Laurence Tribe - The Equal Rights Amendment at Long Last

[Quiet Em]

It is not necessary for the National Archivist to publish the ERA in order for it to be adopted according to the provisions of the Constitution.

In our modern age of broadcast, cable and internet communication, the President’s announcement itself performed that function.

Accordingly, our Constitution now demands that “equality of rights under the law cannot be denied or abridged by the United States or any state on account of sex.”

It’s long past time!

https://contrarian.substack.com/p/the-equal-rights-amendment-at-long?r=1ndny&utm_medium=ios&utm_source=notes-share-action

The Equal Rights Amendment is the law of the land following President Biden's announcement.

It will remain the law of the land until someone (MAGA or misogynisitic men) fight to remove it.

[hlthe2b]

1. Oh, I was waiting to hear from Laurence Tribe. Thank you! Of course the GD MAGATS will take it to court but...

GD, this is so many decades past due.

[Quiet Em]

2. Yes, decades past due.

[FBaggins]

10. They won't take it to court

The statement has no real effect (nor does Tribe’s agreeing with him).

A court can’t rescind a president’s personal opinion - nor does it need to. Presidents have no power to declare amendments

[hlthe2b]

11. You obviously did NOT read Tribe's full assessment.

[FBaggins]

14. I read enough to know that it wasn't going anywhere

You don’t need to go to court to prove that it hasn’t been ratified. Someone who wants to exercise a right they think comes from the amendment is the one who has to go to court.

And “a former president said he thinks it’s part of the constitution” isn’t going to get yhrm very far.

What would a MAGA go to court for? “We want you to overturn a statement” ?

[Wiz Imp]

20. When you can demonstrate you have a resume even 10% as strong as Laurence Tribe's as a constitutional expert

then I may take what you say seriously. Until then, I'll trust Tribe over some anonymous person on an internet board.

[FBaggins]

27. You do know that "appeal to authority" is a logical fallacy, right?

This isn't a constitutional expert against an anonymous person on an internet board. It's two anonymous people on an internet board disagreeing and one of them pretending that someone else's opinion closes off any argument...

... except that there are any number of experts on the other side - including sources far superior to Tribe (like RBG)

[FBaggins]

32. RBG didn't comment on Biden's opinion (not action) from the grave

She was still on the court (and the staunchest defender of sex equality) when VA pretended to ratify the ERA (which is the event Biden is opining about).

[Wiz Imp]

33. SMH

Bye.

[Hekate]

3. Thx for giving us Lawrence Tribe. At long last this morning, a post about ERA that makes sense

There’s an article with a paywall, a statement from both Joe and Kamala, and a sht-ton of wishful-thinking comments here that make me wonder if Dorothy is looking for the Wizard of Oz.

Thank you, Quiet Em.

[Quiet Em]

6. You are very welcome.

[valleyrogue]

37. Prof. Tribe KNOWS this issue in and out. He was there in the trenches during the 1970s

regarding ERA.

I am correct in my assertions about the bogus "time limit" and "rescinding." The only way a constitutional amendment can be undone is through another constitutional amendment, such as the case of Prohibition. ERA is impossible to undo.

[Sogo]

4. My mother, God rest her soul, is smiling down on this!

nt.

[Wicked Blue]

16. Mine too.

[BoRaGard]

5. Excellent. Historic and excellent!

[SheltieLover]

7. I'm sure insecure magats will be rushing to the scotus, screaming and crying, hair on fire

TY for sharing with us!

[valleyrogue]

38. USSC can't undo a constitutional amendment. There is no provision for it.

Only Congress and the state legislatures can undo it, which is an impossible task.

[SickOfTheOnePct]

43. It's not

a Constitutional Amendment at this point…President Biden saying it is doesn’t make it so.

The most likely scenario is that a woman who has been denied an abortion in a red state is going to file a lawsuit saying her rights under the 28th Amendment have been violated. At that point, the question of the validity of the ratification will be decided.

Currently SCOTUS precedent is that ratification deadlines imposed by Congress are valid. If that precedent stands, then there is no ratification and thus no 28th Amendment.

This will end up in the courts, it just remains to be seen whether it is a woman from the left or a man from the right who brings the case.

[SickOfTheOnePct]

8. I doubt it will be Republicans that take this to court

It will be Democrats now that the archivist says she won't publish it to the Constitution.

And that's good, because the questions need to be settled, both for this amendment and any future ones.

[DeepWinter]

9. Already LGBTQ activists on TicTok and IG

pissed off this is sex "male" female" only and are against it. Ugg. Resistance is from the left.

[rollin74]

12. Wow. That's just silly

[Think. Again.]

59. That misinformation is meant to be divisive of the Left ...

...the text of the ERA does NOT mention "male" and/or "female"...

