I didn’t foresee a this supplementary post being necessary after parts 1 and 2 a month ago. The evidence was overwhelming already that the Democratic Party was, with record-setting gall, accusing the Republicans in general and Donald Trump in particular of being an existential threat to democracy while their own party was deliberately undermining the Constitution. Part 2 listed 15 examples; it was far from complete. However, one of the more absurd examples, which I originally flagged in this earlier post, is apparently being seriously pursued.
Jonathan Turley caught us up in a column last week in The Hill.
Although the moldy oldie Equal Rights Amendment failed to be ratified by a sufficient number of states before the Congress-imposed deadline for doing so expired, Democrats want it to be declared the 28th Amendment to the Constitution anyway. Turley explains,
Democratic leaders like Rep. Carolyn Maloney (D-N.Y.), chair of the House Committee on Oversight and Reform, want [Archivist of the United States] David Ferriero to simply publish the ERA in the Federal Register as a ratified amendment. It isn’t, of course. However, these Democrats insist that a unilateral decision from Ferriero declaring it ratified would mean it is ratified … at least until some courts say otherwise. And they are calling on President Biden to support this dubious move toward amendments by archival acclamation.
Such muscle plays have become common in the last two years….This one makes the other efforts look restrained by comparison, however. Rather than submit a new ERA to the states, Democratic leaders want Ferriero to just declare it a done deal.
It appears to be a deliberate effort to provoke a Constitutional crisis that would have to be resolved by the Supreme Court, which would almost certainly respond with “You’ve gotta be kidding!” But then the Democrats would have new ammunition to try to undermine the Court.
The dishonesty of the Democratic Party’s claim that the amendment has been ratified is breathtaking. Turley:
The deadline for ratification of the act was set for March 22, 1979 — an ample seven years to secure the required approval by three-quarters of the states, or 38 states. But it fell short of that constitutional threshold. Not only that, but four states — Nebraska, Tennessee, Idaho, Kentucky — rescinded their prior ratifications; a fifth, South Dakota, set its ratification to expire if the ERA was not adopted by the 1979 deadline.
Kentucky adds a different wrinkle because its Democratic lieutenant governor vetoed the resolution rescinding the ratification when the governor was out of town. However, Article V speaks of ratifications by state legislatures.
Democrats argued that states could not rescind their votes, even before the threshold number of states is reached. Yet, they still fell short. So, Democrats and then-President Carter simply extended the deadline to June 30, 1982. In 1981, a federal district court ruled in Idaho v. Freeman that Congress could not extend the ERA’s ratification deadline. (The Supreme Court later stayed that order but then declared the matter moot.)
While the extension continued to be questioned constitutionally, it did not matter: Not a single new state was added during that extended period. Even assuming that the five states could be counted despite the votes to rescind their ratifications, the ERA was still three states short when it missed the second deadline.
Democrats again insisted that deadlines and the state rescissions could be ignored. In 2017, Nevada went ahead and ratified the dead amendment while Illinois did so in 2018. Then, in 2020, Virginia passed a ratification resolution for the ERA. And then — poof! Democrats declared the ERA passed, 41 years after the original deadline and 38 years after the second deadline.
This isn’t just an attempt to bypass the Constitution and the law, it demonstrates absolute contempt for both. Rep. Jackie Speier (D-Calif.) has argued that Ferriero should act to fulfill the wishes of the late Supreme Court Justice Ruth Bader Ginsburg in declaring the ERA ratified, but as Turley points out, Ginsburg dismissed the ratification theory and declared that Virginia’s vote came “long after the deadline passed.”
Never mind: Facts Don’t Matter. The entire Democratic Party is nurturing a dangerous culture that holds that any position it decides is “right” should become law and policy, regardless of such niceties as due process, laws and state legislatures. Turley, being typically oblique, concludes by writing, “For those who commonly invoke the need to support democracy, the refusal to concede defeat over decades of contrary state votes is a rather curious position.”
It isn’t curious at this point. The hypocrisy is typical and predictable, The only question is when the public will realize what the nation’s “liberal” party had become: an advocate and practitioner of brutal “the ends justifies the means” politics that is poisonous to democracy.