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(Vox)   RBG on the down-low of why the ERA is DOA as soon as it hits SCOTUS   (vox.com) divider line
    More: Hero, United States Constitution, Supreme Court of the United States, Justice Ruth Bader Ginsburg, John G. Roberts, Ruth Bader Ginsburg, Supreme Court, United States, Chief Justice John Roberts  
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3542 clicks; posted to Politics » on 12 Feb 2020 at 5:16 AM (21 weeks ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook



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2020-02-12 5:24:28 AM  
Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...
 
2020-02-12 5:45:12 AM  
DL also works.
 
2020-02-12 5:47:34 AM  
Attention, Titanic passengers. The ship is sinking, and the sundae bar has closed.
 
2020-02-12 6:27:14 AM  
One of the rare cases where I think RBG is wrong.  Not that I claim greater legal knowledge than her of course, but the crux of the argument put forth is that the amendment text itself doesn't contain a time limit (it's in the preamble of the resolution adopted by Congress).

Congress approved the amendment and sent it to the states.  At that point?  Congress is out of it, with individual state legislatures voting, using their own resolutions, to ratify the text of the amendment itself.  The Congressional preamble is, in such cases, not germane.

Adding to this mindset is the sheer madness that could in theory ensue with regard to states 'rescinding' amendment ratification.  If states are capable of rescinding amendments prior to their becoming operative?  What's to stop states from rescinding their approval to already operative amendments?  Imagine all the redneck states suddenly getting the notion that the 14th Amendment could be rescinded.  Or the 1st.

I have a penis so I don't have a dog in the ERA fight, but from a strictly constitutional interpretation perspective, the amendment became operative when Virginia ratified it.
 
2020-02-12 6:27:23 AM  

Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...


Fark user imageView Full Size
 
2020-02-12 6:28:22 AM  
RBG is DTF?
 
2020-02-12 6:29:15 AM  
No shiat.  It would not surprise me if all the liberal justices voted against it.  This is not a hard issue.

Congress gave the proposed Amendment a deadline that passed decades ago. Congress had the right to make such a deadline.  The ERA is dead until Congress passes it again.  The rightness of a cause does not extend the deadline nor does the wrongness of a cause make the deadline shorter.

/I'd actually would make an amendment requiring a time limit for all amendments.  I have a nightmare that someday some historian will discover some real wack job wingnut amendment which most everyone has forgotten only needs a handful of states to join the Constitution.  So long as Alabama and Mississippi are part of the union, amendments without deadlines are a scary thing.
 
2020-02-12 6:31:51 AM  
Elections have consequences.
Shoulda voted, snoflakes.
 
2020-02-12 6:37:15 AM  

mactheknife: One of the rare cases where I think RBG is wrong.  Not that I claim greater legal knowledge than her of course, but the crux of the argument put forth is that the amendment text itself doesn't contain a time limit (it's in the preamble of the resolution adopted by Congress).

Congress approved the amendment and sent it to the states.  At that point?  Congress is out of it, with individual state legislatures voting, using their own resolutions, to ratify the text of the amendment itself.  The Congressional preamble is, in such cases, not germane.

Adding to this mindset is the sheer madness that could in theory ensue with regard to states 'rescinding' amendment ratification.  If states are capable of rescinding amendments prior to their becoming operative?  What's to stop states from rescinding their approval to already operative amendments?  Imagine all the redneck states suddenly getting the notion that the 14th Amendment could be rescinded.  Or the 1st.

I have a penis so I don't have a dog in the ERA fight, but from a strictly constitutional interpretation perspective, the amendment became operative when Virginia ratified it.


The Constitution is pretty specific that an operative amendment can only be undone by another amendment.
 
2020-02-12 6:39:54 AM  
OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.
 
2020-02-12 6:44:23 AM  

mactheknife: One of the rare cases where I think RBG is wrong.  Not that I claim greater legal knowledge than her of course, but the crux of the argument put forth is that the amendment text itself doesn't contain a time limit (it's in the preamble of the resolution adopted by Congress).

