The Supermajority Cure

I’m writing away on my ERA article and have settled on a new idea. Suppose that more than two-thirds of each House of Congress voted to waive the ERA’s ratification deadline and disregard the rescissions of the states that attempted to withdraw their yes votes back in the 1970s in reaching a count of 38 states in favor. Would that supermajority vote allay the legitimacy concerns that would naturally arise if a bare majority of each house did the same?

I’m not sure, but I pose this as an alternative that Congress could pursue in lieu of counting the rescinding states as no votes. Partly I’m influenced by the observation that the congressional votes to reject rescissions during Reconstruction were done by a greater than two-thirds vote (I think–I need to double check). Thus, one way of understanding state rescissions is that they are presumptively valid but can be overridden by a supermajority of each House of Congress. The other more bass thought is that obtaining a supermajority is hard, so doing so is a strong indication that a proposed amendment really commands the necessary support.

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11 Responses

  1. Brett Bellmore says:


    This proposal doesn’t even begin to address the real issue, which is that while Congress can originate amendments, ratifying them is a state power.

    The size of the vote in Congress to override states’ decisions on this matter is utterly irrelevant. You might as well ask, “How about if a President vetoes a new amendment? Would it make a difference if he pounded the table and shouted while vetoing it?”


    You’re starting to give the impression of somebody who really, really wants the ERA ratified, and just can’t accept that it was rejected. Is this more than an academic interest?

  2. dht says:

    This is the ultimate in hypotheticals. There is almost no chance that both houses of Congress come up with a supermajority on this issue. Further, even if they did, in these litigious times, one (at least) of the rescission states would undoubtedly take the issue to the courts.

  3. Gerard Magliocca says:

    Well, the rescission issue is quite complicated. Some authorities deny that a state has the right to rescind. (If true, that would make the issue much simpler.) I think that’s wrong, but I’m not so sure about what sorts of exceptions Congress should make. They have the power to do whatever they want, of course.

    • Brett Bellmore says:

      No “of course” about it. They properly have practically no power at all on this front, once the amendment leaves Congress and the states start voting, the Constitution allots Congress no further role.

  4. Joe says:

    Reading about the ratification of the Constitution, I don’t recall ever reading the idea that there was a possibility that even after such and such state ratified, that they might have the power to take it back up until the necessary states ratified. I asked someone a bit of an expert on the matter and he doesn’t recall it ever coming up either.

    I flagged the idea of international norms here on another thread of the author and someone cited the understanding that it couldn’t be done in that context. Precedent (which included the 19th Amendment) holds that states could not rescind. I’m sure “ymmv” there (precedent is not fixed in stone for me surely and we have a small limited sample size) and if you want to find some wrinkle (e.g., the supermajority rule suggested that to me is sort of invented but rules are invented in various cases so shrugs) fine.

    IF — as Supreme Court precedent seems to currently warrant — we deem it a political question for Congress to determine if rescission by certain states should count, I guess a supermajority requirement would be more convincing. The fact it is “hard” doesn’t by its lonesome do the trick though.

    If it was determined by Congress that special circumstances were involved in some case (e.g., the original vote in a state was dubious because of bribery or something or a lot of members couldn’t vote the first time because of a natural disaster & the state afterwards rescinded on that ground) and only a majority vote did so, I think it might count.

    • Brett Bellmore says:

      Gerard is explicitly addressing legitimacy concerns, and for legitimacy concerns you don’t ask what the winners will think of it, winners always think their win is legitimate.

      You ask what the losers think, and there is no freaking way that states which have rescinded their ratification votes are going to regard an outcome that counts them as ratifying as legitimate.

      And that’s the goal here: Not winning dirty, but an outcome everybody can accept as legit. You don’t ignore rescissions or expirations if you want that. You have to win clean if you are concerned about legitimacy.

      Sorry, the only way to get the ERA legitimately is to vote it out of Congress again, and let the states have another crack at it.

      Why do people avoid that conclusion? Simple: They don’t think they could get it passed that way. And that’s exactly why what is proposed is illegitimate.

  5. Gerard Magliocca says:

    Well, but why is it the only way? Article Five says nothing of the sort.

    • Brett Bellmore says:

      It is, in short, the only way, because it’s the only way the amendment’s opponents would acknowledge as legitimate. And you were asking about legitimacy, not what Congress could potentially ram through.

      When you’re analyzing legitimacy, you must always look at things from the stand point of the loser because legitimacy is about whether the loser accepts he has properly lost. The winner always thinks their victory legitimate.

      Don’t ask about legitimacy, and then switch to what Congress might have enough power to get away with.

  6. Grover Illinois says:

    Why not just start the ratification process again right now with a 1-year deadline? Every state that wanted to vote on it and vote for it would hold a vote within 12 months (probably less than one month, just to get media attention and political points).

    Is there anything in the constitution that prevents congress from resubmitting a failed amendment to the states?

    • Brett Bellmore says:

      No, the only thing stopping them from doing that is that they lack the votes to get it out of Congress, and not enough states would ratify if they did get it out of Congress.

      That’s what all this is about, finding a way to “pass” the ERA when it’s already dead, and doesn’t have all that much support.