The second half of the title is basically what this author thought when he read this post on TSMSFKA Twitter (‘The Social Media Site Formerly Known As Twitter’):
Normally, we might take the time to blow up the picture for easy reading, but bluntly, we don’t think it is worth your time to read it yourself. There really isn’t much there and we are about to tell you all about what is there. Still, if you really want to read this two-page opinion for yourself and, you don’t want to squint, you can read it here:
Still, breaking down what is actually going on here will take a moment but that’s what these legal Deep Dives™ are for.
(There is no actual trademark, by the way.)
The very short version is that the Ninth Circuit (!) rejected a claim that there is a Twenty-Eighth amendment to the Constitution.
Thus, one might reasonably ask: What on Earth is this about a possible Twenty-Eighth Amendment to the Constitution, anyway?
As we have covered before, there is a cadre of leftists who insist that a proposed Equal Rights Amendment (ERA)—that would make governmental discrimination based on sex illegal—has somehow become part of the Constitution as the alleged Twenty-Eighth Amendment. This potential amendment was proposed in the 1970’s and it reads as follows:
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.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification
When it was proposed in 1972, Congress also set out a time limit for it to be ratified but the needed thirty-eight states had not ratified it in time. And for many years just about everyone agreed it was dead.
Then in the last few years a movement came about to give it a late ratification, with Virginia providing it the alleged thirty-eighth ratification. We say ‘alleged thirty-eighth ratification’ because besides the timing issue, many states that ratified it have purported to rescind that ratification. You cannot claim that thirty-eight states have ratified it without claiming that once a state provides its consent, it cannot withdraw that consent before the proposed amendment reaches the appropriate threshold. As we said the first time we dealt with this nonsense:
Whatever one feels about the ERA, this is wrong. In the view of the advocates for the ERA no time limit is valid and no vote to rescind any ratification is allowed. By that logic, Article V of the Constitution, which is supposed to make it difficult to amend the Constitution, is turned into an almost inevitable process once an amendment is proposed. After all, if America lasts one thousand years, then it is almost inevitable that any proposed amendment will become part of the Constitution, however ill-advised. After all, you would only need thirty-eight states to say ‘yes,’ once in that thousand-year period.
It is also fundamentally unfair. How many state politicians voted to ratify the amendment not because they actually believed in it, but because they correctly estimated that it would never be ratified in seven years and therefore it was safe to pretend they supported it? Would the resolution [have] even [made] it out of Congress without the time limit on ratification?
In other words, there are good reasons to oppose this move that have nothing to do with whether you want to see this amendment ratified.
(Boldface added.) Previously, we covered how Democrats tried to use a legislative trick to attempt to declare this amendment ratified, and how it failed. And three days before he left office, Joe Biden claimed that it had in fact been ratified, which we talked about here and here.
And to be fair to Joe Biden, we don’t see anyone in this case addressing Joe Biden’s declaration at all. But at the same time, we don’t think any judge would actually say anything to the effect of ‘we were going to rule that this amendment wasn’t ratified, but then we heard Biden ranting and raving about it like the angry old man he was and so now it is part of the Constitution!’ This decision might not rebuke Biden directly, but it is saying his declaration that we have a Twenty-Eighth Amendment is wrong.
And not for nothing, but Joe Biden was one of the named parties in the court below, him being sued in his official capacity as President of the United States. The case was originally captioned Valame v. Biden, et al. Naturally today, it reads as Valame v. Trump, et al., because when the president is sued in his or her official capacity, it means the name on the caption is the current president. But what all of that tells you is that the Biden Administration had been fighting this case since June of 2023 and the government’s lawyers never said, ‘you know what? Valame is right! The ERA is part of the Constitution!’ Even after Biden made his declaration that the ERA is part of the Constitution, his administration's lawyers were still fighting it through the end of his term.
It’s almost as if Joe Biden wasn’t really in charge of his administration or something. But that’s just crazy talk!!!