Congress approved the amendment and sent it to the states.  At that point?  Congress is out of it, with individual state legislatures voting, using their own resolutions, to ratify the text of the amendment itself.  The Congressional preamble is, in such cases, not germane.

Adding to this mindset is the sheer madness that could in theory ensue with regard to states 'rescinding' amendment ratification.  If states are capable of rescinding amendments prior to their becoming operative?  What's to stop states from rescinding their approval to already operative amendments?  Imagine all the redneck states suddenly getting the notion that the 14th Amendment could be rescinded.  Or the 1st.

I have a penis so I don't have a dog in the ERA fight, but from a strictly constitutional interpretation perspective, the amendment became operative when Virginia ratified it.


I disagree that penis ownership is a pre-existing condition which should remove your interest in equal rights for all citizens.
 
2020-02-12 6:48:50 AM  
The original has lost momentum, and states have changed their minds, along with those who are now on board, so really, a new draft and new introduction is the best bet. And the sad fact is: the folks who originally bogged it down have won, because they slowed the ratification process by an entire generation, who sort of lost track and interest. Which was the point of dragging their feet in the first place.

RBG is right. Fighting old battles is maybe not the best, and maybe reintroduction with a new draft will get young women on board to give it increased momentum, and more importantly, identify law makers and elected officials who oppose such a measure, rather than let it be a sort of faceless grey Them who obviously opposes it, but can't be identified to face repercussions.
 
2020-02-12 6:55:03 AM  

mactheknife: Adding to this mindset is the sheer madness that could in theory ensue with regard to states 'rescinding' amendment ratification.  If states are capable of rescinding amendments prior to their becoming operative?  What's to stop states from rescinding their approval to already operative amendments?  Imagine all the redneck states suddenly getting the notion that the 14th Amendment could be rescinded.  Or the 1st.


Already operative amendments are part of the Constitution, and therefore require an amendment to change.
 
2020-02-12 6:59:27 AM  

eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.


It would die in the House. The end.

// Still haven't heard any example of any possible future case that the ERA would actually change the outcome of.
 
2020-02-12 7:00:31 AM  

dammit just give me a login: I disagree that penis ownership is a pre-existing condition which should remove your interest in equal rights for all citizens.


Me either, but I don't see what that has to do with redundant amendments.
 
2020-02-12 7:03:53 AM  
The long and short of it is that the court is 5-4 favouring people who think women aren't people.
 
2020-02-12 7:05:33 AM  

BMFPitt: eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.

It would die in the House. The end.

// Still haven't heard any example of any possible future case that the ERA would actually change the outcome of.


I think (or at least hope) it would get through the current US House, even with the 2/3 requirement) but I'm worried that there are a number of state houses where it would die this time through. I do want to see those opposed to go on record about that before November though.

/Though I'd prefer we just officially enact it this time through, it's long past due
 
2020-02-12 7:08:40 AM  

BMFPitt: eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.

It would die in the House. The end.

// Still haven't heard any example of any possible future case that the ERA would actually change the outcome of.

Wouldn't even make it out of committee, in this day and age. The original doesn't cover nearly enough axes to satisfy the modern progressive, nor does it contain deliberate imbalances to "correct for historical injustice".
 
2020-02-12 7:11:02 AM  
The idea that time limits on amendments are somehow invalid was always a crackpot legal theory.
 
2020-02-12 7:13:09 AM  

Murkanen: The long and short of it is that the court is 5-4 favouring people who think women aren't people.


Yeah, "RBG thinks women aren't people" is a very reasonable position that didn't make you sound crazy at all.
 
2020-02-12 7:18:48 AM  

Murkanen: The long and short of it is that the court is 5-4 favouring people who think women aren't people.


If women wanted to be counted as people they should have been born men.

