And Also: Sanders after the Wisconsin Primary/fiasco (results not in yet) suspended his presidential campaign but the primary season still lingers on. Thus, Alaska's updated primary was Friday, done via mail. The results are in: 55/45, Biden winning. Ranked choice voting seems to have left only the top two with 15 delegates at issue. Last time, Sanders won the caucus in a landslide; primary this time with more voters participating. This amounted to around nineteen thousand voters, still rather paltry even for Alaska.
Note the joint resolution is separate from the amendment, multiple amendments having such a time limit as part of the text. This is a notable matter and suggests Congress can extend the time limit in the first case as was done (to no effect) for a few years the first time around. The time limit concept itself was deemed logical in a Supreme Court case arising from the Eighteenth Amendment (Prohibition), Dillon v. Gloss. The unanimous opinion argued there was an implied principle in Article V that the proposal and ratification process be relatively contemporary:
This reflected historical practice and does not clash with the text of Article V. A final question involving allowing a lieutenant governor to break a tie was itself a matter the Supreme Court was evenly divided on by a quirk that might have been a result of a justice being away. Four justices, however, did think it appropriate to decide that question, thus the four that thought the whole amendment process was a political question did not carry the day. Just what the courts could decide here amounts to an academic question and perhaps even what was decided to be a political question might not hold up over eighty years later. But, the logic is sound and should guide us today all the same.
So, where does this lead us regarding the two disputes, the first filed in Alabama and the second in D.C., so a conservative/liberal split is possible? The broad discretion given to Congress regarding contemporary ratification questions would suggest an extension of the deadline would be valid. But, that would likely require the current Congress to do so -- the first extension was rejected by a lower court; the Supreme Court held up the judgment and then deemed it moot when no more states ratified and the extension ran out. Anyways, the new resolution expired, suggesting a new one is needed. Congress can also decide what to do with the states that later changed their minds. RBG publicly deemed it best just to start over, it seeming unfair to count the lagging states but not the rescission. I agree Congress should start over but question if states really have the power to call "backies."
On the latter point, I'm in accord with second lawsuit's arguments though precedent and reasonableness might very well warrant congressional discretion here. Congress provides a national referendum here on determining if the process is still ripe and multiple states taking back their ratification can be a discretionary factor in so judging. And, as the complaint notes, the deadline is not part of the amendment; multiple amendments actually have deadlines in the actual text. The states then argue that even providing a time limit is inappropriate.
The last part is a bridge too far -- the idea that the very idea of a time limit is unconstitutional, in fact an abuse of federal power ("And given the Framers’ concern for protecting state prerogatives against federal intrusion, any doubts about the scope of congressional authority should be resolved in favor of the States.") That is a bit dubious; as is the complaint not even referencing Coleman v. Miller. I can see why -- a forty year time lag would raise questions regarding contemporaneous ratification, which it suggests can be done in this fashion ("No limitation of time for ratification is provided in the instant case, either in the proposed amendment or in the resolution of submission.")
If the courts determine the states have jurisdiction and find it appropriate to decide the merits, it should follow the 1930s precedent and leave the whole matter to Congress. Under this logic, until Congress decides, not accepting ratification as official and the duty of the National Archives to follow take notice of is appropriate. A deadline in a separate resolution would be appropriate and it ran out. However, if Congress did pass a new joint resolution, the final three states could be counted. This to me would be bad constitutional policy, but under its power to do. And, just how bad would be open to question too since we are dealing with a national body and the Supreme Court itself deemed the general principle already in place.
Though there probably are a few Republican senators willing to support the ERA, realistically, this is yet another matter that will largely rely on the 2020 elections. A 28th Amendment is a realistic possibility though just what it will mean is an open question. Finally, there is the theory that Congress should (must?) only pass a new joint resolution by the same margin necessary to pass an amendment and/or when the number of states that allegedly took back their ratification are replaced. I find either one of those principles dubious (fwiw, the first extension only had a majority).
First, the Supreme Court will deal with faithless electors.
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:A class on the Constitution on C-SPAN tonight referenced a lawsuit by three states (Illinois, Nevada and Virginia) that mirrored an earlier lawsuit last year by three other states (Alabama, Louisiana and South Dakota). The first lawsuit, with support of the Trump Justice Department, deemed it unconstitutional to extend the time limit to ratify the ERA. The new lawsuit deemed it unconstitutional to have a time limit outside the amendment itself. It says the amendment should be formally deemed ratified. As noted by the article: "The National Archives has not taken action on the matter, citing the Justice Department's guidance. The archives said Thursday it cannot comment on pending litigation and referred an inquiry to the Department of Justice, which declined to comment."
