ERA Publication in Constitution - Model Letter for Senators to send to Archivist

Dear Senator,

Below is a model letter for the Senators to use to write to the Archivist of the United States demanding that he publish an updated Constitution with the 28th Amendment.  Mr Ferriero is retiring in the middle of April and it is imperative that the ERA be published.  It is important to be aware of the fact that with ERA publication the lawyers in the Dobbs case can ask the Supreme Court to re-brief based on our Constitution that no longer allows the Government to discriminate against Women.

In addition ERA publication announces to the world that Judge Jackson is truly a citizen of equal stature.

Please note that publication is a separate issue from SJRes1 to drop the ratification deadline and should not be conflated. 

(Cites removed because Senate website does not accept them.) 


April __, 2022 
The Honorable David S. Ferriero 
Archivist of the United States 
National Archives and Records Administration 
700 Pennsylvania Avenue, N.W. 
Washington, D.C. 20408 
               Re.: Publication of 28th Amendment

Dear Mr. Ferriero: 
March 22, 2022 marked the 50th anniversary of congressional passage of the Equal Rights Amendment (“ERA”). We are writing to request that you immediately publish the ERA as required by law.   
On the anniversary of the historic step towards equality in our country, Representative Carolyn B. Maloney wrote[1] to reiterate that all legal requirements for publication of the ERA have been met and to share new legal analyses from leading constitutional experts Laurence Tribe and Senator Russ Feingold, which confirm the ERA is “currently a valid part of the United States Constitution,” and states that you, as Archivist of the United States, “can and should certify and publish the ERA as the 28th Amendment to the Constitution without delay.”[2] 
On March 22, 1972, following an overwhelming vote for passage in the House, the Senate nearly unanimously voted to send the ERA to states for ratification.[3] Over the intervening years, 38 states voted to ratify the ERA and enshrine sex equality in our Constitution. On January 27, 2022, exactly two years after the final State voted for ratification, all legal thresholds for a constitutional amendment were met, and you were required by statute to certify and publish the ERA as the 28th Amendment to the U.S. Constitution.[4] 
Relying on a highly politically motivated opinion issued by the Trump Administration’s Office of Legal Counsel (“OLC”) on January 6, 2020, the National Archives has previously taken the position that you are prevented from carrying out your statutory duty to certify and publish the ERA.[5] Puzzling at best, given that, the National Archives acknowledges its duty is purely ministerial and states “the Archivist does not make any substantive determinations as to the validity of State ratification actions.”[6]   
The Archivist reaffirmed this in connection with the 27th Amendment, which was published over certain Congressional objections, nearly 203 years after it was sent to the States for ratification.  At that time, the Archivist stated Congressional approval/validation of ratification “was unnecessary because the votes by three-fourths of the States—not his signature—added the amendment to the Constitution. Congress subsequently, and unnecessarily, passed resolutions validating the amendment.”[7] 
It is important to note a Biden Administration OLC opinion, issued January 26, 2022 in response to a request related to a deadline contained in the preamble to the ERA (“Biden OLC Opinion”), recognized that the Executive Branch has a ministerial role, admitted that the Trump OLC Opinion is flawed, and stated that the validity of the ERA will not be determined by any OLC opinion.[8] 
Accordingly, there is nothing standing in your way of publishing the ERA immediately as required by 1 U.S.C. §106b. This is entirely consistent with the opinion of Professor Tribe, which states: 
Based on the OLC’s own updated opinion and the substantive misunderstandings central to the 2020 Opinion, the Archivist should not see the 2020 Opinion as a barrier to publishing the ERA as the Twenty-Eighth Amendment. If he is to decline to do so, he must provide a different justification altogether. In my view, none is available.[9] 

Moreover, the Honorable Feingold, who previously served as Chairman of the Senate Judiciary Committee’s Subcommittee on the Constitution, and who is the current President of the American Constitution Society, states: 

The Archivist’s very limited role in the amendment process, defined by federal statute, is widely understood to be “ministerial” in nature and the text of Article V ascribes no role to the executive branch at all. Congress, having passed the ERA by a two-thirds vote in both chambers and sent the proposed amendment to the states for ratification, has fulfilled its constitutional role. The Archivist can publish without further action from the executive branch or Congress.[10] 

 You have heard from other Senators pleading with you not to perform your statutory duty, all relying on the legally-flawed Trump Administration OLC opinion.[11] For the reasons stated above, that is nothing more than politics.  
As Senators, we are intimately familiar with the discrimination on the basis of sex women across the nation face daily. The only way to ensure true and equal protection under the law is to enshrine the ERA into the U.S. Constitution.  
Women’s rights are still not fully reflected in our nation’s founding document, and the U.S. is the only developed nation in the world without such protections. We urge you to carry out your ministerial duty under the law and immediately publish the ERA as the 28th Amendment. By publishing the ERA, you will be bringing constitutional equality to 167 million women and girls and give the United States a Constitution consistent with its position as the leader of the free world.  
Cc: President Joseph R. Biden 




[1] Letter from Representative Carolyn B. Maloney to the Honorable David S, Ferriero, Archivist of the United States (March 22,2022) (online at

[2] Letter from Professor Laurence Tribe to Chairwoman Carolyn B. Maloney, Committee on Oversight and 

Reform (Mar. 22, 2022) (online at;  Letter from the Honorable Russ Feingold to Chairwoman Carolyn B. Maloney, 

Committee on Oversight and Reform (Mar. 21, 2022) (online at  

[3] United States Senate, The Senate Passes the Equal Rights Amendment (Mar. 22, 1972) (online at 

[4] 1 U.S.C. §106b.  

[5] National Archives and Records Administration, Press Release: NARA Press Statement on the Equal 

Rights Amendment (Jan. 8, 2020) (online at (“NARA defers to the 

Department of Justice [DOJ] on this issue and will abide by the OLC opinion, unless otherwise directed by a final 

court order.”) 

[6] See online at

[7] See online at  

[8] See online at  

[9] Letter from Professor Laurence Tribe to Chairwoman Carolyn B. Maloney, Committee on Oversight and 

Reform (Mar. 22, 2022) (online at  

[10] Letter from the Honorable Russ Feingold to Chairwoman Carolyn B. Maloney, 

Committee on Oversight and Reform (Mar. 21, 2022) (online at  


[11] See Letter from Senators Rob Portman, Ron Johnson, and Mitt Romney to the Honorable David S. Ferriero, Archivist of the United States (Feb. 8, 2022) (online at See Letter from Senators James Lankford, Cindy Hyde-Smith, Steve Daines, Lindsey Graham, Jerry Moran, Mike Lee, and John Boozman to the Honorable David S. Ferriero, Archivist of the United States (Feb. 8, 2022) (online at  



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