Apparently
 
2020-02-12 7:36:37 AM  

mactheknife: Adding to this mindset is the sheer madness that could in theory ensue with regard to states 'rescinding' amendment ratification.  If states are capable of rescinding amendments prior to their becoming operative?  What's to stop states from rescinding their approval to already operative amendments?  Imagine all the redneck states suddenly getting the notion that the 14th Amendment could be rescinded.  Or the 1st.


Not remotely the same.
 
2020-02-12 7:46:17 AM  

Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...


Precisely. The '82 expiry is right there & shouldn't be ignored.

There should be a new one. And it should include LGBT rights as well. I'm more than happy to have this fight with the right & make it happen.
 
2020-02-12 7:52:47 AM  
Then reintroduce it, don't put a time limit, and put in the text that any ratification of the amendment cannot be revoked. The 27th Amendment lingered for 200+ years.
 
2020-02-12 7:59:49 AM  
I've had enough of this RGB fad, computers were so much better when hardware manufacturers focused on quality and not multicolored LED lights...


Wait...
shiat nevermind
 
2020-02-12 8:00:36 AM  

GregInIndy: Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...

Precisely. The '82 expiry is right there & shouldn't be ignored.

There should be a new one. And it should include LGBT rights as well. I'm more than happy to have this fight with the right & make it happen.


Q: Why was the expiry there?

A: *Republican smirk*
 
2020-02-12 8:05:06 AM  

mactheknife: One of the rare cases where I think RBG is wrong.


Polticially, maybe.

Legally, the odds are she will have at least four other justices who will concur with her when she writes the majority opinion. I'd even consider it more likely than not that she can write one that will have all eight on board. At which point, they are legally right by virtue of Article III. (If you want to place a bet that the vote will go the other way, I'd be interested.)

Of course, that will make the ERA a live political issue again, putting pressure on Congressional legislators to pass it a second time, and send it back to the states. The first 30 state re-ratifications should not be too difficult. Then things get exciting.
 
2020-02-12 8:11:48 AM  

Gubbo: Murkanen: The long and short of it is that the court is 5-4 favouring people who think women aren't people.

If women wanted to be counted as people they should have been born men.

Apparently


Look at you, being all cisnormative.
 
2020-02-12 8:17:52 AM  

Scanty Em: GregInIndy: Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...

Precisely. The '82 expiry is right there & shouldn't be ignored.

There should be a new one. And it should include LGBT rights as well. I'm more than happy to have this fight with the right & make it happen.

Q: Why was the expiry there?

A: *Republican smirk*


The expiry was originally 1979.

Put there by a Democratic controlled house and senate.

The extension occurred in 1978.

Put there by a Democratic controlled house and senate. Signed by a Democratic President.

So...will you admit that you are wrong, uneducated, and unable to perform simple research?
 
2020-02-12 8:21:21 AM  

Snarcoleptic_Hoosier: Then reintroduce it, don't put a time limit, and put in the text that any ratification of the amendment cannot be revoked. The 27th Amendment lingered for 200+ years.


I'd say that a time limit on Amendments is generally a good thing. However, I don't think the limit should be in the Amendment itself. Rather, I'd prefer a Sunset Amendment impose a limit on all Amendments somewhere around 20-30 years, with the potential for the Congress to extend an unexpired deadline (out by its original extent) through two-thirds votes re-passing the Amendment.

The reason for my preference is that there are three "Zombie" Amendments remaining that have passed Congress by two-thirds vote, without expiration dates, and without having yet received the necessary State ratifications. The Child Labor Amendment seems relatively harmless, and the Titles of Nobility Amendment nearly so for everyone except Archie Mountbatten-Windsor; but the slim potential for a contemporary ratification of the Corwin Amendment seems alarming. I am disinclined to underestimate the Trump movement's capacity for evil.
 
2020-02-12 8:23:39 AM  

gar1013: Scanty Em: GregInIndy: Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...

