Outgoing President Joe Biden recently faced criticism after attempting to assert the existence of a 28th Amendment to the U.S. Constitution. He shared his belief on social media, claiming that the Equal Rights Amendment (ERA) had been ratified. This declaration quickly sparked a wave of skepticism and mockery.
Biden’s post confidently stated, “Today I’m affirming what I have long believed 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.” However, this statement was soon challenged by a community note on the X platform. The note cited the Department of Justice, emphasizing that the National Archivist, responsible for enrolling new amendments, confirmed the ERA had not been lawfully ratified. The legal opinion, drafted by Biden’s own Justice Department’s Office of Legal Counsel in 2022, supported this position.
The ERA initially required the approval of three-fourths of the states to be ratified. Congress set a time limit to meet this requirement by 1982, but despite some states voting in favor after the deadline, the effort ultimately fell short. Biden’s declaration was met with criticism from various commentators who found the proclamation absurd.
Brit Hume from Fox News responded succinctly, “No he didn’t. He says he did, but because he can’t, he didn’t.” Similarly, Molly Hemingway remarked, “Sir, this is not how the Constitution works. Dementia is not a magic ticket to become a dictator that asserts Constitutional amendments into existence.” Tim Carney from the American Enterprise Institute also weighed in, questioning Biden’s regard for the rule of law, “Who would have guessed that the guy who illegally and proudly tried to forgive everyone’s student loans would have no regard for the rule of law and would pretend he has magic powers?”
Ben Shapiro of The Daily Wire offered a more technical critique, saying, “Nope, sorry, you can’t just ‘declare’ the 28th Amendment law, anymore than I can declare you dead. That requires a coroner. And this requires a constitutional process.” These comments highlight the skepticism and disbelief surrounding Biden’s announcement.
Notably, even the late feminist icon and Supreme Court Justice Ruth Bader Ginsburg acknowledged in 2020 that the ERA effort had not succeeded and needed a fresh start. Ginsburg noted, “There’s too much controversy about latecomers. Plus, a number of states have withdrawn their ratification. So if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”
Given the current political landscape, a challenge to Biden’s declaration could potentially reach the U.S. Supreme Court. With a conservative majority, the court would likely strike down any attempt to enforce the amendment without proper ratification. This situation underscores the complexity and contentious nature of constitutional amendments in the United States.
The response to Biden’s statement reveals a broader debate about the processes and rules governing constitutional changes. It highlights the importance of adhering to established protocols and the potential ramifications of bypassing them. Critics argue that such declarations, without the necessary legal backing, undermine the constitutional framework.
The discussion also brings to light the ongoing struggle for equal rights and the challenges faced in enshrining these rights within the Constitution. The ERA, first proposed nearly a century ago, remains a symbol of this struggle. Despite its failure to be ratified, the conversation around it continues to evoke strong emotions and differing opinions.
Biden’s proclamation has reignited a conversation about the need for clarity and consensus in the amendment process. It serves as a reminder of the complexities involved in altering the nation’s foundational document and the importance of following due process.
As debates around the ERA and other potential amendments continue, the U.S. is reminded of the delicate balance between progress and tradition. The path to constitutional change is fraught with challenges, requiring careful navigation and widespread agreement.
In this context, Biden’s declaration, while controversial, may serve to highlight the ongoing demand for gender equality and the importance of ensuring equal rights for all citizens. It also underscores the necessity for clear communication and adherence to established legal frameworks in pursuing such goals.
The conversation around the ERA and Biden’s announcement reflects broader societal debates about progress, equality, and the rule of law. These discussions are likely to continue, shaping the future of constitutional amendments and the quest for equal rights in America.
