Bill Barr Doesn’t Get to Decide What’s in the Constitution

Somebody has to determine whether the ERA is valid or not, and without quite saying so, the Department of Justice is claiming that person is none other than Attorney General Bill Barr.

Equal Rights Amendment supporters holding up "VA 38 ratify ERA" signs
Steve Helber / AP

Quick: What’s the most common word in the English language that does not appear anywhere in the U.S. Constitution?

The answer is a revealing one: she. Presidents, senators, and representatives are always designated as “he.” Even the Nineteenth Amendment, which gave women the right to vote, simply bans abridgment of that right “on account of sex.”

That resolutely masculine language will not change, no matter what happens over the next few months. But something more significant may: Yesterday, both houses of the Virginia General Assembly approved the Equal Rights Amendment, a change to the Constitution that has been sought by women’s groups since 1923, and which was proposed by Congress nearly half a century ago. The ERA’s operative section reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Virginia’s vote makes it the 38th state to have approved the amendment since it was formally proposed in 1972. Mathematically, that’s more than three-quarters of the 50 states—enough for it to become a constitutional amendment.

But that will not happen easily; nothing in the struggle for women’s equality ever has.

Since even before America’s independence, women have been trying to write themselves into the country’s fundamental law. “Remember the ladies, and be more generous and favourable to them than your ancestors,” Abigail Adams wrote to her husband, John, as the Continental Congress debated separating from Britain. Not a chance, the future president replied: “We know better than to repeal our masculine systems.”

Repealing “masculine systems” has been nearly impossible ever since. In 1866, the framers of the Fourteenth Amendment betrayed their feminist allies—mainstays of the antislavery movement—and women’s suffrage was delayed for 75 years. After the vote was finally gained, in 1919, feminists proposed an amendment reading, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” In 1943, the proposal was rewritten with sex-blind language. By 1972, it had been approved in both chambers of Congress by the required two-thirds vote; the resolution proposing it (though not the text of the amendment itself) included a seven-year time limit for approval. Within a year, 30 state legislatures had approved it; with only eight more needed, ratification seemed assured.

But the amendment spurred a backlash among the nascent religious right. By 1979, when the deadline expired, only five more states had ratified. Four ratifying states, meanwhile, had attempted to “rescind” their ratifications (a maneuver not clearly constitutional). Congress voted to extend the deadline to 1982.

A federal district court held that extension unconstitutional. The same judge further held that the rescissions were valid. But the new deadline expired without more ratifications (after which another state, South Dakota, rescinded as well), and the Supreme Court dismissed the extension-rescission case as moot. The amendment seemed dead.

But in 1992, a strange combination of constitutional entrepreneurship and anticongressional outrage combined to shoehorn the very strange Twenty-Seventh Amendment into the Constitution. That amendment reads, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened”—in other words, Congress can raise its own pay, but such a raise can’t take effect until the people have had a chance to react to it by throwing the bums out.

The pay amendment had been proposed by Congress in 1791 but did not gain ratification. Action on it had died out in 1873. Then in 1982, a University of Texas undergraduate named Gregory Watson proposed reviving it. The original measure contained no time limit (most proposed amendments in history have not). More than two dozen legislatures then ratified it over the next 10 years, bringing the supposed total to 39 in the spring of 1992. The last three ratifications were sparked by a largely partisan uproar about alleged corruption at the House of Representatives bank.

This process was cockeyed: Is a proposed amendment like a loaded gun, waiting forever for someone to stumble on it and pull the trigger 200 years later? Supreme Court precedent is ambiguous—case language suggests that ratification should reflect a contemporaneous public will rather than simply an accrual of will over decades and centuries. But that language is not part of the binding portions of the opinions.

Senator Robert C. Byrd of West Virginia thundered that ratification was invalid. But Don W. Wilson, then the archivist of the United States, argued that federal statutes required him to certify it as ratified. He registered the amendment on May 18, 1992. Despite grumbling, Congress fell in line two days later, passing a resolution affirming its validity.

Feminists took note. If Newt Gingrich, then the House minority leader and a key supporter of the amendment, and talk-radio hosts, who also threw their weight behind it, can jam new text into the law of the land, why should women have to abide by time limits? They began to argue that Congress could revive the amendment by proclaiming post-deadline ratifications valid. Because the ERA already had 35 ratifications, only three more would be needed. Then, they argued, Congress could recognize the change and the amendment would, at long last, take effect.

Virginia yesterday became the third of those needed three states.

What now?

