Melissa Harris-Perry: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. I'm Melissa Harris-Perry and these are the words of the equal rights amendment, which became the 28th amendment to the US constitution late last week. Or did it? The ERA has been on a nearly 100-year journey. First introduced in 1923 for five decades at ping pong through a reluctant Congress and finally passed out of both House and Senate in March, 1972. Ready for ratification by the states, but carrying an arbitrary 7-year deadline to secure ratification of three-quarters of them.

Supporters and opponents battled for another four decades, granting and rescinding extensions, reintroducing and defeating the amendments, pushing for the final necessary state votes. Then on January 27th, 2020 Virginia became the 38th state to vote for ratification. Section III of the amendment itself states that it takes effect 2 years after its ratification. By that standard, the ERA became law on Friday. Or did it? Representative Carolyn Maloney represents New York's 12th congressional district and chairs the Oversight and Reform Committee. Representative Maloney, thank you for being here.

Carolyn Maloney: Well thank you for having me.

Melissa V. Harris-Perry: How many amendments does the constitution now have?

Carolyn Maloney: Well, if you follow the constitution, there are 28 amendments because we have met all of the constitutional requirements. Article 5 of the constitution has two requirements. First that two-thirds of the Congress vote and pass the equal rights amendment and send it to the states for ratification, which happened in the '70s. Then that 38 states ratify it. That's what Article 5 says. We have met those two requirements as set out in the constitution. It should be ratified and a technicality should not stand in the way. What happened is that the archivist has refused to publish it in the federal register.

Even though he wrote me a letter in October 25th that I'm going to send to you where he talked about the minute that 38 states ratify it, that he would certify it. We passed a law, a statute that called upon the archivist to do a secretarial duty, which is to publish it in the Federal Register. He refused to do it when the last three states ratified it. He wrote the Department of Justice, the very political Trump Department of Justice, and asked them, ''What should I do?'' Well, what do you think they're going to say?

Their whole idea was to keep women down and back. This element of the country's trying to take away or chip away. Not even chip away at a woman's right to choose, bulldoze away the rights of women and they of course wrote back that he was not to ratify it. He has refused to do it based on an erroneous interpretation of the office of legal counsel. That's where we are.

Melissa Harris-Perry: Let's talk about this. What seems like a very odd procedural blockage here. How is it that one person, again, after 100 years of movement of 38 states of elected officials across multiple decades? I'm moving along this amendment. How is it that the archivist is the one with the power to do this?

Carolyn Maloney: Well, I contend that he doesn't have the power to do it. In fact, the last three states to ratify the ERA have sued the archivists to do its duty, to recognize the ratification. This litigation is now pending in the DC circuit court. DOJ's response of brief is due coming up soon in March. It's my hope that the current DOJ will not take the same position as the Trump-era erroneous era of the DOJ in opposing final ratification of the ERA. Now, a very important development happened when the president came out and very strongly expressed his deep support for the equal rights amendment and we're very grateful.

He also said it was up to the courts and up to Congress. The constitution and the laws and statutes give it totally to Congress and to the states to ratify it. If the Executive Branch has no role in the amending process, which he said, if they have no role in the amending process, they should not interfere with the archivists moving forward. The Executive Branch has interfered in the case of the Trump administration, where they then told him not to move forward and filed a long brief stating why they thought he should not move forward. Yet, the president now is saying that the president has no role in it. I would suggest that the memo be removed from the archivist and that he should move forward and certify the equal rights amendment.

Melissa Harris-Perry: What is the next step if in this call out to the DOJ the new Administration's Department of Justice removes that blockage? Is that the moment when the archivist really must enter this into the record?

Carolyn Maloney: He would. The office of Legal Counsel must still withdraw the erroneous Trump era memo and proceed with publishing the amendment. Congress can help by passing a bipartisan joint resolution, which I introduced in Congress with Jackie Speier last week to confirm the validity of all 38 ratifications and confirm beyond the shadow of doubt that the ERA is now in the law of the land, but it's not needed. That's just a confirmation. Deadlines, however, are not included. They are not included in any way in the Article 5 of the US constitution and therefore are not binding.

We must pass H.R. 17, which we passed in the House, in the Senate in order to leave no doubt about the validity of the ERA. As I said on Friday, we introduced a new resolution. We have over 153 co-sponsors, including Speaker Pelosi, which shows her profound commitment to the ERA. This resolution affirms the ERA as the 28th Amendment. This is the same thing that was done with the most recent amendment, the Madison Amendment, which was ratified over 200 years after it first passed in Congress. It is now the 27th Amendment and no one disputes that it's part of the constitution.

I would just have to say that gender equality is an American value and it should be in our foremost important foundational document. When it is solidified in the constitution, people who suffer discrimination on the basis of sex will fare much better in the courts. Without the ERA in the constitution, many of our laws on equal pay, on protecting women from sexual violence, all kinds of laws are not being upheld by the court on technicalities that it's not part of the Commerce Clause or some silly thing, even though all of the information is there on our side.

We as members of Congress, if we pass the Equal Rights Amendment and when we pass it and have it ratified and recognized by the president and everybody else in the country, we will have a better hook in the constitution to pass stronger laws to protect women in all aspects.

Melissa Harris-Perry: Us Representative, Carolyn Maloney represents New York's 12th Congressional District. Representative Maloney, thank you so much for joining us.

Carolyn Maloney: Thank you so much.

[00:08:06] [END OF AUDIO]

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