The Daily Signal - Everything You Need to Know About The Equal Rights Amendment

Episode Date: January 29, 2020

 Today we’ll feature Rachel del Guidice’s interview with Tom Jipping, a senior legal fellow at The Heritage Foundation where we break down the Equal Rights Amendment and why Jipping says Virginia technically can’t be the 38th state to ratify it, even though the state legislature claimed on Monday to have done so. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is brought to you by Square. You're not just running a restaurant. You're building something big. And Square's there for all of it. Giving your customers more ways to order, whether that's in person with Square kiosk or online. Instant access to your sales, plus the funding you need to go even bigger.

And real-time insights so you know what's working, what's not, and what's next. Because when you're doing big things, your tools should to. Visit square.ca to get started. This is the Daily Signal podcast for Wednesday, January 29th. I'm Rachel Deltudis. And I'm Kate Trinco.

Today, we'll feature Rachel's interview with Tom Jipping, a senior legal fellow at the Heritage Foundation. They'll discuss the Equal Rights Amendment, which is getting a renewed push, thanks to Virginia becoming the 38th state to ratify it. By the way, if you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now on to our top news. Flanked by Israeli Prime Minister Benjamin Nanyahu, President Donald Trump announced Tuesday a new Middle East two-state peace plan. Via BBC World, here's what he had to say. Today, Israel takes a big step towards peace. Young people across the Middle East are ready for a more hopeful future.

And governments throughout the region are realizing that terrorism and Islamic, extremism are everyone's common enemy. Yesterday, I had the pleasure of meeting with both the Prime Minister of Israel and a man that's working very hard to become the Prime Minister of Israel in the longest running election of all time. Benny Gantz of the Blue and White Party. And both leaders joined me to express their support for this effort, proving that the State of Israel looking for,

peace and that peace transcends politics by any measure, unmeasurable, that's what they want. But Palestinian leader Malmoud Abbas quickly indicated he has no interest in Trump's proposal, which would keep Jerusalem as part of Israel and designate parts of East Jerusalem to become a new capital for Palestine. Per the Wall Street Journal, Abbas said, We say a thousand times no, no, no to the deal of the century, referencing the Trump plan. Jay Sekulow, Chief Counsel at the American Center for Law and Justice

and one of President Donald Trump's impeachment defense team lawyers, chastised Democrats for being willing to do away with the separation of powers for political reasons. Here's what he had to say in testimony on Tuesday, via PBS. Those policy difference cannot be utilized to destroy the separation of powers. House manager spoke for, I know we've had disagreements on the time, It was 21 hours or 23 hours. They spoke during their time, a lot of time. Most of it attacking the president, policy decisions.

They didn't like what they heard. They didn't like there was a pause on foreign aid. I laid out before that there was pauses on all kinds of foreign aid. It's not the first president to do it. But the one thing I'm still trying to understand from the manager's perspective. And maybe it's not fair to ask the managers because you're not the leader of the house. But remember the whole idea that this was a dire national security threat, a danger to our nation? We had to get this over here right away.

It had to be done before Christmas. It was so important. It was so significant. The country was in such jeopardy. The jeopardy was so serious that it had to be done immediately. Let's hold on to the articles of impeachment for a month to see if the House could force the Senate to adopt rules. that they wanted, which is not the way the Constitution is set up. But it was such a dire emergency.

It was so critical for our nation's national interest that we could hold them for 33 days. Danger, danger, danger. That's politics. As I said, you're being called upon to remove the duly elected president of the United States. That's what these articles of impeachment call for. He also called out Democrats for wasting time on an impeachment over policy disagreements. But to have a removal of a duly elected president based on a policy disagreement, that is not what the framers intended.

And if you lower the bar that way, danger, danger, danger. Because the next president, or the one after that, he or she will be held to that same standard? I hope not. I pray not that that's not what happens. Not just for the sake of my client, but for the Constitution. President Trump gave a warm shout out to Secretary of State Mike Pompeo on Tuesday and alluded to his run-in with an NPR reporter. Via Fox News, here's the moment that Trump mentioned Pompeo, who then received a standing ovation. And of course our great secretary of State, Mike Pompeo. That's impressive. That was very impressive, Mike. That reporter couldn't have done too good a job on you yesterday. I think you did a good job on her, actually. That's good.

