Since Virginia became the 38th state to ratify the The Equal Rights Amendment (ERA) in 2020, its fate has languished in courts and on the congressional cutting room floor. But it’s neither the legislative nor the executive nor the judiciary that hold the fate of constitutional gender equality; in fact, the ERA needs just one more signature to take effect. The would-be 28th Amendment to the U.S. Constitution is waiting for the National Archivist to certify and publish those 24 words as a new amendment to the Constitution.
The National Archivist? Like from the National Archives? Yes, exactly. Currently Debra Steidel Wall is the acting archivist at the archives. Unlike her predecessor David S. Ferriero, who blocked the ERA certification, Steidel Wall has the opportunity to make history.
The constitutional amendment process is rather straightforward: An amendment must be passed by two-thirds in both houses of Congress and ratified by three-fourths of the states (38 currently). There are no other steps. The president doesn’t even have to sign it. “If you’re a strict originalist, that’s it for the amendment process,” Kate Kelly, lawyer, ERA advocate, and author of Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment, explained to Jezebel. “It’s a states’ rights issue.”
However, Congress added a statutory requirement, and this is where we return to Steidel Wall. “The archivist certifies that the states who ratified it ratified it and publishes it. That’s the way for everyone to know that when you print new versions of the Constitution it has 28 amendments,” Kelly said. “It’s a purely ministerial duty. The archivist was never intended to be an arbiter.”
In fact, the amendment process is supposed to stay in the hands of those who are democratically elected. The archivist is only confirmed by the Senate and reports to constituency. Article V of the Constitution gives no roles to the courts or executive branches in text.
Because of this, the archivist has been sued by Illinois, Nevada, and Virginia. A federal district court dismissed the suit, but its appeal is pending at the D.C. Court of Appeals. Since then, Virginia Attorney General Jason Miyares (a Republican) pulled out of the lawsuit. The lawsuit was dismissed because the states passed the ERA after the 1982 deadline given by Congress. But that deadline only applied to the preamble of the ERA, Kelly said.
Despite this back-and-forth, leading constitutional scholars like Laurence Tribe of Harvard Law School told Congress that the ERA is the 28th Amendment.The 24 words that would add gender equality to the Constitution and were ratified by 38 states do not include the deadline.
The states shouldn’t have to be beholden to a congressional deadline, Kelly said. “There are no deadlines attached to the constitution amendment process [in Article V],” she said. “There are a lot of deadlines in the Constitution, a census every 10 years for example. If the framers intended to put in a deadline, they would have. The time limit was not something they considered. I think it’s pretty clear that the deadline is not binding.”
The time for constitutional protections for gender have never been more urgent. “We will not have permanent protections if we are not in the Constitution,” Kelly said. “Losing access to abortion as a fundamental right illustrates the vital importance of changing the Constitution. Protections we treated as permanent are not permanent.”
But for Kelly, who first learned about the ERA when her mother and grandmother were organizing against it in the 1970s at the behest of the Mormon Church, the ERA represents a long game and a systemic solution.
“When you think about amendments, the people who wrote and ratified the Second Amendment never imagined how powerful it would become. They have become incredibly powerful tools and we don’t have that for gender. We need to step back and dream as big as we can,” she said. “It will also outlast every person on the Supreme Court. It’s gonna be here in 200 years, 300 years, assuming we still have a democracy by then. It is a permanent amendment.”