Virginia v. Ferriero
In January 2020, Virginia became the thirty-eighth state to vote to ratify the Equal Rights Amendment (“ERA”), explicitly guaranteeing sex equality in the United States Constitution. But the Archivist—the federal official charged by Congress with announcing and certifying new amendments—has not published or certified the amendment.
Virginia, Illinois, and Nevada, the three states to most recently vote to ratify the ERA, allege that Virginia’s vote to ratify the ERA completed the amendment process outlined in Article V of the Constitution and that the Archivist’s refusal to certify the amendment has caused “widespread confusion regarding the effect of their ratification.” They sought a writ of mandamus in the D.C. District Court to compel the Archivist to certify and publish the amendment. The Archivist filed a motion to dismiss the lawsuit, and the district court granted the motion, concluding that because “the certification [the states] demand from the Archivist has no legal effect,” the states suffered no “concrete injury.” The states subsequently appealed that ruling to the D.C. Circuit.
On January 10, 2022, CAC filed an amicus brief in support of the plaintiff states. Our brief takes no position on whether the ratification process outlined in Article V has been successfully completed, and instead demonstrates the errors in the district court’s standing analysis, accepting the plaintiff states’ legal and factual allegations as true.
First, our brief explains that the publication and certification role given to the Archivist was created to eliminate doubt about whether constitutional amendments have been adopted. Although this role does not itself determine an amendment’s constitutional validity, history demonstrates that certification provides notice to members of our society when our most fundamental rules change and helps ensure consensus about when our national charter has been amended. Indeed, before the creation of the certification and publication role more than two centuries ago, confusion around the amendment process abounded. The Eleventh Amendment was left unrecognized for years after it was adopted, and at least one proposed amendment that had not been ratified by the requisite number of states was for a time mistakenly believed to be part of the Constitution.
Second, our brief shows how the certification requirement has proved crucial to the wide-spread recognition of the Fifth and Twenty-Seventh Amendments. As our brief recounts, it was only after the Secretary of State certified the Fifteenth Amendment that the House of Representatives formally recognized that it had been adopted. To this day, scholars point to the date of certification in 1870 as the day the states recognized that the Amendment took force. Over a century later, certification again proved crucial in ensuring broad recognition of a constitutional amendment with an unusual path to adoption: the Twenty-Seventh Amendment. Because it was originally passed by Congress in 1789, but was not ratified for nearly 200 years, its passage was met with wide-spread confusion and doubt concerning its legitimacy. But once the Archivist announced his plans to certify the Amendment, all doubts about its validity dissipated, as lawmakers, scholars, and the public alike recognized that the Twenty-Seventh Amendment was now part of the Constitution.
Finally, our brief argues that the Archivist’s decision to certify an amendment triggers important processes that record, publicize, and commemorate the successful amendment of our Constitution—and provide the nation with the text of its newly revised national charter. Simply put, the Archivist’s certification and publication decision plays a critical role—sometimes the decisive role—in determining whether the nation treats a new amendment as having become part of the Constitution. The Archivist’s certification decision, therefore, has palpable effects. Because the district court’s ruling rested on a contrary assumption, it incorrectly concluded that the states lack standing to sue.
January 10, 2022
CAC files amicus brief in D.C. CircuitD.C. Cir. Amicus Br.