Thank you, Mike. Great. NPR reporter, Mary Louise Kelly, claims Pompeo swore and shouted at her after abruptly ending an interview with her that he claimed was supposed to be on Iran and in which she claims was supposed to be about Iran and Ukraine. In a statement, Pompeo said, NPR reporter Mary Louise Kelly lied to me twice, first last month in setting up our interview and then again yesterday in agreeing to have our post-interview conversation off the record. Meanwhile, the State Department also informed a different NPR reporter. She would no longer be allowed to travel with Pompeo during his trip to Ukraine this week. The Center for Disease Control and Prevention announced Tuesday that they're adding more screenings at borders and airports in the U.S. for the

Chinese coronavirus. China announced on Tuesday that the virus has led to 106 deaths. Screenings are being added to 20 ports of entry, up from five, according to federal officials. The Congressional Budget Office is out with a new report and it's full of bad news regarding America's fiscal state. The deficit is expected to be a trillion in 2020 and then in the the rest of the decade, it's supposed to be on average a whopping $1.3 trillion. Meanwhile, that means the deficit will be 5.4% of gross domestic product in 2030. The CBO notes, other than a six-year period during and immediately after World War II, the deficit over the past century has not exceeded 4% for more than five consecutive years. And during the past 50 years,

deficits have averaged 1.5% of gross domestic product when the economy was relatively strong, as it is now. Next up, we'll have Rachel's interview with Tom Jipping about the Equal Rights Amendment. Do conversations about the Supreme Court leave you scratching your head? If you want to understand what's happening at the court, subscribe to SCOTUS 101, a Heritage Foundation podcast, breaking down the cases, personalities, and gossip at the Supreme Court. We are joined today on the Daily Signal podcast by Tom Jipping. He's the deputy director of the Edwin Meese, the Third Center for Legal and Judicial Studies

and Senior Legal Fellow at the Heritage Foundation. He is also the author of a New Heritage Foundation Report. The 1972 Equal Rights Amendment can no longer be ratified because it no longer exists. Tom, thank you so much for being with this today. Well, thanks for having me. So on Monday, Virginia passed the Equal Rights Amendment or the ERA. So before we get started, can you just kind of briefly go over what the ERA is?

Sure. The Equal Rights Amendment is a proposed amendment to the U.S. Constitution. The effort to make it part of the Constitution has been going on since the 1920s. And proposals to send it to the states have been introduced in Congress more than a thousand times over those years. It got the two-thirds vote of both houses of Congress that the Constitution requires only once, and that was in 1972. And that sent the ERA to the states. The Constitution requires that three

quarters of the states must ratify an amendment before it becomes part of the Constitution. In terms of what the ERA says, it's the version that was sent to the states in 1972 is very short. It simply says that rights shall not be

denied based on sex. And it was increasingly controversial when it was proposed in the 1970s. A lot of states ratified it quite quickly. And then that progress slowed dramatically as different organizations really urged state legislatures to examine not just the words of it, which sound pretty simple, but what it could be used to do. And as a result, a total of 35 states ratified it by the deadline. It did have a seven-year deadline when it was proposed. So that deadline would have been in March of 1979. And then Congress extended it once to June 30th, 1982.

And when that deadline passed, and there weren't three quarters of the states on board, the ERA effectively died. The reason we're talking about it today is that, you know, after about kind of 20, 25 years of just sort of sitting there, some ERA activists and some feminist organizations started thinking a little more creatively if they could get the progress going. Could they pick up where they left off back in 1982? and some made the argument that states could still ratify the 1972 ERA. And if they, you know, had three more states, that would get them to 38. That was three quarters. And, you know, bingo, it would happen. So Nevada ratified in 2017.

Illinois ratified in 2018. And now Virginia claims to be the 38th state to ratify the Equal Rights Amendment. In my paper, I explain what really is a pretty common sense idea. The deadline was a deadline. You know, June 30, 1982. After that date, the ERA no longer existed. It wasn't pending before the states anymore. So whatever it is that Virginia says that it did, you can't ratify a constitutional amendment that doesn't exist.

So if activists want the ERA to be part of the Constitution, they're going to have to start over again. They're going to have to get Congress to propose it again and get it to the states for ratification. But the 1972 ERA is dead. Proponents of the ERA, a local Richmond news station, had said that these people are saying that the amendment will enshrine equality for women in the Constitution. Would you say knowing what the area is? Is that the case? Well, as I said, the debate about what the ERA would or wouldn't do either intended or unintended consequences has been going on since literally the 1920s. In the very beginning, believe it or not, feminist groups and labor unions strongly opposed the ERA because they said it could be used to prevent legislation that would actually benefit women.

