January 6, 2024. Today is January 6th, a day Americans will never forget. Many are thinking back three years to the day when the US Capitol was taken over by insurrectionists. The violence. The shattered glass. Elected officials running for their lives. The 150 law enforcement officers injured. The five people who died, and the four law enforcement offers who subsequently took their own lives.
An attack on our democracy.
The events of January 6, 2021 are often referred to as “an unprecedented attack on our democracy.” President Biden said that again yesterday and noted “[insurrectionists] weren’t there to uphold the Constitution; they were there to destroy the Constitution.”
While that is true, ignoring, even destroying, the Constitution was not unprecedented. The Trump Administration laid the groundwork for the events of January 6, 2021, 365 days earlier, when it ignored our Constitution and set in motion a plan for its destruction that is being carried out to this day.
Exactly one year earlier, on January 6, 2020, the Trump Administration took the unprecedented step of interfering with the constitutional amendment process, by unilaterally determining that the Equal Rights Amendment (“ERA”), which would be ratified and become the 28th Amendment three weeks later, could not be included in our Constitution. The Trump Administration postured that, due to a purported time limit for ratifications and attempts by certain states to rescind their ratifications, the ERA has not been, and could not be, ratified, and that the Constitutional Amendment process must start anew.
Each of the 27 Amendments prior to the ERA were published in the Constitution despite outstanding legal questions, such as those made by the Trump Administration under the guise of a “determination.” Hardly a “determination” as the Trump Administration lacked the authority to intervene. The sole role of the Executive Branch in the Constitutional Amendment process is to collect ratifications and print a revised Constitution with the Amendment.
This interference with the ERA was the trial run for what would ensue a year later – the insurrection attempting to thwart the Constitution – and the first step in destroying our democracy.
It is hardly a secret why the Trump Administration took this radical action and blocked the publication of the ERA as the 28th Amendment, particularly at a time when the US Supreme Court (“SCOTUS”) was already controlled by a conservative majority.
As a preliminary matter, the effect of this unprecedented interference was to shift the burden of proof to supporters of equality, reproductive rights, LGBTQIA+ rights, and the ERA, knowing they would be unable to overcome procedural hurdles to enforce the ERA. And the Trump Administration was right. There have been five lawsuits filed to date to enforce the ERA and each lawsuit was dismissed on procedural grounds.
You’re probably asking “why bother if SCOTUS was already controlled by a conservative majority?” Because this SCOTUS only cares about the words in the Constitution, which says absolutely nothing about time limits for and rescissions of ratifications – the very reasons the Trump Administration “determined” the ERA is invalid. Hundreds of constitutional scholars state that the ERA is currently the 28th Amendment. The Trump Administration simply could not run the risk of the ERA being in the Constitution as it would thwart the Trump Administration’s larger agenda – rolling back civil and human rights and dismantling our democracy.
As recently explained in greater detail in the letter Shattering Glass drafted and sent to President Biden on behalf of 84 organizations and medical associations, the Equal Rights Amendment is a critical component of preserving our democracy and would restore reproductive and LGBTQIA+ rights, as well as guarantee equality for all Americans.
President Biden and Vice President Harris have made preserving our democracy a cornerstone of their 2024 campaign, much like the ERA was a part of their 2020 campaign. Just yesterday, President Biden gave a campaign speech on the eve of the third anniversary of the January 6,, 2021 events. Referring to former President Trump and autocrats around the world, Biden stated “They’re limiting freedom of speech, freedom of press, freedom to assemble, women’s rights, LGBTQ rights, people are going to jail, so much more.”
Again, all true. However, President Biden knows that the ERA would protect us from the autocratic attacks with which he states he is concerned. Yet he has had three years to put the Equal Rights Amendment in the Constitution and right the unlawful interference by the Trump Administration, but he has not done so.
President Biden further acknowledged that “Without democracy, no progress is possible. Think about it. The alternative to democracy is dictatorship — the rule of one, not the rule of “We the People.” That is precisely what is happening now. Trump and Biden are ignoring the will of the “We the People.”
If President Biden truly believes “that [We The People] includes all of us, not some of us” and that “Democracy is still a sacred cause,” he will publish the ERA as the 28th Amendment immediately.
Anything short of putting the ERA in the Constitution renders Biden’s words meaningless and his actions consistent with President Trump's, whose intent was to dismantle our democracy and rollback civil and human rights.