President Biden believes we did:
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
Law professors Lawrence Tribe and Kathleen Sullivan concur:
With three days left in his presidency, Joseph R. Biden ensured that the United States Constitution, the oldest on earth, would finally include an explicit guarantee of sex equality. In truth, the Equal Rights Amendment should have been recognized as part of our Constitution nearly half a dozen years ago, when Virginia became the 38th state to ratify it on January 27, 2020.
By proclaiming, in effect, “Yes, Virginia, you have made history by repairing a glaring omission in our most fundamental law,” President Biden made official a reality that many Americans failed to recognize at the time: that Article V of the Constitution expressly makes any proposed Amendment to that document “Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” Nothing in Article V makes the Constitution’s binding contents depend on any further official action by any branch of the federal government, whether Congress or the Judiciary or indeed the Executive.
It is not necessary for the National Archivist to publish the ERA in order for it to be adopted according to the provisions of the Constitution. The President avoided triggering a clash with the Archivist, who recently announced her intention to defy her statutory, and purely ministerial, duty to publish the ERA. The only reason Congress gave the Archivist such a duty nearly a century ago was to ensure that the Nation got word that an amendment was in force, enabling officials at all levels of government to conform their actions to it. In our modern age of broadcast, cable and internet communication, the President’s announcement itself performed that function.
So...now what? How do we test it? When do we put it in school history books?