Today, you know, those roles are reversed, but there's a lot of discussion and has been since it was proposed in 1972 about how much mischief it could actually be used for. The other debate is about whether, and this goes to your question as well, the other debate is whether existing law, either provisions of the Constitution, state constitutions, many states have passed. their own ERAs, whether those laws that are in place today that certainly weren't in place in the 1970s provide the legal protection that women need. There's certainly debates about those questions. I do think that the threat or the possibility that something even as simple as the ERA could be used, especially in the courts, for all kinds of other things. I think that danger is much more real today, even than it was in 1972. We see all the time groups going to the courts with a constitution that says one thing, and they persuade judges that it says something else. And we end up changing the country in profound ways that were never intended.

And I think whether it's, you know, abortion, the LGBT agenda, all sorts of things that. that would very definitely be on the litigation agenda should the ERA become part of the Constitution. You touched on this a bit earlier, but to drill down into it a little bit more, Virginia is claiming, as you mentioned, to be the 30 state to pass the ERA. So does that mean that it's now a constitutional amendment? You hinted on this, but just to clarify for everyone listening. Well, the process, and this is laid out by a federal statute, once a state does what, Virginia did, it sends what the statute calls ratifying documents to the Office of the Federal Register. That's an agency here in Washington that publishes the Federal Register, which is a record of

regulations. And once the Office of Federal Register has received those documents from 38 states, they notify the archivist of the United States. and then the archivist does a review of those documents for what the statute calls legal sufficiency, basically just to make sure that they're legally sound. And then if there are 38 states ratifications that are legally sound, it becomes part of the Constitution. Congress has no role. They don't have to take any vote.

The president isn't involved. So the question is, if the ERA expired in 1982, if it literally was not available for ratification, when these documents get here to Washington and the archivist does his review, what's you going to say? I mean, can he say that ratification of an amendment that doesn't exist is legally sound? I don't think so. But that's the process that is spelled out in federal statute. And I suppose, you know, almost everything ends up in court at some point in this country. So I suppose at some point thereafter, there might be a lawsuit. But that's what has to happen next.

So five states try to take back the support of the ERA. Can a state do that? Well, that's an important part of the ERA story. The effort to get states to ratify the ERA really took off in 1972 and a couple of dozen states very quickly ratified it. Not only did the pace of new states dwindle, but because of the rapidly increasing opposition, as you said, five of the states that did ratify. They rescinded that ratification. I believe those recisions are valid. In other words, until 38 states ratify the amendment, it's not an amendment.

I mean, it's not part of the Constitution. It's still pending. And a state can make its decision. They can change their mind. They can do one thing, one year, and five years later, you know, undo it if they want. It's like until that ratification deadline happens, that the amendment is pending. And as long as it's pending, states can do. what they want to do. So in my opinion, by the deadline, by the 1982 deadline, only 30 states

had validly ratified the ERA and they would have needed eight more. But, you know, my dad said close only counts in tiddly wings or horseshoes or something. And 35 is just as far away from 38 as 30 is. Either way, the ERA is dead. Well, in 2019, there was a House committee that passed a bill that would have removed the 1982 deadline for the ERA. So could the Senate and House, hypothetically speaking, retroactively remove that 1982 deadline and let the Equal Rights Amendment move forward? No. As I said, June 30, 1982, the ERA is dead. Congress cannot amend a bill that has failed. That would be like introducing an amendment today to a bill that, was introduced three years ago or something like that. I mean, it just, it doesn't exist. A deadline is a

deadline. I mean, the Constitution gives Congress a significant authority to propose constitutional amendments. And the Supreme Court has held clearly that that includes the authority to set a deadline. Congress did that. The deadline is passed. Everyone knows what a deadline is. The deadline is past. I mean, as frustrating as that might be to some political activists, as much as people might wish that hadn't happened, it did. The Congressional Research Service, which, as I'm sure you know, is a well-respected, widely used resource of nonpartisan research. When I worked in the United States Senate, we relied on them frequently. They've published a huge work about the Constitution and its interpretation.

I mean, it's literally almost 3,000 pages long covering every subject imaginable. And for more than 20 years, the Congressional Research Service has said that on June 30, 1982, the ERA died. I mean, you know, it's we can make, and, you know, lawyers can make any subject really complicated, no matter how simple it is. But that's the deadline. It passed. The ERA is dead. So you have people celebrating it even still, even though we have this deadline that has passed. And if these advocates still wanted to go about and actually do this the right way, how would they go about doing that?

Would they introduce it? What are the steps to that? Well, the process is the same as they did for the 1972 ERA. A member of Congress would introduce a joint resolution that includes a deadline. If there is one, it designates whether states must ratify the amendment by legislature or convention. And then it includes the language of the amendment. If two-thirds of the Congress passed that, it gets sent to the states. Three-fourths of the states ratify it.

