The Twenty-Seventh Amendment Precedent
In 1992, the Office of Legal Counsel (OLC) gave an opinion concluding that the Twenty-Seventh Amendment was valid notwithstanding the two century gap between its proposal and ratification. A footnote in that opinion said the following:
It is conceivable that the goal of consensus, if there is one, could be defeated where the last State to ratify harbors an entirely different intent or purpose in approving the amendment than did the first ratifying States or the proposing Congress. Thus, for example, the meaning of the words of an amendment chosen by the proposing Congress could conceivably change dramatically with the passage of time. If there is a substantive consensus requirement beyond the procedural formalities of Article V, this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opinion on any hypothetical scenario that may present a more fundamental challenge to the notion of consensus. We conclude only that consensus itself does not necessarily require contemporaneity.
The ERA will present this hypothetical scenario if enough states (under a plausible count) ratify. For now, I think that I am done posting on this subject. I’ll start drafting a paper on the issues raised by the “reboot” of the ERA and post when I have more to say (or if another state does something).