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Wednesday, September 30, 2020

The ERA and Justice Barrett

Many people are speculating about what might happen next year if Democrats win and want to respond to Justice Barrett's impending confirmation. Court-packing? Jurisdiction-stripping? More lower court judges?

Here's a more modest thought. The chances that Congress will declare the Equal Rights Amendment part of the Constitution next year are probably higher. Under a common reading of the Constitution, Congress has the sole power to determine if a proposed amendment is ratified. Maybe there are sixty votes for that in the Senate. If not, the Senate filibuster may soon be a thing of the past anyway. But declaring the ERA ratified is a war for the Democrats to satisfy anger about Justice Barrett's confirmation without taking up the more radical remedies.

Would ratifying the ERA be just symbolic? Probably. But symbols matter, especially in politics.

Posted by Gerard Magliocca on September 30, 2020 at 09:19 AM | Permalink


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Posted by: Daniel Tan | Oct 1, 2020 1:18:53 AM

Reading the text of the ERA, it seems broader than the Equal Protection Clause. Either way, it deals with a limited range of matters & seems rather lame as a way to compensate for Barnett to the degree that actually angers you.

Posted by: Joe | Sep 30, 2020 7:13:20 PM

For a detailed legal analysis, see:

Adding the Equal Rights Amendment to the Constitution Could Hurt - Not Help - Females
Consequences are Unpredictable, and Several Appear to be Negative

Posted by: LawProf John Banzhaf | Sep 30, 2020 4:45:17 PM

Are there any cases holding that Congress has the sole power to determine whether an amendment has been duly ratified? Or is this just the common understanding of law professors? If some individual has a good claim of harm as the result of an amendment being invalid, would the courts be powerless to hear that complaint? For example, suppose there's an amendment to allow federal taxation of wealth, and there's some dispute about whether it was validly ratified. Would a person subject to tax as the result of this amendment be unable to seek judicial recourse? And if Congress has the final say on the validity of ratification, is a two-thirds majority of both houses necessary to exercise that power or is simple majority enough?

Posted by: Douglas Levene | Sep 30, 2020 12:28:55 PM

Probably symbolic given that ratification would probably help men more than women (selective service, affirmative action that favors women, etc.)

Posted by: Edward Cantu | Sep 30, 2020 11:49:36 AM

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