Civil and Human Rights

Virginia v. Ferriero

In Virginia v. Ferriero, the D.C Circuit is considering whether a lawsuit seeking to compel the National Archivist to certify the Equal Rights Amendment may move forward

Case Summary

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.

Case Timeline

More from Civil and Human Rights

Civil and Human Rights
U.S. Court of Appeals for the Third Circuit

Burrell v. Lackawanna Recycling Center, Inc.

In Burrell v. Lackawanna Recycling Center, Inc., the Third Circuit is considering whether the practice of forcing child-support debtors to work in horrific conditions in the county recycling center for almost no pay constitutes involuntary...
Civil and Human Rights
December 15, 2021

Supreme Court’s conservatives on the verge of ending right to abortion

Los Angeles Times
WASHINGTON — The Supreme Court is ending the year starkly split on abortion, with the five conservatives...
By: Elizabeth B. Wydra, David G. Savage
Civil and Human Rights
December 7, 2021

PODCAST: Elizabeth Wydra on Signal Boost

Signal Boost
Constitutional Accountability Center President Elizabeth Wydra joines Jess and Zerlina on the show to talk...
By: Elizabeth B. Wydra, Zerlina Maxwell, Jess McIntosh
Civil and Human Rights
December 4, 2021

Decisions on same-sex marriage, contraception could be threatened by abortion ruling

USA Today
WASHINGTON – When the Supreme Court hands down its ruling next year in Mississippi's blockbuster...
Civil and Human Rights
December 10, 2021

RELEASE: Supreme Court Ruling Undermines Constitution by Allowing Texas to Continue Violating Right to Abortion While Permitting Limited Court Challenge 

WASHINGTON – The Supreme Court today issued rulings in Whole Woman’s Health v. Jackson and...
By: Elizabeth B. Wydra
Civil and Human Rights
December 3, 2021

RADIO (WNYC): Reproductive Rights and the Constitution

The Takeaway with Melissa Harris-Perry
The Supreme Court heard oral arguments in Dobbs v Jackson Women’s Health which involves a...
By: Elizabeth B. Wydra