More on Interpreting the ERA

In Dillon v. Gloss, the Supreme Court stated in dicta that the ratification of a constitutional amendment must “sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which, of course, ratification scattered through a long series of years would not do.” The Twenty-Seventh Amendment violates this principle, but Dillon does highlight an important assumption of originalism.

Simply put, originalism works for a constitutional above a very basic level only if the condition expressed in Gloss is met. This does not present a problem for any existing part of the text. No provision was ratified over an extended period before the 27th Amendment, and that one is basic enough to avoid an issue.

Not so the ERA if it gets ratified. This is an argument that could be used by Congress to deny ratification. In effect, can there be a portion of the Constitution where originalism fails? If there can, then originalism is arguably not a comprehensive theory of interpretation? Originalist theory will need to adapt to the ERA in some fashion if Congress chooses ratification if and when the time comes.

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4 Responses

  1. Brett Bellmore says:

    Of course constitutional clauses and amendments can be such as to prevent originalism from working. In the most trivial case, they could be semantically void, just random characters that don’t produce words or grammatical sentences. This wouldn’t be a problem for living constitutionalism, but would give originalists nothing to work with, because originalism starts with textualism, and only moves on from that if there’s any ambiguity. You noted this yourself: The 27th amendment wasn’t a problem for originalists, because it wasn’t at all ambiguous.

    In the case of the ERA, you’d have to fall back on robotic textualism. “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” That does give the textualist quite a bit to work with; We’re talking about equality of rights. That rules out equality of outcomes as an interpretation.

    Equality of rights under law. That further constrains the matter; The amendment is applicable to rights under law, not generally. Private acts would not be relevant, unless the law treated them differently on the basis of sex.

    Finally, it prohibits the denial or abridgment of such on account of sex. Not on other basis, such as, say, self-perceived gender, or having undergone mutilating surgery.

    That’s actually enough to work with to apply the amendment, in almost all cases. For example, military recruitment. Serving in the military isn’t a matter of rights, and being “transgender” isn’t a sex, (Both men and women can be transgender.) so no right is being abridged on the basis of sex by Trump’s order on transgenders serving in the military.

    There might have to be some drastic changes, though, in the way divorce law is applied, or custody hearings are conducted.

  2. Joe says:

    Coleman v. Miller later held that determining what is a “reasonable” amount of time to meet some contemporaneous test was a political question for Congress to determine. Dicta it might be but loyalty to Dillon v. Gloss assumes the 27A was wrongly ratified. But, Coleman v. Miller (current doctrine) did not provide some “extreme example” exception & under its tenets Congress had the right to determine. See also, Walter Nixon v. US (proceedings for impeachment). At any rate, Congress did accept the ratification of the 27th Amendment by resolution.

    I think the overall principles in Dillon v. Gloss sound but Congress either way has the power (and to me obligation) to honor its broad tenets — it is on some basic level absurd that an amendment proposed in 1789 and ratified over 200 years in fits and starts would be ratified in the 1990s. Its narrow reach makes it somewhat academic but the principle does matter. So, though I disagree with Brett on much, the overall idea of extending deadline to me is wrong. I feel the same way about copyrights, which by constitutional demand should be “limited,” but currently for works published after 1977, the copyright lasts for the life of the author plus 70 years. That to me is absurd especially since it burdens free expression in the process.

    “Originalism” is a term that has many shades in practice but at any rate is not to me “reasonably implied” by the text overall, another test referenced by Dillon v. Gloss, taking in common definitions. It’s possible to do so but it is not practicable or good republican policy and ironically is not even what many originally thought — they had a more common law understanding of applying the text, one that would develop over time as experiences warranted.

    If the ERA was ratified without restarting the clock (that is, allowing a few more states to ratify now and finish), the ratification at any rate would affect the “originalism” as applied. Yes, it’s possible that a specific amendment would need to be applied in a special way. The 7th Amendment, e.g., directly speaks of “the rules of the common law.” And, if per Coleman v. Miller, Congress extends the ratification deadline for the ERA, it as a whole moves up the time of original understanding. Granting the principle. Thus, if it sets a five year deadline and in that time a few more states ratified, “original understanding” would be set let’s say as 2021. Not that I’m a big fan of so-called “original understanding.”

    • Brett Bellmore says:

      For the record, I’d be a lot less comfortable with the 27th amendment if it had actually relied upon those ancient ratifications, rather than, as it was, being ratified by enough states in modern times to qualify without the earlier ratifications. True, Congress accepted it as ratified before the modern ratifications reached that number, but they didn’t stop there.

      • Joe says:

        There wasn’t 38 states in “modern” times for it to be an amendment in 1992.

        I think counting states that signed on after it was deemed official is cheating a tad — especially if we are concerned with intentions [the states figured it was symbolic, I gather] — but not counting the original eight would require jumping all the way to 2016.

        A nearly thirty year period would raise the professor’s concerns. I think even 1978-1992 is a fairly long period to assume “contemporary” understandings staid the same. It surely is longer than seven years, which was the standard time used in the later amendments.