In Boston’s federal courthouse next week, US District Judge William Young will take up Equal Means Equal v. Trump, a lawsuit challenging the Military Selective Service Act of 1967. Enacted during the Vietnam War, the law to this day requires men to register for the draft when they turn 18, but bars women from doing so. What is striking about the case isn’t the claim that the statute discriminates against women who want to register. It is their claim that such discrimination violates a nonexistent constitutional provision.

“Plaintiffs bring this action under the Twenty-Eighth Amendment to the United States Constitution, (hereafter the ERA),” the complaint asserts. It quotes the text of the Equal Rights Amendment — “Equality of rights shall not be denied or abridged by the United States or by any state on account of sex” — and notes that “the ERA was ratified in 2020.” That was when the Virginia Legislature voted to ratify the amendment, bringing the number of state legislatures that voted for the ERA to 38, the threshold necessary to amend the Constitution.

To be sure, the plaintiffs concede, there is “some disagreement about the ERA’s validity,” inasmuch as Virginia (and several other states) voted for the ERA decades after the ratification window closed in 1979. But they urge the judge to disregard inconvenient details like mandatory deadlines, to humor their claim that the 28th Amendment has been added to the Constitution, and to declare that the exclusion of women from Selective Service registration is therefore unconstitutional.

The plaintiffs in the case aren’t the only ones engaging in constitutional wish-casting. On March 25, the American Bar Association is scheduled to host an online program built on the same fanciful premise.

According to the ABA’s promotional material, the webinar will feature a “stellar panel of lawyers” advancing the claim that the proposed Equal Rights Amendment was ratified but “has yet to be implemented as part of the Constitution.”

By that logic, the ERA both exists and doesn’t exist — Schrödinger’s amendment.

But such constitutional alchemy flies in the face of constitutional reality. The Equal Rights Amendment was approved by Congress in 1972 and submitted to the states for ratification. If three-fourths (38) of the states had approved the amendment within the specified seven-year deadline, the ERA would have been added to the Constitution.

At first ratification proceeded briskly. Within two years, 33 states had approved the ERA. But then enthusiasm for the amendment dwindled. Only two more states said yes before the seven years ran out — leaving the amendment three states short. Congress then granted a one-time extension to 1982, but it made no difference. No additional states voted to approve the amendment.

Under the long-established amendment process, that was the end of the matter. The ERA had expired unratified. No less an authority than Supreme Court Justice Ruth Bader Ginsburg — one of the amendment’s most devoted champions — acknowledged as much. For Americans who wanted an Equal Rights Amendment, Ginsburg told an audience at Georgetown Law School in 2020, there was only one way to proceed. There would have to be “a new beginning,” she said. “I’d like it to start over.”

Yet some activists insisted that the door to ratification wasn’t closed and that the ERA would become part of the Constitution whenever three more state legislatures voted for it. Eventually, three more did: Nevada in 2017, Illinois in 2018, and Virginia in 2020. Under longstanding constitutional rules, those votes were nullities. But a new legal theory sprang up to argue that the plug had never been pulled on the ratification process and, with Virginia’s vote, the ERA had become the Constitution’s 28th Amendment.

Proponents of this theory claim that Congress has no authority to set a deadline for ratifying constitutional amendments, and that no matter how belatedly a state legislature votes to approve a proposed amendment, its vote must be added to the total. But what about the five states that initially voted to ratify the ERA and then rescinded their ratifications? Sorry, say the ERA activists, “rescissions don’t count.” Their position is reminiscent of the old “Brezhnev Doctrine” during the Cold War — once a country went Communist, it would stay Communist.

The archivist of the United States, whose job it is to certify constitutional amendments, has repeatedly determined that the ERA cannot be added to the Constitution because it was never properly ratified. That determination was unaffected by former president Joe Biden’s announcement, a few days before leaving the White House, that the ERA was now “the law of the land.”

If wishes were amendments, the Constitution would extend to thousands of pages by now. Over the generations, more than 11,000 amendments have been proposed. But only 27 achieved the broad national consensus that Article V requires: supermajority support in both houses of Congress, followed by ratification in at least three-fourths of state legislatures.

The ERA is not the only amendment to have been submitted by Congress to the states and failed to win ratification. Advocates insist that this one must be treated differently, but they hardly even pretend their position rests on solid constitutional reasoning. A friend-of-the-court brief filed on behalf of the plaintiffs in the draft-registration lawsuit illustrates the approach. Submitted by more than 50 organizations, it doesn’t grapple with the ratification deadline or the mechanics of Article V. Instead, it offers a short account of the oppression of women in history, beginning with the Magna Carta and the early common law doctrine under which women were denied economic autonomy. “The ERA is valid and must be recognized as the Twenty-Eighth Amendment,” the brief declares.

But the Constitution is not amended by historical narrative or moral appeal. It is amended by following a specified legal process — a process that for more than a century has included a deadline set by Congress for ratification to take effect.

Supporters of the Equal Rights Amendment may believe passionately that it deserves to be part of the Constitution. Many Americans would agree with them. But the path to achieving that goal is the one Justice Ginsburg described: Propose the amendment anew and persuade three-fourths of the states to ratify it.

In de facto terms, as Ginsburg also observed, Supreme Court jurisprudence in the decades since the 1970s has effectively prohibited most forms of sex discrimination even without a 28th Amendment. “There is no practical difference between what has evolved and the ERA,” she said in 1997.

If enough Americans want an Equal Rights Amendment added to the Constitution anyway, the path remains open. The amendment process is demanding by design — not to frustrate reform, but to ensure that changes to the Constitution genuinely reflect an overwhelming national consensus. ERA supporters are free to build that consensus. What they cannot do is expect a federal judge to pretend they already have.