Still, as ‘Election Wizard’ correctly stated, the Ninth Circuit rejected this claim. He says they did so unanimously, but that’s not quite the way we would say it. As you might know, the Ninth Circuit actually has 29 judges and not all 29 are hearing every case. Instead, most of the time a case is heard by a three-judge ‘panel.’ Those panels are typically randomly chosen. So, it was this three judge panel that rejected it and only that panel rejected it unanimously.
And while this author is not thrilled that we have entered an era where we are always talking about which judge was appointed by whom, this panel was made up of two Clinton appointees and one Trump appointee (Bumatay). Still, it is fair to say that the Ninth Circuit is easily the most liberal in America, so for this claim to fail, even against two Clinton appointees, is just about the gold standard for failing. It’s a bit like playing a baseball game where the other side spots your team thirty points and your team still manages to lose. It is a pretty humiliating defeat for this claim.
Still, in theory, this plaintiff could ask for the entire Ninth Circuit to look at the case (that would be called rehearing the issue ‘en banc’) or he could appeal to the Supreme Court. But even for a pro se, appeals are prohibitively expensive and he might decide it is not worth it.
As for the reasoning, there isn’t much. Here’s the entirety of what they said about the alleged Twenty-Eighth Amendment:
We reject as meritless Valame’s contention that the Equal Rights Amendment was ratified as the Twenty-Eighth Amendment to the Constitution.
If that sounds backhanded to you, that would be correct. They barely thought it was worth mentioning. You see, Valame was entitled to this appeal. While the Supreme Court has the ability to refuse to hear many cases, typically the Circuit Courts are forced to take many cases whether they think it is worth their time or not. Moreover, this case is pro se, which means that the Plaintiff, Vikram Valame, is representing himself and, on this level, the judges almost always approach pro se cases with a proverbial sigh. The only exception might be if the pro se plaintiff is a lawyer. As far as we can tell, Valame is not a lawyer.
Now, there is one other odd thing, which is that the opinion is designated ‘NOT FOR PUBLICATION.’ We’re going to rant talk about that later, but let’s just say for now the issues raised by declaring this to be an unpublished opinion won’t help you to understand why they said the ERA is not in the Constitution.
So basically, they affirmed the lower court opinion dismissing the case without very much reasoning. Thus, if you want to understand what was going on, you have to go to the lower court opinion, which you can read here:
The short version is that Mr. Valame is a man who has reached the age of eighteen and he doesn’t believe he should have to register for the draft because women don’t have to, therefore he is being discriminated against because of his sex and that is forbidden by the totally real Twenty-Eighth Amendment to the Constitution. And the district court rejected it for the obvious reason: There is no such amendment. It’s not a long opinion, but here’s the meat of it:
As an initial matter, no 28th Amendment appears in the Constitution. … Valame does not cite to any court authority finding otherwise. … ‘The United States Constitution provides a pathway for adding new Amendments, and Congress has determined that the last step on that path is certification and publication by the National Archivist.’ … The Archivist has not taken those necessary steps. This Court finds the 28th Amendment’s lack of publication convincing evidence it does not now exist.
Beyond the 28 Amendment’s current state of nonbeing, the Ferriero court took up the question of whether the Archivist owed a duty to bring it to life. … The court walked through the ERA’s storied history, …. and the certification requirements imposed on the Archivist…. At bottom, the court concluded the Archivist did not have a duty to certify and publish the ERA. This Court finds Ferriero persuasive. Thus, not only does the Amendment granting Valame his purported rights not exist, but the Government is also under no duty at this time to bring it into existence.
(Citations omitted.) The Ferriero case referenced is Illinois v. Ferriero, 60 F. 4th 704 (D.D.C. 2023) where a Washington, D.C. court was asked to force the official Archivist to say that the amendment was part of the Constitution, and the court refused to issue such an order. That opinion in turn basically focused entirely on the time-limit issue, saying that when Congress proposes an amendment, they can add that kind of condition on ratification.
And here’s a wrinkle that this author previously missed: Congress did claim to extend the time to ratify the amendment from seven years to ten years before the first time limit ran out. That is, when the ERA was first sent to the states in 1972, they were given seven years to ratify it. But in 1978, Congress purported to extend the deadline by three years so that this new deadline passed in 1982. That was itself a controversial decision and there was litigation pending before the Supreme Court when the extended, ten year time limit ran out without the necessary thirty eight state ratifications. Thus, the Supreme Court dismissed it as ‘moot’ which is legalese for ‘it doesn’t matter anymore.’ After all, whether the extension of the deadline was valid or not, the amendment wasn’t ratified within that time. We suspect this represents the first time Democrats engaged in … ahem … frakery in order to try to get this amendment ratified.
(‘Frak’ is a made up explicative that was used in the 2000’s version of the show Battlestar Galactica. It translates roughly just like the F word.)
(In other news, this author is a nerd.)
You will also notice in all of this analysis, the Archivist is key. Even when Joe Biden declared that the ERA was in the Constitution, the Archivist refused to follow suit and Biden didn’t attempt to order her to do it. But if Democrats are bound and determined to use every dirty trick they can think of claim the ERA is part of the Constitution, you can see exactly what the next move would be: The next time they get the presidency, a Democrat president can appoint an Archivist who would falsely claim that the ERA had been ratified. This author thinks that such a corrupt decision would ultimately be overturned, but not after quite a bit of chaos reigned in our system. So when it comes time to pick a new President in 2028 (no, Trump cannot serve again), this is something to keep in mind.
And once again, we will confront the question of whether or not this amendment is a good idea. After all, nothing in the Constitution prevents Congress from starting the entire ratification process from scratch. Thus the natural question is: Should this proposed amendment become part of the Constitution? We will quote ourselves to explain why we think every American should oppose this amendment:
We believe broadly in equal opportunity for men and women but we think this amendment would be a mistake—at least, as it is written.
You have to start with the law as it is now. At the moment, people are actually protected from most forms of sex-based discrimination by the government. Right now, the courts will only uphold such discrimination if the it serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives.
That means most forms of forms of discrimination by sex are illegal, but some discrimination by sex is still tolerated—which is not a bad thing. For instance, separate bathrooms by race are correctly seen as vile discrimination. But most rational people see separate bathrooms by sex as a reasonable measure to protect men’s and women’s privacy. Racial segregation in prison is wrong, but sex-based segregation in prison is seen by rational people as a means to protect women from sexual abuse at the hands of men. Race-based separation in sports leagues were eliminated as invidious discrimination, but separation in sports leagues by sex is seen by rational people as a measure to ensure that women have a chance to participate in those sports. If the Equal Rights Amendment is properly ratified as is, discrimination by sex will likely be treated like discrimination by race, meaning an end to separation in bathrooms, locker rooms, prisons and sports leagues.
Indeed, the Supreme Court has interpreted the Civil Rights Act of 1964’s prohibition on sex discrimination as prohibiting discrimination against transgender individuals. The ERA is likely to be interpreted the same way. And advocates for and against the amendment believe it will make abortion a constitutional right again…. It would certainly give the liberal justices ideological cover for reinstituting Roe v. Wade (or worse). They could say ‘even if there wasn’t a right to an abortion in the previous twenty-seven amendments, it is in this new twenty-eighth one!’
Of course, the proposed amendment could be re-written to address these objections, but we don’t think such a revision is politically possible.
Briefly, we will cover some reactions:
We like Election Wizard, but he fundamentally doesn’t understand what was happening here. Valame was saying that it was unconstitutional to force him to register for the draft. If he won, it would effectively end the draft, until and unless it includes women. It would not expand the draft to include women in and of itself. And we doubt this suit was filed with the blessing of any feminist organization, because as we noted above, Valame was representing himself. That’s just not how advocacy organizations go to court.
And strangely it is now about so-called transgender rights, although more old-school feminists like J.K. Rowling reject that nonsense.
You could have just retweeted reposted it instead, but you do you.
Finally, as promised, let’s talk about the fact this is an unpublished opinion. We will note that this has nothing to do with anything specifically in this case, but to paraphrase Dennis Miller: ‘I don’t want to get off on a rant here … but I really want to get off on a rant, here.’
