Repeal of Constitutional Ratification–Part II
Yesterday I posed the question of whether Congress can repeal the judgment of a prior Congress that a constitutional amendment was validly ratified under circumstances in which there is a plausible dispute about that point. Here’s a special attribute of the ERA that might require a conditional yes.
Section Three of the ERA says that the amendment shall take effect two years after its ratification. I think this means that within two years Congress could withdraw assent. In other words, the argument for finality of a constitutional amendment decision does not work until the amendment takes effect. Normally that is “immediately.” But not in this case. Thus, the succeeding Congress probably can repeal what the prior one has done. Once the amendment takes effect, though, then probably not.