The Equal Rights Amendment at Long Last

Thanks to President Biden, the Constitution will finally guarantee equality for all

By Laurence Tribe and Kathleen M. Sullivan

With three days left in his presidency, Joseph R. Biden ensured that the United States Constitution, the oldest on earth, would finally include an explicit guarantee of sex equality. In truth, the Equal Rights Amendment should have been recognized as part of our Constitution nearly half a dozen years ago, when Virginia became the 38^th state to ratify it on January 27, 2020.

By proclaiming, in effect, “Yes, Virginia, you have made history by repairing a glaring omission in our most fundamental law,” President Biden made official a reality that many Americans failed to recognize at the time: that Article V of the Constitution expressly makes any proposed Amendment to that document “Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” Nothing in Article V makes the Constitution’s binding contents depend on any further official action by any branch of the federal government, whether Congress or the Judiciary or indeed the Executive.

What makes this action controversial is, of course, the decades that have elapsed since Congress saw fit to propose the ERA to the states for ratification in 1972. But there is no legal basis for treating the ERA as having expired when the arbitrary time limits of 7 and then 10 years set by the House and Senate for the ratification process had run out. The Constitution’s arduous process for amending the document makes it the hardest in the world to revise, with the result that an 18^th and 19^th century sensibility casts too long a shadow There is no justification for making a uniquely difficult amendment process more difficult by grafting onto it a requirement that amendments must be ratified speedily, a requirement nowhere to be found in the Constitution’s text .

Nor can any such requirement be extrapolated from the history of the amendment process as we have employed it over the years. The most recently ratified amendment, the 27^th, was finally approved by the Legislature of Michigan in May 1992, more than two centuries after it was proposed by the First Congress in September 1789. But because its text – unlike that of the 18^th, 20^th, 21^st, and 22^nd Amendments – contained no language making it “inoperative unless ratified” by enough states “within seven years of its submission” or indeed within any specified time, that long percolation period made no difference.

So too with the ERA. Congress knew by the date of its submission to the States, March 22, 1972, precisely how to include a shelf date in the text of the amendment , but instead included a time limit only in the advisory resolution . That makes all the difference, because such a resolution is not a binding law, and is not a part of the amendment the States vote whether or not to ratify. Congress recognized as much when it extended that limit by three years in 1982 through a resolution of the two houses.

The Supreme Court, in a case that one of us (Tribe) presented to that court over four decades ago, National Organization For Women v. Idaho, similarly treated the time limit in the resolution as non-binding. And, although five states – Idaho, Kentucky, Nebraska, South Dakota, and Tennessee – attempted to rescind their state legislatures’ earlier ratifications of the ERA between 1972 and 1982, nothing in the Constitution provides for any such turnabout nor tolerates the chaotic and unpredictable legal situation that would be created by permitting states to reverse course as the process proceeds. Ratification is rightly understood as a one-way ratchet.

After careful consideration and consultation with constitutional experts, President Biden – like the American Bar Association last year – concluded that the ERA had met all the requirements for inclusion in the Constitution. He decided that the Oath of Office he took upon assuming the presidency – the Oath to “preserve, protect and defend the Constitution of the United States” – meant that he should formally announce that conclusion to the world.

We welcome debate on the political and moral pros and cons of keeping the ERA alive rather than letting it fade from memory until Congress is again willing to propose similar language for the states to consider – a wait that could be many decades long. And others can debate the implications for the Biden legacy and even the eventual outcome of the multifaceted litigation likely to ensue. Faithful to his Oath and to his duty to execute the laws, this president did not flinch from acting in accord with simple, straightforward, legally impeccable principle. For that, he deserves our undying gratitude.

It is not necessary for the National Archivist to publish the ERA in order for it to be adopted according to the provisions of the Constitution. The President avoided triggering a clash with the Archivist, who recently announced her intention to defy her statutory, and purely ministerial, duty to publish the ERA. The only reason Congress gave the Archivist such a duty nearly a century ago was to ensure that the Nation got word that an amendment was in force, enabling officials at all levels of government to conform their actions to it. In our modern age of broadcast, cable and internet communication, the President’s announcement itself performed that function.

Accordingly, our Constitution now demands that “equality of rights under the law cannot be denied or abridged by the United States or any state on account of sex.”

It’s long past time!

Laurence H. Tribe is Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University.

Kathleen M. Sullivan is former Dean of Stanford Law School and professor of law at Harvard and Stanford.