Section 1
"Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex"

Section 2
"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article"

Section 3
"This amendment shall take effect two years after the date of ratification"

[FBaggins]

13. Can't remember the last time Tribe got one right

He seems to only be trotted out when someone on the left has a nutty theory and wants to make it seem credible.

He’s correct that the archivist isn’t a necessary part of the process… but neither is the president.

[MichMan]

19. He has been on the winning side multiple times, but he has also been on the losing side as well

I remember when he said that the SC would uphold the Colorado ban; before it was overturned 9-0

Also he told the President he had the power to extend the eviction moratorium indefinitely. He lost that one too.

[Wiz Imp]

21. Completely different situations

He gives his opinion on the actual constitutionality of things. Of course he's gonna hope the Supreme Court would rule correctly based on his interpretation of the constitution but he can't control when they decide to make up shit themselves (like Presidential immunity). With this statement, he doesn't even mention the Supreme Court, just that Biden's action effectively should make the amendment official. Obviously, because of that, he will think the Supreme Court should agree with him, but I suspect if you asked him if he expects that they will, he would probably expect them to do the wrong thing.

[MichMan]

22. The ruling in the Colorado case was 9-0.

9-0. Hardly a rogue court making up "shit"

Clearly his interpretation was flawed

[Wiz Imp]

29. Not quite what you're making it out to be.

The liberal justices decision was on very narrow grounds. In general they agreed with Tribe's position.

https://www.thenation.com/article/politics/supreme-court-trump-colorado-ruling-election/

Worse yet, the court’s conservative majority went even further, dramatically narrowing the utility of the amendment for holding insurrectionists to account. That led Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to warn that the ruling went so far beyond the specifics of the Colorado case that it could foreclose future efforts to impose accountability on insurrectionists. “The Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed,” Justices Sotomayor, Kagan, and Jackson wrote. ‘“These musings are as inadequately supported as they are gratuitous.”

Justice Amy Coney Barrett wrote a separate concurrence that essentially agreed with the liberals but suggested they were too urgent in expressing their concerns.

Not exactly unanimity in opinion there when even Barret mostly agrees with the liberals.

Also, you said "I remember when he said that the SC would uphold the Colorado ban; before it was overturned 9-0". He never said that. He said they should uphold it not that they would.

Tribe said "Do I think the Supreme Court will be affected by pure politics or by the threatened violence Trump keeps talking about if he is kept off the ballot? Your guess is as good as mine. But if they want to be faithful to their oath — and this case is ultimately about being faithful to the oath to support the Constitution — they will have to set those things aside."

https://news.harvard.edu/gazette/story/2023/12/no-easy-exit-ramp-for-scotus-on-trump-harvard-scholar-says/

[FBaggins]

24. Which is my very point

He isn't an impartial constitutional expert... he's an advocate who makes the best possible argument for whatever position he' advocating for.

He didn't just lose 9-0... he knew that he would lose 9-0 but made the argument anyway.

As I said - I can't remember the last time he spoke out on an issue like this and ended up being correct.

[Wiz Imp]

30. He didn't lose period. He didn't argue before the court.

He wasn't incorrect. He voiced his opinion . If you say he knew it would be 9-0, then how was he incorrect? And he can't be incorrect about his because he made no prediction about what would happen. He just gave his opinion of what Biden's action means. Apparently you think that anyone who disagrees with you is automatically wrong. Sorry, you have demonstrated no expertise about anything.

[NotHardly]

15. Trust me, Repugs will fight to remove all of women's rights... those we have left that is

[mcar]

17. Long past time, indeed

[paleotn]

18. Removing is just as hard as passing.

That won't happen, if ever, for a long, long, long, long while. Might as well say that ain't happening.

[madville]

34. At this point

A pro-ratification state or interest will have to sue to have it recorded in the Constitution, because it would currently be against the law to add the amendment due to the official deadline passed by Congress.

[valleyrogue]

40. Wrong. There was NO "official" deadline by Congress.

Read Tribe's article. It was advisory, not binding.

[madville]

44. He's certainly entitled to his opinion

I read it, he even acknowledges that it’s a debate, not fact, bottom line is this will need to be litigated in order for it to be added to the Constitution. Do you think the current court will agree with Tribe’s opinion?

Even Ruth Bader Ginsberg stated that the amendment process would have to be started over for this to become part of the Constitution.

[valleyrogue]

39. It will NEVER happen.

Trust me. NEVER. Only Prohibition was repealed, and that took a constitutional amendment to repeal it.

[muriel_volestrangler]

23. In Tribe's point of view, can a state start by opposing ratification, which would then prevent it always?

Because he argues that once a state has ratified, it can't withdraw that ratification. Which means that getting to the needed three quarters of states can happen over decades or centuries, but without ever having three quarters in favour at any one moment. Which is a pretty strange state of affairs. If he argues that a state's decision to ratify is irreversible, then he would also have to allow a state to make an irreversible decision to never ratify.

