David Ferriero, Archivist of the United States, speaks at the the Lyndon Baines Johnson Library and Museum in 2016

David Ferriero, Archivist of the United States, speaks at the the Lyndon Baines Johnson Library and Museum in 2016 Marsha Miller /LBJ Library

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The Civil Servant Who Changes the Constitution

One federal employee will determine whether the ERA gets added to America’s founding document—the question is which authority he’ll turn to for guidance.

Earlier this week, Virginia’s legislature voted to ratify the Equal Rights Amendment (ERA), clearing the 38-state threshold to place the amendment in the U. S. Constitution. That may not happen, however: Virginia’s ratification comes 37 years after Congress’s ratification deadline, and the Department of Justice’s Office of Legal Counsel recently issued an opinion that the amendment is no longer valid. Yet the department’s memo does not bind the United States archivist—only a vote by Congress can likely do that. So who will decide?

 

There is one person whose job it is to certify new amendments to the Constitution—the keeper of the Constitution, if you will—and that person is the United States archivist, the civil servant and career librarian whose day job is to oversee the National Archives and Records Administration. This is no small task: As James Madison explained, ratification of a constitutional provision is irreversible, made “in toto and forever.” (Though, of course, new amendments can void prior ones, as is the case with the Twenty-First Amendment, which repealed Prohibition.) What goes in the Constitution—and what doesn’t—shapes this country’s laws in the deepest of ways. But the real question is, given all the conflicting views on whether the amendment has been ratified, to whom will the archivist turn for a final say?