Declaring Equality?
Biden claims that the ERA is the law of the land.
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C-Span coverage of Biden’s statements. C-Span, 2025.
C-Span, 2025.
Introduction
President Joe Biden’s recent declaration of the Equal Rights Amendment (ERA) as “the law of the land” has ignited a profound debate at the crossroads of constitutional law, political symbolism, and social justice advocacy. While the ERA represents decades of struggle for gender equality, Biden’s statement raises critical questions about the limits of executive authority, the complexities of constitutional amendment procedures, and the role of symbolic actions in shaping public discourse. This essay delves deeply into the ERA’s history, examines the legal and procedural hurdles it faces, and critiques the broader sociopolitical implications of the president’s declaration, placing it within the larger context of power, governance, and systemic change.
A Legacy of Equality
The ERA was first introduced in 1923, reflecting the early 20th century’s growing momentum for women’s suffrage and broader gender equality. Designed to eliminate legal distinctions based on sex, the amendment aimed to enshrine equality into the fabric of U.S. governance.
By 1972, Congress approved the ERA with bipartisan support, but its requirement for ratification by three-fourths (38) of the states was paired with a controversial seven-year deadline. By 1979, only 35 states had ratified the amendment, leading Congress to extend the deadline to 1982. However, no additional states ratified it within this extended timeframe.
In the decades following, the ERA gained renewed attention, with Nevada, Illinois, and Virginia ratifying it between 2017 and 2020. These late ratifications symbolized the enduring relevance of gender equality but occurred long after the deadline had lapsed. Additionally, five states — Idaho, Kentucky, Nebraska, Tennessee, and South Dakota — attempted to rescind their earlier ratifications, further complicating its legal standing.
Biden’s Declaration: Law or Symbolism?
In affirming the ERA as the “law of the land,” President Biden placed gender equality at the forefront of national discourse. His declaration aligns with the broader goals of his administration to advance civil rights and equity. However, the assertion is primarily symbolic, as the constitutional process for amendments outlined in Article V does not grant the president authority to declare an amendment ratified.
While Biden’s statement elevates the ERA’s visibility, it risks misrepresenting its legal status. The National Archives, which oversees the certification of constitutional amendments, has maintained that it cannot certify the ERA without additional congressional or judicial action. Furthermore, the expired deadline and contested rescissions remain significant obstacles, leaving the amendment’s status in a precarious legal limbo.
Legal Hurdles and Procedural Complexities
The ERA’s path to constitutional recognition is fraught with challenges that highlight the intricacies of amending the Constitution:
The Ratification Deadline: Critics argue that the ERA’s 1982 deadline invalidates subsequent ratifications. Proponents counter that deadlines for amendments are not constitutionally required and have been altered or removed in the past, such as with the 27th Amendment, which took over 200 years to ratify.
State Rescissions: The Constitution is silent on whether states can rescind ratifications. Legal scholars remain divided on the legitimacy of rescissions, further muddying the waters.
Judicial Uncertainty: Courts have historically been reluctant to intervene in amendment procedures, preferring to leave such matters to Congress. Any judicial decision on the ERA could establish significant precedents, potentially reshaping the boundaries of constitutional law.
Congressional Stalemates: Efforts to remove the ERA’s ratification deadline have repeatedly stalled, reflecting deep partisan divides over gender equality, federal authority, and constitutional interpretation.
Sociopolitical Implications
President Biden’s declaration underscores the power of symbolism in mobilizing public opinion but also exposes the limitations of symbolic actions without substantive legal outcomes.
• Advocacy and Mobilization: Feminist organizations and civil rights advocates have praised the declaration as a catalyst for renewed activism. The ERA’s inclusion in public discourse reinforces its importance as a unifying issue for gender and LGBTQ+ equality.
• Polarization and Overreach: Critics argue that Biden’s move exemplifies executive overreach and politicizes the amendment process. They contend that such declarations could undermine the Constitution’s checks and balances, potentially eroding public trust in government institutions.
• Societal Divides: The ERA debate reflects broader societal tensions regarding equality, governance, and the role of symbolic gestures. While the amendment’s principles enjoy widespread support, disagreements over its implementation reveal persistent ideological divides.
Lessons on Governance and Change
The ERA’s complex journey offers valuable insights into the challenges of systemic change in a constitutional democracy:
The Role of Symbolism: While symbolic actions like Biden’s declaration can galvanize support, they must be paired with tangible legal and legislative efforts to achieve lasting change.
Balancing Power: The ERA debate underscores the importance of respecting constitutional processes while advocating for progress. Effective governance requires navigating the tension between procedural integrity and social urgency.
The Enduring Relevance of Equality: The ERA’s continued resonance highlights the evolving nature of equality in modern society. Its principles extend beyond gender to address broader issues of intersectionality, inclusivity, and human rights.
President Biden’s declaration of the ERA as “the law of the land” is a bold assertion of America’s commitment to gender equality, but it also illuminates the complexities of constitutional change. The ERA’s legal challenges and procedural ambiguities reflect the inherent difficulties of enacting systemic reform in a deeply divided society.
While symbolic gestures can inspire hope and mobilize action, they must be coupled with substantive efforts to navigate the intricate processes of law and governance. The ERA’s ultimate fate will depend on the collective will of policymakers, activists, and the public to bridge the gap between aspiration and reality, ensuring that the promise of equality becomes a tangible legacy for future generations.