Law Commons^™

The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

Biden Administration Revises Federal Government Position On Validity Of The Equal Rights Amendment, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Today the Department of Justice (DOJ) Office of Legal Counsel (OLC) released a new opinion on the ratification of the Equal Rights Amendment (ERA). This opinion revises a 2020 OLC opinion issued under the Trump administration that declared the ERA a dead letter.

Era Project Olc Letter, Katherine M. Franke, David E. Pozen, Erwin Chemerinsky, Melissa Murray, Laurence H. Tribe, Martha Minow, Geoffrey C. Stone, Cary Franklin, Michael C. Dorf, Victoria Nourse

Faculty Scholarship

The Equal Rights Amendment Project at Columbia Law School (“ERA Project”) and the undersigned scholars submit this letter at the request of your office to provide legal analysis of the January 6, 2020 Department of Justice Office of Legal Counsel Memorandum to the National Archives and Records Administration on the Equal Rights Amendment (“2020 OLC Memo”).

The Equal Rights Amendment And The Equality Act: Talking Points, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The Equal Rights Amendment, first proposed nearly 100 years ago, is still needed today.

• The ERA is a constitutional amendment that would protect against discrimination on the basis of sex—including on the basis of sexual orientation, gender identity, and gender expression.
• The ERA would also usher in advancements in sex equality in all three branches of government, empower advocates, and encourage recognition of related forms of discrimination such as pregnancy discrimination.
• By including the ERA in our Constitution, the United States would catch up with the more than 100 other countries with constitutional protections against sex-based discrimination.

Faq On The Current Status Of The Equal Rights Amendment To The U.S. Constitution, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Several measures have been introduced into the U.S. Congress this session that relate to the Equal Rights Amendment (ERA). One is a resolution that would lift the deadline for ratification of the ERA that was passed by Congress in 1972, and the other is a new ERA that would begin a new process of amending the Constitution to add explicit protections for sex equality. This FAQ is designed to explain what each of these measures would do and the legal complexities that surround them.

The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt

Faculty Scholarship

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but …

Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault

Faculty Scholarship

I'd like to thank the Journal of Legislation and Public Policy for inviting me back to N.Y.U. I am particularly grateful to have the opportunity to sit between and learn from Bill Eskridge and Beth Garrett, who have once again demonstrated in their comments today why they are leaders in this field. I understand now what it must have been like to be a student in a class with Eskridge as the professor and Garrett as a fellow student – can you imagine what an experience that must have been?

I am going to focus my remarks on state and …

Why Now Is Not The Time For Constitutional Amendment: The Limited Reach Of City Of Boerne V. Flores, Kent Greenawalt

Faculty Scholarship

When the Supreme Court eviscerated the protection of the Free Exercise Clause in Employment Division v. Smith, religious groups and individuals dismayed by the decision chose to pursue statutory relief rather than a constitutional amendment. Now that the Supreme Court has decided in City of Boerne v. Flores that the resulting statute, the Religious Freedom Restoration Act (RFRA or the "Act"), cannot be justified as a congressional exercise of power under the Fourteenth Amendment, many who care deeply about religious liberty may turn to the amendment process as an alternative. Although disappointed by the Flores decision, I believe it is …

Anti-Lesbian And -Gay Right Wing Initiatives: A Strategy For Response, Mary Newcombe, Suzanne B. Goldberg

Faculty Scholarship

The increasing visibility and political activism of the lesbian and gay community in this country has sparked a vicious backlash intended to reinforce restrictive notions of social morality and to stifle expressions of lesbian and gay identity. While this backlash has flourished in mainstream institutions, as in the U.S. Senate's hearings on lifting the military's ban against lesbians and gay men, it has also been incited on a grassroots level across the country by the Christian right wing, which has involved itself intimately in exploiting popular inclinations and reinforcing discrimination at the federal and local levels.

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …