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Biden wants a constitutional crisis, apparently.
Well, that's editorializing, but like, seriously--WTF?
He's got chutzpah, I guess (or, realistically, one of his staffers does). Never have I seen such a nakedly partisan attempt to create mass confusion concerning American constitutional law, nor such an inducement for left wing justices to defect from the rule of law. It is perhaps the single least professional, most embarrassing thing a sitting President has done in, like, six or seven weeks.
Just to get this out up front: no. The Equal Rights Amendment has not been ratified, and is not the law of the land. When asked for comment by CNN, the U.S. archives referred the station to previous statements from the U.S. archivist that
The President has no particular role in the ratification process anyway, so his opinion is legally meaningless. Certainly his appeal to the "American Bar Association" (an especially left wing advocacy group) is meaningless. But it's a signal, and the message is clear: time to ignore the law, precedent, history, and any possible position of compromise and coexistence. Watching the outgoing administration slap the "defect" button as rapidly as possible does not bode well for the next four years. At best, it's an inducement for the Trump administration to play tit-for-tat. At worst, I don't know--civil war?
The fact that the CNN article is still pushing this wild "pre-emptive pardons" stuff is also concerning, but illegitimately announcing an Amendment to the Constitution has surely got to be the most brazen lame duck move in American history. This is banana republic levels of absurdity.
This is a meaningless statement- the president recognizing a constitutional amendment has nothing to do with anything. The Supreme Court has to recognize it to overrule the archivist. The whole statement is deeply silly. Not dangerous, not unconstitutional- silly.
It's meaningless until some left wing judge acts on it. It's meaningless until some bureaucrat can be pressured to publicize it.
It's literally legal disinformation being promulgated by the President and Vice President of the United States. It is a naked power grab. Presidents have been impeached for less.
He will not be president long enough to be impeached.
In practice, the Supreme Court needs to be convinced that that bureaucrat had grounds to publicize it. They won’t be. This is extremely silly.
Correct. Which is why he's doing this now.
This is an attempt, effectively, to fork the Constitution. This creates and purports to legitimize a blue-tribe consensus that there is a 28th Amendment and that it is the ERA, while the red tribe continues to operate under the view that there isn't such an Amendment.
Will it work? I don't know, but someone clearly thinks it has a chance of working. How many people have to act as if something is the case, before it becomes the case? Might this go nowhere? Sure, it might. But all by itself, Biden's and Harris's willingness to try it is shocking and disturbing.
It helps to legitimize it, but it doesn’t create it. Just last month, 120 Democrats in the House and 46 in the Senate signed letters asking Biden to take this step, since, in their view, the amendment was already validly approved. Other blue tribe groups like the National Council of Negro Women and the New York City Bar Association also published similar letters in December. This move may have blindsided Republicans (myself included), but the Democrats were clearly preparing for it.
I have a hard time believing that attitude is anything but kayfabe. If it wasn't an amendment they liked, I don't think they would have the same view on the ratification process.
Almost all views on con law- especially blue coded ones- are keyfabe eventually. The ‘living breathing document’ interpretation seems to be code for viewing the constitution the same way I view municipal zoning requirements- as annoying hurdles that need some ‘campaign contributions’ to get them waived.
Right. The progressive-aligned school of constitutional interpretation is living constitutionalism—essentially, if we like it, and we can get away with it, that's what the text means. The conservative-aligned school of constitutional interpretation is originalism, where they attempt to find a justification from the original text, when it's convenient, and find a workaround otherwise, unless you've really got a spine. Originalism is better than living constitutionalism, because they won't drift as far.
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