Below is my column in Fox.com on President Joe Biden’s last-minute declaration that the 28th Amendment is now part of the United States Constitution. It appears that our president sees dead amendments, but that is not the greatest thing that should worry you.
Here is the column:
President Joe Biden wants people to know that he sees dead amendments. Just before leaving office, Biden declared that we have a 28th amendment despite dying in the ratification process years ago.
Not since the movie Sixth Sense has there been a more creepy moment. To paraphrase Cole Sear in the film, Biden does not see them in constitutional coffins but “Walking around like regular [amendments]. They don’t know they’re dead.” Neither does Biden.
Biden waited to shortly before leaving office to pander to the most delusional elements of the Democratic party in unilaterally announcing that the Equal Rights Amendment is now part of the Constitution. The farcical moment was then amplified by figures like Senator Kirsten Gillibrand (D., N.Y.) rejoicing and falsely telling women that they can now go to court and enforce the amendment to restore such things as abortion rights.
This bizarre group fantasy was triggered by the following declaration:
“In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
Without naming them, Biden cites dozens of “constitutional experts” to support this absurd claim.
Biden’s last-minute declaration is more creepy than the movie because it requires not just the departure from the constitutional process but reality. Despite running as the champion of democracy, Biden is simply brushing aside the fact that the ERA was not ratified, as made clear by his own Justice Department and his own archivist just weeks ago.
Even the late Justice Ruth Bader Ginsberg declared the amendment dead.
Archivist, Colleen Shogan recently explained that neither her office nor the White House have the authority to publish the amendment unilaterally or waive the deadline for ratification:
“In 2020 and again in 2022, the Office of Legal Counsel of the U.S. Department of Justice affirmed that the ratification deadline established by Congress for the ERA is valid and enforceable,” she wrote. “The OLC concluded that extending or removing the deadline requires new action by Congress or the courts.”
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment. As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
The reason is simple. The underlying argument is utterly ridiculous.
As I have previously written, the ERA is as dead as Dillinger.
The deadline for ratification of the ERA was set for March 22, 1979 — allowing seven years to secure the required approval by three-quarters of the states, or 38 states. It failed to do so. Even worse, four states — Nebraska, Tennessee, Idaho, Kentucky — rescinded their prior ratifications and a fifth, South Dakota, set its ratification to expire if the ERA was not adopted by the 1979 deadline.
Kentucky also had an additional problem 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.
Notably, during the extended period, not a single state was added. 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 then insisted that states could not rescind their votes, even before ratification was finalized. So, Democrats and then-President Carter simply extended the deadline to June 30, 1982. However, 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.)
In 2021 federal Judge Rudolph Contreras ruled that it would have been “absurd” for the Archivist to disregard the deadline and unilaterally add the unratified amendment to the Constitution. On appeal, a unanimous D.C. Circuit panel rejected the appeal of Illinois and Nevada that the Archivist should be ordered to publish the ERA, holding “The States’ argument that the proposing clause is akin to the inoperative prefatory clause in a bill is unpersuasive…because if that were the case, then the specification of the mode of ratification in every amendment in our nation’s history would also be inoperative.”
None of this matters to the defenders of democracy who ignored the votes in these states and dismissed constitutional deadlines and procedures. Harvard Law Professors Laurence Tribe and Kathleen Sullivan ran a column declaring “The ERA is Now Law!” as if amplification and exclamation points would somehow make it true. (Tribe was the same constitutional expert cited by Biden as support for extending his eviction moratorium, a move quickly declared unconstitutional. Tribe also insisted that Trump could be charged with the attempted murder of former Vice President Mike Pence and that the law was clear “without any doubt, beyond a reasonable doubt, beyond any doubt”).
Notably, Biden did not issue an executive order to the archivist as many activists wanted. The reason is simple: the White House knew that it could be challenged in court and would quickly collapse under judicial review. They would prefer Biden to declare Caesar-like that we have a new amendment and treat it as a fact.
With the declaration, Biden gave “the last full measure of devotion” to the radical left of his party. It was a pandering and frankly pathetic moment for a president who is currently one of the least popular presidents in leaving office.
His action on the ERA is precisely why he is viewed as a “failed” president. Biden has always sacrificed principle for the politics of the moment. This was a participation trophy given to activists that lacked any substance or basis. It is also why voters saw Biden as the greater threat to democracy than Trump.
It is chilling to think that Biden actually believes this nonsense and sees dead amendments walking around the White House. After all, insiders have described the White House in the final days as a virtual “morgue.” Yet, the truth may be even scarier: He simply does not care. He sees dead amendments in the hope of restoring life to his legacy. Both, however, now belong to the ranks of the corpus corpus mortuum.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
100% PROOF OF DUNCEOCRAT CRIMINALITY:
An even crazier story thing happened with the 16th amendment – won’t you please look into The Law That Never Was by Bill Benson, Dr Turley, with your discerning eye, and let us know?
If I were Trump I would consider pushing the ratification of the ERA. Go to Congress and have them rescind the deadline for ratification and then push the legislatures of the states that have since rescinded their original ratification.
I never really supported ratification of the ERA because I think it is redundant. Equal treatment based on sex is the law of the land. But the political message Trump could send as the guy who got this truly ratified would be incredible. Not many Presidents have had Amendments ratified on their watch, and some of those were by accident (such as the 200+ year old ratification of one of Madison’s original amendments). TO have a President push a constitutional measure and have it resolve would be historical.
Further, I think the explicit statement in the Constitution would actually help MEN in all aspects of discrimination based on sex. Divorce settlements and favorable treatment to women could be challenged and the ERA’s explicit language would push back on those issues.
Lastly, the ERA would be a mechanism to define all of the transgender nonsense with a Court ruling.
* It’ll be abused as the 14th has been abused.
