Lyle Denniston earlier this month flagged another attempt to ratify the Equal Rights Amendment [N.Y. has their own state version on the ballot]:
In a vote at the annual meeting in Chicago of the ABA’s policymaking arm, the House of Delegates, the lawyers’ group approved a nationwide campaign to make the Equal Rights Amendment the Constitution’s 28th Amendment. That would be done without any need for further action by Congress or by the states, but by a simple declaration by a federal government official, the National Archivist – the keeper of the federal government’s records.
The Bar Association’s new plan is based on three legal propositions:
- That 38 states, the necessary minimum number, have already ratified the ERA.
- That no state will be allowed to withdraw its earlier ratifying vote – as six states have attempted to do.
- And, that the Constitution does not allow Congress to put any time limit on when a proposed amendment must be ratified to complete the process specified by the Constitution’s Article V.
I have examined this issue in the past. My reading of the history and tradition along with text and other interpretative mechanisms is that states do not have the power to withdraw.
Art. V. suggests that a state ratifies. There is no suggestion of "backsies." Likewise, multiple times, covering more than one amendment, an attempt for a state to revoke ratification has been rejected.
I disagree that the Constitution does not give Congress the ability to set a time limit on when an amendment must be ratified. Multiple amendments do have one in the text of the amendment. It also can be provided as a separate matter in the enabling resolution.
(A resolution -- like applying the punishment after conviction in an impeachment -- can be done by a majority vote. If a time limit is in the amendment, change can only come via a supermajority vote.)
The ERA was passed with such a deadline, which was extended for three years. The new deadline expired over forty years ago.
This procedure was a sound means to execute the amendment process. Congress has the power to "fill in the blanks" via the Necessary and Process Clause.
Reference is made to the 27th Amendment, which was first proposed along with the Bill of Rights (another amendment was as well and was never ratified). There was no resolution providing a time limit.
Also, there is some evidence that people in the early 19th Century didn't think the proposed amendment was still active.*
Dillon v. Gloss (1921) reasonably suggested the implication was that proposal and ratification would be "sufficiently contemporaneous." A more contemporaneous article discussed the matter, covering more ground. I found it convincing.
The Supreme Court at that time thought it somewhat absurd to think two amendments proposed in 1789 could still be ratified. I agree with them.
The Supreme Court in Coleman v. Miller (1939) reexamined the question. It addressed both a time limit in the amendment itself and in the "resolution of submission." The Supreme Court said that it was a political question for Congress:
In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified.
Four justices went further and would have made the whole amendment process a political question. Two justices dissented, arguing at least given the facts of the case, the Supreme Court could and should deem the amendment in question no longer ripe after thirteen years.
I will not say that the ruling of Coleman v. Miller provides such a compelling case that no other position is reasonable. Likewise, just because the Supreme Court ruled on something in the 1930s, it does not mean it should hold for all time.
The ruling, however, is reasonable. There is no sound reason to overrule such a longstanding precedent. Congress set forth a deadline. It passed.
The final three states do not count unless Congress revokes the deadline. It has the power to do so though I doubt it would be a good idea. The body with the official duty to certify that an amendment passed has not done so. They were right.
I think the text of the ERA is overall a positive thing though I do not quite know its true reach. What does "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" mean? It is broader than the Equal Protection Clause. How much so?
I'm also wary about an equality provision singling out one class of people. I like general provisions like the First and Eighth Amendments. Still, I'm open to the idea. If we ratified it now, it would probably have GLBTQ reach that the original framers might not have expected. I am fine with that.**
But, I do not think it is sensible constitutional procedure to hold open an amendment to the Constitution for over 50 years! If we still think it is necessary -- a lot of water has flowed under the bridge -- it should be resubmitted.
The American Bar Association doing this has symbolic significance. There also have been multiple attempts by people in Congress in recent years to ratify the amendment. The filibuster made it particularly unlikely. Many people are not aware of the efforts. I think the ratification of an amendment probably warrants more popular knowledge.
What value would ratification now bring? Current doctrine holds that classification by sex must meet "exceedingly persuasive justification."
People point out that the law can change. Also, the ERA appears to require a higher test. What sorts of things would change? Often discussion is rather vague. Other times they are somewhat misguided.
For instance, Dobbs rejected arguments that a constitutional right to choose an abortion was required for sexual equality. The ERA by itself would not necessarily change that.
The ratification history of the ERA suggests that its backers supported a broad reach. The provision spoke of "equality of rights under the law" and "denied or abridged." The Civil Rights Cases held that the 14th Amendment did not apply to public accommodations.
Would the ERA? Perhaps so. The 1970s view of equality was open-ended. We now have a wider view of rights, including talking about "right to health care." The reach of the ERA should be broad.
If so, it only underlines the importance of a contemporaneous ratification. An argument can be made that Congress provides a proper means of representing the will of the people here.
Nonetheless, Art. V provides a higher test. When we change the Constitution, it should be a higher test than the passage of legislation. Maybe, the current process to too tough, allowing a few small states to block change. The overall principle still holds.
The ERA was proposed at a different time and place addressing different concerns. Coleman v. Miller soundly held that Congress can factor that when setting up the rules for ratification.
I think the ERA is probably no longer ripe. Congress under Coleman v. Miller does have the power to revoke the deadline. They rightly have not.
At the very least, if we grant 38 states "ratified" the amendment and that no state can take their votes back, a time limit is sound constitutional practice. It is in Congress's court to decide if the ERA should be ratified. Once it is, there is a two-year grace period before it is put into place.
In 2020, the OLC determined that Congress could not extend a deadline. I don't think that is sound, especially given Coleman v. Miller. It is also questionable a Biden/Harris OLC would hold the same thing. They should not.
For now, the question is somewhat academic, but we do that sort of thing around here too.
==
* I don't have a link but recall reading a law article discussing how one or more amendment proposals in the early 19th Century assumed failed amendments at some point were no longer active. Such early practice is of limited interest but somewhat notable.
The amendments in question would be congressional pay, apportionment rules, and (later on) an amendment extending title of nobility limitations.
Later on, the "Corwin Amendment" that would limit federal power over "domestic" institutions also was pending. The amendment particularly covered slavery but the text does not only cover that institution.
The 27A covers a very limited ground and eventually was ratified by over 40 states. One idiosyncratic example is not enough to settle the question.
Maybe, the ERA is mostly symbolic at this point, but it has more bite than the 27A.
** Michael Dorf here argues there is no actual difference given current precedent. It's a symbolic measure.
Why wouldn't adding the word "abridge" mean anything? Ditto factoring in the broader intent of the amendment. I also don't know what "equality of rights" adds. Still, different wording might matter.
He separately notes singling out sex won't burden the attempt to protect other types of equality. Maybe?
Dorf also links to a Verdict article that covers the overall ground of my discussion. It is generally agnostic but somewhat leans toward accepting ratification. To that degree, I somewhat disagree.