Equality before the law is fundamental to the Rule of Law and foundational to liberty. The Constitution exists to protect our liberty, so I have long advocated including a federal equal protection clause in the Constitution.
When seeking to amend the Constitution, Congress must abide by its limitations. The Constitution allows Congress to propose amendments, but it reserves almost all authority over ratification of amendments to the states.
This means that it is constitutionally suspect to put a deadline for ratification of a constitutional amendment in the resolving clause of the legislation proposing the amendment, rather than in the text of the amendment itself, which is what the states actually consider.
Unfortunately, Congress put the deadline for ratification of the ERA in the resolving clause, not in the amendment. But just striking the deadline decades later, as #HJRes79 does, isn’t the proper remedy.
States ratified the ERA with the understanding that it had a finite deadline, and the central text of the ERA dates back over 70 years, from before we understood the true breadth of equal protection.
Drafting a new nondiscrimination amendment would allow us to enshrine our modern understanding of equal protection as preventing all arbitrary discrimination by government, and it would allow states to consider the proposal without being under a constitutionally dubious deadline.
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