe that case is in doubt because of a conservative-leaning SCOTUS, then surely an interpretation of the ERA to the effect that it protects reproductive rights would also be in doubt.

Posted by: RComing | Jan 15, 2020 6:02:48 PM

"I doubt that the Court wants to decide whether a constitutional amendment is part of the Constitution."

This is why a collection of states are suing now to enjoin the National Archivist from publishing the amendment, along with a list of the states that have ratified it and a declaration that it is part of the Constitution. Because once the National Archivist does that, the ball is mostly in the court of Congress and the Executive, i.e. it exits the realm of law and enters the realm of politics. States which rescinded their ratifications, or which conditioned their ratification on the Amendment becoming part of the Constitution before 1982, would have a reliance interest in preventing the Archivist from publishing, and since this is a question of federal law passed by Congress (but not the Constitution), it would be appropriate for the Supreme Court to ultimately weigh in. Past that point, the Court would be telling Congress or the legislature how to amend the Constitution, which I agree they would and most likely should not want to do. At this stage, they would just be telling the Archivist what the meaning of the law (passed by Congress!) to amend the Constitution is.

Posted by: RComing | Jan 15, 2020 5:32:51 PM

"would the ERA actually have any effect on constitutional law" - You are correct that women today have equal rights in all material respects. I believe that the intention is to use the EPA to force judicial recognition of rights for "transgender" people.

Posted by: Douglas Levene | Jan 9, 2020 11:57:09 PM

Truly, the ERA is one of the sillier parts of constitutional law.

Posted by: thegreatdisappointment | Jan 9, 2020 4:56:04 PM

This is not the issue here with all due respect. The issue is not ratification as stated in the post, but rather reviving the process of ratification, after deadline expired. Here I quote the LOC:

We acknowledged, however, that there would be a “strong argument” that Congress’s authority to extend a pending deadline would not include “reviving a proposed amendment” after the deadline had expired .

So, the issue is whether after deadline had expired , the Congress needs to start from scratch the whole process, or , whether he may or can modify the deadline.

Just worth to note, the remark of Justice Ruth Ginsburg:

" [T]he ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of States to ratify it.”


Posted by: El roam | Jan 9, 2020 11:43:39 AM

Do the elected branches have to agree simultaneously? And if not, what does that imply?

Hypothesize that Virginia passes the ERA in March 2020; that Congress, for whatever reason and under whatever process, passes a Joint Resolution in June 2020 accepting the ERA, while the Executive continues to rely upon this OLC opinion; that there's a change in administration as a result of the election in November 2020; and that in February 2021, a new OLC issues a new opinion and the new Executive accepts the ERA. (We could even add a mootness/ripeness element by having a lawsuit filed in December 2020 demanding recognition.)

That's bad enough. Now put a decade or so in the middle...

Posted by: C.E. Petit | Jan 9, 2020 11:08:14 AM

After Roe, Vinson, VMI, Heller, and Obergefell, would the ERA actually have any effect on constitutional law?
Would it matter whether or not it was ratified--which right hasn't been applied to women?
Aren't women fighting for class-action rights, not equal rights?

Posted by: Anthony Beesusan | Jan 9, 2020 10:26:14 AM

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