The head of the American Constitution Society says President Biden is right: The ratification standard has been met.
Former senator (D-WI) Russ Feingold testifies before a Senate Foreign Relations Committee hearing in 2014.(Tom Williams / CQ Roll Call via Getty Images)
Few elected leaders in American history have been so devoted for so long to the US Constitution as Russ Feingold.
During his three terms as the Democratic senator from Wisconsin, Feingold, a Rhodes Scholar and Harvard Law School graduate, served as chair and ranking member of the Senate Judiciary Committee’s Constitution Subcommittee—earning praise from Democrats and Republicans, liberals and conservatives, for his willingness to put constitutional principles ahead of partisan politics. After leaving the Senate in 2011 and teaching at some of the nation’s great law schools, Feingold was chosen in 2020 as president of the American Constitution Society. Former Yale Law School dean Harold H. Koh hailed the selection, describing the former senator as “a courageous and brilliant leader who has devoted his whole distinguished career to the Constitution’s preservation.”
So it was significant when Feingold and Harvard Law School professor Laurence Tribe began arguing three years ago that the Equal Rights Amendment, which for a century has been championed as an essential vehicle for advancing the cause of gender equality in the United States, had satisfied all constitutional requirements for ratification. Feingold and Tribe asserted that no further action from Congress or the executive branch was needed for the National Archivist to certify the amendment as what the former senator and the ACS argue should be understood as “an already ratified addition to the US Constitution.”
The views expressed by Feingold and Tribe, along with other constitutional scholars, were amplified over the ensuing years. They gained traction with members of Congress. Now, they have been echoed by Joe Biden, in one of his last official acts as president.
With just days left in his term, Biden embraced arguments advanced by advocates of gender equality—including Feingold, with whom Biden served for 18 years in the Senate, much of that time when both were Judiciary Committee members—that the ratification standard had been met. On Friday, Biden announced that, in his view, the ERA is “the law of the land.”
Feingold says that Biden’s statement provides recognition of “the validity of the Equal Rights Amendment, which has been so long and so hard fought for by so many.” That validity is still rejected by many in positions of power, however, which means the hard fight continues—especially now that Biden’s out of office and right-wing Republicans control the White House and Congress.
Written by National Woman’s Party cofounders Alice Paul and Crystal Eastman after women won the right to vote with the 19th Amendment, the ERA was first introduced in Congress in 1923. Its declaration 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” should not have been controversial. Yet it was not approved by Congress until 1972 and, in the initial push for ratification following congressional action, it fell three states short of the 38 needed to be added to the Constitution. After an arbitrary deadline for approval of the amendment passed in 1979, and a second deadline passed in 1982, decades went by before states began to revisit the issue.
When the legislatures of Nevada (2017), Illinois (2018), and Virginia (2020) finally ratified the amendment, there was debate about whether it could be certified by the National Archivist. Questions arose about whether the clock for ratification had been stopped in 1982, thus rendering the later ratifications immaterial. While groups such as the National Organization for Women and the ERA Coalition argued that the ERA had the 38 ratifications that were needed, the archivist chose not to act.
Feingold and Tribe intervened in 2022 with a pointed statement that sought to clarify the matter, which was shared with the archivist by former House Oversight and Reform Committee chair Carolyn Maloney, the New York Democrat who for many years was a key advocate for the ERA in Congress. In it, Tribe wrote, “My conclusion as a constitutional scholar is that the ERA is currently a valid part of the United States Constitution, that Congress should act concurrently to recognize it as such, and that even if Congress takes no such action the Archivist should publish it as the Twenty-Eighth Amendment.”
In the same filing, Feingold wrote, “It is my opinion that the ERA has met all constitutional requirements, and the Archivist can and should certify and publish the ERA as the 28th Amendment to the Constitution without delay.” He explicitly rejected the notion that further legislative or executive branch action was needed. “Congress, having passed the ERA by a two-thirds vote in both chambers and sent the proposed amendment to the states for ratification, has fulfilled its constitutional role,” he explained. “The Archivist can publish without further action from the executive branch or Congress.”
The archivist did not choose to act.
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But the influential American Bar Association was paying attention to calls for action that were coming from Feingold and the ACS, the American Association of University Women, NOW, the ERA Coalition, the Young Feminist Party and a growing number of members of Congress.
At last summer’s annual ABA meeting, it was resolved that “the American Bar Association supports the principle that any time limit for ratification of an amendment to the United States Constitution is not consistent with Article V of the Constitution,” that “Article V does not permit a state to rescind its ratification of an amendment to the Constitution,” and that “federal, state, local, territorial, and tribal governments [should] support implementation of the Equal Rights Amendment to the Constitution.”
The ABA’s report on the resolution knocked down the deadline arguments from anti-ERA forces for blocking the amendment’s addition to the Constitution. It included a detailed explanation of the fact that “the language of Article V contains no time limit on the ratification process” and observed, “ERA opponents concede that the text of the Constitution includes no limit on the time for state ratification of a Constitutional amendment.” The report relied on Feingold’s March 21, 2022, letter to the House Committee on Oversight and Reform, which argued, “[The resolving clause with the purported deadline] is not what the states ratified. If we look at the amendment itself, there is prefatory language, and then it says ‘Article,’ and there is Section 1, 2, and 3. That is what the states ratified, not the deadline.”
The ABA resolution was approved just five months before the end of Biden’s presidency. During the course of those months, ERA supporters stepped up their advocacy—with groups such as the Young Feminist Party staging demonstrations outside the White House. On the Friday before he left office, Biden declared that he agreed with constitutional scholars “that the Equal Rights Amendment has become part of our Constitution” and said, “In keeping with my oath and duty to Constitution and country, I affirm what I believe 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.”
The archivist’s office still refused to act, announcing last Friday that “the underlying legal and procedural issues have not changed.” In response, activists rallied outside the National Archives, with Zakiya Thomas, the president of the ERA Coalition of more than 300 organizations that support the amendment, saying, “Do your job. The president has done his.”
Now that Donald Trump has reclaimed the presidency, Thomas and her allies are pressing forward to confirm what she refers to as “this foundational right.”
US Representative Ayanna Pressley, the Massachusetts Democrat who cochairs the Congressional Caucus for the Equal Rights Amendment, has been working to get the House “to remove the arbitrary deadline that has delayed enshrining the Equal Rights Amendment as the 28th Amendment to the United States Constitution.” Pressley said after Biden acted that she will “continue fighting to ensure the ERA delivers on its full promise for everyone who calls America home.”
That work won’t be easy given the current Republican grip on Washington. But it is necessary work on behalf of what Feingold and the American Constitution Society argue is an “already ratified” amendment.
As scholars and activists wage that fight, they can lean on Feingold’s response to Biden’s statement. “I and ACS have long believed and argued, alongside many other committed women’s rights organizations and advocates, that the ERA met all the constitutional requirements to be recognized as the already valid ratified 28th Amendment to the Constitution,” said the former senator. “As women face mounting threats to their reproductive and bodily autonomy, recognizing—and enforcing—the ERA is more important than ever. It is critical to addressing a founding failure of our Constitution—its silence on gender equality. Thirty-eight states have acknowledged this founding failure and ratified the ERA in accordance with the procedure provided in Article V. It is part of the Constitution and should be treated as such.”
John NicholsTwitterJohn Nichols is a national affairs correspondent for The Nation. He has written, cowritten, or edited over a dozen books on topics ranging from histories of American socialism and the Democratic Party to analyses of US and global media systems. His latest, cowritten with Senator Bernie Sanders, is the New York Times bestseller It's OK to Be Angry About Capitalism.