Certify the ERA (Long Version)
by Bill Lasarow
[see the shortened version on Substack]
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
— The Equal Rights Amendment (full text)
Sam Kirk and Sandra Antongiorgi in collaboration with the Chicago Public Art Group,
“Weaving Cultures,” 2016, mural displayed in the Pilsen neighborhood in Chicago.
Courtesy of the artists and Getty Images. Photo: Raymond Boyd.
The Equal Rights Amendment qualified to become the 28th Amendment to the Constitution in 2020 when Virginia became the 38th state to ratify it. However, the National Archivist, Dr. Colleen Shogan, has declined to certify the amendment for the stated reason that “the ratification deadline [1982] established by Congress for the ERA is valid and enforceable.” This position raises significant constitutional questions. Article 5 of the Constitution stipulates only two requirements for adoption of a constitutional amendment: a 2/3rds Congressional majority and ratification by 3/4ths of the states. The Office of Legal Counsel’s opinion cited by Dr. Shogan was submitted by then-Assistant Attorney General Steve Engel under then-President Trump. Contrary to this, when the original deadline of 1977 was extended to 1982, the Office of Legal Counsel at that time accepted it. Since state ratification was not achieved by 1982 the National Archivist played no role at that time.
Dr. Shogan further opined that “extending or removing the deadline requires new action by Congress or the courts.” That is an obvious assumption, but can only take place by certifying the ERA as the 28th Amendment. Rather than certifying the ERA, with the virtual certainty that the matter would be taken up by Congress and the courts, Shogan exceeds her ministerial (and constitutional) role — that is, as delegated by the executive authority of the President — and instead assumes that of a federal judge or constitutional lawyer, neither of which she is. But the plain language, to take a page from Antonin Scalia’s theory of originalism, of Article 5 leaves no room for procedural requirements.
Nicole LaRue, “Welcome to the Revolution,” 2021. Courtesy of the artist.
The real problem, in fact, lies with President Biden because he has not instructed Dr. Shogan to post the certification, in effect leaving it to her unilateral judgment. Once Virginia ratified the ERA, nothing, unsurprisingly, was done during the remaining year of Trump’s term. Any Republican president, not just Trump, would have repudiated the opinion of a Democratic Office of Legal Counsel and quickly ordered the National Archivist to certify. Subsequent legal battles would be taken as a given, with the intent of winning in court — and in the court of public opinion.
So why has the order to certify languished through Biden’s entire administration? Only the President can answer that question, but he entered the presidency with the stated intent of de-politicizing the office. He has had some important bi-partisan successes, most notably with the passage of the Inflation Reduction Act and the CHIPS Act. But he (like Obama) has taken the practice of bi-partisanship too far for far too long. It is our task, at this late date, to demand that he order the National Archivist to do her ministerial duty and post the certification. Short of his taking such action, the matter is settled and the ERA will not become law.
The stakes of this inaction are particularly acute now that we find ourselves in the final weeks of the last presidency of the 248-year-old American Democratic Republic. The importance of certifying the ERA as our 28th Amendment is more urgent today than when it first passed Congress in 1972. It is a foregone conclusion the soon-to-be-installed plutocratic fascist regime will waste no time in declaring the 28th Amendment, should it be certified, null and void on the basis of procedural ambiguities that do not appear in the Constitution. This is exactly the kind of legal and political fight well worth having if we are to resume the American experiment four years hence.
Sanja Iveković, “In the Apartment, September 12975 / “Elle,” March 1975,” 1975, gelatin silver print,
magazine page and typewritten text by the artist, 23 3/4 x 39 1/2”. © 2024 Sanja Iveković.
Caution and inaction have too often marked the Biden presidency. Nowhere was this clearer than in the two years it took Merrick Garland to launch the January 6th insurrection prosecution of Trump and his fellow instigators or the baffling retention of Louis DeJoy as Postmaster General. In these and other cases Biden declined to act decisively. Principled this may be, but his refusal to shift gear has weakened his own party and the country as a whole. And rather than strengthening national unity, the result has been to further intensify political polarization and partisanship.
This political malpractice was personified by Trump’s visit to the White House following the election. Biden received him with a show of warmth and dignity and the promise of a smooth transition that Trump will never reciprocate.
