The Equal Rights Amendment is already part of the U.S. Constitution: Joe Biden can make that legally clear

In January, 2020, the Equal Rights Amendment (ERA) was ratified, per the procedures specified in Article V of the U.S. Constitution. As with all U.S. law, the U.S. Constitution is the paramount authority on the law of amending the U.S. Constitution. So, when Virginia became the thirty-eighth state to ratify, the Amendment was lawfully ratified and it became part of the U.S. Constitution. Where was the fanfare? The celebration? Why was a woman's constitutional right to abortion relitigated in 2022 as a question of due process rather than a question of women's equal right to choose their own medical care and to bodily autonomy?

The short answer to these questions is Donald Trump and his then-attorney-general Bill Barr. Realizing in January, 2020 that the ERA was about to achieve full ratification, Bill Barr had the Office of Legal Counsel (OLC), an advisory department within the Department of Justice (DOJ), issue a lengthy opinion claiming that even after Virginia ratified it, the ERA would not be part of the U.S. Constitution. As a subsequent 2022 OLC opinion made clear, the earlier opinion binds no one. If the President or Congress or agrees that the ERA has been fully ratified, they should implement it. Ditto for federal courts and state governments. The 2020 OLC opinion, however, kicked up dust, obscuring this point.

I'm confident Barr's OLC opinion is wrong on the merits. There are other sources you can read for finer-grained discussion of the legality of the ERA's ratification. Here, I aim to provide a simple, easily-remembered high-level overview.

As stated above, by Article V of the U.S. Constitution, Congress has the authority to propose amendments to the U.S. Constitution, and an amendment proposed by Congress becomes part of the Constitution upon ratification by three-quarters of the states (today, thirty-eight states). The Constitution imposes no other requirements. Now, here is the full text of the Equal Rights Amendment as dispatched to the states in 1972:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This amendment shall take effect two years after the date of ratification.

That's it. Nothing about how long the states have to ratify the ERA. There are other constitutional amendments that include within themselves time limits on when they had to be passed in order to become operative (see, e.g. the Eighteenth Amendment). But not the ERA. So, by the plain language of the ERA and Article V of the U.S. Constitution, ratification by thirty-eight states makes the ERA, as submitted to the states, part of the U.S. Constitution.

Many people think the ERA did include a time limit for its own ratification. This mistaken impression stems from language in the Congressional joint resolution proposing the ERA. Before stating the text of the ERA, this resolution included what is called a "proposing clause," reading in full:

Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled {two-thirds of each House
concurring therein), That the following article is proposed as an
amendment to the Constitution of the United States, which shall be
valid to all intents and purposes as part of the Constitution when rati-
fied by the legislatures of three-fourths of the several States within
seven years from the date of its submission by the Congress: [text of the ERA]

With this clause, Congress gave later opponents of the ERA a toehold for spurious arguments that it was not properly ratified because it took forty-eight years for two-thirds of the states to ratify it. But the states who ratified ratified the ERA itself, not the joint resolution and not its proposing clause. Moreover, because the U.S. Constitution itself specifies the procedure for amending the Constitution, Congress cannot modify that procedure via ordinary legislation. The only way Congress can introduce time limits on ratification would be via a general amendment to Article V or via language within a proposed amendment itself.

There is even precedent for a constitutional amendment taking many years to be fully ratified and then becoming part of the U.S. Constitution. The Twenty-Seventh Amendment, known as the Madison Amendment, took over two hundred years to achieve full ratification.

There is a defined legal process for making it utterly clear that an amendment to the U.S. Constitution has occurred. This is publication in the Federal Register. The Archivist of the United States is statutorily required to make this happen:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. [1 U.S. Code § 106b]

Publication is not a necessary step for ratification. But it is the way the executive branch of the federal government officially alerts the public, Congress, the federal judiciary, and the states that the Constitution, and therefore the law of the land, has changed.

Today, the effort to have Joe Biden direct the National Archivist to publish the ERA is in full swing. With the incoming Chief Executive of the United States committed, by practice and policy, to the subordination of women, there is stark need to make it clear that the ERA affords American women full equality under the law.