newNow you can listen to Fox News articles!
President Joe Biden wants people to know the amendment he saw is dead. Just before leaving office, Biden announced that we had a 28th Amendment, even though the measure died in the ratification process several years ago.
Not since The Sixth Sense has there been a more chilling moment. In the words of Cole Seal in the film, Biden did not see the failed amendments being put in the coffin of the Constitution, but “walking around like a normal person.” [amendments]. They don’t know they are dead.
President Joe Biden poses for a photo in front of the U.S. Capitol. (Getty Images)
Biden waited until shortly before leaving office to appeal to the most delusional elements in the Democratic Party to unilaterally declare that the Equal Rights Amendment was now part of the Constitution. The farce was then further amplified by figures like New York Senator Kirsten Gillibrand, who gleefully and falsely told women they could now go to court and enforce the amendment to Restoring rights such as abortion rights.
This bizarre collective fantasy was triggered by the following statement:
“In fulfillment of my oath and duty to the Constitution and our country, I affirm my belief and what three-quarters of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights under the law and Protect, regardless of their gender.
Without naming anyone, Biden cited dozens of “constitutional experts” to support this absurd claim.
Reporters work outside the U.S. Supreme Court building in Washington, DC. (Photo by Anna Chanmemaker/Getty Images) (Anna Chanmemaker)
Biden’s last-minute statement was more chilling than the movie because it required not only a departure from constitutional process but also from reality. Although Biden ran as a champion of democracy, he simply ignored the fact that the ERA was not ratified, as the Justice Department, multiple judges, and his own archivist made clear weeks ago.
Even the late U.S. Supreme Court Justice Ruth Bader Ginsburg declared the amendment dead.
Archivist Colleen Shogan recently explained that neither her office nor the White House had the authority to unilaterally release the amendment or waive the ratification deadline:
“The DOJ Office of Legal Counsel reconfirmed in 2020 and 2022 that the ratification deadlines set by Congress for the ERA are valid and enforceable,” she wrote. “OLC concluded that extending or eliminating the deadlines would require new action by Congress or the courts. action.”
“As a result, the Archives of the United States cannot lawfully publish Equal Rights Amendment rights. As leaders of the National Archives, we will adhere to these legal precedents and support the constitutional framework within which we operate.”
The reason is simple. The underlying argument is completely ridiculous.
As I’ve written before , the ERA is as dead as Dillinger.
The deadline for ERA ratification was set for March 22, 1979—it would take seven years to gain ratification by three-quarters of the states, or 38 states. But it didn’t do that. To make matters worse, four states—Nebraska, Tennessee, Idaho, and Kentucky—rescinded their previous approvals. A fifth state, South Dakota, stipulated that if the ERA was not passed by the 1979 deadline, its ratification would lapse.
Kentucky has an additional problem because the state’s Democratic lieutenant governor vetoed a resolution to revoke the approval while the governor was away. However, Article V talks about ratification by state legislatures.
Notably, no states were added for a long time. Even assuming those five states could be counted, despite voting to revoke their ratification, the ERA was still three states shy of missing its second deadline.
President Jimmy Carter speaks at a town meeting. An American flag hangs in the background.
Democrats later insisted states could not revoke their votes even before final approval. Therefore, Democrats and then-President Carter simply extended the deadline to June 30, 1982. Idaho v. Freeman Congress cannot extend the ERA’s ratification period. (The Supreme Court later stayed the order, but later declared the matter moot.)
In 2021, U.S. District Judge Rodolfo Contreras ruled that it was “ridiculous” for archivists to ignore deadlines and unilaterally add unratified amendments to the Constitution. On appeal, the D.C. Circuit panel unanimously rejected Illinois and Nevada’s claims that the archivist should be ordered to publish the ERA, holding that “the states’ argument that the proposed provision is similar to the ineffective preamble provision in the bill is not Persuasive.
None of this matters to the defenders of democracy, who ignored the votes cast in these states and ignored constitutional deadlines and procedures. Harvard law professors Laurence Tribe and Kathleen Sullivan published an op-ed declaring “ERA is law now!” as if amplification and exclamation points would somehow make it true . (Lawrence Tribe has called for Trump to be charged with the attempted murder of former Vice President Mike Pence, insisting the law is clear, “beyond a reasonable doubt, beyond a reasonable doubt.”)
Click here for more Fox News views
Notably, Biden did not issue an executive order to the archivists, as many activists had hoped. The reason is simple: The White House knows it could be challenged in court and quickly collapse under judicial scrutiny. They would rather Biden declare like Caesar that we have a new amendment and treat it as fact.
With this statement, Biden expressed his “final all-out devotion” to the radical left in his party. It’s a pandering, and frankly pathetic, moment for a president who is currently one of the most unpopular to leave office.
Click here to get the Fox News app
His actions on the ERA perfectly illustrate why he is considered a “failed” president. Biden has always sacrificed principles for the politics of the moment. It’s a participation trophy given to activists, lacking any substance or foundation. This is why voters view Biden as a greater threat to democracy than Trump.
It’s chilling to think that Biden actually believes this nonsense and to see lifeless amendments walking around the White House. However, the truth may be even scarier: He just doesn’t care. He saw a number of ineffective amendments in hopes of reviving his legacy. However, both men are now among the dead.
Click here to read more from Jonathan Turley
