Re: The Equal Rights Amendment - A Constitutional Crisis
THE PEOPLE HAVE SPOKEN.
On January 27th, 2020, Virginia became the last necessary state to ratify the Equal Rights Amendment (“ERA”). Under Article V of the U.S. Constitution, amendments become "valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States…”, which means women are now fully equal citizens for the first time in history. Yet the ERA has not yet been added to the Constitution because the United States Archivist is refusing to publish it in the Federal Register.
This has caused a CONSTITUTIONAL CRISIS.
Here are two immediate action items the PEOPLE request you take:
1. Impress on President Biden that under Article II Section 3 he must take steps to ensure that the Archivist publish the Constitution with the 28th Amendment. He can do this orally or through writing.
2. As a U.S. Senator write to the archivist demanding he publish the ERA as the 28th Amendment to the Constitution in the same manner Archivist Don Wilson published the 27th Amendment in 1992. (below is draft language for your use.)
Under 1 U.S.C. §106b, the Archivist is mandated to publish new amendments “forthwith” after the last necessary state notifies him that an amendment has been ratified, but the Archivist is refusing to publish the ERA in the Constitution as our Twenty-Eighth Amendment because the Office of Legal Counsel (“OLC”) at the Department of Justice under the Trump Administration issued a memorandum opinion advising the Archivist that he could not lawfully publish the ERA. The OLC opined that the ERA cannot be published because its purported ratification deadline expired before the last necessary state ratified it.
Reasonable scholars believe the ERA’s purported deadline is invalid. Regardless of the deadline, the Archivist has no discretion not to publish as his duties are ministerial and non discretionary.
Article II Section 3 of the Constitution requires the President to “take care that the laws be faithfully executed,” but President Biden has taken no steps to ensure that the Archivist carries out his mandatory duty of publication. Nor has the President spoken out against the OLC memorandum opposing publication of the ERA. The President’s failure to act has caused intolerable confusion, leaving our nation steeped in controversy about the ERA’s validity.
That the Archivist is refusing to publish the ERA is curious given that it published the Twenty-Seventh Amendment in 1992 despite serious concerns about that Amendment’s validity. The Twenty-Seventh Amendment was ratified some 203 years after it was proposed by Congress, yet the Archivist published it forthwith, in accordance with his duties under §106b. The Congress asked the Archivist to delay publication until after it had a chance to vote on whether the amendment was valid despite the passage of time, but the Archivist rightly did not cede to Congress’ request. The Archivist also declined to delay publication until after the OLC released its opinion on the issue. Simply put, the Archivist performed his task and published an amendment pertaining to congressional pay raises regardless of the fact that other government officials believed the Amendment was not constitutionally valid. Women’s equality is entitled to the same respect.
As a U.S. Senator it is your role to demand that this Constitutional Crisis be ended immediately and the Constitution be published with the 28th Amendment under Article V. The will of the people, for a Democracy where we are all citizens of equal stature, must be respected.
Model Letter from the Senator to the Federal Archivist -
The Honorable David S. Ferriero
Archivist of the United States
National Archives and Records Administration
700 Pennsylvania Avenue, N.W.
Washington, D.C. 20408
Dear Mr. Ferriero:
On behalf of my constituents, I write regarding the status of the Equal Rights Amendment. With Virginia's ratification on January 27, 2020, the Equal Rights Amendment (86 STAT. 1523) has met the requirements of Article V to become the Twenty-Eighth Amendment to the U.S. Constitution.
Under 1 U.S.C. § 106b when the last states ratifies an amendment, you are mandated to publish it "forthwith." You have no discretion not to publish. While reasonable people disagree about the effect of the Equal Rights Amendment's ratification deadline, your duty to publish is untethered from this concern as it is a ministerial task.
In 2012 you made a promise to the American public that you would publish the Equal Rights Amendment if thirty-eight states ratified it. People responded to your promise by working very hard to win thirty-eight ratifications, but then you reneged on your promise, causing catastrophic harm to 167 million women.
I am aware that the Office of Legal Counsel at the Department of Justice issued an opinion memorandum in 2020 directing you not to publish the Equal Rights Amendment, but you have no authority or discretion to abide by that memorandum. Your duty to the American public is set forth in the plain language of § 106b. When you were appointed, you took an oath to obey the law, and in 2012 you promised to follow § 106b if Article V's conditions were met. I urge you to honor your oath and publish the Equal Rights Amendment so that women can achieve their rightful place as fully equal citizens of the United States for the first time in history.