Precisely. The '82 expiry is right there & shouldn't be ignored.

There should be a new one. And it should include LGBT rights as well. I'm more than happy to have this fight with the right & make it happen.

Q: Why was the expiry there?

A: *Republican smirk*

The expiry was originally 1979.

Put there by a Democratic controlled house and senate.

The extension occurred in 1978.

Put there by a Democratic controlled house and senate. Signed by a Democratic President.

So...will you admit that you are wrong, uneducated, and unable to perform simple research?


Funny thing about laws. We only care about what they actually say. Whether they're valid isn't contingent on who wrote them.
 
2020-02-12 8:31:23 AM  
Saw 'RBG' and my heart sank. I auto think she got on the cart when I see those letters.

/Not today!
 
2020-02-12 8:33:08 AM  
That amendments can and should have time limits for ratification attached to them has been broadly accepted constitutional law for a hundred years at this point. The 27th only got in because they gave a grandfather clause for anything from before the SCOTUS decided this, and its not like the ERA didn't have plenty of time to pass.

If you really want to make Republicans shiat blood, there should be a drive to get the original First Amendment ratified by the remaining 29 states that it needs. Would likely end Gerrymandering once and for all, with the only trade off being an additional 5000 reps in the House.
 
2020-02-12 8:42:49 AM  

Scythed: That amendments can and should have time limits for ratification attached to them has been broadly accepted constitutional law for a hundred years at this point. The 27th only got in because they gave a grandfather clause for anything from before the SCOTUS decided this, and its not like the ERA didn't have plenty of time to pass.

If you really want to make Republicans shiat blood, there should be a drive to get the original First Amendment ratified by the remaining 29 states that it needs. Would likely end Gerrymandering once and for all, with the only trade off being an additional 5000 reps in the House.


The current House apportionment is fully compliant with the apportionment amendment

The relevant clause:

"...until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons."

Not less than two hundred Representatives: check
No more than one representative for every 50,000 persons (currently roughly 1 per 750,000): check
 
2020-02-12 8:49:35 AM  

qorkfiend: Scythed: That amendments can and should have time limits for ratification attached to them has been broadly accepted constitutional law for a hundred years at this point. The 27th only got in because they gave a grandfather clause for anything from before the SCOTUS decided this, and its not like the ERA didn't have plenty of time to pass.

If you really want to make Republicans shiat blood, there should be a drive to get the original First Amendment ratified by the remaining 29 states that it needs. Would likely end Gerrymandering once and for all, with the only trade off being an additional 5000 reps in the House.

The current House apportionment is fully compliant with the apportionment amendment

The relevant clause:

"...until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons."

Not less than two hundred Representatives: check
No more than one representative for every 50,000 persons (currently roughly 1 per 750,000): check


Ah whoops, probably got it confused with some other piece of apportionment ephemera that would have had that outcome.
 
2020-02-12 8:50:56 AM  
BMFPitt:

Yeah, "RBG thinks women aren't people" is a very reasonable position that didn't make you sound crazy at all.

If you think RBG is one of the five I'm referencing you're even dumber than you usually make yourself out to be.
 
2020-02-12 9:01:50 AM  

Scythed: qorkfiend: Scythed: That amendments can and should have time limits for ratification attached to them has been broadly accepted constitutional law for a hundred years at this point. The 27th only got in because they gave a grandfather clause for anything from before the SCOTUS decided this, and its not like the ERA didn't have plenty of time to pass.

If you really want to make Republicans shiat blood, there should be a drive to get the original First Amendment ratified by the remaining 29 states that it needs. Would likely end Gerrymandering once and for all, with the only trade off being an additional 5000 reps in the House.

The current House apportionment is fully compliant with the apportionment amendment

The relevant clause:

"...until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons."

Not less than two hundred Representatives: check
No more than one representative for every 50,000 persons (currently roughly 1 per 750,000): check

Ah whoops, probably got it confused with some other piece of apportionment ephemera that would have had that outcome.