I’d rather Pres. Trump pushed for further clarification to the 14th based on the exact wording, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof…”
Illegals are not “subject to the jurisdiction” of the USA, or are they?
Also, in law, we have a concept of “consent.” We can’t force a tourist or foreign diplomat to bestow US Citizenship. We can’t force Native Tribes to take US Citizenship. Even if WE consent they don’t. Similarly, we don’t Consent to the children of illegals to US Citizenship, even if they consent or want it. Consent require both parties to agree.
In another argument, we have the (sometimes abused) ability of law enforcement to seize assets if they were obtained illegally. The children of criminals are not entitled to the lucre of their parents’ ill-gotten gains. They cannot claim the valuable art, property, autos, gold bars, cash, jewelry, etc. as theirs. As such, a US Passport is a valuable asset and should not be automatically bestowed upon the children of criminals (which illegals most certainly are). They are, in fact, under the jurisdiction of their parents’ foreign citizenship.
How can a child born to illegals from Venezuela, for example, have the right to both Venezuelan citizenship, which means they are under the jurisdiction of that country, and the USA’s jurisdiction? I was born to a non-citizen and citizen father overseas. I was NOT entitled to the citizenship of the country in which I was born. I was entitled, however, to my father’s citizenship. (MY mother was a Stateless refugee.)
* Subject to the jurisdiction means living in the US.
No, it doesn’t.
This last foolish statement by Biden before he’s carted off the White House premises adds yet one more ‘question’ that as an Employer, I can ask an applicant for employment in an interview:
“Do you agree with former president Biden that the ERA is now part of our U.S. Constitution?”
and then the applicant doesn’t have an immediate reply, you pull a ‘Kamala Harris’ on the applicant by stating “it’s a yes or no question!”
Serial money-launderer, grifter Biden* just read whatever the WH schlubs put in front of him…..he surely doesn’t know or comprehend what he was reading.
Last ditch shenanigans by Biden*’s co-conspirators just show the desperation they know & feel because Congress passed none of the garbage they are spewing.
It is a pity that there are no great tragic or comic playwrights alive in our country now.
A tragic playwright like Shakespeare would have shown a husk of a man, once vital, but now helplessly under the control of his spouse and a band of low-life political operatives. He knows he used to be someone important, but he can’t quite remember what for.
A comedian like Moliere would show him rebelling and raging in small ways against his controllers, but always falling back into bondage, until, with a sickly smile, he accepts his emasculation.
Whatever fiction is written about Biden, the greatest tragedy or comedy is not his personal predicament but rather the shameful story of how a great country could be ruled by a zombie for four years without anyone saying anything.
Stupid, irrelevant comment.
Well said – thank you!
*Yes, but it’s just not funny, humor of a deadly kind just isn’t funny.
What an awful place…he’s got 24 hours left.
So it seems to be Harvard Law School policy that only the clinically insane are allowed on the faculty. Whatever the law students are learning, it ain’t law.
Stupid and irrelevant comment.
Jonathan: When you talk about “other worldly” I thought you were talking about DJT. Did you see that he is moving his inauguration inside the Capitol? DJT gave a lot of lame excuses for the change. First, he said the weather was going to be “bad” on Monday. The press immediately pointed out that the weather was pretty frigid during the inaugurations of JFK and Barack Obama. Besides, for a guy who tries to portray the image of a “tough guy” excuses based on the weather don’t cut it for most people. So DJT had to come up with another excuse.
The next excuse was “I don’t want to see people hurt, or injured , in any way. It is dangerous for the tens of thousands of Law Enforcement, first Responders, Police K-9s and even horses..”. You get the idea. Suddenly, DJT is concerned about the safety of law enforcement. That wasn’t the case when DJT launched his angry mob on the Capitol police on Jan. 6–severely injuring 142 and the death of 5 others. He didn’t give a wit about their safety.
None of DJT’s excuses make any sense. The only one that does make sense is his fear of another “tiny” crowd at his second inauguration. In 2017 DJT falsely claimed his inauguration was the “largest in American inauguration history”. Side by photos of DJT’s and Obama’s inaugurations put the lie to DJT’s claim. So this time he’s not taking any chances. Keep the crowd small and manageable–and out of sight.
I think it is quite responsible. This time around is quite different. The incoming President is focused on his agenda. The nominees are fantastic and the country will breathe a deep sigh of relief when the current President steps away from the reigns of power.
The last four years were very dark and oppressive. He did much harm to this nation and to the world.
This is a dozzie. Stupid and irrelevant comment.
Actually, “give a wit” usually applies to Biden.
Actually, “doesn’t give a wit” usually applies to identify.
Actually, “doesn’t give a wit” usually applies to Biden.
More like whit for brains applies to Biden
Nah. I’m going with another crazed Dem will try to kill him.
“I see dead amendments” is a hilarious title for this article. Well played whoever cane up with that!
Haven’t seen that Nosferatu photo since Halloween. To juxtapose it alongside a snapshot of President Biden is unkind. But I would defend the right of bloggeurs to exercise their freedom of expression.
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“Rumour has it that Elon Musk, Jeff Bezos and Mark Zuckerberg might all sit together at Trump’s inauguration. Which would be very cute, wouldn’t it? The Three Musk-eteers, all exuding masculine energy together. Maybe Musk and Zuck can finally have that cage-fighting competition they keep talking about. Bezos can referee.”
I can’t wait, the next 4 years are going to be so exciting.
Your comment has nothing to do with the topic of discussion 🙁
I sure hope some of the first things they do is say that anyone that makes more than $1,000,000 per year pays no taxes, none, nada, zip. How else is musk, Zuckerberg, trump, and Bezos going to amass a trillion dollar net worth.
Stupid and irrelevant comment.