Transcript of Could One Phone Call Lead to the 28th Amendment?

This is nick Christoff. I'm an opinion columnist for the New York Times, and I'm proud that for more than 100 years, the Times has conducted an annual appeal to raise money for charitable organizations. Times journalism is fundamentally about vetting the truth, and in this case, about vetting organizations and selecting some of the best to help create opportunity and overcome hardship. I hope you'll consider donating to the New York Times Communities Fund. To learn more, go to nytimes. Com/nytimes. Com/nytimes. Com. Nyt fund. Thank you. From the New York Times, I'm Michael Wabarro. This is the Daily. Today. The pitch to President Biden from dozens of Congressional Democrats is simple. With a single phone call, they've told him, he can revolutionize women's rights and revive his damaged legacy in the process. The question now is whether they're right, and even if they are, whether Biden is willing to do it. It's Monday, December 23rd. Hello, Annie Carny.

Hello, Michael Barbaro.

You are actually joining us from inside Congress, where there has been lots of news over the past few days, and we are grateful for you making time for us.

I'm happy to be here. I'm sitting on the house side in a small recording booth.

Yeah, it looks very cozy. This story begins with a quest to do something that, from today's perspective, a lot of people might think is already baked into American law, but it's not. Tell us the whole story of why it's actually not.

This is a story story that starts about a century ago, and it's a pretty remarkable story about a very simple idea. That is that men and women should be equal under the law in the United States and that discrimination based on sex should be prohibited inhibited. That's the whole thing. But it's never actually been put into the Constitution in such plain language.

Right. That men and women must be treated equal under the eyes of law. That's actually not language in the US Constitution.

Correct. You have the 14th Amendment, which has an Equal Protection Clause, but that doesn't mention sex specifically. This passed in the 1860s, decades before women were even guaranteed the right to vote. This existed when married women in many states couldn't even own property under their own names. So this was not really about sex equality.

It will eventually apply to sex equality cases, the 14th Amendment, but it doesn't, as you say, specifically mention sex.

Correct. In 1923, a suffragist named Alice Paul comes up with the idea that the United States needs a constitutional amendment specifically addressing women's equality. She actually gets something in front of lawmakers, but it doesn't really go anywhere or get an attraction for years. Welcome to the woman power that sustained our grandmothers for 72 years in their struggle to get the right to vote. Until the late 1960s, when the women's rights movement is really blossoming. Welcome to the new wave of feminism.

Welcome to each other.

Welcome home.

And suddenly, there is excitement around this idea.

And what happens once the women's rights movement is in blossom.

I would like to discuss with you briefly the Equal Rights Amendment. In 1971, a Democratic lawmaker in the House introduces a bill called the Equal Rights Amendment. The Equal Rights Amendment gives women rights that they do not now have. It passes with overwhelming margins from both parties. Then a year later, it passes the Senate, where the final vote was 84 to 8 in favor of the Equal Rights Amendment. Tonight, after a 49-year struggle, a constitutional amendment appears on the way, proclaiming once and for all that women have all the same rights as that other sex. But There's one more step that needs to happen for an amendment to become part of the Constitution, and that is it needs three quarters of the states to adopt it. For the day, Indiana became the 35th, leaving the women's rights declaration just three states away from becoming the 27th Amendment to the Constitution. And 35 states pass it in just five years, leaving it just three states short of ratification. So it looks like it's just sailing smoothly through the process of becoming a constitutional amendment. I get fed up with the women's liberationists running down motherhood and saying that- Until it runs up against vocal opposition led by a conservative woman named Phyllis Schlafly.

