With a foot out the door of the Oval Office, President Joe Biden, in a meaningless but official-looking document, declared that the proposed Equal Rights Amendment, which failed in 1982 when the extended period specified by Congress for its ratification elapsed, has actually been ratified and is now the 28th Amendment to the Constitution of the United States.
This is, of course, daft.
It is keystone kops konstitutionalism.
But laughable and meaningless as it is, Biden’s declaration (or whatever it is) is not harmless. For that reason, it should be forcefully condemned by Americans who believe in the Constitution and are loyal to it across the political spectrum. Liberals need to join conservatives in calling out this arrant—and dangerous—nonsense for what it is.
Let me explain why.
A polity’s constitution, be it written or unwritten, is its fundamental law. A constitution’s provisions are a polity’s laws about the making of laws, the executing of laws, the adjudication of disputes under the laws. The Constitution of the United States, for example, establishes political institutions, vests certain types of authority (legislative, executive, judicial) in those institutions, and sets forth requirements, rules, and procedures for filling and executing the duties of the offices of those institutions.
Constitutions are valuable in no small part because they enable officials and citizens to know what the law is—and isn’t. In that way, they make possible (assuming that public officials make a good faith effort to honor their constitutional obligations) order, stability, predictability, and a basis for widespread shared understanding of the terms of social life.
In short, constitutions are embodiments of the principle of the Rule of Law and essential supports for its maintenance.
Of course, constitutions are made of words, and while they characteristically contain certain very specific provisions (for example, "the Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided"), there will sometimes be differences of opinion about how provisions—especially more general provisions—apply to this or that issue or in these or those particular circumstances.
Even jurists (and other constitutional interpreters) who share a basic approach to constitutional interpretation may reach different conclusions about the meaning and/or application of a constitutional provision. There are, for example, sometimes differences of opinion among "originalists" such as Supreme Court justices Samuel Alito and Clarence Thomas. Sometimes these differences are about precisely what the original meaning of a particular provision of the Constitution was. Other times they are about how a provision whose original meaning is agreed upon applies to a piece of legislation or an executive action.
Such differences are unavoidable—and sometimes serious—but fortunately they are manageable. They’ve been with us from the earliest years of the American republic, and we have survived them. They will continue to be with us for as long as the republic endures.
Here, though, is what we cannot so easily manage, and what therefore threatens all the social goods that the Constitution provides—what threatens, in other words, the Rule of Law: deep and widespread disagreement among public officials and among our people about what the provisions of the Constitution are.
We cannot easily manage a deep and widespread division of opinion—especially along partisan or ideological lines—about whether the First Amendment is part of the Constitution. Similarly, we cannot manage a deep and widespread disagreement about whether the 14th Amendment is part of the Constitution.
We need to know, and officials themselves—presidents and those serving in their administrations, members of Congress, judges—need to know that they are bound by the obligation to, for example, honor freedom of speech and the free exercise of religion. Similarly, citizens and officials need to know that officials are bound by the obligation to honor people’s rights to due process of law and the equal protection of the laws.
We can debate—and the republic can survive even intense debates—about precisely what these provisions mean or how they apply in a particular disputed case; the same cannot, however, be said with confidence about deep and widespread differences over what the provisions of the Constitution actually are.
As it happens, there was once a genuine debate—and there still is a purely academic debate—about whether the three amendments to the Constitution that came in the wake of the Civil War were validly ratified. Today, however, Democrats as well as Republicans, liberals as well as conservatives, agree that the 13th, 14th, and 15th Amendments are valid provisions of the Constitution of the United States. No president or prominent public official believes or says otherwise—thank God.
What about the Equal Rights Amendment? Has it been ratified? No. And it’s not a close case. Congress sent the proposed amendment to the states with an expiration date, which it was in no way prohibited by the Constitution from doing. That date passed without the amendment’s being ratified by the number of states required for a proposed amendment to become law (three-quarters of the states). Congress then extended the deadline, which again passed without the required number of states ratifying. In the meantime, some states that had ratified the amendment rescinded their ratification.
All of this led the late Justice Ruth Bader Ginsburg, as passionate an advocate of the amendment as there was or is, to expressly decline to take the position that Joe Biden has now taken. She did that citing precisely the considerations I set forth in the preceding paragraph. Indeed, Joe Biden’s own Department of Justice has taken the position that the amendment has failed of ratification. And the Archivist of the United States, who is responsible to certify and publish validly ratified amendments to the Constitution, has declined to certify and publish the ERA.
Although President Biden’s declaration will deceive many Americans into believing the ERA has been ratified or that his declaration itself constitutes certification of the failed amendment as part of the Constitution, even on its own terms the president’s statement was merely an expression of one man’s opinion. It has no legal force.
It will, however, mislead people and cause widespread confusion. It will lead other public officials to put out statements of their own "recognizing" or "acknowledging" that the ERA has been ratified. Indeed, Vice President Kamala Harris has already done this. And it sets what can only be described as an appalling precedent—one that will likely be seized upon by future presidents, possibly beginning with the one that is about to take office.
Biden’s risible, but far from innocent, stunt will further polarize an already dangerously polarized America, and it will further undermine those social goods—stability, predictability, broad agreement on the basic terms of social life—that the Rule of Law provides.
And to what end?
In actual litigation, courts will not treat the ERA as having become part of the Constitution. When the matter ultimately goes to the Supreme Court, the decision will likely be unanimous that the amendment failed of ratification and is not part of the Constitution. But this will not quell the passions that Biden will have so grossly irresponsibly enflamed. Some, perhaps even Democrats in high office, will deny that the Court’s judgment of the matter is binding. Some will accuse even the liberal justices on the Court of having "sold out." Democratic presidential candidates, pandering to the enflamed base of the party, may run on promises to appoint justices who will "recognize" the ERA as part of the Constitution.
On top of all this, partisans in the ideological hothouses of academia can be counted on to get to work cooking up defenses for the indefensible. Sigh.
And then there is the sheer bad faith of Biden’s actions. Despite his infamous lying about his academic qualifications and his class rank in law school, the fact is that Joe Biden did go to law school, and even managed to graduate. He’s not utterly ignorant. He knows perfectly well that the ERA failed of ratification and is not the law of the land. For nearly four years, he said nothing about the matter. He was not obligated to speak about it in his last week in office. But if he was going to say something, his only job was to speak what he knows to be the truth. But just as he opted to lie about his academic achievements and his class standing (and countless other things), he has chosen as his final act to lie about the Constitution of the United States—a Constitution he swore to "preserve, protect, and defend."
It’s tragic. What can be said for it, I suppose, is this: It is a fitting ending to the failed presidency of an unserious and deeply flawed man.
Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University.