Setting it to the minimum size would have that effect; the amendment just wouldn't force Congress to expand.
 
2020-02-12 9:07:36 AM  

jso2897: Elections have consequences.
Shoulda voted, snoflakes.


People did. But people don't elect the President.
 
2020-02-12 9:08:57 AM  

eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.


You really think the Senate would re-pass the ERA? Turtle wouldn't even allow it to come up for a vote.
 
2020-02-12 9:13:17 AM  

Tyrone Slothrop: You really think the Senate would re-pass the ERA? Turtle wouldn't even allow it to come up for a vote.


You really think it would make it to the Senate?
 
2020-02-12 9:16:02 AM  

BMFPitt: Tyrone Slothrop: You really think the Senate would re-pass the ERA? Turtle wouldn't even allow it to come up for a vote.

You really think it would make it to the Senate?


Probably not. But it would have a better chance of making it through the House than the Senate.
 
2020-02-12 9:16:40 AM  

Tyrone Slothrop: BMFPitt: Tyrone Slothrop: You really think the Senate would re-pass the ERA? Turtle wouldn't even allow it to come up for a vote.

You really think it would make it to the Senate?

Probably not. But it would have a better chance of making it through the House than the Senate.


I should add: there would at least be a vote in the House.
 
2020-02-12 9:23:05 AM  

Murkanen: If you think RBG is one of the five I'm referencing you're even dumber than you usually make yourself out to be.


Is this supposed to be related to TFA, then?
 
2020-02-12 9:33:17 AM  
BMFPitt:

Is this supposed to be related to TFA, then?

Only in so far as the 5 conservatives on the court would kill the ERA for purely partisan reasons.
 
2020-02-12 9:41:51 AM  

eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.


That's specifically what RBG said should happen.
 
2020-02-12 9:50:17 AM  
RBG should retire between naps.
 
2020-02-12 10:25:18 AM  

Tyrone Slothrop: eKonk: OK, let's assume this is correct. What if, and bear with me, I'm no politics-talking-guy, so what if the ERA is re-introduced so Congress and the states can reconfirm their commitment to the amendment? We can start that process now and let everyone go on record to express their support.

Or, for those who don't like it, they can go on record stating that and making sure everyone knows they oppose it. Perfect to rally the base before November.

You really think the Senate would re-pass the ERA? Turtle wouldn't even allow it to come up for a vote.


I think you're correct, but right now it seem the amendment is not ratified, so failure to pass the Senate doesn't change our current situation. I'd like to force the turtle (or anyone else) to go on record opposing this.

/who am I kidding? mcturtle could block this and introduce legislation to roll back the civil rights act and he'd still get re-elected
 
2020-02-12 10:50:38 AM  

GregInIndy: gar1013: Scanty Em: GregInIndy: Wyalt Derp: Judge assesses case on its merits and the law, rather than the outcome they personally want. It shouldn't be news, but in this era...

Precisely. The '82 expiry is right there & shouldn't be ignored.

There should be a new one. And it should include LGBT rights as well. I'm more than happy to have this fight with the right & make it happen.

Q: Why was the expiry there?

A: *Republican smirk*

The expiry was originally 1979.

Put there by a Democratic controlled house and senate.

The extension occurred in 1978.

Put there by a Democratic controlled house and senate. Signed by a Democratic President.

So...will you admit that you are wrong, uneducated, and unable to perform simple research?

Funny thing about laws. We only care about what they actually say. Whether they're valid isn't contingent on who wrote them.


Except for the person who I was replying to.

They care.
 
2020-02-12 10:54:56 AM  
 
2020-02-12 1:52:55 PM  
Is this trip really necessary?

The pushback argument for not bothering with it is that there are sufficient anti-discrimination laws on the books now to cover what this addresses. Can someone summarize what is not legislated now that the new EPA will fix?
 
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