It seems likely that another constitutional controversy will soon emerge. In 2020, the Virginia Legislature seems poised to ratify the Equal Rights Amendment, which Congress first proposed nearly a half century ago. Under one way of counting, Virginia’s approval would be the 38th state ratification for the ERA, giving it the requisite three quarters of the states needed for ratification. Thus, it might seem like the ERA is about to become law. In my view, however, even if Virginia votes to ratify, it will not bring the ERA into effect.
The story of the ERA is a long and complicated one, but on one level it is simple. Once the ERA was initially unable to secure ratification, advocates of the Amendment have engaged in one questionable act after another in an effort to enact it. I say this despite my support of at least some versions of an equal rights amendment—specifically, versions that have a relatively determinate meaning.
In 1972, Congress proposed the ERA by the required two thirds of each house of Congress. The resolution proposing the amendment provided:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which 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:
SEC 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
SEC. 3. This amendment shall take effect two years after the date of ratification.
(second italics added).
What is peculiar about this resolution is that the seven-year limitation was contained in the resolution proposing the amendment, but not in the text of the amendment itself. While many constitutional amendments, such as the 20th, 21st, and 22nd have also had seven-year limitations, those limitations were placed in the text of the amendments.
Unfortunately for the ERA, it did not receive the required 38 state ratification by the end of he seven year limitation in 1979. As the deadline was about to run, Congress passed by a simple majority of each house (and then signed by the President), a provision attempting to extend the deadline until 1982. But no additional states ratified the amendment prior to the 1982 deadline.
Although the amendment seemed to be dead, additional states began to ratify the amendment in 2017. Illinois and Nevada have now passed ratifications. If Virginia (or another state) passes a ratification next year, many ERA proponents are likely to argue that the Amendment has been ratified.
But the argument for this conclusion is very weak. First, even if these three ratifications had occurred during the 1979-1982 period when Congress had passed an extension by statute, they would not be valid. One cannot use a statute to modify a proposed constitutional amendment. A proposed constitutional amendment requires a two-thirds vote of both houses. A statute requires only a majority vote of both houses.
Moreover, even if Congress had passed the extension with two-thirds of each house, that would be insufficient. The ratifications that had occurred prior to the extension were to a proposed amendment that had a 7-year limitation. One cannot count those ratifications for a proposed amendment with in effect a 10-year limitation, since we don’t know that the states that had ratified the amendment with the 7-year limitation would have ratified an amendment with a 10-year limitation. This (hypothetical) amendment with a 10-year limitation that was passed by two thirds of each house would only be ratified if 38 states approved it.
This discussion assumes that the ratifications beginning in 2017 were passed during a period for which Congress extended the ratification window. But Congress has not extended the ratification window either by statute or by proposed amendment since 1982. So what possible argument is there for counting the three new ratifications and adding them to the prior ones?
The best arguments appear to be that the time limitation in the original ERA was not binding and therefore can be ignored. One possible reason is that the ERA time limitation was not in the amendment itself, but only in the resolution proposing it. But this argument is open to an objection. The Constitution merely states that Congress should propose an amendment and it is not clear why limitations in the resolution proposing the amendment should not be considered as part of Congress’s proposal. Still, this argument against enforcing the time limitation cannot be rejected out of hand.
Another possible reason why the time limitation might not be binding, even if it were in the constitutional text, is the argument that the Constitution does not allow Congress to set a time limit. Under this view, Congress’s only role in the amendment process is to propose an amendment and then to determine whether it is ratified by state conventions or state legislatures. I have some sympathy for this argument. But again there are problems. First, many constitutional amendments have included time limitations in the text and therefore there is a strong precedent for concluding they are valid. Second, even if Congress has no authority to do anything other than propose the amendment and specify whether state conventions or state legislatures should make the ratification decision, Congress placed the time limitation in its proposal, and it certainly has the power to make proposals. So one must decide whether the time limitation was a legitimate part of the proposal.
But let’s imagine that we accept the argument for the continuing life of the proposed ERA on these issues and conclude that Congress could not—in the text or the resolution—place time limits on the amendment. What would be the consequence of this conclusion? It would indicate that the time limitation was unconstitutional. If so, one might conclude that the proposed ERA itself is unconstitutional and therefore of no force or validity. That would hardly help the prospects of the ERA.
The response to this conclusion would presumably be that it is only the time limitation that is unconstitutional. Therefore, that portion of the proposal is of no effect, but the remainder of it is. This amounts to a severability argument—the unconstitutional portion of the proposal can be severed from the remainder, leaving it of full force and effect.
The problem here is that it is extremely questionable that the unconstitutional portion is severable. Applying severability to constitutional provisions (as opposed to statutes) is novel and questionable. In addition, there is no severability clause. Finally, there is a strong argument that the provision is not severable, because the Congress might not have voted for it without the unconstitutional portion. Members of Congress might have sought a genuine consensus of the country and not one that was only secured over a half century.
There is also another severability problem at the state level. When states ratified the Amendment prior to 1979, they too might have sought a genuine consensus within a seven-year period. Thus, they might have rejected an amendment with an unlimited ratification period.
Finally, there is one last problem with concluding that only one more state is needed to ratify the ERA. Since five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) have rescinded their ratifications, if those rescissions are operative, then an additional five states will be needed for ratification. It is not clear that these recissions are valid, but my tentative view is that they are valid on the ground that recissions are valid so long as they are passed before the requisite three quarters of the states are reached.
Overall, there are numerous problems with the claim that only one more state is needed for the ERA. In my view, there is much to be said for an equal rights amendment that has a determinate meaning and even more to be said for effecting constitutional change by constitutional amendment rather than judicial updating. But declaring the original ERA ratified when one more state approves it might create a constitutional crisis and would certainly damage the credibility of the Constitution.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.