With three days left to his term, Joe Biden Friday declared that the Equal Rights Amendment (ERA) had been ratified and is now the “28th Amendment” to the Constitution.

The Archivist of the United States did not concur, since the amendment was not published.  Joe knows that his opinion and $2.50 will get you a D.C. Metro subway  ride, so why’d he do it?

Three probable reasons:

(1) he’s still beholden to the radical feminist wing of the Democrat party and threw them a bone in his final 72 hours in the White House, something he avoided for years;

(2) he wants to pump up the “Women’s March” planned for Washington tomorrow to demand abortion on demand; and

(3) on the principle “throw it up and see if it sticks,” he hopes he can wedge something in the Constitution to attempt to hang a new “abortion right” on.

The only problem is this: the ERA is not the 28th Amendment.

Congress proposed the ERA to the states for ratification in 1972.  The joint resolution said clearly that the amendment had to be ratified within seven years — i.e., by March 1979. 

It was not.  After an initial flurry of ratifications, the process slowed down after Roe v. Wade and ground to a halt within two years.  Some states even rescinded their previous ratifications.  Only two states ratified after 1974.  By 1979, the amendment lacked 38 state ratifications.

Seeing that the ERA was dying, Jimmy Carter and the Democrat Congress put it on life support: they passed a bill (by a simple majority, not the two-thirds vote required for constitutional amendments) saying the ratification period was extended to 1982.  Despite that, no additional state ratified the ERA after 1977.

So how does Joe Biden claim that the ERA is “ratified”?  Two shaky arguments:

– Congress put the seven-year limit in the joint resolution proposing the ERA, not the amendment itself (as it had in the 18th, 20th, 21st, and 22nd Amendments), largely because Congress assumed that it could set the terms of ratification upon proposal and should not clutter the Constitution itself with administrative language.  Because the limit is in the bill proposing the Amendment and not written into the ERA itself, Biden et al. pretend the language of the law does not apply.  They also have to pretend that because every attempt they’ve made explicitly to repeal that limit has failed.

– The “Hotel California” argument — you can never leave your ratification.  States supposedly cannot rescind their ratifications, even before the process is completed.  So the five states that have ratified and later rescinded (before 1979) those ratifications are forcibly counted as “approving” the ERA.  Then, after a 40-year gap (the last ratification was in 1977), Biden would count four post-2017 ratifications as making the magic 38.

A constitutional amendment is supposed to reflect a broad and deep consensus at a given historical moment.  That is clearly not the case behind the ERA.

There’s also one other angle that many commentators pay insufficient attention to: words.

The ERA says no denying or abridging rights because of “sex.”  But “sex” in 1972 meant something different from 2025. 

In 1972, almost every congressman and senator who voted for the ERA, if asked how many sexes there are, would have answered (after looking at you to see if you weren’t crazy): “two.”  There were men and women and nothing else.

At least thirty states ratified the ERA on that understanding of “sex.”  It’s not how “sex” is understood by our elites — including our legal elites — today.

Today, there are more “sexes” than Baskin Robbins flavor choices.  Indeed, we now have a dichotomy between “sex” and “gender,” the latter term not used in 1972 except as a fancier word for “sex.”  So when it comes to the ERA, does “sex” mean what it meant in 1972 — i.e., two sexes?  Or will we have some linguistic legerdemain that smuggles “gender” into the Constitution? 

We saw this in the Bostock decision, where prohibitions on sex discrimination in the Civil Rights Act of 1964 were magically transformed into “gender” restrictions.  What’s to say that wouldn’t happen to the ERA?

Indeed, its proponents are betting for that to happen.  They want and need a hook to ensconce the Sexual Revolution in the Constitution.  Roe v. Wade pretended to do that by hanging it all on the “right to privacy,” that gaseous ghost emanating from various “penumbras” and between-the-lines places but amazingly specific enough to ban almost any abortion restriction practically through birth.  When Dobbs overturned Roe, it made clear that the ambiguous “right to privacy” was an unstable platform on which to secure so many items in the Sexual Revolution’s agenda.  That’s why abortionists have been busy cobbling very broad “reproductive freedom” amendments into state constitutions, many likely to ground not just abortion on demand, but all the works and pomps of the gender ideology/trans movements.  That’s why Democrats in the Senate fear-monger about interracial marriage in order to guarantee homosexual “marriage”; about in vitro fertilization; and about the “dangers” and “risks” of attempting motherhood in 21st-century America absent abortion on demand through the birth canal.  The party of fighting disinformation has spread it thick and heavy in its slavish defense of the Sexual Revolution.

This is why Joe Biden left us this parting gift.  I have no doubt that, eventually, the Supreme Court may have to recognize that valid ratification has not occurred.  But that then allows Democrats to tar opponents of the Sexual Revolution and proponents of rule of law as “anti-woman” (might be helpful to the state abortion constitutional amendment in Virginia and Governor-Wannabe Abigail Spanberger this fall).  And who knows?  Maybe some of the radicals with whom Biden has stuffed the federal bench these past four years will succumb to ideology over law and pretend the ERA was validly adopted.  It wouldn’t be beneath the left, which constantly cites the Colorado Supreme Court’s declaration that Donald Trump is a constitutionally barred “insurrectionist”...while leaving out the salient fact that a unanimous U.S. Supreme Court rejected that ruling.

Biden’s ERA proclamation most likely is intended to stir confusion and make an unnecessary legal mess — in other words, to continue the Biden-Harris legacy.

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.