Earlier this summer, Illinois became the 37th state to ratify the Equal Rights Amendment (ERA) to the United States Constitution originally proposed by Congress on March 22, 1972. Ordinarily, ratification of 38 states (out of 50) would be sufficient to adopt an amendment and make it part of the Constitution, and thus adoption by a 37th state would mark an important legal development. But this is no ordinary situation, because ratification actions by states are not usually spread out over 45 years. Making matters more complicated, Congress itself, when it initially proposed the amendment, placed a seven-year time limit (until March 22, 1979) on effective ratification. Although one year prior to the 1979 expiration Congress extended that deadline by three years until June 30, 1982, that deadline has also since come and gone. As if all that weren’t enough, four states that had ratified the amendment purported to rescind their ratification prior to the 1979 deadline (and another state tried to make explicit that its ratification would lapse after the 1979 deadline). Given all this, does Illinois’s ratification have any legal effect, or it is simply a symbolic statement of support for the idea of gender equality under the Constitution? As I explain below, it seems pretty clear that even if another state follows Illinois today and tries to ratify the ERA, the measure should not be considered part of the Constitution.
The Origins of the Equal Rights Amendment
The measure passed by 2/3 of each house of Congress and sent out to the states in 1972 provided:
Section 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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
The provision imposing a seven-year timeline requirement for ratification was not embodied in the text of the proposed amendment (as it had been in some other proposed amendments), but was codified in a preface to the proposed amendment itself, passed along the text of the amendment by a two-thirds majority in each house. The prefatory language said:
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. (emphasis added)
By early 1977, 35 states had ratified the amendment. Four of those ratifying states (Nebraska, Tennessee, Idaho, and Kentucky) purported to rescind their ratifications between 1973 and 1978 (with Kentucky’s purported rescission also featuring an unprecedented attempt by the lieutenant governor—acting while the governor was absent—seeking to veto the rescission, notwithstanding that no governor had asserted a right to participate in state legislative processes for constitutional amendment ratification up until that point). In October 1978, fearing that the 1979 deadline would pass without the needed 38 states (whether or not the rescission of Nebraska, Tennessee, Idaho, and Kentucky were effective), Congress passed a measure to extend the ratification deadline by three years, until March 22, 1982. Perhaps importantly, this extension measure was passed with a simple majority—not two-thirds—of each house.
After that, yet another state that had ratified, South Dakota, passed a resolution in early March of 1979 saying that its 1973 ratification would lapse as of March 22, 1979, (the original deadline) unless the amendment was adopted by the requisite 38 states by then.
March 22, 1979, came and went. So did March 22, 1982.
Things were relatively quiet (in terms of state legislative actions) until March 2017, when Nevada purported to ratify, becoming (by some counts) the 36th state to express approval for the 1972 text.
Then, in June of this year, Illinois purported to ratify, becoming yet another state—in some sense the 37th—to express approval.
What Legal Effect, If Any, Do These Recent Actions Have?
This complicated sequence of events raises many legal questions—far too many to be meaningfully analyzed here. But a few thoughts on some of the big ones are in order. I should make clear that these are my own provisional views on these matters, and that I make no claims that all well-regarded constitutional thinkers agree with me (although I think many if not most would). Some key questions (and my brief, preliminary answers) include:
1. Can ratification, absent and explicit deadline, be spread over many decades?
Many analysts say no, reasoning that the whole point of a three-quarters supermajority requirement for ratification is that amendments should not be added unless there is a broad national consensus about their wisdom, and implicit in the requirement of national consensus is the idea that people are on the same page at the same historical time. This argument has perhaps even more force when we consider the interplay between constitutional text and judicial doctrine. As the ERA story itself illustrates, the willingness of states to alter the text of the Constitution depends in part on how the Court is interpreting the existing text. That is why many people feel the Supreme Court’s recognition of gender equality rights in the Fourteenth Amendment in the 1970s was one of the factors that took the wind out of the ERA’s ratification sails.
These are plausible arguments, but notice that the 27th Amendment (dealing with congressional pay raises) was proposed as part of the original Bill of Rights and did not obtain the requisite three-quarters of the states ratifying it until the 1990s, and yet many people consider this provision a part of our Constitution today. Most if not all of the major constitutional law casebooks from which law students study (including the one I co-author) include the 27th Amendment in the text of the Constitution provided in the book. So too do most of the “pocket” constitutions (put out by various government and civic education organizations) of which I know.
2. Putting aside whether ratification need take place over a relatively small number of years absent congressional imposition of a timeline, can Congress impose and enforce a time limit at the time the amendment is proposed?