Does he? Has any state declared this?

[Quiet Em]

25. As of January 2020, 38 States, 3/4 fourths, have ratified the ERA

The ERA met all requirements at that time.

What will happen now is a lawsuit will be filed against one of the States with abortion bans and a legal fight to recognize and implement the Equal Rights Amendment will occur. We are prepared for this fight and it is long overdue.

[muriel_volestrangler]

26. That doesn't answer my question, though.

Is ratification a one-way ratchet, in Tribe's (and your?) opinion? ie can a state vote multiple times to not ratify, but then if it votes once to ratify, that's it for eternity?

[valleyrogue]

42. Yes. It can't be undone. There is NO provision in the Constitution for it.

A constitutional amendment can only be undone through another constitutional amendment passed by 3/4 of Congress and 3/4 of state legislatures.

Have people around here NEVER heard of the repeal of the 18th Amendment? It was repealed by the 21st Amendment.

Hint: This was about Prohibition.

[muriel_volestrangler]

45. No, I mean can a state's vote to NOT ratify be undone by a later vote to ratify?

Tribe claims that once a state has ratified an amendment, it can never undo that. But what if a state first votes to not ratify - shouldn't that be impossible to reverse, too? Because that is what Virginia did:

Virginia, one of the few states to originally reject the 19th Amendment giving women the right to vote, fell one vote short in 1982 of passing the ERA, which would ban discrimination on the basis of sex and guarantee equality for women under the Constitution.

https://edition.cnn.com/2020/02/01/politics/equal-rights-amendment-virginia-history-trnd/index.html

Tribe is claiming that states that first ratified the amendment are not allowed to withdraw the ratification. But he is also relying on states that rejected ratification being able to say, decades later "screw that, we agree with some states from 40 years ago (but not now), so that gets us over the 3/4 amount" (but only through judicious used of time travel).

And "there is nothing about that in the Constitution" is not a slam dunk "it can't be done" argument. Obviously.

[valleyrogue]

60. Of course they can change it there. They didn't ratify in the first place.

Once ratified, states can't take it back.

A constitutional amendment to repeal is the only way to undo a constitutional amendment.

[muriel_volestrangler]

64. So you support a mechanism to pass amendments that even a majority never support at a given time?

Scenario: Congress suggests an amendment to raise the voting age to 30.

1 quarter of states ratify it, and 3/4 say "no, that's pants".

The 1/4 thinks better, and says "on second thoughts, this is a silly amendment. Let's not go there".

But a different quarter of the states decides it's a good idea after all, and holds new votes to ratify.

Repeat that - those who had been in favour change their vote, and a different quarter decide it's a good idea after all.

By now, three quarters of states have, at some time, been in favour, though at any one moment, a quarter or less have been in favour.

But under Tribe's arrangement, that counts as three quarters ratifying it, and so an immensely unpopular amendment is passed.

What a shitshow that would be. Why claim that must be the way to amend the constitution? It's just a way of being undemocratic.

[valleyrogue]

41. It is not constitutional to "rescind" a ratification. Only 3/4 of Congress and legislatures can repeal an amendment.

Prohibition is THE case in point.

[SickOfTheOnePct]

65. Which states

rescinded their ratification prior to final ratification for Prohibition?

[snot]

28. Assuming the current S. Ct. accepted Tribe's line of reasoning

(which is not well-represented by the excerpts included above), wouldn't that put them in an extremely awkward position re- their decision in Dobbs v. Jackson Women’s Health? I worry that this consideration alone will motivate them to find a reason to trash the ERA.

[valleyrogue]

56. The USSC can't overturn a constitutional amendment.

Roe v. Wade was a USSC decision, not an amendment.

There is NO argument to be made against ERA being the law. NONE. There is NO time limit for ratification because a previous USSC decision in 1982 rendered any as not binding. THAT is why Congress didn't extend any time limit further. There are NO means for states to rescind ratification.

I wish people would quit spewing stuff that was right wing nonsense from the beginning. Schlafly and her backers lost, and they knew it.

[tritsofme]

57. You keep spreading false information about NOW v Idaho, why?

[valleyrogue]

35. Tribe knows what he is talking about.

Last edited Sat Jan 18, 2025, 10:46 AM - Edit history (2)

Self-styled experts on this board challenged my correct assertions that time limits and rescinding amendments were and are bullshit.

ERA is law. The end.

[valleyrogue]

36. Prof. Tribe is one of, if not THE, leading constitutional experts in the United States.

He was fighting on behalf of ERA long before many of you were even born.

He knows what he is talking about.

