In the waning days of his presidency, Joe Biden put out a statement declaring that “the Equal Rights Amendment is the law of the land.” That came as a surprise to many, since the last state to ratify the amendment was Indiana in 1977, and the last state to pretend to ratify it was Virginia in 2020.

　　The Equal Rights Amendment (ERA) was proposed in 1972 with a seven-year deadline for ratification. Following a contentious debate, that deadline was not met, nor was an extended deadline of 1982 (the validity of which is questionable). The amendment, therefore, was defeated over 45 years ago. Moreover, several states rescinded their ratification well before Virginia’s pantomime. So while it is sometimes reported that the Old Dominion became the “38th state to ratify,” which would put the amendment over the requisite two-thirds majority, it was really nothing of the sort.

　　The whole episode passed fairly innocuously, quickly overshadowed by the presidential transition. The Archivist of the United States, who is statutorily responsible for certifying a constitutional amendment, restated her position that the amendment could not be ratified after the congressional deadline. It was notable, however, that several prominent individuals and institutions put out statements going along with the act, including some like Georgetown Law School and the American Bar Association that should value the rule of law. The short-lived affair is revealing—both of our constitutional system, and the kind of performative politics that is undermining it. Though the legal case for ratification of the ERA is weak, a look at Article V reveals plenty of wiggle room for hairsplitting disputes over the validity of amendments. And that possibility, in turn, reveals a constitutional system that depends on a “We the People” who actually value life together under the stable rule of law. Performative politics puts that system in grave danger.

　　Some of the ERA’s advocates have argued that, because no time limit is mentioned in the Constitution, Congress cannot impose one. This claim, it should be noted, ironically constitutes a hyper-literalism that goes well beyond anything mainstream originalists would espouse. But it is easily dealt with: Even if one concedes the substantive point (which is by no means obvious), it would simply mean that the congressional proposal of the ERA was itself invalid, and therefore none of the ratifications were effective.

　　Others have argued that states cannot rescind ratification. This is a more contentious question (though one rendered moot by the time limit). Nevertheless, the Constitution does not say one way or another, which by my reckoning at least, would leave states free to deliberate and act as they see fit. If a state initially votes against ratification, presumably they may reverse that decision later. (If not, when do we kick Rhode Island out of the United States?) And it would make no sense to allow changes in one direction and not the other.

　　Moreover, taking both of these positions together—that no time limits are allowed and states may never rescind their ratification—would mean that it is impossible for any amendment ever to be defeated. Progress could only ever go one way. That, it seems, would be a ridiculous conclusion to reach, one that is not obviously demanded by constitutional text and that is clearly out of step with the general objective of the amendment process—to ensure a broad consensus around any changes to the Constitution.

　　The ERA incident, however, does reveal an important and challenging element of the constitutional system. The tail end of the amendment process is very open-ended. Article V stipulates that an amendment “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

　　A performative approach to law and the Constitution erodes the kind of civil ethic that our ordered political life requires.

　　There is no final certification or other formal process that we have come to expect in the age of modern administrative rules. We search in vain for a final authority on any questions about validity. It shall simply be “valid.” The archivist’s role is, of course, not a constitutional one, but a statutory one—and it is more about record-keeping than authority. President Biden, it seems, believed the president may have some role. But certainly, there is no inkling of that in the text of the Constitution. And the fact that Biden only made his declaration at the very end of his term indicates that perhaps he did not really believe in a serious presidential authority.

　　One might think, then, that the question must be decided in the court system. But not so fast. In the past, the courts have opted not to decide controversies over amendment ratification. In Coleman v. Miller, the Supreme Court ruled that a debate over the legitimacy of a state ratification was a nonjusticiable political question. And rightly so. The process of ratification is a political one, not a legal one. And it is not at all clear that the Constitution offers anything approaching a legal rule for determining validity.

　　One might turn, then, to Congress, which is where the Coleman v. Miller Court pointed. In a concurrence, Justices Douglas and Frankfurter even said that Congress possessed “exclusive power over the amendment process.” Perhaps if push ever came to shove, that is where the issue might wind up. But that is a very problematic answer, too. Congress, after all, has a specific part of the process to play, as the proposer of amendments. That is very different than “exclusive power.” There is nothing in the Constitution that would suggest Congress has oversight over the other part of the process, which is in the hands of states. Moreover, as the proposer of amendments, Congress would have a stake in the game, and likely be systematically biased toward ratification. Congress considered eliminating the ERA time limit after Virginia’s “ratification”—which would have effectively raised the amendment from the dead in an attempt to make it the law of the land, despite the fact that it had been defeated by the states. Had that happened, it wouldn’t be hard to see the problem with identifying Congress as the final arbiter of this question.

　　We are, then, simply left with “shall be valid.” Our system does not offer any institution, like the King-in-Parliament, that exercises final authority over what rules ultimately govern our political system. It depends only on a plural authority—three-fourths of the states—which cannot speak with one voice. Such a system, perhaps more than any other, relies on an attitude of civil accommodation to one another. By “civil” here I don’t mean “nice,” but rather reflective of an underlying desire to live together under established rules and act accordingly.

　　The Constitution assumes that if three-fourths of the states ratify a constitutional amendment, those that oppose it will nevertheless accept that it “shall be valid,” valuing an honest, civil order over any perceived disadvantages of the provision itself. And for the same reason, if an amendment is defeated, its supporters will recognize its defeat (as Ruth Bader Ginsburg did with the ERA, for example).

　　The decades-long ascendency of the “living constitution” was the paradigm case of the dishonest path. It revealed that a significant part of the country saw its own substantive moral aspirations as overriding any commitment to a stable, shared political and legal framework.

　　The ERA flap, however, reflects our even more vacuous times. This was obviously not a serious attempt to change the Constitution. The people and organizations who put on a straight face to insist that the ERA was actually ratified knew that it wasn’t going to happen. These were mere performances for public consumption. At least the advocate of the living constitution could make the moral argument that his principles are so pure, his moral demands so imperative, that procedure simply must give way to what is right—even if it means undermining the general consensus around the validity of that system. Here, however, everyone knew there was no legal payoff. It was all about the show.

　　Yuval Levin has notably diagnosed the decay of American institutions by observing the way they are increasingly used as platforms—stages that one can use to enhance visibility and cater to an audience. In this ERA debacle, we have the Constitution itself used as such a platform. The individuals and institutions that played along with the presidential declaration were willing to sow distrust and discontent with our constitutional order, not to accomplish a moral goal, but merely to signal loudly their own purity and win plaudits from their ideological compatriots.

　　This sort of performative approach to law and the Constitution erodes the kind of civil ethic that our ordered political life requires. Let us hope that leaders and institutions of all political stripes can recover an appreciation for constitutional order, before we’re left with nothing but an arena of screeching sectaries.

　　Any opinions expressed are the author’s and do not necessarily reflect those of Liberty Fund.