[Congressional Record Volume 169, Number 70 (Wednesday, April 26, 2023)] [Senate] [Pages S1365-S1369] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Date: 2023-04-26
Chamber: SENATE
Mr. CARDIN: I take this time--and I am going to be joined by several of my colleagues--to talk about a vote that we are going to have tomorrow on S.J. Res. 4. This is the resolution that would rescind the deadline for the ratification of the Equal Rights Amendment. This is an issue that I have been working on for a long time, including during my time in the Maryland General Assembly in 1972, when the Maryland legislature ratified the Equal Rights Amendment. So this goes back a long time, and it is time to finish the work. I want to thank Chairman Durbin for his leadership on this issue, the chairman of the Judiciary Committee, for the work he did so that we could reach this moment where we have a chance to take the step that is critically important, removing any ambiguity in regards to the ratification process. I also want to thank Leader Schumer for making this time available so we will be able to vote on this issue tomorrow. I particularly want to acknowledge the extraordinary leadership of Senator Lisa Murkowski, my coleader on this resolution. The two of us have worked together. This should never be a partisan issue. Equality should enjoy support, I would hope, from both Democrats and Republicans. There is no time limit on equality. The 28th Amendment to the Constitution, the Equal Rights Amendment, was approved by the U.S. Congress in both the House and Senate by a two-thirds vote, as required in the Constitution, and has been ratified by 38 States--that is, three-fourths necessary for the ratification of a constitutional amendment. The sole purpose of S.J. Res. 4 is to remove any ambiguity, to remove the time limit that was included originally in the 1972 act of Congress of 7 years and previously extended to 10 years. I want to acknowledge the help I have received on this through the incredible staff we all have here in the U.S. Senate. Bill Van Horne, who is my chief counsel, has been working on this issue since my days in the House of Representatives, and I thank him for his leadership in bringing all the groups together. Helen Rogers has helped a great deal in this effort. I just want to acknowledge the work both of them have done on the Equal Rights Amendment. The ERA simply states:  Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.  That is it. That is exactly what the Equal Rights Amendment to the Constitution says. Ratification would affirm women's equality in our Constitution, enshrining the principle of women's equality and explicit prohibition against sex discrimination in our Nation's founding document. Currently, the only explicitly guaranteed right in our Constitution based upon sex is the 19th Amendment, which is the right to vote. Existing legal protections against sex-based discrimination fall well short of addressing systemic sex-based inequality in our society. As the 28th Amendment, the ERA would serve as a new tool for Congress, for Federal Agencies, and in courts to advance equality in the fields of workforce and pay, pregnancy discrimination, sexual harassment and violence, reproductive autonomy, and protection of LBGTQ+ individuals. Enshrining this protection in our Constitution also ensures enduring protections for all Americans across the country. Existing legal protections against sex-based discrimination fall well short of addressing the systemic sex-based inequality in our society. It is also a signal to the courts that they should apply a more rigorous level of review to laws and government policies that discriminate on the basis of sex. That is what the ERA is all about: equality--the most fundamental of American values. We need to finally get the job done. Last Congress, a bipartisan majority in the Senate cosponsored this joint resolution, and the House of Representatives has already passed this legislation on two occasions--first in the 116th Congress and then in the 117th Congress. Virginia became the 38th and final State required by the Constitution to ratify the Equal Rights Amendment on January 27, 2020. Our resolution, S.J. Res. 4, would clarify once and for all that the Equal Rights Amendment has met all the requirements of article V of our Constitution. Let me read what it says:  That notwithstanding any time limit contained in House Joint Resolution 208, the 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the Constitution, whenever ratified by the legislatures of three-fourths of the several States.  It is a clarification resolution. Congress has the power to do it. Congress approved it by more than the required two-thirds majority in both Chambers, and three-quarters of States have now ratified it. Article V of the Constitution has been complied with. You are going to hear legal arguments surrounding whether a Senatejoint resolution can remove a deadline, so let me talk about some of these issues. First, in the Constitution, there is nothing in the Constitution that sets a time limit on ratification. Read Article V. It talks about the votes necessary in Congress--we have had that--and the votes of ratification by the States--we have done that. There is no time limit in the Constitution. The 27th Amendment effecting congressional pay raise was ratified after two centuries, after being initially proposed by Congress as part of the Bill of Rights in 1791, two centuries before--over 200 years before it was ratified. Congress has the authority to act. There is precedent for Congress to extend the deadline for ratification of an amendment, as it did once before for the ERA. Note that the ERA deadline was contained in the preamble to the text of the constitutional amendment, not in the constitutional amendment itself. There is precedent for Congress to declare that the requisite number of States have ratified a constitutional amendment, as the House and Senate did in 1992 by resolutions affirming the validity of the 27th Amendment regarding congressional pay raises. That is the one that took over 200 years to ratify. In terms of Article V, the only question is whether a State has ratified. Ratification is something that happens at a moment in time. It either happens or it doesn't happen. History tells us that once a State has ratified, it can't take it back. The 14th Amendment became part of the Constitution after the Civil War even though two States had attempted to rescind prior ratifications. Those States were included on the list of States that ratified. The effectiveness of a rescission is ultimately a question for Congress. S.J. Res. 4 answers that question. Then the most recent opinion by the Department of Justice, the opinion by the Office of Legal Counsel, noted that Congress, as a coequal branch of government, is not precluded from taking further action regarding the ratification of the ERA. So we have all of the legal requirements. We can act. Now let me lay out a few more things here. Most Americans believe the ERA is already part of our Constitution. Just ask them. They think it is there. Most of our States have provisions in the State constitutions to provide equal rights based upon sex. So we already have it in States, and it is working. Most democracies--in fact, every constitution that has been written since World War II contains an equal rights amendment. The United States is an outlier on this issue. We are the leader of democratic values in human rights globally, but we don't have an equal rights amendment in our Constitution. The Pew Research Center did a survey on this. Seventy-eight percent of Americans support the Equal Rights Amendment being added to the Constitution. This is overwhelmingly popular among all of our constituents--Democrats, Republicans, Independents, men, women. Two- hundred fifty national and local groups support the ERA, including the League of Women Voters, the National Urban League, the National Council of Jewish Women, the SEIU, and many, many other civil rights, labor, and civic groups. This resolution language removes any doubt of ratification, and it is the right way to go under our Constitution. We had the advice of constitutional scholars who support what we are doing--Erwin Chemerinsky, Larry Tribe, Kathleen Sullivan, Catharine MacKinnon, Victoria Nourse, former Senator Russ Feingold. All have endorsed the way we are proceeding. The ERA is needed not only to keep progress moving forward but also to protect against incursions on the progress we have already made. Based on recent decisions by the Supreme Court, some Justices ascribe to the view that the meaning of equality under the equal protection clause should be frozen in time in 1868 when the 14th Amendment was ratified. That approach may cast in doubt even the limited precedents currently holding that the equal protection clause applies to sex discrimination. It has been more than 100 years since women won the right to vote and nearly 100 since the effort to enshrine the ERA in the Constitution began. Generations have fought to achieve major points of progress in our laws and our society since then. However, it is undeniable that work remains. Finally, enshrining the ERA into the Constitution would be one major step that we could take towards a society that is truly equal on the basis of sex. I therefore urge my colleagues to vote yes on the motion to invoke cloture on the motion to proceed to S.J. Res. 4. The women of America have waited long enough. Don't filibuster equality. You don't want to be on that side of history. There should be no time limit on equality. Let us use this opportunity to complete the action of equality based on sex in our Constitution. I yield the floor.