If Virginia ratified the Equal Rights Amendment, would it go into effect? In the Nov 2019 election, the Democrats won the majority of both Virginia state houses, and there is some discussion that Virginia could be the 38th state to ratify the (proposed) Equal Rights Amendment. (See this law.SE question for discussion of the ERA's possible effects.) Approval by 3/4ths of the States would normally be enough to pass a Constitutional Amendment, but there are apparently two problems: Even if Virginia acts as expected next year, there is no guarantee the amendment would take hold. A handful of the states that initially ratified the ERA have since rescinded those decisions and the most recent congressional deadline passed about four decades ago. Despite those roadblocks, activists believe they are well-positioned -- legally and politically -- to push the amendment, which was written by the suffragist Alice Paul in 1923, over the line. 1. Withdrawn ratifications Apparently four states (Nebraska, Tennessee, Idaho, Kentucky) have "rescinded" their ratifications, after initially approving them, and one state (South Dakota), added a "sunset" provision to their ratification if it wasn't approved in whole by the original deadline. Are these "take backs" valid? Could they prevent the Amendment from going into effect? How would this question be adjudicated? Is there any relevant case law on the matter? 2. Congressionally-imposed Deadlines The original resolution by the 92nd Congress included the following preface (emphasis added): Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress In 1978 another resolution was passed, extending the deadline to 1982, although this extension was passed by simple and not 2/3rds majority. Despite these deadlines, the Amendment was ratified by Nevada in 2017 and Illinois in 2018. Are these post-deadline ratifications (and a hypothetical 2020 one from Virginia) valid? Would Congress simply need to pass a new (future) deadline, and all the past ratifications would take effect? Wikipedia does list some purportedly relevant case law, can anyone help me understand how these might apply to these questions?
The true answer is this is fundamentally unclear and ratification would definitely set up for a Supreme Court showdown. The Supreme Court would in my opinion need to resolve 3 issues: Are Congressionally imposed deadlines in resolutions proposing an amendment to the States for ratification binding? Does a state withdrawal of its ratification of an amendment annul its ratification of the amendment? Who decides when an amendment is ratified? For the first question this is perhaps the most unresolved question. Clearly if the deadline is imposed in the text of the amendment it is binding. For example, see the text of the 18th amendment, Section 3. What is not clear is what if any binding effect a deadline in the text of the resolution proposing an amendment has as to the validity of the proposed amendment. Article V makes no provision on such deadlines. In fact the most recent amendment ratified was submitted for ratification on September 25, 1789, but ratified May 5, 1992. In this instance the Archivist of the United States declared the amendment ratified, but Congress also acted to do so and several members scolded the Archivist for doing so before Congress acted. However, there was no resolution of who had to actually approve the ratification. For the second question there is absolutely no answer to this question except Coleman v. Miller which suggests this is a political question. This essentially means that the question should be resolved by Congress, not the courts. Lastly, for the third question see also my response to the first question. If Congress is indeed the ratifier, what happens if one Congress decides the amendment was not ratified, but a future one decides it was? Honestly, ratification of the ERA would open a whole can of worms and make it difficult to really resolve this issue. Probably the most direct method to force the Supreme Court to rule on this issue would be someone challenging their requirements to register with the Selective Service System.
Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing.
The newly elected Congress does all of the work in electing a new President. Under the 20th Amendment, the newly elected Congress takes office on January 3. Then three days later, on January 6, 3 USC § 15: Counting electoral votes in Congress, requires the new Congress to meet in Joint Session to count the electoral votes. If this session does not produce a President or Vice President, there is what is called a contingent election. In a contingent election the House begins immediately to choose a President from among the top three electoral college vote getters, while the Senate chooses a Vice President from among the top two electoral college vote getters. Both Houses use majority rule. The House votes by state, so a majority is 26, while the Senators vote individually, so a majority is 51. If the House does not pick a President by Inauguration Day, January 20th, the Vice President serves until a President is picked. If neither a President nor a VP has been picked by the 20th, the Presidential Succession Act applies, and the Speaker of the House, President pro tempore or a cabinet officer serves as Acting President. It wasn't always done this way: The 20th Amendment was passed in 1933 to take control over elections away from the lame duck Congress. Before the 20th A was adopted, the terms for P, VP and Congress all ended on Inauguration day, March 4. That meant the lame duck Congress had to deal with electoral matters. By giving Congress and the P/VP different expiration dates, the Amendment meant new Congress could deal with the election. Setting the election counting date after the new Congress was seated (on January 6), meant only the new Congress could.
