Last week the Virginia legislature ratified the Equal Rights Amendment (ERA), thus becoming the 38th state to do so and satisfying Article V’s threshold (three quarters of the states) for an amendment to become part of the Constitution. Yet whether the ERA takes its place as the 28th Amendment remains uncertain. As Dean Vikram Amar explained in an excellent September 2018 column here on Verdict, legal uncertainties abound. After discussing some of these uncertainties, I explain how remarkable it is that our Constitution could be so ambiguous on as fundamental a question as whether a provision is even part of the Constitution.
A Constitutional Law Exam Come to Life
The sheer number of uncertainties surrounding the ERA’s validity are reminiscent of a particularly challenging final exam question.
When Congress proposed the ERA in 1972, it included a ratification deadline of 1979, which it subsequently extended to 1982. If the original deadline and/or its extension was valid, then the Virginia ratification, coming four decades too late, is ineffective.
Is the deadline permissible? As Dean Amar noted in his column, in the 1921 case of Dillon v. Gloss, the Supreme Court held that a deadline contained within an amendment is valid. Yet that case involved the 18th Amendment, which, by the terms of its Section 3, only became effective because it was ratified within seven years of its submission by Congress. What the states would have ratified in the 18th Amendment would be a nullity if the ratification period extended past the deadline.
By contrast, the ERA deadline is not part of its operative text, and one might thus view Congress’s effort to add a deadline through external text as impermissible, much in the way that the Supreme Court has held that Congress cannot change the requirements for legislation by authorizing a legislative veto or a line-item veto. If so, then the ERA was still available for ratification when Virginia acted.
Or at least one might so conclude if one also concluded that states may not rescind ratification—as four states purported to do in the mid-1970s. Dean Amar thinks that a state should be able to rescind its ratification prior to ratification by three quarters of the states on the ground that otherwise there would not be contemporaneous supermajority acceptance. His argument is plausible, but two factors point in the other direction.
One such factor is formalist. Just as one might think that Congress cannot impose deadlines (except in the text of an amendment itself) because the Article V process says nothing about deadlines, so one might conclude that states may not rescind a prior ratification because the Article V process gives them only one power: to ratify. In this view, ratification is a one-way ratchet because that is the most straightforward reading of the text of Article V.
In addition, Dean Amar’s argument resting on the requirement of contemporaneous acceptance may prove too much. As he also notes, the 27th Amendment was proposed in 1789 and finally ratified by sufficiently many states over two hundred years later. True, no states had in the interim attempted to rescind their ratifications, but that does not speak to the question whether contemporaneous consensus is needed. Thus, the fact that the 27th Amendment counts as part of the Constitution rather strongly undercuts any argument for a procedure premised on a requirement of contemporaneous acceptance by the states. When considered alongside the process that culminated in the ratification of the 27th Amendment, ratification of the ERA occurred in the blink of an eye.
Consideration of the 27th Amendment also highlights another ambiguity: Who decides whether an amendment is valid? In Coleman v. Miller, the Supreme Court held that whether an amendment was properly ratified was a nonjusticiable political question, committed to Congress, not the Court. As Dean Amar points out, Coleman did not overrule Dillon; thus, it would be inaccurate to say that Coleman made all aspects of a case involving the validity of an amendment unfit for judicial resolution.
Indeed, there is a fairly straightforward means of reconciling Dillon and Coleman: both cases defer to Congress; in Dillon, the Court sustained the power of Congress to set deadlines for ratification; and in Coleman the Court affirmed the power of “Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality prior to the required ratifications.”
To complicate matters, however, a federal statute appears to delegate to the Archivist of the United States the power to decide whether an amendment is valid. Thus, the Archivist certified the 27th Amendment despite doubts as to its validity due to the two-centuries-long delay.
Yet the Archivist’s certification did not fully settle the matter, because Dillon, Coleman, and indeed the whole spirit of the Constitution suggest that Congress itself retains the power to pass on the validity of amendments. That said, we do not know for sure that Congress may override the Archivist, because in 1992 Congress agreed with his determination and declared the 27th Amendment valid.