There is NO provision to "rescind" a constitutional amendment already ratified by a state legislature. NONE. It is a meaningless action.

There are NO "time limits" in the Constitution that are binding. I blame the media at the time for peddling complete misinformation about a nonbinding action by Congress.

The USSC CANNOT "repeal" or "overturn" a constitutional amendment. The USSC INTERPRETS the Constitution; it cannot repeal an amendment. That is the job of Congress and the state legislatures.

Only 3/4 of Congress and 3/4 of state legislatures can overturn a constitutional amendment. Case in point: Prohibition.

[valleyrogue]

46. The important thing to note about the "time limit."

Tribe:

So too with the ERA. Congress knew by the date of its submission to the States, March 22, 1972, precisely how to include a shelf date in the text of the amendment , but instead included a time limit only in the advisory resolution . That makes all the difference, because such a resolution is not a binding law, and is not a part of the amendment the States vote whether or not to ratify. Congress recognized as much when it extended that limit by three years in 1982 through a resolution of the two houses.

He is correct. There is no binding time limit to ratify constitutional amendments.

ERA has no "time limit" for ratification in its actual text.

Time for some ignorant reporters to tell the truth about this instead of running around with the "time limit" nonsense.

[Polybius]

47. So that settles it!

Unless we also need Keith Olbermann's opinion.

[Quiet Em]

49. It's not just Laurence Tribe.

It's also the ABA and lawyers and lawmakers in all 50 States.

I'm looking forward to all the legal challenges that will be forthcoming.

[Polybius]

50. I think it will be 9-0

Regarding whether a state has the authority to rescind, I am not aware of any Supreme Court decision that has addressed this issue. However, there is precedent established in "Dillon v. Gloss" and "Coleman v. Miller," both of which affirm that deadlines are constitutional.

[Quiet Em]

51. There is no way anyone would be open to allowing States to rescind an amendment.

It would create a horrendous legal mess with ramifications that would be neverending.

[SickOfTheOnePct]

52. It actually wouldn't cause any issues

with existing amendments. No one questions whether a state can rescind ratification after final ratification is complete and the amendment is part of the Constitution. The question would be whether states can rescind prior to final ratification.

[Polybius]

55. As long as it's before the Amendment is ratified, what's the big deal?

If they can try again if they fail, then why can't they rescind if they pass?

[SickOfTheOnePct]

53. Yep

And in 1982, SCOTUS implicitly confirmed the validity of the deadline for the ERA when they ended a case about rescinding ratification because the deadline had passed so the issue was moot.

[valleyrogue]

48. I think Laurence Tribe answered the question about the time limit and why Congress didn't do anything.

National Organization For Women v. Idaho was decided in 1982, the year the second ERA "time limit" expired. That is why Congress didn't "extend" it further. The USSC settled the matter. The media and political right are engaging in brazen dishonesty about the ERA.

There is the answer, folks. There is NO "time limit" to ratify per the USSC decision. Laurence Tribe and the American Bar Association KNOW what they are talking about.

[SickOfTheOnePct]

54. You should probably read that case

I don’t think it says what you think it does .

[LetMyPeopleVote]

58. Statement of President Joe Biden on the Equal Rights Amendment

Link to tweet

[valleyrogue]

61. The "readers added context" part is a complete and total LIE.

Archivist refused to certify ERA b/c of an expired deadline in 1982.
Courts and the Justice Department’s Office of Legal Counsel affirmed the deadline was valid and in 1982, thus expired.
5 states have rescinded their ratification.
Presidents have no role in amendments.

The USSC invalidated the time limit, hence NO action by Congress to extend the deadline in 1982, so the claim that "courts" and the "Justice Department" said otherwise is a LIE.
States cannot "rescind" ratifications.
The "archivist" is a moron.

[tritsofme]

63. I'm afraid it is you who is spreading misinformation right now.

SCOTUS did not invalidate the time limit, that is completely false.

Repeating lies over and over again does not make them true.

[snot]

62. Thinking this through further...

In Dobbs v. Jackson Women’s Health, the S. Ct. applied an extremely strict, originalist interpretation to the Constitution, as amended, to overturn Roe and conclude that (without the ERA), women have even fewer Constitutional rights than we thought they had.

If the S. Ct. were going to apply their strict constructionist approach consistently, they should now agree with Tribe that since the Constitution contains no time limit on ratification, Congress could not unilaterally effectively add one.

But if that's correct, it would mean that the ERA HAS been effective since the date of the last required ratification, which would in turn mean that the Constitution, as amended, did protect the rights that the S. Ct. held in Dobbs it didn't.

It seems to me that this ouroboros should be addressed in any honest reasoning about the legalities, or at least in any practical discussion of what the S Ct. might be inclined to do about them.

I think I'm going to put this in an OP, because I'd really like to hear others' thoughts on this.