Constitutionality of Imposing a Ratification Time Limit
Here is an interesting question that came up yesterday in a discussion with a colleague. In my posts on the ERA, I have assumed that Congress has the power to impose or extend a ratification deadline through a joint resolution. There is, though, no enumerated power for Congress to do this. Thus, maybe the ERA ratification deadline is unconstitutional since it was not placed in the text of the amendment.
What’s the answer to this? Mostly practice. From 1960 until the late 1970s, Congress went with the thought that a ratification deadline could be imposed through a joint resolution. Some amendments were ratified with that understanding, and the ERA was debated that way. Still, a practice that only lasted for about 20 years is not tremendously powerful. Moreover, in the 1960s and 1970s the limits imposed by enumeration were not taken as seriously as they are now.
You could also say that the question is not justiciable. In other words, Congress is the final judge of its own powers in this respect. This is not entirely straightforward, but you can read Coleman v. Miller in this way.
Here is why this could matter. Suppose 38 states are deemed to have ratified the ERA. The Archivist of the United States, who is charged by the relevant statute with recognizing new constitutional amendments, then says the ERA is not ratified because the deadline expired long ago. Someone could then sue claiming that the deadline was unconstitutional and that the Archivist should be ordered to certify the ERA. Should a court just stay out of this? What’s the correct ruling here?
I thought I would finish this draft by July 1. Now maybe not.