The Equal Rights Amendment Isn’t Part of the Constitution

Walter Olson

The Equal Rights Amendment failed when its time limit expired short of the needed ratification by 34 states; several states have also moved to rescind their previous approvals. But in recent weeks, advocates, including 46 senators led by Sen. Kirsten Gillibrand (D-NY), 100 members of the House of Representatives, the League of Women Voters, and 23 state attorneys general, have urged President Biden to insert the Equal Rights Amendment into the Constitution by decree, given additional ratifications after the time limit, by ordering the archivist to publish it as a duly enacted Twenty-Eighth Amendment.

In a statement yesterday, Archivist Colleen Shogan and Deputy Archivist William J. Bosanko say they lack any legal power to carry out such an order: The Equal Rights Amendment “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” Shogan and Bosanko should be applauded for insisting that legality must come first, even when it conflicts with the prevailing opinion in the governing party.