The retention of DeJoy as Postmaster General even after four Biden appointments to the Postal Service’s six-member Board of Governors were confirmed by the Senate. This gave that Board a liberal majority that is empowered to hire and fire the Postmaster General. But Biden declined to make the public or internal case for DeJoy to be fired. DeJoy, appointed at Trump’s direction in 2020, is a highly partisan conservative who has served as a key fundraiser for Republicans, including Trump. He had no prior affiliation or experience with the Postal Service. DeJoy’s appointment was typical of Trump’s revival of the political spoils system that most of us thought had ended in the late 19th century. In this new term it is already clear that the DeJoy appointment is a now normal return to political spoils.
Biden’s political restraint that has resulted in DeJoy, and others, remaining in positions they never should have been appointed to has a direct reflection in the passivity required to allow the National Archivist to decline to certify the ERA. Biden could have stepped in to exert presidential authority in these two (and other) cases that not only would have been completely within his purview, but which would have far better served the political agenda of a President with a “D” in front of the title, not to mention the interests of most Americans.
Sylvia Sleigh, “The Turkish Bath,” 1973, oil on canvas.
Courtesy of the Smart Museum of Art, University of Chicago.
Not only does the MAGA opposition display no such standard of partisan restraint or honorable conduct, they continually exploit it as weakness. And they are correct. Certification of the ERA is the most consequential and immediate example of why, rather than it being universally respected, Biden’s refusal to act decisively has placed many hard-won gains in jeopardy. At the top of that list: the ERA.
It is false comfort to interpret strong polling support for the ERA to be certified as the 28th Amendment as making it non-partisan. The political divide that the anti-ERA wave of the late-1970s exposed has only widened since then, and it is informed by real world values and policies. It has had a direct impact of election outcomes, at times favoring one party and then the other. It’s lack has been, in a word, destabilizing.
The ERA’s contentious history underscores that partian political weight. On the brink of ratification by 1977, conservative anti-abortionists opposed to the Roe v. Wade decision (1973) organized a last ditch backlash. Lead by attorney Phyllis Schlafly, it stalled ratification because Schlafly warned it would end “special” protections for women. Women would share financial liability for the support of their families. Protective divorce laws and the obligation of men to support their families would become non-binding. Workplace accommodations would end.
Rights that have since been affirmed and in practice without the aid of the 28th Amendment — same sex marriage, gender neutral bathrooms, combat roles in the military — would no longer risk the exposure of being repealed by the extremist Supreme Court. Schlafly succeeded in animating the public’s fear of change even as embracing such changes was steadily building public support. As a political matter, under the 28th Amendment these issues, which have served as campaign wedge issues as recently as 2024, would mostly go away. Don’t kid yourselves, they will not go away without a fight; but it is a fight that must be accepted and made a public as possible starting with the 2026 mid-terms.
Matt Gonzalez, “info moon-swallows, into star-swifts,” 2024, found paper collage, 22 x 28”.
Courtesy of Dolby Chadwick Gallery, San Francisco.
The elephant in the room, to be sure, is the Dobbs decision. Without the constitutional guarantees that will come with ERA certification, women’s reproductive autonomy remains vulnerable to state legislatures and courts. The 28th Amendment would hardly erase these political divisions, certainly not overnight, but would provide a constitution standard (“Equal rights under the law”) that even the current Supreme Court could not overrule.
Despite majorities of more than 60% that have cemented abortion rights into state constitutions in both blue and red states, the ERA is not non-partisan. The MAGA Party about to come to power remains dedicated to the goal of a national abortion ban that would be permanently unachievable under the 28th Amendment. And do not ignore that America’s liberal movement is equally, perhaps more energized to restore abortion rights. It is a political battle that can and will be won starting with the 2026 midterms. We cannot look away; it must continue to be the dominant issue. But first, the National Archivist must certify it.
Should President Biden fail to act it would amount to an act of unacceptable political cowardice. We must demand that he rise to the occasion for the sake of the nation’s future. Certification of the ERA as the 28th Amendment to the Constitution will be a bold and necessary step towards securing true equal protection under law, and it would counter the continuing erosion of democratic norms. Anything less is an abdication of leadership at one of the most pivotal moments in our history.