You can certainly do so: it's been done many times in the past, and can be done even with a written constitution. The most recent famous example that I know of would be how the Nazi party used the Enabling Act, 1933 and Reichstag Fire Decree, 1933 to amend the constitution by essentially neutering all the safeguards, and used force to ensure that they could stay in power. Julius Caesar's reforms follow in a similar vein. For someone to successfully force change like this, you generally need a political system that is unstable and has no strong (or at least effective) checks and balances. Additionally, you need the support of the military because otherwise they will generally support the existing structure. Other less extreme examples I can think of where a system has changed to another system would be former colonies adopting new constitutions (e.g. Ireland and Pakistan), or where there has been significant change in the country's model (e.g. South Africa). Again, you need support, but this time it is within the existing political and judicial framework.
In Roe v. Wade, the primary holding is that &quot;a person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception&quot;. The opinion finds that there does exist a right to privacy, and that it is protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. It is immaterial that there is no mention of abortion in The Constitution. There is also no mention of TV and radio transmissions, the internet, speech-amplifying devices, or automated forms of text reproduction and yet the vague words of the First Amendment w.r.t. &quot;press&quot; and &quot;speech&quot; are interpreted as protecting your right to blog. Revolvers and various other firearms that did not exist at the time of the writing of the constitution are not mentioned, but they (the right to have them) are protected under the Second Amendment. Lack of specific mention is irrelevant to determining constitutional protection. §VIII of the opinion discusses the right of privacy, and the ruling roots the recognition of that right in Union Pacific R. Co. v. Botsford, 141 U. S. 250, and numerous other SCOTUS rulings – Stanley v. Georgia, 394 US 557; Terry v. Ohio; Katz v. US, 389 US 347; Boyd v. US, 116 US 616, Olmstead v. US, 277 US 438; Griswold v. Connecticut, Meyer v. Nebraska, 262 U. S. 390 and so on. You might then look at the Dobbs ruling to see whether those arguments are addressed and refuted. That, at least, is where you would start in understanding the legal background.
Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination.
Yes The only accurate thing in the linked article is: &quot;I am not a Constitutional lawyer.&quot; That could be taken further into &quot;I have no real idea how our legal and political systems work.&quot; One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the &quot;best interests of the child&quot; and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want.
No, votes would not have to be postponed. The Constitution has nothing specific to say about this. (It's not that long - you can and should read it through and check for yourself, and searching is even easier.) The Constitution's only reference to the Speaker of the House is Article I Section 2: &quot;The House of Representatives shall chuse their Speaker and other Officers [...]&quot;. (Other than the 25th Amendment which prescribes the role of the Speaker in receiving declarations as to whether the President is incapacitated.) The House's procedures, and the Speaker's role in them, are left up to the Rules of the House of Representatives, which the House makes for itself. (US Constitution, Article I, Section 5: &quot;Each House may determine the Rules of its Proceedings [...]&quot;.) Rule I, Section 8 provides: (a) The Speaker may appoint a Member to perform the duties of the Chair. Except as specified in paragraph (b), such an appointment may not extend beyond three legislative days. (b)(1) In the case of illness, the Speaker may appoint a Member to perform the duties of the Chair for a period not exceeding 10 days, subject to the approval of the House. If the Speaker is absent and has omitted to make such an appointment, then the House shall elect a Speaker pro tempore to act during the absence of the Speaker. So if the Speaker is ill, she can appoint a temporary substitute (Speaker pro tempore), who can preside over all House business, including votes. If she cannot or does not do so, the House may elect a Speaker pro tempore with the same authority. (That election itself would be presided over by the Clerk of the House, an administrative official, as specified by Rule II Section 2(a).) Either way, there would be no need for votes to be postponed.