Against Article V’s Magical ‘Equality’ Clause

Activists calling for Virginia’s adoption of the Equal Rights Amendment convene in Richmond, Va., January 8, 2020. (Jonathan Drake/Reuters)

In the Post, Glenn Kessler has a good rundown of why the claim that Equal Rights Amendment to the Constitution has been ratified is absolutely false. The whole thing is worth reading, but this quote from Representative Carolyn Maloney about the archivist’s “refusal” to certify the provision stuck out to me:

“He says he believes in the ERA. Well, if you believe in it, just certify it. He’s the one holding it back,” Maloney said at a news conference sponsored by the ERA Coalition. “And it’s a technicality. Equality is not a technicality. Equality is a right. We have met every single requirement that was put forward. There were only two in the Constitution. One was that you had to have two-thirds of Congress; we had more than two-thirds of Congress when we passed it. And that 38 states needed to ratify it. We’ve done that!”

This is such a great example of how progressives think about the law. Leave aside that, as Glenn Kessler notes, the archivist said nothing of the sort, what is “he believes in the ERA” supposed to mean in practice? The “he” in this sentence is the chief administrator of the National Archives and Records Administration.” What he “believes” in or doesn’t “believe” in is irrelevant. That the ERA was never ratified is so obvious that even Ruth Bader Ginsburg was happy to say so. “Belief” doesn’t come into it.

And what does this yas kween-esque “it’s a technicality. Equality is not a technicality. Equality is a right” mean, exactly? The question here is whether the amendment was adopted, which it quite obviously was not. Does Maloney think that by repeating a nice word, “Equality,” she can change that? The attempt doesn’t even make sense on her own terms. If the U.S. Constitution protects the right to “Equality” to such a magical degree that we can assume that the Article V process may be bypassed, then the Equal Rights Amendment can’t be necessary, can it? And if the Constitution doesn’t provide for that, then the fact that the ERA wasn’t ratified by the 1982 deadline isn’t a mere “technicality,” it’s the ultimate law of the land.

The absolute nonsense these people talk.