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.

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2 Responses

  1. Joe says:

    Coleman v. Miller says: “If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.”

    There is no statement that it has to be fixed in the text. There was no fixation in regard to the amendment in question. The other opinion was even more general regarding the power of the Congress here.

    Maybe, the Supreme Court — in the 1930s — was wrong. But, an eighty-year old precedent has some force.

  2. SJ says:

    The Congressional Research Service
    CRS Report for Congress
    Prepared for Members and Committees of Congress
    The Proposed Equal Rights Amendment:
    Contemporary Ratification Issues
    Thomas H. Neale
    Specialist in American National Government
    April 8, 2014