Editor's Note: On January 15, 2020, the Virginia legislature passed a resolution to ratify the Equal Rights Amendment. The move sets off an extended debate about the prospects of the ERA joining the Constitution as the 28th Amendment. This story from November 7, 2019 previewed the legal discussion to follow such a move in Virginia.
On Tuesday, Americans across the country went to the polls, and one election had particular significance for the future of the Constitution. In Virginia, the Democratic Party took control of both chambers of the state legislature, which previously had a narrow Republican majority. As a result, Virginia is poised to ratify the Equal Rights Amendment.
Earlier this year, a ratification resolution passed the state Senate but failed in the House of Delegates by an evenly divided vote—with every Democrat voting in favor and all Republicans but one opposed. Now there will be 54 Democrats in the House of Delegates, and assuming they all support ratification, it should have enough support to pass.
What happens if Virginia ratifies the Equal Rights Amendment? The truth is, no one knows. Congress proposed the ERA in 1972 through a resolution stating it would “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.” By 1979, 35 states had ratified the proposed amendment, three states short of the necessary three-quarters requirement. In October 1978, Congress passed a resolution extending the deadline for three years, until 1982, but no new states ratified it in that time, and for decades the ERA has been dormant, if not defeated.
Recently, however, activists adopted the so-called “three-state strategy.” Their goal has been to have three more states ratify the ERA, which would make 38 in total—enough for ratification. Nevada ratified the amendment in 2017, and Illinois did so in 2018; Virginia, then, would be the crucial 38th state. But it is far from clear that, if Virginia ratifies the ERA, it would, therefore, be adopted as part of the Constitution. There are three unresolved questions that ERA supporters would have to answer:
- Can Congress impose a deadline on ratification of a constitutional amendment in the resolution proposing that amendment?
If so, then the three ratifications in recent years are of no effect—with one caveat, discussed below. But if not, then ratification remains pending before the states, and the latter-day ratifications should count just as much as those in the 1970s. In the 1921 case Dillon v. Gloss, the Supreme Court unanimously upheld the seven-year time limit for ratification of the 18th Amendment, which was the first proposed amendment to include a deadline. But there are three reasons for thinking Dillon might not apply to the case of the ERA.
First, the 18th Amendment was ratified by the requisite number of states well before its deadline. The challenger in that case argued that the entire amendment was invalid because the Constitution’s Article V did not authorize Congress to propose ratification with a deadline. Arguably, therefore, the Court did not squarely address the question of what would happen if an amendment was ratified subsequent to a deadline.
Second, the Dillon Court concluded that Article V itself requires that proposal by Congress and ratification by the states must be close in time, partly because the contrary interpretation would mean that several amendments proposed over a century earlier, none of which had deadlines for their ratification, would still be pending before the states. Thus, it concluded that Congress could specify the reasonable time period during which ratification must take place. But in 1992, one of those long-dormant amendments was ratified. Although it was a subject of some controversy at the time, no one today doubts that the 27th Amendment is a valid part of the Constitution. The nation has, therefore, largely repudiated Dillon’s reasoning.
Finally, the ratification deadline was included in the text of the 18th Amendment itself, whose third section stated that “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.” The ERA’s deadline, on the other hand, is not in the text of the proposed amendment but in the resolution proposing it. This matters because arguably the 18th Amendment’s provision was not actually a ratification deadline at all. Even if the amendment was ratified after more than seven years, it would become a part of the Constitution—it would simply be inoperative. Congress clearly has the power to propose an amendment that, by its own terms, would be inoperative under certain conditions. That does not necessarily imply that it can propose an amendment that will only be pending before the states for a fixed period of time.
If Dillon is not controlling precedent, then this is an open question. Several other amendments—the 23rd, 24th, 25th, and 26th—included similar seven-year time limits in their proposing resolutions, but each was ratified well prior to the deadline. The question has simply never been tested.
- If the deadline imposed by the resolution proposing the ERA is valid, can a subsequent Congress disregard or extend that deadline?
