President Biden's Unsuccessful Attempt to "Amend" the Constitution

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Mar 27

On his last Friday in office, President Biden announced that he had “amended” the Constitution by holding that the Equal Rights Amendment, which prohibits discrimination on the basis of sex, had met the criteria for ratification. (The only substantive provision of the ERA is that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) He pronounced the ERA “the law of the land” because it had been passed by a two-thirds majority of Congress and then ratified by three-quarters of the states, as the Constitution requires. In doing so Biden complied with a demand of Democratic politicians, led by New York senator Kirstie Gillibrand. According to the New York Times, he was animated by a desire to embellish his “legacy.” But contrary to the demand of Gillibrand et al., he stopped short of instructing the national archivist to add the amendment to the Constitution, leaving it unclear what effect his pronouncement would have, while likely inviting a host of legal challenges.

There was good ground for the former President’s hesitation. The Equal Rights Amendment did not actually meet the requirements for addition to the Constitution, since it fell three votes short of obtaining ratification by three-quarters of the states (that is, a total of 38) by the time limit that Congress set in adopting it (subsequently extended by three years). Only after the expiration date did an additional three states vote for ratification. (Meanwhile, six of the original ratifying states had repealed their votes.) As for Biden’s announcement, U.S. Archivist Colleen Shogan had previously stated that the ERA's eligibility has expired, and could not be added now unless Congress acts. Even should some future Congress choose to cancel the deadline it had set, it is unlikely that such an action would pass Constitutional muster – as distinguished from re-enacting the proposed amendment with a new timeline.

By originally including a seven-year time limit for ratification, Congress imitated the precedent it had set in adopting the 18th and 20th through 26th amendments. The reason for doing so is as follows: without such a limit, an amendment, once adopted by Congress, might literally remain open for ratification indefinitely – perhaps long after any of the state legislators who originally voted for it, or the people who had elected them, were still around. This actually happened in the case of the 27th Amendment, which addressed the trivial matter of the effective date of Congressional pay raises, was ratified – over 202 years after it had originally been proposed.

In the case of the ERA, in 1979, the original deadline, when not enough states had ratified it, Congress added three more years, but by 1982 it remained unratified. So the latest response of Senator Gillibrand and her colleagues has been to argue, implausibly, that the time limit for ratification is itself unconstitutional. (The basis of that claim is the assertion of the August, 2024, meeting of the House of Delegates of the heavily pro-ERA American Bar Association that since Article V of the Constitution, which governs the amending process, doesn’t mention time limits, they therefore violate the Constitution. But since Article V assigns full authority for the proposing of amendments to Congress, either directly or through a convention, with only two restrictions that are irrelevant here, it supplies no reason for thinking that time limits are banned.) While recognizing that such a claim – never before upheld in the period of over a century since Congress has been including the provision in amendments – is unlikely to be upheld by the current Supreme Court, Gillibrand’s reported aim through her claim is to make a "statement" on behalf of the ERA, with the hope that some future court will do so.

In reality, the Equal Rights Amendment has been rendered almost entirely superfluous since it was first adopted by Congress, even from a feminist point of view, as Supreme Courts have read practically all rights that might reasonably be claimed under it into Title VII of the 1964 Civil Rights Act or the Fourteenth Amendment’s guarantee of due process or “equal protection of the laws.” (In fact, one argument made by Phyllis Schlafly, who led the successful opposition to the ERA in the 1970s, was that its enactment might lead to such seemingly farfetched consequences as the elimination of single-sex bathrooms and the legal authorization of same-sex marriage. Not so far-fetched at all, it turned out – the latter a consequence of the Supreme Court’s 2015 decision in Obergefell v. Hodges, ostensibly grounded on the Fourteenth Amendment, the former effectively instituted as a consequence of various state policies, extending even to locker rooms, without any need for textual support from an ERA.

The one asserted right that its present advocates are likely seeking to have protected under it is a supposed right to abortion – overturning the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization, (2022), overturning Roe v. Wade by denying that the Constitution authorizes any such right. Of course, any survey of the Constitution demonstrates that the Court purely as a matter of textual reading. (Roe had been widely criticized even by prominent liberal law professors and jurists, including future Justice Ruth Bader Ginsburg, for its sweeping claims and poor reasoning.) Senator Gillibrand made her focus on abortion explicit in her statement applauding President Biden for “enacting” the 28th Amendment, remarking, “Millions of women living in states with restrictions on their reproductive freedoms can file lawsuits to overturn these unconstitutional laws that discriminate against people based on their sex.”

But it must be stressed that the Dobbs decision in no way required state governments to ban abortion. And numerous state governments have already moved to explicitly guarantee abortion rights. So despite President Biden’s claim that in declaring the ERA the “law of the land” he was acting in accordance with the people’s “will,” he was doing no such thing. Voters in every state retain the right under the Constitution to keep abortion legal, without the need for either an ERA or a reversal of Dobbs. Only politicians and activists who want to constrain the people’s right to self-government can insist on finding some means of enabling judges to constrain the popular will in this regard. And only those who lack regard for the rule of law can wish to distort the Constitution by demanding that judges disregard a long-established and eminently reasonable Congressional practice of setting a binding time limit on proposed amendments.

Of course, as the ABA resolution upholding the ERA indicates, there is one particular group that stands to benefit in other ways from its adoption: trial lawyers. At the end of its 2024 meeting, a former ABA president, Mary Smith, stressed the ERA’s potential role in areas like “equal pay and equal representation in the legal profession,” along with the principle that “as an indigenous person, … any law that strengthens the rights of women lifts all women up, whether they’re Indigenous, Black, Asian, Hispanic,” so that “the ERA lifts all of us up” (at least if “we” are female, or lawyers representing women in lawsuits). While the Equal Pay Act of 1963 already prohibits discrimination in compensation between the sexes, imagine the expanded range of suits that can be filed on behalf of women when this guarantee is elevated to the status of a Constitutional right to equal pay (with no identifiable standard for determining comparable sorts of work or the performance of those doing it).

Not surprisingly, the ABA convention, representing some 200,000 members (roughly half of all American attorneys) passed the pro-ABA resolution by acclamation (with one bold male lawyer voting against it). Long gone are the times when American lawyers, as Alexis de Tocqueville observed in Volume I of Democracy in America (1835), were a literally “conservative” force, in the sense of upholding impartial principles of law and Constitutional government amidst transient popular whims or factional demands. Instead, those who interest themselves in politics are often willing to bend the Constitution in ways that favor their pet political causes.