"ARTICLE — "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. "Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. "Sec. 3. This amendment shall take effect two years after the date of ratification."
Note the joint resolution is separate from the amendment, multiple amendments having such a time limit as part of the text. This is a notable matter and suggests Congress can extend the time limit in the first case as was done (to no effect) for a few years the first time around. The time limit concept itself was deemed logical in a Supreme Court case arising from the Eighteenth Amendment (Prohibition), Dillon v. Gloss. The unanimous opinion argued there was an implied principle in Article V that the proposal and ratification process be relatively contemporary:
The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.It reasoned out that it would be illogical to have an amendment ratified that was proposed years before -- one example was the congressional pay amendment proposed in 1789 which was eventually deemed ratified (though note only after a congressional concurrence) as the 27th Amendment. The opinion's take to me is logical and though the limited reach of the amendment makes it seem trivial (in time more than enough states ratified to make up for the long ago ratifications), it would seem more proper for Congress to have proposed it again. The clock would have restarted under this logic in 1980s and the end result very well might have been the same. As the Supreme Court noted:
"that an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress."The Supreme Court in the 1930s, here dealing with the never ratified Child Labor Amendment, decided 7-2 that the principle was sound but it was a political question for the Congress to determine. The time limit, including perhaps a new one (as the House recently deemed appropriate), would be a necessary and proper determination of this principle -- "the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in." It also left to Congress to handle what to do if any states ratified and then later on rescinded. But, it did decide that if a state at first rejected it, it could later on ratify.
This reflected historical practice and does not clash with the text of Article V. A final question involving allowing a lieutenant governor to break a tie was itself a matter the Supreme Court was evenly divided on by a quirk that might have been a result of a justice being away. Four justices, however, did think it appropriate to decide that question, thus the four that thought the whole amendment process was a political question did not carry the day. Just what the courts could decide here amounts to an academic question and perhaps even what was decided to be a political question might not hold up over eighty years later. But, the logic is sound and should guide us today all the same.
So, where does this lead us regarding the two disputes, the first filed in Alabama and the second in D.C., so a conservative/liberal split is possible? The broad discretion given to Congress regarding contemporary ratification questions would suggest an extension of the deadline would be valid. But, that would likely require the current Congress to do so -- the first extension was rejected by a lower court; the Supreme Court held up the judgment and then deemed it moot when no more states ratified and the extension ran out. Anyways, the new resolution expired, suggesting a new one is needed. Congress can also decide what to do with the states that later changed their minds. RBG publicly deemed it best just to start over, it seeming unfair to count the lagging states but not the rescission. I agree Congress should start over but question if states really have the power to call "backies."
On the latter point, I'm in accord with second lawsuit's arguments though precedent and reasonableness might very well warrant congressional discretion here. Congress provides a national referendum here on determining if the process is still ripe and multiple states taking back their ratification can be a discretionary factor in so judging. And, as the complaint notes, the deadline is not part of the amendment; multiple amendments actually have deadlines in the actual text. The states then argue that even providing a time limit is inappropriate.
The last part is a bridge too far -- the idea that the very idea of a time limit is unconstitutional, in fact an abuse of federal power ("And given the Framers’ concern for protecting state prerogatives against federal intrusion, any doubts about the scope of congressional authority should be resolved in favor of the States.") That is a bit dubious; as is the complaint not even referencing Coleman v. Miller. I can see why -- a forty year time lag would raise questions regarding contemporaneous ratification, which it suggests can be done in this fashion ("No limitation of time for ratification is provided in the instant case, either in the proposed amendment or in the resolution of submission.")
If the courts determine the states have jurisdiction and find it appropriate to decide the merits, it should follow the 1930s precedent and leave the whole matter to Congress. Under this logic, until Congress decides, not accepting ratification as official and the duty of the National Archives to follow take notice of is appropriate. A deadline in a separate resolution would be appropriate and it ran out. However, if Congress did pass a new joint resolution, the final three states could be counted. This to me would be bad constitutional policy, but under its power to do. And, just how bad would be open to question too since we are dealing with a national body and the Supreme Court itself deemed the general principle already in place.
Though there probably are a few Republican senators willing to support the ERA, realistically, this is yet another matter that will largely rely on the 2020 elections. A 28th Amendment is a realistic possibility though just what it will mean is an open question. Finally, there is the theory that Congress should (must?) only pass a new joint resolution by the same margin necessary to pass an amendment and/or when the number of states that allegedly took back their ratification are replaced. I find either one of those principles dubious (fwiw, the first extension only had a majority).
First, the Supreme Court will deal with faithless electors.
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Thanks for your .02!