Among the restructuring and chaos occurring in Washington after the commencement of the Trump Administration, the National Archives and Records Administration needs to officially publish the 28th Amendment to the Constitution. The 28th Amendment, colloquially termed the “Equal Rights Amendment,” contains one sentence that could reshape the balance of protections in the United States: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It is this singular sentence which could change the course of history and curb many of President Donald Trump’s both borderline and blatantly unconstitutional executive orders and policy pursuits, and I firmly assert it should be officially published, as it has met the constitutional ratification requirements.
An amendment to the Constitution can be proposed by either states or Congress, but rarely does a proposal actually gain momentum. The last time the United States successfully completed the Amendment process was in 1992, after an undergraduate college student wrote an essay on ratifying an amendment in limbo, received a “C” on the essay, and then began a petition campaign to state legislatures to ratify the amendment. The 27th Amendment, which prevents Congress from giving themselves pay raises until the next set of elections has occurred, was first introduced and ratified by Congress in 1789. Yes, 1789 — the same year as the ratification of the Constitution. The 27th Amendment remained dormant for 203 years after only six state legislatures initially voted by 1791, and it took a college sophomore’s efforts to achieve the 38-state requirement two centuries later.
Similarly to the 27th Amendment, the ERA has a long history and dates back over 100 years to the proposal of its first version in 1923. It was half a century later that Congress finally met the Constitutional requirements to ratify the ERA on their end, so in 1972 it was sent to the states for ratification. In the vote by Congress in 1972, a time limit was placed — rather arbitrarily — on ratification, likely a political tactic in an era of growing conservatism. The debate on the legality of the ERA is grounded in Congress’s now-expired time limit for state ratification. However, the specific text that states began voting for did not include this time limit, and in this time a few states desired to rescind their vote — thus began the question of timeliness, which brings us to our current dilemma.
The United States Constitution is still sitting on this potential 28th Amendment. Both of the constitutional procedures outlined for the adoption of an amendment — two-thirds vote in both chambers of Congress and three-fourths of states — have been met. Article V of the Constitution establishes these thresholds without any other caveat of time limits, and the ERA has crossed them. Article V also does not enumerate the possibility of vote rescission by the states. In the absolute application of Article V to the ERA, the United States would have had a new amendment after Virginia added the final vote needed for ratification in January 2020, and it would have gone into effect in January 2022. It is clear that time limits are not a decisive condition for amendments, evidenced by the 203 year waiting period for the 27th Amendment.
In January 2020, then-Attorney General William Barr’s Office of Legal Counsel incorrectly asserted in a memo to NARA that Congress’s imposition of a timeline on the ratification process was constitutional. As stated, there is no enumerated clause in Article V detailing the enforceability of a timeline — that aspect is up to the sole discretion of Congress, as reinforced by the Supreme Court’s decision in Coleman v. Miller (1939). That being said, Article V’s clauses supersede any agreement by Congress. It is also important to note that the OLC’s memo does not legally supersede the Archivist of the United States’ legal obligations. Despite this, archivist David Ferriero justified his refusal to publish the ERA in 2020 based on the OLC’s memo. Biden-appointee Archivist Colleen Shogan shared these sentiments throughout her tenure, incorrectly citing court action on the validity of timelines, and here we find ourselves in the unknown, caught in the eye of a political storm that seems to grow every moment.
I have studied the United States government and Constitution for years, and for years, my heart has broken due to the lack of action taken by NARA to officially publish the ERA. The ERA has met full constitutional requirements, requirements that supersede any decision by Congress. Former President Biden issued the symbolic statement of recognizing the 28th Amendment as the law of the land three days before leaving office, though the Executive Branch has no power over amendments other than the appointment of the Archivist of the United States. For those that saw his statements, I am sad to say they are not legally enforceable. That would mean the solution rests with the judiciary, as is the case with all laws. However, the Supreme Court, speaking for all federal courts, refused to litigate amendment disputes in Coleman and created a grey area of enforceability. That leaves Article V’s interpretations to the unknown. If there are no courts to rule Congress’ timeline unconstitutional, what happens?
For those that know me, they know I am very much an optimist about the Supreme Court, even in spite of the growing conservative lean in salient, or high-profile, cases. I stand strongly by the mantra of “to know the Court is to love it,” and I firmly believe it is up to them if the archivist refuses to act. The Court should revisit their decision in Coleman under our present circumstances and overturn that precedent. The out-dated reasoning of “political issues remain with Congress” needs to be dispelled, for we all know that is not heavily considered anymore and is instead a selectively used argument. What comes next is either up to the Court or to the Archivist of the United States.
On Feb. 7, President Trump fired Shogan. This is a seismic shift among what already feels like a colossal overhaul of Washington’s leaders, resulting from the mere fact that Archivists are intended to be bipartisan and apolitical in their duties. What is more, the White House did not provide NARA with any substantial reasoning — reasoning is required for the dismissal of the Archivist of the United States. Based on the trends seen in the confirmations of other cabinets — Pete Hegseth, Pam Bondi, and Russell Vought, for example — I am deeply concerned for the ERA’s possibility of publishing. It is most likely President Trump will install a loyalist to the position, disregarding NARA’s bipartisan history. My faith in the Court, in spite of its majority attitudes toward the sitting president, remains steadfast and I think a challenge on the constitutionality of Congress’ timeline imposition is the most sound method of saving the ERA. In a time of a breakdown of checks and balances, this is a check that needs to happen. It seems apparent that the federal court system has become the last line of defense against President Trump’s executive orders, and if the new Archivist is a loyalist who refuses to officially publish the 28th Amendment, this may be the ERA’s last hope for the foreseeable future.