The answer to this, according to a 1921 Supreme Court case, Dillon v. Gloss, is yes. This makes sense, certainly if the time limit was enacted by the same two-thirds majority that approved the proposed measure—that is, if the two were linked at the time of passage. After Dillon v. Gloss, however, the Supreme Court in 1939 decided Coleman v. Miller, which suggests that some questions concerning the amendment proposal and ratification process may constitute so-called “political questions” not susceptible to judicial review. (More on whether enforcement of congressional time limits are justiciable below.) But whether or not courts weigh is a separate question of whether a time limit is legally enforceable, and members of the federal executive branch, Congress, state legislatures and state courts should all decline to recognize the validity of amendments ratified after expiration of a congressionally imposed deadline.
3. Can states rescind prior to the measure’s adoption or explicitly limit their ratification to a particular time?
I think the answer to this should be yes—again, if ratification is about the existence, vel non, of a contemporary consensus among the people of the states, we should consider all evidence of the existence or absence of true consensus. Of course, once the magic number of 38 states has ratified and the measure becomes part of the Constitution, considerations of finality kick in, and the legal status quo changes. After that, a new supermajoritarian consensus would be needed to further change the document. Prior to that point, although some other states may argue that their decision to ratify relied on prior state ratifications, since they too can rescind if they want to, there would seem no compelling need to declare a ratification irreversible.
4. Can Congress extend deadline prior to its expiration?
Here, my instinct is certainly not if the deadline is built into the text of the proposal. If the deadline (as in the ERA) is in a preface and not in the text of the amendment, I still think extension would be problematic. The ERA three-year extension is an easy one to reject, because only simple majorities of both houses enacted the extension, whereas two-thirds majorities had provided for the original seven-year timeline. Even had the extension been passed by a supermajority, I think the extension should be ineffective, for the simple reason that voters might have relied on the expiration of the ratification period in deciding whom to vote for in state legislative elections. Imagine a ratification deadline is months away and only a small number of states have ratified. A voter who likes everything about a state legislative candidate except that candidate’s zeal for ratifying the amendment might vote for the candidate, thinking that ratification is a dead letter because there is no way the requisite number of additional states needed for ratification could act in the next few months. The candidate gets elected, and all of a sudden Congress extends the deadline. Such an extension would undermine the reasonable expectations of voters, and since the amendment process is ultimately an exercise in democracy, such changes in the rules of the game once it has begun should not be allowed.
Of course, if the Congress that wants to extend has a supermajority, it can propose the amendment anew, and provide a longer timeline or no timeline at all, and then states are free to ratify (or not ratify, as the case may be.) Voters always take their chances that an amendment they don’t like will be proposed after they elect their state representatives, but with respect to amendments pending prior to the election, voters should be able to count on Congress’s word as to the timelines it has imposed.
5. Is enforcement of express time limit justiciable or is it a political question after Coleman v. Miller?
Dillon’s lesson that courts can enforce congressional time limits remains good law. In a little-known case of National Organization of Women (NOW) v. Idaho, decided in 1982, four decades after Coleman v. Miller, the Court had to decide whether Idaho could sue to enforce its 1977 rescission of the ERA. By the time the Court got the case, both the ERA’s 1979 deadline and the 1982 deadline had passed, and the Court found Idaho’s case moot for that reason, holding that since ratification of 38 states had not taken place before 1982, the measure was dead. The Court could have punted the case on political question grounds if it thought it had no power to weigh in on such measures. But it explicitly relied on mootness, holding that the expiration of the timeline made the dispute over the validity of rescission beside the point. But that reasoning works only if the 1979 or 1982 deadline is legally meaningful. If not—if Congress can’t impose such deadlines and have them respected—then Idaho still had a live interest in having its rescission being given legal effect because ratification was still possible. So although the Court in the NOW case didn’t expressly discuss political question doctrine, its mootness holding presupposes the validity of congressional deadlines and the ability of courts to take them into account.
6. What does that mean for post-deadline ratifications of the ERA like Nevada’s and Illinois’s today?
That they are symbolic only.
7. Finally, what if Congress today tried to extend the ERA deadline yet again, well after the 1979 and 1982 deadlines have lapsed?
Some advocates think Congress can and should do that. My sense is that Congress could (with a two-thirds majority in each house) do that, but certainly all of the ratifications after 1979/1982 cannot be considered legally valid. Given the mootness reasoning of the NOW case, certainly any state (like Nevada and Illinois) that ratified after the 1979/1982 deadline had lapsed could reasonably believe that its ratification is expressive and symbolic only, with no legal effect. Because such a state might have this mindset, its purported ratification shouldn’t be given any legal effect. My own view is also that none of the ratifications made, even before the earlier congressionally imposed deadlines, could be credited (and that, in effect, we would have to start from ratification scratch), but, at the very least, ratifications made after a deadline has passed and before any new deadline is adopted cannot be given any effect.