Why the ERA Is Still Pending Before the States

Let’s delve more deeply into the question of why the ERA can still be ratified by the states.

In some constitutional amendments, a time limit for ratification was written directly into the amendment’s text.  Take the Eighteenth Amendment, which imposed Prohibition. Section 3 of that amendment stated: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

This “inoperative” language, which also appears in the Twenty-First and Twenty-Second Amendments, sets a deadline that Congress cannot change through ordinary means. The only way to extend the seven year period would be to start from scratch and propose a new amendment. If Congress had tried to change the deadline through legislation, a court would have been bound to say that the amendment (if ratified after more than seven years) could not be applied.

Starting with the Twenty-Third Amendment, though, the ratification timeline was not included in the amendment’s text. Instead, Congress included a preface to the amendments that said they “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”

There are two things that stand out here. One is that the preface is not part of the amendment. If it is not part of the amendment, then it is hard to see why a subsequent Congress cannot change it through ordinary means.  (This was, in fact, done by Congress in 1978 to extend the ratification deadline for the ERA from seven to ten years.) The other point is that “inoperative” is missing from the preface. I think that inoperative is a way of saying that Congress cannot change the ratification timeline. Without that word, the deadline can be changed. When Congress proposed another (unsuccessful) amendment in 1978 to give the District of Columbia representation in Congress, the debate over extending the ERA timeline informed the decision to put the “inoperative” language back into a proposed amendment.

If Congress can just change the ERA ratification timeline, does that make the timeline meaningless? No. Congress must still act. If Congress does not change the timeline, then the ERA cannot be ratified. If there was no timeline (as was the case with constitutional amendments proposed before the 20th century), then no congressional action would be required for ratification to occur. What we call the Bill of Rights, for example, was just proclaimed as part of the Constitution by Secretary of State Jefferson when enough states voted aye. Congress took no action at all.

None of this, I’ll add in conclusion, relies on the notion that Congress can just do whatever it wants with respect to the ratification process because that presents a political question. That may be the case, but if not a court would still be bound to say that Congress can alter the ERA’s ratification timeline at its discretion.

In the next post I’ll talk more about interpreting the ERA if it is ratified in the coming years and discuss what was said in the Nevada Legislature during its ratification debate this Spring.

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8 Responses

  1. Joe says:

    I think this sounds right — amendments expressly had time limits in certain cases. This one didn’t. Congress still has to act. There is no apparently majority (put aside supermajority, to avoid filibuster) that wants to do so. This provides a political check on a new deadline. And, they did already extend the deadline. I’m unsure what constitutional principle requires them to not do so now. Dillon v. Gloss offers a possibility but to my understanding that isn’t good law today.

  2. Brett Bellmore says:

    Still seems like a stretch to me, for a number of reasons.

    First, the only actual court ruling on this question Idaho v Freeman, held that rescissions were valid, that Congress couldn’t extend the deadline, and that ratifications expired at the original deadline. The Supreme court never overturned this, just dismissed the case as moot due to the supposed extension being passed. Surely you’re aware of this case?

    So, such precedent as there is, is against you. On all points. It says you need to start from scratch at this point.

    Second, were the text and “preamble” to the amendment passed on separate votes? I rather doubt this, and if they were passed as one unit, I think that makes the whole thing the “amendment” for Article V purposes.

    Third, you can’t avoid the question of rescission; Not only did a number of states revoke their ratification, many other states explicitly stated in ratifying that their ratification would expire on the 1979 deadline. If rescission is valid, (And that’s the existing precedent, such as it is.) the ERA is hugely short of the necessary number of states.

    It appears to me you’re just blowing off all the considerable legal problems, on the assumption that, if you briefly get a Congressional majority, the Supreme court will roll over and declare this a political matter, and let that majority do as it likes. Do you really expect the country to accept a supposed amendment ‘ratified’ in this dodgy a way?

  3. Gerard Magliocca says:

    Brett,

    There are several problems with your arguments.

    1. The District Court opinion that you refer to was vacated by the Supreme Court. So it isn’t authority at all.

    2. Congress gets to decide if a state rescission of ratification is valid. That is well-established law, both from the way in which the Fourteenth Amendment was ratified and under the Supreme Court’s analysis in Coleman v. Miller.

    3. The whole thing cannot be the amendment. If that were true, then every preface to every amendment would be part of the Constitution. But they aren’t. The Bill of Rights also had a preface, but no court could cite that preface as constitutional authority in the way, for example, that you can cite the Preamble of the Constitution.

    4. Besides, if you are right on #3, then that means there is no difference between what the ERA says on a time limit and the “inoperative” language that is in some of the other amendments. Really? They mean exactly the same thing? Doesn’t make sense.

    Will Congress ever do this? Who knows. At least two more states need to ratify. Maybe that will never happen. Or maybe Congress will decide that some of the rescissions count.

    • Brett Bellmore says:

      The Court’s full ruling:”Upon consideration of the memorandum for the Administrator of General Services suggesting mootness, filed July 9, 1982, and the responses thereto, the judgment of the United States District Court for the District of Idaho is vacated and the cases are remanded to that court with instructions to dismiss the complaints as moot. United States v. Munsingwear, Inc., 340 U.S. 36 (1950).”

      IOW, wasn’t vacated on the merits, but only because, by the time it reached the Supreme Court, Congress’ purported extension had expired. It still remains the only judicial examination of the merits, and thus relevant to this discussion even if vacated.

    • Joe says:

      Interesting discussion — reliance on some district court opinion, especially as you say one with certain dubious aspects — is at the end of the day not very helpful. They can have some interesting arguments but that’s different from it settling much of anything legally. The fact it is “relevant” might offer something but not much “authority” as such, to address a previous comment.

      • Brett Bellmore says:

        Obviously vacated rulings aren’t “authority”. But as the only ruling to have addressed the merits, it certainly had something to contribute.

        I think that if what Gerald suggests were done, it is likely to be widely seen as illegitimate. Ratifying an amendment based on ratifications which had been explicitly repudiated years earlier?

        That’s winning dirty, and everybody will recognize it.

        • Joe says:

          The “had something to contribute” part is not really disputed but it is such a low bar that it really doesn’t tell me much.

          It very well might be deemed “illegitimate” — people find things illegitimate that are constitutional from time to time. That factors in to why Congress isn’t like to do it, especially if it could be filibustered.

          As to winning dirty, apparently, people apparently find that acceptable from time to time, including those currently in power. I already said that I have concerns with passage of the ERA now as a matter of policy. In fact, I think Dillon v. Gloss makes some good points, though it isn’t good law these days.