What Was Biden Thinking?

Former President Joe Biden claimed just before leaving office that the Equal Rights Amendment was ratified and is part of the U.S. Constitution. He has been wrong on a lot of matters, but this statement shows that he really is senile. Thomas Jipping at the Heritage Center shared his thoughts on the former President’s statement. 

Here, for the umpteenth time, are the facts. The Constitution provides that Congress, by a two-thirds vote, may propose an amendment to the Constitution and that it becomes part of the Constitution when ratified by three-fourths of the states (38) in the manner Congress requires.

Rep. Martha Griffiths, D-Mich., introduced House Joint Resolution 208 in 1971 to propose this language: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

As Congress had done 10 previous times, it included a seven-year deadline for state ratification in her resolution. The women’s groups baking the ERA supported doing so, and everyone knew that the deadline was binding.

Congress passed Griffiths’ resolution and sent it to the states on March 22, 1972. As the March 1979 deadline approached, 35 states had ratified the ERA, but five of those had pulled their support. Even after Congress (in a move later found unconstitutional) added 39 months to the process, that’s where the tally stood. The amendment failed to get the support of 38 states. The ERA was dead….

The Congressional Research Service says that the 1972 ERA “formally died on June 30, 1982.”

The U.S. Civil Rights Commission, in a report authored by none other than future Supreme Court Justice Ruth Bader Ginsburg, said that the 1972 ERA had to be ratified by its deadline to become part of the Constitution. It’s not part of the Constitution because it wasn’t ratified by the deadline.

So, what on earth is Biden talking about? Well, three states – Nevada in 2017, Illinois in 2019, and Virginia in 2020 – passed resolutions “ratifying” the 1972 ERA decades after it expired.

Here’s some fantasy math for you: Start with the 35 states that passed ratifying resolutions, ignore the five states that withdrew their support before the deadline, and add the three states that pretended to ratify after the deadline and … wait for it … there are your 38 states! There might [be] a universe where that makes sense, but it’s not this one.

Only two issues are relevant here. First, did Congress have authority to set a ratification deadline when it proposed the 1972 ERA? Yes. The Supreme Court unanimously upheld this authority in 1921. The Justice Department, during both Republican and Democratic administrations, has repeatedly greed. I examined the arguments in detail … and came to the same conclusion. I explained that conclusion to a House Judiciary Subcommittee in September 2023.

Second, had at least 38 states ratified the 1972 ERA by the deadline? The answer is no, whether you include or exclude the rescinding states. I don’t mean to sound condescending, but 35 and 30 are both less than 38. But don’t listen to me, take it from Ginsburg. In 2020, she said that the ERA should “start over” because “there’s too much controversy about latecomers.”

A stronger proponent of the ERA should be difficult to find, yet she asked the crucial question: “If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?” Indeed.

So, we can assume that Biden was in La-La-Land once again and did not know what he was saying. All Americans should be grateful that Biden is no longer POTUS!