Even if the deadline for ratifying the ERA had legal force, it is possible that Congress today could pass a resolution removing that deadline and recognizing the ratifications by Nevada, Illinois, and Virginia as valid. In 1982, several lower federal courts held that Congress’s action extending the deadline to ratify the ERA from 1979 to 1982 was invalid, but the Supreme Court stayed those cases until after the deadline had passed. Then, because no additional states had in fact ratified the amendment during the three-year extension period, the Court dismissed the cases as moot. As with the validity of the deadline itself, the validity of subsequent resolutions modifying or extending such a deadline is an issue never confronted.
And there are arguments on both sides. In Coleman v. Miller (1939), the Court suggested that Congress could judge whether an amendment had been ratified in a sufficiently timely fashion when presented with ratifications by three-fourths of the states. But that was in the context of an amendment with no specified time limit and proceeded from the conclusion in Dillon that Article V itself requires contemporaneous ratification. The answer could depend on how we understand the congressionally imposed deadline. If it is an intrinsic part of the proposal itself, such that the amendment is no longer pending before the states once the deadline has passed, then logically Congress would have to propose the amendment from scratch to revive it, with the constitutionally prescribed two-thirds majority of each House. If, on the other hand, the deadline is an independent bar to ratification created by Congress in the proposing resolution, it would appear to be within Congress’s power to modify or remove that bar.
- Can a state rescind ratification of a proposed amendment?
Even if supporters of the ERA can overcome the ratification deadline, either because it was never effective to begin with or because today’s Congress can modify it, they would have to confront the fact that four states—Nebraska, Tennessee, Idaho, and Kentucky—voted to rescind ratification of the ERA during the original ratification period. Another state, South Dakota, stated that its ratification would lapse after the original 1979 deadline. If these rescissions are valid, then the ERA has today been ratified by only 32 states, not 37, and Virginia would be only the 33rd—not enough for ratification.
Unlike the issues pertaining to the deadline itself, the question of rescinding ratification has come up before. Two states attempted to withdraw ratification of the 14th Amendment in 1868. Secretary of State William Seward held that these attempted withdrawals were probably “irregular, invalid, and therefore ineffectual,” and Congress counted those states in the three-fourths majority when it declared that the 14th Amendment had been adopted. It is not clear if this precedent would be treated as authoritative. In Coleman v. Miller, the Supreme Court suggested that Congress must decide the validity of rescinded ratifications in each case.
Which leads to the final unresolved question about the potential ratification of the ERA: who would decide? Currently, federal law charges the Archivist of the United States with certifying that an amendment has been validly adopted. (Previously, the Secretary of State had the same duty.) When the 27th Amendment was adopted, the Archivist declared its validity, and Congress then passed a resolution confirming that judgment. That would seem to suggest that the responsibility ultimately lies with Congress.
But the question will also come before the courts, as litigants seek to invoke the ERA, and there are conflicting precedents as to whether the Supreme Court can adjudicate an amendment’s validity. In Leser v. Garnett (1922), the Court considered three different challenges to the 19th Amendment’s validity: that it was beyond the Article V amendment power because of its character; that some of the ratifying states could not legitimately have ratified it due to their state constitutional provisions against women’s suffrage; and that the ratification in several states had been procedurally irregular. The Court rejected the first two arguments but held that as to procedural irregularities in particular states it must defer to the judgment of the Secretary of State. This could suggest that courts may consider purely legal questions concerning the interpretation of Article V, but not factual questions concerning whether a given state has actually ratified a particular amendment. The Court could reasonably view the disputes over Congress’s power to set ratification deadlines, as well as the power of states to rescind ratification, as legal rather than factual. On the other hand, Coleman v. Miller suggested that many of these same issues are political questions that must be decided by Congress.
There are a number of ways this could play out. If Congress passes a resolution stating its position on the ERA’s validity one way or another, the courts would likely defer to that judgment, or would at least have to consider whether to defer to it. But if Congress deadlocks on the issue, leaving the Archivist’s judgment to stand on its own, that could force the courts to act even where they would rather defer. In that case, would a subsequent Congress be able to weigh in? Or what if Congress declares that the ERA is not valid; could a future Congress reverse that determination?
In short, the elections in Virginia have created not only the possibility that the Equal Rights Amendment will become a part of the Constitution but that, as of early next year, we may not know what the full text of the Constitution is—or even how to determine what the text of the Constitution is!
Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.