Seizing on the substantial uncertainty, the Trump administration has sent a legal memorandum to the Archivist arguing that the ERA is invalid because it was not ratified in a timely manner. Writing last week in The Atlantic, Professor Garrett Epps criticized the memorandum for tacitly arrogating to Attorney General Barr and President Trump the power to declare a constitutional amendment invalid. I agree that the Constitution assigns the executive branch no role in amending the Constitution and that therefore the views of the Attorney General and the President should receive no deference, but I read the memorandum as a plea to the Archivist to apply his own judgment to reject the ERA.
Yet the suggestion that the Archivist should decide an amendment’s validity is itself bonkers. The Archivist need not be and currently is not a constitutional lawyer. He is not a lawyer at all, but a distinguished librarian. It makes little sense to read the statute designating him as the officer who “publishe[s]” constitutional amendments as delegating Congress’s awesome power to determine their validity—even assuming that the Constitution would permit Congress to delegate its power on such monumental questions.
What the ERA Teaches About Article V
To say that Congress has the ultimate power to declare whether the ERA has been properly ratified is not to say how Congress should exercise that power. As the foregoing analysis indicates, there are plausible arguments both for and against considering the ratification valid.
That fact in itself should be arresting. We are accustomed to the idea that the law does not fully determine all results in advance because it is impossible for a lawmaker to anticipate every eventuality. Yet while we can usually tolerate ambiguity with respect to how to apply any particular provision to some novel circumstance, such ambiguity seems especially problematic where it concerns the criteria for whether a provision is even part of the law, much less whether it is part of the Constitution, our most basic law.
May Congress impose time limits on ratification? If so, how? Can Congress extend those limits? If so, how and when? Can a state rescind its ratification vote? If Congress does not prescribe a time limit, does ratification remain open forever? Article V does not directly answer any of these questions, and because the whole notion of a written constitution was still fairly new, we cannot turn to prior English history or elsewhere for a clear view about the original understanding.
Apparently, the framers thought that Article V as they wrote it was determinate with respect to the issues they anticipated. They almost certainly did not anticipate the sorts of questions occasioned by the ERA because they did not understand that the Article V mechanism would prove extremely difficult to use. To be sure, Patrick Henry, speaking at the Virginia ratifying convention, thought the Article V hurdle made constitutional amendment effectively impossible, but for the most part, the Founding generation thought Article V struck a proper balance between not-too-hard and not-too-easy to amend.
In the short run, the consensus view was right; amendments were feasible. Within two years of ratification of the original document, ten amendments—the Bill of Rights—were added. Two more would be added in the next dozen years.
Yet over the long run, Patrick Henry proved to be right. Amendments to the U.S. Constitution would be extraordinarily rare.
Indeed, as Zachary Elkins, Tom Ginsburg, and James Melton showed in their study of constitutions over history, the U.S. Constitution is, in comparative perspective, extraordinarily difficult to amend. It ought not to have survived because, their data show, difficulty of amendment strongly predicts a national constitution’s early death. The U.S. Constitution has survived as long as it has, Elkins, Ginsburg, and Melton conclude, because courts have found creative ways of reinterpreting it when the formal path to amendment was blocked. That is the story of the ERA itself; although it did not gain ratification when proposed, the Supreme Court came to construe the Fifth and Fourteenth Amendments to forbid most forms of sex discrimination.
There is considerable irony here. Conservatives—like the lawyers in the Trump administration who now argue that the ERA was not properly ratified—often decry creative constitutional interpretation by the courts. Yet such creativity has its root in the imperative of constitutional survival, given the difficulty of amendment. If one thinks it improper for courts to engage in imaginative interpretation, then one should not insist on an understanding of Article V that invalidates a plausible candidate constitutional amendment. If conservatives want the Constitution to survive far into the future, they should be joining liberals in urging Congress to now deem the ERA valid.