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President Joe Biden wants people to know he sees dead amendments. Just before leaving office, Biden declared that we have a 28th Amendment, despite the fact that the measure died in the ratification process years ago.
Not since then the film ‘Sixth SenseHas there been a scarier moment? To paraphrase Cole Sear in the film, Biden does not see failed amendments in constitutional coffins, but “walking around as regular (amendments). They don’t know they’re dead.” Neither does Biden.
President Joe Biden is pictured in front of the U.S. Capitol. (Getty Images)
Biden waited until shortly before leaving office to pander to the Democratic Party’s most delusions by unilaterally announcing that the Equal Rights Amendment is now part of the Constitution. The farcical moment was then amplified by figures such as Senator Kirsten Gillibrand (D-N.Y.), joy and falsely telling women that they can now go to court and enforce the amendment to restore things like abortion rights.
This bizarre group fantasy was caused by the following statement:
“Consistent with my oath and duty to the Constitution and to the Country, I affirm what I believe and what three-quarters of the states have ratified: the 28th Amendment is the law of the land and guarantees all Americans equal rights and protection under the law, regardless of their gender.”
Without naming them, Biden cites dozens of “constitutional experts” to support this absurd claim.
Journalists work outside the US Supreme Court building in Washington, DC. (Photo by Anna Moneymaker/Getty Images) (Anna Geldmaker)
Biden’s last-minute statement is creepier than the movie because it requires a departure not only from the constitutional process, but also from reality. Despite running as a Democratic candidate, Biden is simply brushing aside the fact that the ERA has not been ratified, as made clear several weeks ago by the Justice Department, several judges and his own archivist.
Even the late Supreme Court Justice Ruth Bader Ginsberg declared the amendment dead.
Archivist Colleen Shogan recently explained that neither her office nor the White House have the authority to unilaterally publish the amendment or waive the deadline for ratification:
“In 2020 and again in 2022, the U.S. Department of Justice’s Office of Legal Counsel confirmed that Congress’s ratification deadline for the ERA is valid and enforceable,” she wrote. “The OLC concluded that extending or eliminating the deadline would require new action by Congress or the courts.”
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As leaders of the National Archives, we will adhere to these legal precedents and support the constitutional framework in which we operate.”
The reason is simple. The underlying argument is downright ridiculous.
As I have written beforethe ERA is as dead as Dillinger.
The deadline for ratification of the ERA was set for March 22, 1979, allowing seven years to obtain the required approval from three-quarters of the states, or 38 states. That didn’t work. Worse, four states – Nebraska, Tennessee, Idaho, Kentucky – have withdrawn their previous ratifications. A fifth, South Dakota, stated that its ratification would expire if the ERA was not adopted by the 1979 deadline.
Kentucky also had an additional problem because it The Democratic lieutenant governor vetoed the resolution rescinding ratification when the governor was out of town. However, Article V talks about ratifications by state legislatures.
It is striking that not a single state has been added over the extended period. Even assuming the five states could be counted despite voting to withdraw their ratifications, the ERA still fell three states short when the second deadline was missed.
President Jimmy Carter addresses a town meeting. The American flag hangs in the background.
Democrats then insisted that states could not revoke their votes even before ratification was completed. So Democrats and then-President Carter simply extended the deadline until June 30, 1982. In 1981, however, a federal district court ruled in Idaho vs. Freeman that Congress could not extend the ERA’s ratification deadline. (The Supreme Court later stayed that order, but then declared the case moot.)
In 2021, U.S. District Judge Rudolph Contreras ruled that it would have been “absurd” for the archivist to have ignored the deadline and unilaterally added the unratified amendment to the Constitution. On appeal, a unanimous D.C. Circuit panel rejected Illinois and Nevada’s claims that the Archivist should be directed to publish the ERA, arguing, “The States’ argument that the proposed clause is akin to the non- working introductory clause in a bill is not convincing. … because if that were the case, then the specification of the method of ratification in every amendment in the history of our nation would also be ineffective.”
None of this matters to the defenders of democracy, who ignored the votes in these states and rejected constitutional deadlines and procedures. Harvard law professors Laurence Tribe and Kathleen Sullivan ran a column stating:The ERA is now law!‘ as if amplification and exclamation points would somehow make it true. (This is the same Laurence tribe that called for Trump to be charged with attempted murder from former Vice President Mike Pence, insisting that the law was clear “beyond a reasonable doubt, beyond a reasonable doubt, beyond any doubt”).
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Notably, Biden did not issue an executive order to the archivist, as many activists wanted. The reason is simple: the White House knew it could be challenged in court and would quickly collapse under judicial review. They would prefer Biden declare Caesar-like that we have a new amendment and treat it as fact.
With the statement, Biden gave “the last full measure of commitment” to his party’s radical left. It was an indulgent and, frankly, pathetic moment for a president who is currently one of them the least popular presidents leaving office.
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His action at the ERA is a perfect example of why he is seen as a ‘failedPresident. Biden has always sacrificed principles for the politics of the moment. This was a participation trophy given to activists that lacked any substance or basis. That is also why voters saw Biden as a greater threat to democracy than Trump.
It’s chilling to think that Biden actually believes this nonsense and sees dead amendments walking through the White House. Yet the truth may be even scarier: He simply doesn’t care. He sees dead amendments in hopes of resurrecting his legacy. However, both now belong to the ranks of the corpus mortuus.
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