The Equal Rights Amendment will take away from women some of the most important rights that they now possess. She's a self-described housewife, an anti-feminist Republican who who wages war against the ERA. First of all, it will have a powerful dramatic adverse effect on the rights of the draft-age girl. Her basic argument is that it to actually take away rights from women. That every 18-year-old girl will be compelled to be given a draft number and to be available for call-up. By eroding traditional gender roles. The second category of women who will be hurt by the Equal Rights Amendment are Live. With a message that traditional women's roles are a privilege. The laws of every one of our 50 states make it the legal obligation of the husband to support his wife. She organized a very effective grassroots campaign where women showed up in droves to push this message on state legislators who had to vote on this. It works.

It lost in Missouri, Nevada, North Carolina, Virginia, and now Florida.

No other states are willing to adopt it. The reason that matters is because in the original piece of legislation that had passed Congress, there was a deadline for when the states had to ratify. In fact, a few states even go back and try and rescind their ratifications.

The latest skirmish in the pitched battle over ratification of the Equal Rights Amendment is now history. One of the casualties may very well be final passage of the amendment itself.

So by 1982, which is the ultimate deadline that Congress came up with, they're short. This amendment has not meant the legal requirements to become the 28th Amendment.

Basically, you're saying by the early 1980s, this seems to be quite dead.

You might think so, but the debate begins about whether or not the time limit is something that should be taken seriously or whether that deadline was always meaningless.

Just explain that.

Constitutional amendments, first of all, each one has taken its own circuitous path to passing, and they don't normally have ratification deadlines. An example is the 27th Amendment. It was ratified in 1992. That's two centuries after Congress first passed it. Supporters of the ERA argue that the Constitution itself never mentions deadlines for an amendment. So they just are meaningless and do not exist.

Interesting.

On top of that, there's a real debate about this business of states trying to rescind their ratification. States have tried that in the past on other amendments on the 14th and 15th amendments. Their original ratifications were still counted in the final count that had those become part of the Constitution.

There is some real, legitimate gray area here.

There's a lot of legal gray area here, yes. This thing just sits on the shelves for decades until Donald Trump is elected President. Three more Democratic Party-controlled state legislators supporters, Nevada, Illinois, and Virginia, who are motivated by women who are outraged that Trump has won and what this will mean for women's rights, not to mention the #MeToo movement, which was at its peak, adopt the ERA. It suddenly hits the magic number of 38, three quarters of the states. It has still been passed by Congress. On paper, according to supporters, it has cleared all the bars. The ERA has been ratified and should be part of the Constitution.

If you believe that that Congressional deadline is not real.

Correct. If you think it has met all the legal requirements and that the deadline is not in the Constitution, all that is left to do at at this point is basically paperwork. The National Archivist, who's responsible for the certification and publication of constitutional amendments just needs to publish the ERA as the 28th Amendment, and then it is part of the Constitution.

It's a really interesting argument.

But, and this is a big but, the Trump Whitehouse at the time issues a legal opinion saying that the archivist cannot do that. That's because of the deadline. They say that Congress set that 1982 deadline and that because of that, this is all null and void. Anything that happened after that is dead. In 2022, when Biden is President, the Biden White House defends that position.

The Trump position that the deadline matters and that this is not suddenly a constitutional amendment.

Correct. Again, we are in a legal gray area. In 2023, supporters of the ERA go to federal court to get a ruling about this deadline issue, and they lose. A federal court says that the deadline is real. It's looking less gray, and the chances of the Equal Rights Amendment becoming part of the Constitution are looking less likely. But over the past few months, Democrats have decided to give it a final try.

What does that even mean, really?

After Roe was overturned, Democrats saw this as more urgent than ever, that the ERA could be a tool to protect abortion rights at the federal level, that it could anchor a right to an abortion in the Constitution. They have a Democratic President with the power to make this happen. They want to just treat this like it's already the law of the land. It's passed Congress, it's got the three quarters of states ratified. Just order the archivist to publish it. Sure, it'll invite a legal challenge, but that's the next step. They literally say all Joe Biden has to do is pick up the phone, have a two-minute phone conversation with the archivist, ordering her to publish it, and then they'll deal with whatever comes next after that. 45 senators, including Chuck Schumer, the majority leader, have written a letter to Biden saying, Pick up the phone and call. House Democrats, over 100 all saying, Pick up the phone. Yes, it will invite a court challenge. But the point is that this would dare Republicans to have a legal battle to take away equal rights for women, to say, no, we're fighting against this very simple amendment that says women deserve equal rights.

