“Drinking the Kool-Aid” has become an idiom for blindly following someone or something. But what happens when the “Kool-Aid” that is being peddled is long past its expiration date?
While following a couple of my regular news feeds, I came across the following headline:
Virginia Becomes 38th State to Pass Equal Rights Amendment
U.S. News
This intrigued me, so I read farther.
VIRGINIA’S LEGISLATURE on Wednesday approved the Equal Rights Amendment, becoming the 38th state to do so and propelling the measure past the threshold required for inclusion in the U.S. Constitution.
U.S.News
After doing some more searching, I found the following examples of media reporting on the issue:
On Jan. 15, Virginia became the 38th state to ratify the Equal Rights Amendment, crossing the three-fourths of the union threshold specified in the Constitution for its adoption.
ABC News
After nearly four decades of tumult and setbacks, the long-dormant Equal Rights Amendment may finally be added to the United States Constitution, an event that hinged on politicians in Virginia.
Jezebel
These are just three of the articles I found while I was researching Virginia’s vote to ratify the Equal Rights Amendment. What do all of these opening paragraphs have in common? They either ignore or minimize the fact that the ERA is no longer up for ratification as an amendment to the Constitution.
There was a lot of talk about the vote in Virginia’s legislature putting the ERA over the threshold for ratification and inclusion in the Constitution. While many people cheered this “historic” event, few mentioned the fact that the vote was totally moot. Like many of the later amendments, the proposal from Congress had a time limit for ratification. Unfortunately for those who supported the amendment, the time limit expired long, long ago.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
H.J. 208 Proposing the Equal Rights Amendment
H.J. 208, the joint resolution proposing the Equal Rights Amendment was agreed to by both houses of Congress and sent to the states in March, 1972. The language of the proposed amendment was very specific, “which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:” So a little bit of basic math means the time limit for states to ratify the amendment was by March, 1979.
As the deadline approached with insufficient states for ratification, Congress took the unprecedented act of extending the deadline until June 30, 1982. That deed had dubious legal basis, since only a simple majority of the two houses passed the amendment to the amendment of the Constitution, not the two thirds to propose an amendment required by Article V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution
U.S. Constitution, Article V
Virginia is not the only state to ratify a dead amendment. Nevada in 2017 and Illinois in 2018 also ratified the defunct ERA.
So we had an amendment to the Constitution proposed to the states, and when insufficient states ratified it, the Congress then illegally extended the deadline with insufficient votes. And even though the deadline for ratification expired over 37 years ago, we have people hyping that Virginia has put the amendment over the top for inclusion in the Constitution. Also lost or buried in most of the hoopla about Virginia being the 38th state to ratify the ERA is the fact that five of those states have voted to rescind their ratification. So, technically, only 33 states currently have legislation to ratify the amendment.
Why all this hype for a state voting on an amendment which has not been valid for decades? As I wrote in If You Don’t Get Your Way, Just Change The Rules, it has become standard procedure for some in politics; when they don’t win they simply change the rules. While this is nothing new, it is becoming more and more prevalent in society today, much to the demise of civil discord and the rule of law. There are some people who so support the Equal Rights Amendment and believe so strongly in the rightness of their position, that the ends justify the means. They are willing to do almost anything to see this amendment passed, by hook or by crook.
This hype is also meant to manipulate you. If you can be convinced that the amendment has been properly ratified, you are more likely to push for its inclusion even if it has not been legally ratified. And of course, if public opinion can be swayed, then pressure will be put on the courts to “force inclusion” of this dead amendment into the Constitution. Alabama, Louisiana, and South Dakota have already filed a lawsuit in federal court to block the ERA from the Constitution on the grounds that it was not ratified before the deadline. I found a November 12th article in the Virginia Mercury that stated:
Virginia is almost certain to become the 38th and final state to ratify the Equal Rights Amendment when the General Assembly convenes in January. …
What happens after that, however, is unclear and experts on all sides of the debate say the only certainty is a complex legal battle that might never be resolved.
What happens after Virginia ratifies the ERA next year? Nobody’s quite sure.
Why is the future of an expired proposed amendment unclear? Because of our ignorance of the Constitution and the amendment process. Continuing from the Virginia Mercury article:
It was widely understood to be dead until the mid-‘90s, when the 27th Amendment was ratified – an uncontroversial measure dealing with congressional pay that had first been proposed in 1789 by James Madison.
ERA supporters argued that the 200-year gap between its proposal and final ratification means the ERA is still valid.
What happens after Virginia ratifies the ERA next year? Nobody’s quite sure.
As is often the case, the best lies contain a little bit of truth. Yes, the second proposed amendment to the Constitution was submitted to the states in 1789 but not ratified until 1992. Conveniently left out of the story though, is the fact that this proposed amendment did not include a deadline.
Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Proposed Second Amendment to the U.S. Constitution
Just like a magician that directs your attention to one hand while completing the trick in the other, those promoting the inclusion of the ERA based on the recent vote in Virginia are pointing to one hand while playing tricks with the other. No, 38 states have not ratified this amendment, only 33. No, the amendment cannot be included in the Constitution because the timeframe the drafters of the amendment placed on its ratification has expired. Therefore, the only complex legal question is how to get around the plain reading of the law and the amendment to get what some people want.
Conclusion
Ask yourself, does the rule of law matter? Can certain people get what they want, even if it violates the law? Should the courts be manipulated to achieve political ends?
I originally titled this article “Lies, Darn Lies, and the Media” because of the blatant attempts to manipulate rather than report. Yes, I want a free press, which means they can publish whatever they want as long as they do not infringe on the rights of another. But the American people also need to remember the adage caveat emptor (let the buyer beware). The media is not an altruistic entity, it is a business. You are buying information from them. If what you get is often spoiled, rotten, or just plain mislabeled, why do you trust what you get from them?
Now that you know how the magicians do their tricks, will you be fooled by them yet again?
