I am struck past times the purpose that precedent plays inwards the news of whether states cause got a right, prior to the lastly annunciation that a novel amendment has been added to the Constitution, to rescind their prior approval. I am reminded of Jeremy Bentham's critique of precedent-based argument, which he correctly described equally the worst sort of appeal to animate existence authority. Precedential declaration is really much at odds amongst the picture that lawyers oftentimes campaign to select that they/we are devotees of ground as well as what Habermas mightiness telephone band the logic of the amend argument. Once i throws precedent into the mix, though, as well as then the "better argument" oftentimes boils downwards to the fact that approximately presumptive authorization made a dubious determination inwards the past times as well as that, for oftentimes unexplained reasons, nosotros experience stuck amongst it today. I confess I tend to live a devotee of Andrew Jackson's declaration inwards his Bank Veto that Supreme Court decisions are entitled "to exclusively therefore much honor equally their reasoning" entitles them to, as well as of Holmes's proclamation inwards The Path of the Law that it is "revolting" to cause got no amend ground for doing something than the fact that therefore it was done inwards the reign of Henry IV.
Don't instruct me wrong: I shout out back it is fine to "follow precedent" inwards matters that aren't of much importance. Who actually cares, for example, whether i applies the preference rules of bankruptcy to a banking concern tally based on its engagement of writing or receipt? It is of import to cause got a rule, as well as whatever the Court says (and I confess I forget its holding) is fine amongst me. But where issues are genuinely important, precedential "reasoning" has relatively trivial to live said for it If I shared Randy Barnett's, Richard Epstein's, or Clarence Thomas's views of constitutional pregnant and, to a greater extent than importantly, what constituted the most desirable sort of polity, as well as then I would cause got no detail commitment to maintaining New Deal precedents inwards all of their glory. But I don't, as well as I'm glad to proceed citing Darby as an authoritative interpretation of the Constitution.
So what this boils downwards to is that I hold off a fully developed argument, independent of reference to what approximately nation attorney full general mightiness cause got said, most why a sensible constitutional designer, presumably desiring to create a document that, inwards Marshall's word, is to "endure" through time, would adopt a system of amendment that a) is needlessly difficult, equally Article V most for sure is; b) disallows Congress from placing fourth dimension limits i time an amendment is proposed, therefore that nosotros tin cause got the silliness of the so-called 27th Amendment, proposed inwards 1789 as well as declared ratified inwards 1992; as well as c) tells states that i time they cause got said yeah to a proposed amendment, they are estopped from changing their minds regardless of whatever (presumptively justified) changes of see that what seemed desirable in, say, 1977 is no longer desirable inwards 2017. I shout out back that the interpretations existence offered of Article V brand an already dreadful article fifty-fifty worse. Why, exactly, am I wrong?
No doubtfulness at that spot is proficient ground for the zeal behind adding the ERA to the Constitution. But I'm actually quite amazed (and evidently unpersuaded) past times the arguments existence made that supporters don't cause got to become dorsum to Congress for a reproposal or, equally I would prefer, back upward an Article V constitutional convention that could consider the merits of an ERA as well as many other deficiencies of our actually quite terrible Constitution. Were the shoe on the other foot, as well as the Koch brothers as well as ALEC were backing approximately like proposed revival of what progressives idea was a fortunately dead amendment, I shout out back we'd live properly furious.
Given that I'm non a potent devotee of the cult of "neutral principles," I could disregard this if I idea it were genuinely important, as well as non but of symbolic significance, to add together the ERA at tis time, but I just don't encounter just what it would add together that is non already acquaint in, say, Justice Ginsburg's interpretation of the Fourteenth Amendment inwards VMI. We could reopen the ground most gender-segregated bathrooms. Would they live barred past times the ERA? But what else, exactly, would it alter amongst regard to our existing doctrine of the 14th Amendment?
UPDATE: Brett, a frequent discussant amongst whom I normally disagree, makes the valuable signal that the rules of Congress let its members to alter their vote upward to the instant that the presiding officeholder announces the result. Why is that acceptable, but non a "sovereign state's" alter of its collective mind? I tin easily imagine that greater detrimental reliance is placed past times callow members of the House or Senate on the fact that approximately Rep. X or Senator Y has voted yea, exclusively to live stunned at the lastly instant past times the alter of those worthies' positions.
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