Happy 28th?

Happy 28th?

[I posted this on another platform (Substack) on January 21 and I was supposed to post it here but, well, I forgot. I think it is still worth a look, even if the issue, at least as far as media is concerned, vanished as fast as it arose.]

There has been justified and exuberant celebration over the statement (of course deleted post-inauguration) from Joe Biden that as far as he's concerned, the Equal Rights Amendment is part of the Constitution, with one example exulting "Woohoo! They can fight it but it’s done! Great news for human rights!" (Sorry for no credit; I misplaced the link.)

Yeah, well, hang on. It’s not quite over. In fact, delete “quite.”

For one thing, Biden said much the same thing three years ago (again deleted) and you see how far that has gotten us. This one is stronger because that time he called on Congress to ratify the ERA and this time he says, screw it, it’s already ratified. Well, good, but still, that doesn’t wrap things up.

On a practical, legal level this will simply be ignored until someone claims some law or rule is unconstitutional because it violates the ERA. That is, nothing will happen until someone forces the issue. And when that happens, I guarantee it will be accompanied by multiple arguments and suits trying to undo this historic achievement.

There will be suits about states having rescinded approval, which I think (hope?) will more likely than not fail because of (among other things) the can of worms it would open about the potential for states to pull an Emily Latella and rescind approval of amendments already enacted. (Can states secede by saying “We changed our mind, we don’t approve the Constitution?” Was the Confederacy thus properly constituted?) If I understand correctly (correct me if I’m wrong), but I think the technical term here is “no take-backs.”

Some efforts will claim that the amendment is not in force because US Archivist Colleen Shogan hasn’t published it. Those should fail - “should” because these days with this SCOTUS nothing is certain - on the grounds that an archivist is by definition a record-keeper, not a decision-maker and her role is ministerial. That is, she has no more authority to block the amendment than then-VP Mike NotWorthAFarthing had to refuse to certify the electoral count in January 2021.

And there will be suits about having exceeded the imposed and quite arbitrary time limit, which could rise to a “Well…” In a 1921 case (Dillon v. Gloss), SCOTUS found that Article V of the Constitution “implies” that proposed amendments “must be ratified, if at all, within some reasonable time after their proposal.” However, a later case (Coleman v. Miller, 1939) suggests that while Congress can set a “reasonable” deadline, what constitutes “reasonable” may be open to challenge. Further, later commentators have argued that this dicta is incorrect because the Constitution gives no such role to Congress (see Note 7 here). Which together would seem to make it difficult for our originalist and “plain text” intoners to argue straight-faced that such a time limit was “what the Founders intended” - not that they’ve never before ignored their own principles when it suited them. (This again relates to the federal archivist, of which more presently.)

Finally and perhaps most importantly, don’t be surprised if, regardless of the merits of the case at hand, some district court judge somewhere issues an injunction barring the amendment from taking effect anywhere in the country while any suits on any of those or other related issues proceed. Because I again guarantee you there are some who will do it on command.

In the meantime, however, we should all do as some are already doing and just declare “It’s over! We won!” over and over and over again. Make it an assumption under which the law should operate; treat it as a done deal, not a request or “someone do something.” I mean, at the very least it provides a basis for filing for injunctions against enforcement of anti-LGBTQ+ laws until any legal issues get resolved - which easily could take years.

However, what hasn’t taken years or even days is for the media to react to Biden’s statement with tut-tuts and tsk-tsks in dismissive tones ringing with “look at the old guy trying to look important” vibes.

For example, Politico called it “little more than an expression of [Biden’s] opinion” and a “long-shot gambit” while Faux News declared it’s “unlikely that Biden’s support will have any impact.” Slate dismissed it in a headline saying it “does nothing.” Meanwhile, AP called it "symbolic,” adding that "presidents have no role in the constitutional process" while emphasizing it "stirred aggravation among some allies" who had wanted it done sooner.

Others were no better and the all-but universal reaction came down to “But - but - the archivist!” They took it as unquestionable fact that the archivist refusing, on her own authority, to print it up and publish it is an absolute Constitutional bar to the amendment’s being part of the document. Which strikes me as much the same as saying that the Congressional Record could block any law by refusing to include it in its publication or the GPO could block any regulation by refusing to print it for distribution. She says she is relying on legal opinions from the Office of Legal Counsel that the time limit is enforceable, but the point is, that’s not her decision to make.

(Sidebar: It seems odd to me that with everyone agreeing that the president has no role to play in the amendment process, an opinion of the OLC - which is, again, an advisory opinion, not a determinative ruling - should be thought binding on the archivist, when they are all part of the Executive Branch.)

When the OFR [Office of the Federal Register] verifies that it has received the required number of authenticated ratification documents

from state legislatures, her job is to issue a formal declaration

to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

It should, must, be left to others to make the claim that the ratifications were somehow improper or without force. She is, bluntly, a clerk - not a legislature, not even a legislator, and not a judge.

And neither is the press. I used to read The Daily Howler, by this guy named Bob Somerby. I stopped because I came to see him as a obnoxious twerp forever looking to prove himself the purest, most superior “liberal” ever to work a keyboard - but I still credit him with developing one of the best tools for media analysis I’ve come across: the concept of “the script,” the idea that the media will rapidly coalesce on a way of viewing a certain issue, after which all future coverage has to be in line with that interpretation in order to be taken as “serious.”

The frame, the script, here has become “the archivist says,” and therefore the question is resolved and isn’t Biden just so cute trying to burnish his legacy with his useless opinion. That is, members of the media here are eager to just dismiss the whole thing as a one-day story not worth pursuing - as opposed to, for example, the pulsatingly exciting and important issues of “Is Tweetie-pie going to invade Greenland” (he won't) and “Will Pete Hegseth get confirmed” (he will).

Admittedly, not all the coverage ignored the open questions here and acknowledged that ultimately there are issues to be resolved by Congress or the courts (or both). But still, it seems overwhelmingly on the sake of “BFD, who cares about that old stuff when the machinations, manipulations, and madcap malevolence of The Great Orange One are just so exciting and so much fun to cover! (The absence of the word "important" is deliberate.)

There will be legal and legislative battles ahead and I have to admit that overall, the outlook isn’t good. Yes, the challenges should fail by logic and justice but a victory by the fascistic racist xenomisiacs* on a single point on any one of them could spell doom for the whole idea. I’d say our best move is to, as I said, use Biden’s statement to treat adoption of the ERA as the 28th amendment as a done deal and use it aggressively as an organizing focus.

Specifically, since everyone appears to agree that Congress could at any point say “forget the deadline, there isn’t one anymore,” thus removing Shogun’s excuse for inaction, Dems in both Houses of Congress should introduce measures to do just that. Put the xenomisiacs and other opponents of human rights in the position of having to vote against a move to approve the amendment. I would fully expect that there is no way in hell the GOPpers would allow it to come to a vote, but that very refusal should then be a point of attack.

The one thing we must not do on this or indeed anything else for the foreseeable future, is engage in preemptive capitulation, surrendering even before the battle is joined (such as can be seen here). King Lear had it right: That way madness (and despair) lies.

*The suffix “phobia” refers to fear; “misia” refers to hatred. These creatures are not afraid of foreigners, trans folks, of “the other,” they hate them. I’ve come to regularly use it whenever it applies. I got it from someone in a post about transmisiacs, but I can’t remember who, which is unfortunate because I’d really like to give them credit.