It becomes part of the Constitution. So that process has to start over. As I said, since the 20s, you know, those resolutions to propose the ERA have been introduced over a thousand times. Everybody knows that that's the process and that if it doesn't work the first time, you do it again. You start over. You know, as I say, I realize that's frustrating. With the opposition to the original ERA, there would probably be more opposition now. and so the likelihood that it would become part of the Constitution is probably lower.

I can see where they would want to grasp whatever strategy they thought could give them a leg up on that. But this isn't it. The deadline passed 37 years ago. Well, earlier this week, Virginia Attorney General Mark Herring said, per American University Radio, I am committed as ever to making sure we have and use every single tool at our disposal to make sure the equal Rights Amendment becomes part of the United States Constitution. So in his role as Virginia Attorney General, is there anything he can do to achieve that? Well, you'll notice that he didn't say anything specific about whether the 1972 ERA has in fact been ratified by Virginia. Interestingly, in 1994,

the Deputy Attorney General of Virginia issued an opinion saying specifically, he was responding to a member of the legislature that the ERA was no longer pending and could not be ratified. That was 25 years ago. So Attorney General Hearing, I'm not aware, has reversed that. What he's saying is he wants to see the ERA become part of the Constitution. Lots of people do. And there's a process for that. Alabama, South Dakota, and Louisiana, they're suing the head archivist of the United States

saying that it would be illegal to add the R.A. as an amendment. What's your perspective on that suit? and where do you think it will go? Well, as I mentioned about the process, the archivist is sort of the final step of the process. He has to make that review to make sure that the documents he's received from at least 38 states are legally sound.

He hasn't done that yet. He hasn't made any decision on that yet. So the lawsuit is probably a little premature, but they're focusing it in the right place. In other words, they're following federal statute as to what the process actually is. It doesn't become part of the Constitution unless the archivist issues a proclamation to that effect.

So he's where the buck stops. I mean, and that's the final decision that has to be made. But, you know, they're right to do it. And it really doesn't matter whether your state has or hasn't ratified. I wish that more people, including, in this case, feminist groups and so on, that we would be more united on the process that has to be followed for our government to function under the Constitution. We all ought to agree on that, that the Constitution's rules

apply to everyone. No one gets to, you know, skirt around, you know, a different way or come up with a way of avoiding what the Constitution requires. It doesn't matter what your politics are. We all ought to respect that and insist that the Constitution's rules be followed. If we do. In this case, the ERA has to start over. Going off of that point, Tom, really quickly, why don't you think there were Virginia lawmakers that said, hey, this deadline has been missed? We have no business doing this. Well, unfortunately, I think we have more politicians than statesmen in a lot of our legislatures. I saw quotes from members of the Virginia legislature, including Republicans, who said, you know, well, just let the courts sort that out. You know, this is an important time to

take a stand. So let's just let the courts figure that out. That's a complete abdication of their responsibility and it violates their oath of office. They took an oath to support and defend the Constitution, and that includes the Constitution's rules for amending it. And so to simply kind of duck out of that and wheezzle out of that responsibility and just say, ah, you know, the courts will sort it out. Good grief. The courts have done enough damage to our country and take authority away from our elected representatives and away from the people for making these kinds of decisions. That was more than disappointing to hear that. We ought to have our representatives follow their oath of office, insist on those basic rules,

and then we can handle and address our political differences. But if the system itself is going to crumble because our elected representatives don't care about it, then we're in bigger trouble than I thought. Tom, you mentioned this a little bit earlier, but saying that everything and, you know, usually ends up in court at some point in time. So do you foresee once all, you know, depending on what happens with different states ratifying, do you foresee a legal battle at some point with the ERA? Well, I do.

I mean, if, for example, the archivist were to say, as I think he should, that the last three states to supposedly ratify, that would be Nevada, Illinois, and Virginia, that their ratifications are not legally sound and shouldn't be recognized, then I suppose there might be states and left-wing groups that would go to court to try to force him to do that. So, yeah, I suspect there's a lot at stake with something that is this symbolic, something that has been around this long. It stands for an awful lot. both positively and negatively.

So a lot of political interests would see one way or another that their interests are tied up in the ERA and that usually means that someone will go to court. Well, you can find Tom's report, the 1972 Equal Rights Amendment can no longer be ratified because it no longer exists on heritage.org if you want to learn more about it. Tom, thank you so much for being with us on the Daily Signal podcast. Thanks for having me. And that'll do it for today's episode. Thanks for listening to The Daily Signal podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Be sure to subscribe on Apple Podcasts, Google Play, or Spotify. And please leave us a review or a rating on Apple Podcasts to give us any feedback.

We'll see you again tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Daniel Davis. Sound designed by Lauren Evans, the Leah Rampersad, and Mark Geine. For more information, visit DailySignal.com.