This discussion dives into the Equal Rights Amendment, exploring its ratification timeline and the recent push to certify it as part of the Constitution. Advocates argue against the legitimacy of state rescissions and emphasize historical precedents. The complexities of the amendment process unravel, showcasing the roles of Congress and the unique paths of past amendments. As the podcast reaches its fourth anniversary, listeners get a sneak peek of a special chat with Justice Breyer, promising insightful reflections on his judicial experiences.
The ongoing efforts to certify the Equal Rights Amendment highlight the contentious nature of constitutional ratification processes influenced by state actions.
The podcast explores the historical complexities surrounding amendments, emphasizing the debates on congressional roles and state sovereignty in ratification and rescission.
Concerns over the potential risks of convening a constitutional convention reflect fears of undermining established procedures and democratic integrity.
Deep dives
Recent Event Highlights
The hosts discuss a recent event at the New Jersey State Bar Association, where Professor Akil Amar addressed legal professionals, emphasizing the high-profile panel that included the Solicitor General of New Jersey and a former Supreme Court Justice. This event marks the third collaboration between the podcast and the New Jersey State Bar Association, highlighting the growing interest and increasing attendance at these gatherings over the years. The interactive format allowed for both in-person and remote participation, showcasing the flexibility and accessibility of legal education. The hosts express gratitude to the bar association for organizing this significant event, noting its importance in fostering dialogue among legal practitioners.
Equal Rights Amendment Status
The ongoing status of the Equal Rights Amendment (ERA) is revisited, with particular focus on the renewed efforts led by Senator Kristen Gillibrand during the Biden administration. A key concern revolves around whether the ERA has been ratified, as it initially included a seven-year time limit for ratification imposed by Congress. The amendment's complex history is further complicated by states attempting to rescind their ratifications, raising questions about the validity of those rescissions and how they impact the overall count of states endorsing the amendment. This discussion underlines the dynamic and contentious nature of constitutional amendments and the processes surrounding them.
Time Limits and Congressional Role
A critical examination of the Constitution's amendment process reveals that Congress has historically included time limits in amendment proposals, yet how those limits are defined remains contentious. The hosts question the appropriateness of Congress maintaining a role after ratification, suggesting that the amendment process should primarily reflect the consensus of states rather than ongoing legislative influence. They use the example of the 21st Amendment, which repealed prohibition, to illustrate how embedded time constraints can shape the perception of an amendment's validity. This perspective emphasizes the need for clarity on whether the amendments live beyond their proposed timelines and how that affects societal norms and laws.
Procedural Implications of Rescissions
The discussion details the procedural implications of states attempting to rescind their ratifications of constitutional amendments, highlighting a lack of clear constitutional guidelines on this matter. The hosts suggest that rescissions should be recognized as valid under the same principles governing amendments, which are based on the last statement of legislative intent by relevant state legislatures. By analyzing historical instances around the 14th Amendment, they argue that invalidating rescissions undermines the fundamental principle of democratic accountability and state sovereignty. This leads to a critique of recent Senate actions that seem to disregard established precedents regarding amendment ratification and rescission.
Finality and Legislative Powers
The concept of finality is discussed in relation to the amendment process, with the condition that once sufficient states have ratified an amendment, it must be considered definitive. The hosts contend that if states have the power to ratify, they should also retain the ability to change their positions, thereby maintaining the principles of democratic governance. This argument emphasizes that recent legislative actions aimed at preserving ratifications without considering rescissions could lead to an imbalance of power within the amendment framework. Furthermore, the notion that Congress could redefine or extend timelines retroactively is deemed problematic, as it raises questions about the integrity of the constitutional amendment process.
Challenges of Constitutional Conventions
The conversation touches upon the potential challenges that would arise from convening a constitutional convention, particularly in light of varying partisan interests. The hosts warn that calls for a convention can create significant risks, especially if states are permitted to withdraw their support or modify their proposals. They express concern over how a convention could sidestep established procedures and lead to radical changes that reflect the interests of a few rather than the collective will of the populace. Furthermore, they highlight that misinterpretation of constitutional rules could undermine trust in the democratic system and create widespread discontent.
As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution. Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification. Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this. We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters. Meanwhile, our 4th anniversary is approaching, and we preview the gala event - with Justice Breyer getting behind the microphone with us before you know it! CLE credit is available from podcast.njsba.com.
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