Dare them to start that legal battle. The lawmaker who has really taken up this mantle is the junior senator from New York, Kirsten Gillibrand, who has made it a priority to persuade Biden that he can and he must do something on this, that he is the president who can make the Equal Rights Amendment part of the Constitution.

We'll be right back.

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Good morning.

Good morning, Senator Gillibrand. How are you?

I'm well. How are Good.

It's nice to see you. I reached Senator Kirsten Gillibrand inside her office on Capitol Hill last week. Sorry. Thank you for putting on headphones. I know it is not the most glamorous way to start your day, but...

I don't mind.

I wonder if you can, just to start, remember when you first learned that Equal Rights for Women were not mentioned in the Constitution.

Right. Well, I've known for a long time that the Equal Rights Amendment is not part of the Constitution. Recently, I started looking into the law and looking into actually what it takes to make a constitutional amendment. I realized pretty quickly it was about Article 5 of the Constitution that sets out two things that need to be accomplished to become a constitutional amendment. You need two-thirds of the House and Senate to vote in favor of it. That happened in the 1970s. It needs three quarters of the states to ratify. The last state to to ratify was Virginia in 2020. I realized really quickly that the two things that are required by the Constitution have been met. What's supposed to happen is when the two standards are met by Article Two-thirds House and Senate, pass it, ratified by three quarters of the state. The archivist who has a ministerial job only, he or she is not supposed to analyze the law. They're not supposed to have a deep think about it. They're just supposed to sign and publish when the two things are done. Because Trump was President in 2020, his Office of Legal Counsel issued a memo telling the archivist he couldn't sign and publish.

That memo said, Timelines matter, and you took too long to get this added to the Constitution. They cited a decision saying that all constitutional amendments have to be done in a timely way. Well, the 27th Amendment took 203 years to become a constitutional amendment It. So clearly timeliness is not a standard. I looked further into what the law says about timelines and whether this timeline that Congress had put in as a seven years deadline in the preamble was actually constitutional institutionally operative. There was actually precedent that talked about cases that had timelines and deadlines and saying they were not valid. I realized that the strength of the arguments were actually on our side. I've been asking the White House to either issue a new OLC memo, and if they don't want to do that, then direct the archivist to sign and publish on the basis that the two things that Article 5 requires have been completed.

Got it. We're going to get to all the ways in which you have brought and tried to bring that request to the Biden White House. But I think listeners will appreciate you explaining in a bigger step-back way why you and why so many other Democrats want the ERA now. Putting aside the legal arguments for just a moment, what in your mind does the Equal Rights Amendment achieve at this point that the country's current laws and jurisprudence prudence, especially around the 14th Amendment, Equal Rights Clause, does not provide? What gaps does it fill if it becomes the 28th Amendment of the Constitution?

Well, if you noticed in the Dobbs decision- Right, overturning row. Justice Alito alluded that there is no right to privacy in the Constitution, and there's nothing protecting women for these issues in the Constitution. Well, that really highlighted the need for the Equal Rights Amendment to be part of the Constitution. Because Equal Rights amendments across the board in states, states like Connecticut, states like New Mexico, there's current litigations in places like Pennsylvania. When a state has an Equal Rights Amendment In the case of reproductive rights, they have found that if a woman is denied access to health care for reproductive rights, including abortion, that it's fundamentally unequal. In the cases of Connecticut and New Mexico, women on Medicaid were given access to abortion services because they were denied it. They said that was unequal under the law.

So for you, the Equal Rights Amendment, perhaps not exclusively, but foremostly, is about creating in the Constitution a federal protection for abortion rights, which you think has already happened in states whose constitutions have something similar to the Equal Rights Amendment.

