ERA Fight Demonstrates the Folly and Futility of Constitutionalism

Opinion by Thomas L. Knapp

“Democrats in Congress, the New York Times reports, “are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive” it.

Interesting, but what’s so “creative” about “a joint resolution … stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution?”

On January 15, 2020, Virginia became the 38th state to ratify the ERA, crossing the threshold — “when ratified by the Legislatures of three fourths of the several States” — for adding an amendment to the Constitution.

It’s over. It’s done. There’s a 28th Amendment, no joint resolution required.

That’s what the Constitution itself says, anyway.

But Congress — the same institution US Representatives Kirsten Gillibrand (D-NY) and Cori Bush (D-MO) want to pass the joint resolution — has already proven that it doesn’t care what the Constitution says.

When Congress sent the ERA to the states in 1971, it also tried to arrogate to itself the power to set a 1979 deadline for ratification; if the deadline wasn’t met, its proponents would have to start from scratch.

The Constitution delegates no such power to Congress. Which, per the Tenth Amendment, means no such power exists.

QED, no deadline. The amendment HAS been ratified and IS in effect. It’s long past time for Colleen Shogan, the Archivist of the United States, to do her job (her predecessor, David Ferriero, refused to do his) and incorporate the 28th Amendment into Constitution’s official text.

But if she did, would it matter?

Time to trot out the Lysander Spooner quote you’ve seen many times if you read my column regularly: “[W]hether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Constitutionalism might or might not “work” if actually practiced. I think otherwise, but opinions vary.

The question isn’t that important, though, because constitutionalism ISN’T practiced. Congress, the executive branch, and the Supreme Court ignore the Constitution whenever they find it inconvenient, making it “powerless to prevent” anything.

So why even bother with the ERA? It’s just more verbiage for them to ignore as they please, right?

And if they’re going to ignore its restrictions on their power, why shouldn’t we ignore the orders they shout at us?