The attorneys general of Alabama, Louisiana, and South Dakota filed suit in December asking a federal court in Alabama to order the current archivist not to certify the amendment. A women’s-equality group, Equal Means Equal, later filed a dueling suit in federal court in Massachusetts asking for an order requiring certification. And the U.S. Department of Justice Office of Legal Counsel waded in on January 6 with a 38-page opinion directing the archivist not to certify. “Congress may not revise the terms under which two-thirds of both Houses proposed the ERA Resolution and under which thirty-five state legislatures initially ratified it,” it argued.

Congress, the OLC opinion said, has no role to play in registering approval: “The notion of a freestanding authority of Congress to determine the validity of a constitutional amendment after the States have submitted their ratifications finds little support in the text of Article V, historical practice, or other Supreme Court precedent.”

Advocates of ratification reject those arguments. The deadline, they note, is not in the language of the amendment itself (as it is in the Seventeenth, Eighteenth, Twentieth, Twenty-First, and Twenty-Second), but in the resolution proposing it. Not until the 20th century, in fact, did Congress start attaching time limits to proposed amendments in the first place. Why can’t Congress change that? They further note that, in one of the nation’s most important constitutional showdowns, Congress did take the lead in proclaiming an amendment ratified. That occurred in 1868, when the Fourteenth Amendment reached the required number of approvals—even though two states claimed to have rescinded after the fact. The Andrew Johnson administration was opposed to the amendment, and Secretary of State William Seward (who had the statutory role the archivist plays today) proclaimed only a “conditional” ratification. Congress stepped in and passed a resolution proclaiming the amendment approved—and there it sits in the text.

Julie Suk, a sociologist and legal scholar at the City University of New York, is working on a history of feminist constitutional struggles, to be titled We the Women. “My view is that Congress can extend deadlines,” she told me. It is harder to expand rights than to tend to housekeeping matters like presidential terms, she argued. “Anytime there’s an amendment that expands ‘we the people,’ it’s appropriate not to have these kind of limits.”

The arguments against retroactive extension are not easy to dismiss. If subsequent Congresses can change the terms of a constitutional proposal, legislators can claim they are being asked to vote on a measure whose fate is up to subsequent politics. And no one has resolved the rescission issue, which has been floating around since at least 1867.

There’s a case for guarding the text of the Constitution from unpredictable change. But on the other hand, neither Congress nor the archivist played that role in 1992, when one set of political forces was baying for a (admittedly minor) change in the text. If the Twenty-Seventh Amendment is valid, then popular mobilization clearly has a role to play in the process. The Constitution’s text may be held in the Archives, but “we the people,” not the archivist, writes its terms.

Finally, the OLC opinion ought to cause all constitutionalists—regardless of their view of this issue—a bit of concern. As noted above, it says Congress has no role to play in promulgating an amendment. Who does, then? In a soothing footnote, it says that the promulgation duty falls by statute on the archivist. It notes that OLC had earlier called this duty “a ministerial, ‘record-keeping’ duty upon the executive branch.”

Except this isn’t “ministerial” at all. Somebody has to decide whether the ERA is valid or not before there’s any “duty” to record it. And without quite saying so, the opinion claims that right of decision for none other than Attorney General William Barr.

An alert reader will have picked up subtle signs that I am not a neutral observer in this fight; for me, the memory of my mother, Rozanne Epps, dead these 11 years, looms over the entire dispute. She yearned for the ERA with all her heart, and was furious and distraught when the male leadership used parliamentary procedures to deny it a vote in the Virginia legislature four decades ago. I was in the legislative chamber when that vote was cast, and I can still taste that disappointment.

I cast no aspersions on the sincerity of the OLC opinion. But I confess that its conclusion—that the Trump Justice Department has now awarded stewardship of the Constitution to itself—sticks in my craw.

The Constitution’s text, and the history of Article V, which lays out the process for creating amendments, center on Congress. There’s no mention of the president or the attorney general. So clear was this from the beginning that George Washington refused to involve himself in the ratification of the Bill of Rights, on the grounds that this was reserved for Congress. And when the branches came nearly to swords’ points in 1868, Congress stepped in and claimed pride of place.

“There’s really no role for the executive branch” in the process, Suk told me. “It’s up to Congress.” Reva Siegel, a Yale Law professor who has written extensively on the issues raised by the ERA, concurred. “The Justice Department does not have authority to decide the legal validity of the ERA,” she told me. “Neither text nor history locates the Article V process in the executive branch.”

Jennifer Carroll Foy, the Virginia legislator who introduced this year’s ratification resolution in the state House of Delegates, framed it slightly differently. She knows something about breaking down barriers. She was one of the first African American women to graduate from the Virginia Military Institute after the Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, ordered the state to open the venerable academy to both sexes. “It’s no surprise that Donald Trump’s misogynist administration is trying to throw cold water on our efforts,” she told me shortly before yesterday’s vote. “Power concedes nothing easily.”