Correct. Because if you have equality, Let's just look at Dobbs. Dobbs ruled that women of reproductive years do not have a right to privacy. Red states have then implemented that to say, women of reproductive years don't have the right to travel across state lines get access to health care. They've decided women of reproductive years don't have a right to have private conversations on their Facebook pages with their mother about seeking abortion services, that women don't have the right to privacy to receive medicine in the mail. Imagine how men in America would feel if they were told today that they, too, do not have the right to privacy to cross state lines or to receive medicine in the mail or to have private conversations on social media with their families. They would start a revolution. I believe if we had an Equal Rights Amendment, DOBS would be viciated. Dobs would no longer count because it is applying a standard to women only based on their gender, that they don't have a right to privacy and therefore have no access to the health care that they need.

That's a pretty big and important claim, and I wonder if it's at all disputed, you'd know better than I would that explicitly prohibiting gender-based discrimination in the Constitution Constitution, which is what the Equal Rights Amendment would do, would in your words, visciate, obviate, tear asunder the Dobbs decision entirely?

I think it could. It would be a strong legal argument that you are discriminating against women based on our gender, and in this instance, denying his access to life-saving care.

Okay. Once, Senator Jellebrand, you decide for all these reasons, both legal and practical, that this is important to that you make this case to President Biden. What do you do? What have you done so far to try to make this case to the President, to his aides? I wonder if you can walk us through all of that.

I started to ask for meetings with President Biden over a year ago. I used every opportunity that I had with the President or with the First Lady or with Vice President Harris or with Vice President Harris's husband or with her chiefs of staff or with senior advisors in the administration to make the case that the ERA is valid. I have argued with his lawyer ad nauseam, and he disagrees me, but I think my legal arguments are supported by far more people than support his. My argument is supported by the ABA. The American Bar Association. And my argument is supported by a numbers of attorneys general from dozens of states. And the weight of the law is on our side.

Wait, should I intuit that you have not gotten this meeting?

No, I have not gotten the meeting yet. I'm still asking for the meeting. Mr. President, I would like to meet with you for five minutes. I would like to make my best case to you.

Forgive me for asking this. Is it strange for you to have to essentially bleed through intermediaries, whether perhaps in this moment we are one of them, to get a couple of moments one-on-one with the President?

I don't know what the issue is. I think perhaps the campaign got in the way because it became a question as, do we want to do this in the middle of a campaign? Shouldn't we wait till after the campaign? Maybe those were concerns. We did polling. We have polling showing that the American people support this. We really just tried to make the case to all of the senior advisors that not only is this actually accurate legally, but that it is the right thing to do.

How do you understand Senator Biden's seeming reluctance to engage this? He's not taking the meeting with you.

He's not speaking out about this. Well, I don't know that it's the President. I think it's the team. I don't know. I got to tell you, I pitched it to him. I pitched it to him with my 30 seconds that I had in a photo line.

In a photo line? Yes.

When President Biden came to New York for the celebration of the Stonewall Inn as a National Monument, I made sure I got to that photo line. I said, Mr. President, I think you have an opportunity to direct the archivist to sign and publish the ERA. You got it out. I said, And if you do, it will be everything. It will guarantee women reproductive rights. It will guarantee them equality under the law. It will be the cornerstone of your administration. I said, You don't have a formal role, but the archivist does, and she needs courage. I believe if you tell her or direct her or do a new OLC memo, she will do it. He said, So do you want me to make a big deal about it? I said, Yes, I do. That was our conversation. That was it. It was very positive. I've not had a negative reaction.

Do you think, Senator, that perhaps the thing that may be holding him, and if not him, those around him up here, is there fear that this won't survive the inevitable legal challenge that will come based on the 1982 deadline, that they just think that this is futile and symbolic.

