Conditional Ratification

I’ve started drafting my next article, which will be about the recent attempts to revive the Equal Rights Amendment. One issue that I have not posted about before involves the form in which Congress could declare the amendment ratified.

To recap some old posts: Nevada ratified the ERA in 2017. Depending on how you count the number of state ratifications, the amendment could be just two states short of the 3/4 that are required by Article Five. Nevertheless, Congress declared in a 1978 Joint Resolution that the ERA must be ratified by a specific date in 1982 to be valid. Thus, Congress would need to repeal that Joint Resolution for the ERA to be ratified.

The unusual circumstances surrounding any proposed ERA ratification raise the following prospect. Suppose Congress concludes that enough states (with or without rescissions) have ratified the amendment and that the old deadline should not apply. In taking those steps, Congress could also formally state its understanding of what the ERA does or doesn’t mean. For example, the Joint Resolution repealing the 1978 one can say: “We declare the Twenty-Eighth Amendment ratified, but also declare that this amendment does not apply to abortion.”

This sort of conditional ratification does not bar a future court from giving a contrary construction (as would be the case if the text of the amendment made an exception for abortion), but it would provide clear and powerful guidance for courts. More so than just having some members of Congress express their view in a speech endorsing or rejecting ratification.

One wonders if this sort of compromise might be necessary to get the ERA deadline waived should the issue ever arise.

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2 Responses

  1. Brett Bellmore says:

    Perhaps we should just eschew such cheap tricks, and only ratify amendments if the necessary number of states are all on record in favor of them at the same time.

    The topic of “constitutional hardball” has come up recently. “Ratifying” an amendment based on ratifying votes that have explicitly expired or been rescinded is also constitutional hardball. Maybe it’s time to stop escalating, before we proceed from hardball to hand grenades?

  2. Joe says:

    This is all a thought experiment and the example is a poison pill — Planned Parenthood v. Casey, e.g., highlighted the importance of women equality in this context and even if you think the ERA should not generally apply to abortion, it surely would in limited cases. Anyway, I find it suspect to after the fact attach such conditions. The states that ratified didn’t know about them. They ratified the text, influenced by legislative history etc. at the time.