Early in the opinion it says:
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Which is a creepy thing to write which, to some extent, goes completely against how the legal system is supposed to work in America. The way it is supposed to work and normally does work is that judges announce how they are ruling and set a precedent. Now what does and doesn’t count as precedent is a little complicated. There are two kinds of precedent, which we call ‘controlling authority’ and ‘persuasive authority.’
If the same court or a lower court hears the same issue again, it should be decided the same way. It is controlling authority. So, if the Ninth Circuit Court of Appeal hears the issue again, it should typically decide it the same way—the alleged Twenty-Eighth Amendment doesn’t exist. It is obviously possible for the court to overturn itself either because the facts have changed, the underlying law has changed (such as the Constitution being amended) or because they simply decide they got it wrong—and that last justification is not supposed to happen lightly.
If one of the district courts contained within the Ninth Circuit confronts the same issue, they are absolutely supposed to follow their decision. So, normally, if a district court in, say, Alaska gets confronted with the same question of whether or not there is a Twenty-Eighth Amendment, they are supposed to say the same thing.
Or another way controlling precedent might be dealt with is what we call ‘distinguishing.’ That amounts to the court saying ‘it looks like ordinarily the precedent says we should rule this way, but in fact there is a difference that distinguishes this case from the precedent that is important, therefore we will rule a different way.’ Mind you, that seems to be impossible when the case turns on the question of whether or not the ERA is part of the Constitution, but in other cases that approach might be appropriate.
On the other hand, sometimes a court case just isn’t binding, for one reason or another, but a court still feels compelled to talk about it. After all, at least when talking about federal law, the district court for the Northern District in California is bound to follow, in ascending order: 1) the rulings of the (U.S.) Supreme Court, 2) the rulings of the Ninth Circuit, so long as it doesn’t contradict the Supreme Court, and 3) other rulings within the same district, so long as it doesn’t contradict the Supreme Court or the Ninth Circuit. What is not listed there is any state court, any federal circuit or district court from any other circuit and any other district within the Ninth Circuit.
So that lower court, sitting in the Northern District of California, didn’t have to follow that D.C. court’s ruling in Ferriero. But the judge looked at it and thought that this other decision, although not binding on him, was still persuasive. And that is persuasive authority, in a nutshell. It isn’t binding, but the court is persuaded by it and therefore follows it.
Or very often a court will cite a case that is not binding and say something like ‘whether or not we would follow that reasoning, we can distinguish the cases as follows.’
And overall, this is how the law is supposed to develop, not just in America, but in England as well and several other common law countries, going back several centuries. One court rules one way. Maybe the facts, the Constitution or a relevant statute changes to react to that ruling and changes how the courts will rule in the future. Maybe it gets overturned by the same court or a higher court just because they decided the decision was wrong. Or maybe the court will explain why it sounds like a previous ruling would apply, but there is a relevant difference and explain why it changes the outcome. Or maybe a decision that is not technically binding on the court persuades the court to rule the same way. Or it doesn’t. Or they distinguish the two cases. It’s very complicated but what it becomes is in a sense is a large conversation about the law…
… and one of the results is that it creates a certain equality before the law. Like cases are treated alike. Different cases are treated differently with most courts explaining why it makes sense to treat them differently. And the answer isn’t ‘the First Amendment applies differently because I don’t like your opinion’ or ‘this law banning murder doesn’t apply the same to you because you are a different race than the person this precedent applied to.’ The same law applies to different case unless the court can make a persuasive argument why there is a relevant difference.
(Or at least the courts are not supposed to look at irrelevances like race and viewpoint, but looney left judges are chipping away at that, too.)
So, when the courts start to do this ‘unpublished opinion’ nonsense where they say that the cease is not even precedent, they are going against the entire way our system is supposed to work. And sadly we see it all the time and in multiple circuits. It means that if a guy in Washington state files essentially the same lawsuit, the district court judge is supposed to pretend this decision does not even exist. Yet, that judge would at least be unofficially be influenced. Declaring that a case is not precedent is simply wrong and this practice needs to end.
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Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.
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