Look, no matter what approach you take on this Equal Rights Amendment, it will go up to the Supreme Court. This is the only route that is possible, I think, in the near future. Why wouldn't you do it now as an opportunity to stand up for what you believe in?

You just mentioned the Supreme Court. You no doubt know that one of the great liberal lions of the Supreme Court, Ruth Bader-Gainsberg, said in 2020 that she believed that as much as the world, as the country needed the ERA, that the best way to do it, the right way to do it, was to start over. She said, and this is her quote, I would like to see a new beginning rather than an effort to just take the current legislation, having missed the 1982 deadline in her mind, and make it law now. What do you say to a towering legal figure and theoretical ally like that saying, No, I don't think you can do this. I think you have to go back to the beginning. You have to do this whole thing all over again.

I disagree with her analysis. You have to understand, Ruth Bader-Ginsberg was a great legal mind. She was an unbelievable scholar and justice that did great things for our country. She knows nothing about politics. It's not her job to understand politics. If you start over, you will never see reproductive freedom or equality for women in our lifetimes because it's become a political wedge issue. There are many people in the Senate today, in the House today, that if you ask them privately, do you believe women deserve equality? They're going to say yes. But their vote on equality will be about their position on reproductive rights. That's the truth. I respect Justice Gainsberg her legal acumen. I do not respect her view on this issue because I think she's wrong.

Even, Senator, if you were to get President Biden to do this, a big if, you know that you face one last meaningful obstacle. Because just a couple of days ago, the archivist came out, probably in response to your outspoken efforts here, and said, I will not do this. I will not make the Equal Rights Amendment, the 28th Amendment to the Constitution, because in her legal analysis- Good point, Michael.

It's not the right- Her legal analysis, she's not a lawyer. She knows nothing about the law. For her to insert herself as a legal analyst in this whole process is unconstitutional. She is supposed to publish the ERA because the two standards of Article 5 have been met.

I mean, your frustration is so palpable to me. I've I've watched you, I've covered you for many years. I now have this vision of you tiptoeing across the White House lawn at some godly hour and knocking on the front door.

I mean- Well, I mentioned it in the Christmas party photo line, and this is why I know Jill Biden knows about it. I said, Mr. President, I'm still asking for five minutes to tell you about the Equal Rights Amendment. And Jill said, We know all about it. I said, Great. I just need five minutes because I really believe someone is advising him differently, and I don't think they know all the things I know. I would like to have him, at least as the President of the United States, make this decision fairly with all the information in front of him and let him, as the President, make history. Lawyers write briefs. Presidents make history.

Well, Senator, Remember, thank you very much for your time.

You're welcome.

We'll be right back. Is the lipstick effect really real? And what can we learn from South Korea's booming consumption of male cosmetics? Hi, I'm Isabella Ruscellini, and in the latest episode of This is not a Beauty podcast, we'll speak to an economist, a male beauty expert, and a pioneering entrepreneur about how beauty shapes business.

Listen now on your favorite podcast platform.

Here's what else you need to know today. Even as Republicans averted a government shutdown over the weekend, they exposed a deep rift between President-elect Trump and hard-lined House Republicans over spending and debt. Trump had triggered the crisis by ordering House Republicans to raise the federal debt ceiling, hoping that doing so before he was in office would avoid a messy showdown over the issue next year. Instead, nearly 40 House Republicans defied Trump, saying that his plan would generate too much debt. The spending package that ultimately avoided a shutdown, which passed both chambers of Congress on Saturday morning, extends current spending levels until mid-March and pushes the debate over the debt ceiling into next year, when Republicans will control the White House and both chambers of Congress. Today's episode was produced by Carlos Prieto, Luke Vandeplug, Claire Tennisgetter, and Michael Simon Johnson. It was edited by Patricia Willens with help from Paige Cawet, contains research help from Susan Lee, original music from Pat McCusker, Dan Powell, and Mary Lozano, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Van Lansferck of Wunderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.