Can A State Withdraw an Article Five Ratification?

One of the issues surrounding the potential ratification of the Equal Rights Amendment is that a few states tried to repeal their “yes” ratification votes back in the 1970s. Thus, it is not clear how many states have ratified the amendment. If these rescissions are not counted, then the answer is 36. (38 are required.) If they are counted, then it’s less than 36. But should they be counted?

The answer is that Congress is the judge of whether a state ratification is valid.  This was the holding of Coleman v. Miller, a 1939 Supreme Court case. Thus, if the ERA ever gets back before Congress, they can decide how to count or not count state ratification repeals.

It’s worth pointing out, though, that Congress has never recognized the right of a state to withdraw a ratification. When the Fourteenth Amendment was ratified, Congress counted states that had repealed a prior ratification as “yes” votes. The same was true for the Fifteenth Amendment, as New York tried to repeal its vote in favor and was still counted as “yes” in the final tally. Congress is free to reject these precedents, but those are what they are FWIW.  (I’ll have to look into whether other amendments after the first ten involved any ratification repeals.  I don’t think so, but I’m not sure.)


Tenure-Track Position at IU–McKinney

Believe it or not, my law school is hiring again after years of austerity. I’m on the Search Committee this year, and here is the description of the position:

Tenure-Track/Tenured Health Law Position at Indiana University Robert H. McKinney School of Law

The Indiana University Robert H. McKinney School of Law invites applications for a tenure-track/tenured faculty position. We invite applications from entry-level and experienced scholars. The position primarily would involve teaching courses in the Health Law curricula and participation in the scholarly and student-centered activities organized by the law school’s Hall Center for Law and Health.

Applicants should indicate what Health Law courses they could offer and any additional courses they would be interested in teaching. Interested candidates should submit their application (cover letter, CV including three references, and writing sample) at https://indiana.peopleadmin.com/postings/4442

All applications received by September 25, 2017, will receive full consideration.

We are committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, veterans, and members of other groups that are under-represented on university faculties. The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits.


Why the ERA Is Still Pending Before the States

Let’s delve more deeply into the question of why the ERA can still be ratified by the states.

In some constitutional amendments, a time limit for ratification was written directly into the amendment’s text.  Take the Eighteenth Amendment, which imposed Prohibition. Section 3 of that amendment stated: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”

This “inoperative” language, which also appears in the Twenty-First and Twenty-Second Amendments, sets a deadline that Congress cannot change through ordinary means. The only way to extend the seven year period would be to start from scratch and propose a new amendment. If Congress had tried to change the deadline through legislation, a court would have been bound to say that the amendment (if ratified after more than seven years) could not be applied.

Starting with the Twenty-Third Amendment, though, the ratification timeline was not included in the amendment’s text. Instead, Congress included a preface to the amendments that said they “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”

There are two things that stand out here. One is that the preface is not part of the amendment. If it is not part of the amendment, then it is hard to see why a subsequent Congress cannot change it through ordinary means.  (This was, in fact, done by Congress in 1978 to extend the ratification deadline for the ERA from seven to ten years.) The other point is that “inoperative” is missing from the preface. I think that inoperative is a way of saying that Congress cannot change the ratification timeline. Without that word, the deadline can be changed. When Congress proposed another (unsuccessful) amendment in 1978 to give the District of Columbia representation in Congress, the debate over extending the ERA timeline informed the decision to put the “inoperative” language back into a proposed amendment.

If Congress can just change the ERA ratification timeline, does that make the timeline meaningless? No. Congress must still act. If Congress does not change the timeline, then the ERA cannot be ratified. If there was no timeline (as was the case with constitutional amendments proposed before the 20th century), then no congressional action would be required for ratification to occur. What we call the Bill of Rights, for example, was just proclaimed as part of the Constitution by Secretary of State Jefferson when enough states voted aye. Congress took no action at all.

None of this, I’ll add in conclusion, relies on the notion that Congress can just do whatever it wants with respect to the ratification process because that presents a political question. That may be the case, but if not a court would still be bound to say that Congress can alter the ERA’s ratification timeline at its discretion.

In the next post I’ll talk more about interpreting the ERA if it is ratified in the coming years and discuss what was said in the Nevada Legislature during its ratification debate this Spring.


The Original Understanding of the ERA

Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?

The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.

Not so for our hypothetical 28th amendment. So what should we say here? That the proposal and most of the ratifications happened in the 1970s? Is that the baseline? Or do you blend those views with the ones from today? Does that, though, just let judges choose the original understanding that they want? Won’t the next few states to take up the ERA be tempted to insert statements (say about abortion) that attempt to create a record for interpretation?

Maybe my next article is here.


The Ratification of the ERA

A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972.  I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified.  Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.

In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category.  Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.

Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes.  Can Congress then repeal the original time limit and declare the amendment valid?

My tentative thought is that the answer is yes (an article by three law students from 20 years ago reaches a similar conclusion). A time limit included in the text of an amendment cannot be changed by Congress without using the Article V process. Something in the resolution proposing an amendment, though, is not part of the amendment.  As such, one Congress cannot bind another with such a resolution.

If I’m right, then if enough states ratify the ERA only a joint resolution of Congress would be required to proclaim that text part of the Constitution. Such a resolution is not subject to a presidential veto, given the exclusion of the President from the amendment process and the precedent set by the Fourteenth Amendment. The inclusion of the time limit in the 1970s does mean that Congress must affirmatively declare the amendment valid.  Would such a resolution be subject to a Senate filibuster?  Almost certainly yes.


The Vice Presidential Exception

Here’s a curiosity about our constitutional system. There is one person in the Administration that a President cannot fire–the Vice-President. Suppose a Vice President someday becomes so estranged with the President that he started routinely criticizing the President.  Suppose further that he said, “Yeah, I’m ready to invoke the Twenty-Fifth Amendment if a majority of the Cabinet agrees and we’ll get the President out of here.”

That would be a real constitutional crisis, but not much could be done about it.  Being against the President is not an impeachable offense.


The Right of Petition and Official Social Media

Here’s something I’m going to start thinking about. Could one say that the First Amendment right to petition is implicated when a public official excludes someone from their social media account (say Twitter)?

The petition right is narrower than a free speech right, in that petitions are directed only to public officials.  If someone is excluded from petitioning an official via an important communications channel, is that constitutional so long as there is some other means of doing so that is not too burdensome? My hunch is that the history of the right of petition in English law can tell us a lot about this, but we’ll see.


My Problem with Originalism

I’ve long been uncomfortable with originalism as a method of constitutional interpretation.  But I was never sure why. It’s not for the standard reasons that people give for opposing originalism. Today I had a new thought about this.

Perhaps what bothers me is that originalists almost always say that the original public meaning is also normatively good. In other words, you rarely hear the following argument:

  1. The original meaning of a constitutional clause is X.
  2. That’s terrible.
  3. But we have to apply that terrible principle because we are bound by original understanding.

How do people avoid this logic? One way is to come up with a different original meaning to avoid the terrible result. Another is to deny that the original meaning is, in fact, terrible. (Non-originalists can go with the option of denying that step #3 is true, though they increasingly just act creatively at step #1.)

Why do people want to avoid this chain of reasoning? First, we don’t like to admit (at least today) that parts of the Constitution properly understood are terrible. Second, lawyers may feel that openly saying that we are bound by something terrible would undermine confidence in the law.

Anyway, this is a tentative thought.  Not yet a theory.