The first constitutional amendments—the Bill of Rights—were adopted in 1791, but the process by which a proposed amendment is adopted into the Constitution is still surprisingly unsettled.
Currently caught up in that uncertainty is the Equal Rights Amendment, which, if adopted in its current form, would add this language to the Constitution: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Last week’s episode of We the People dove into the live constitutional question of whether the ERA can and will be adopted into the Constitution under the amendment process laid out in Article V. We the People host Jeffrey Rosen was joined by scholars Julie Suk and Sai Prakash, who have studied the ERA and the timing of the ratification process.
Suk and Prakash discussed different aspects of a central question: does the ERA’s ratification deadline still matter?
Prakash said it does and that, although he supports the ERA on policy grounds, he does not believe it has continuing validity.
“The [amendment] process is not an open invitation to ratify the Constitution in perpetuity,” Prakash said. “When the Congress believes there’s a problem in the country, they propose an amendment and the amendment is meant to be at least a partial solution to that problem, and when the states ratify relatively shortly thereafter, there's a consensus that there is a need for amendment.”
Suk replied that there is some legitimacy to the notion that constitutional changes should occur within the generation in which they’re proposed.
She noted, however, “It’s quite possible that a democratic theory that embraces equality as a principle within democracy might take a different approach to constitutional amendments that expand ‘We the People,’” she said.
One different approach employed by some ERA advocates is often referred to as the “three-state strategy.” Some background: the ERA was passed in 1972, with an accompanying congressional resolution that set a deadline of seven years for the amendment to be “ratified by the legislature of three-fourths of the several states,” or 38 states, as required by Article V. The ratification tally failed to reach that number by 1979, so Congress extended the deadline by three years. When the 1982 deadline arrived, only 35 states had ratified, and some states had rescinded their ratifications in the meantime, but some advocates suggested that the ERA could still be adopted if three more states ratified it.
Decades later, Illinois, Nevada, and— earlier this month— Virginia ratified the ERA. However, in the midst of Virginia’s ratification deliberations, the Department of Justice’s Office of Legal Counsel issued a legal opinion stating that the ERA cannot be adopted because its deadline has expired. Last week, those three states that most recently ratified the ERA filed a lawsuit seeking to compel the U.S. archivist, who is responsible by law for actually adding language into the Constitution, to adopt it.
“The legal theory behind this lawsuit, and the effort to compel certification by the Archivist, is that Article V does not authorize Congress to impose time limits on ratification,” Suk explained. “Therefore there is no legally binding time limit that would stop Virginia from validly ratifying the amendment.”
Amendment timelines are still an open question because Supreme Court precedent on the subject is limited. Dillon v. Gloss (1921) held that Congress has the power to impose ratification deadlines, and the ruling in Coleman v. Miller (1939) stated that Congress has authority over the time limits and “promulgation” of an amendment. Some ERA proponents have used that precedent to assert that Congress is in control of the process, and bills currently in the House and Senate seek to do just that—to state Congress’s position that, despite the debate over the time limit, the amendment is still valid. But there has been no Supreme Court precedent about whether Congress may reject or extend deadlines once they have passed.
Time limits on amendments have also been used and handled differently throughout American history. Suk pointed out that the ERA itself first passed the House in 1970 with no ratification deadline, but when it stalled in the Senate, the deadline was added as a political compromise. Suk added that the first time limit placed on an amendment was in the 18th Amendment, which includes a deadline in the text of the amendment itself. The 19th Amendment does not contain a deadline because, according to Suk, suffragists realized it might take decades to get women the vote. Later amendments like the 24th, 25th, and 26th amendments contained deadlines in resolutions introducing the amendment, and not in the text of the amendment itself—just like the ERA. (The 27th Amendment is a whole other story, which you can read about in this explainer on our Interactive Constitution). Suk reflected on this history.
"I do think that the changes that happened over the last hundred years since prohibition suggest a growing understanding that, really, it’s for Congress to determine, once they put in that time limit, what to do with it if it takes longer for this process to work itself out," she said. "I think that also in some ways answers the question as to whether or not Congress is also free to remove a time limit, after the time limit has already lapsed."
Suk and Prakash also discussed whether Congress should accept “rescissions” – another issue surrounding the ERA. Five states attempted to rescind their ratification of the ERA during the initial ratification period. Some states similarly tried to rescind ratifications of the 14th and 15th Amendments. However, those states were still recorded as having duly ratified the amendment then, and Suk asserted that Congress shouldn’t accept the ERA rescissions today. But Prakash was more understanding, on principle, of a state’s desire to rescind if the ratification period extends indefinitely:
Until basically 1989 [when the process to ratify the 27th Amendment began], the entire country thought that there was this requirement that you ratify within a synchronous period. . . It’s one thing to extend [the ratification deadline], but it’s another thing to say that the existing ratifications are going to have continuing validity in a context in which the states would have ratified believing, over a seven year period, that that was the period in which it had to be ratified. I don't know if people would have voted for the amendment if they were told, back in 1971 in Congress, or if they were in the states, that what they were agreeing to was an amendment that could be ratified indefinitely. . . It’s not so much that I think the Constitution gives states the right to rescind. I guess what I would say is it becomes more, more plausible to say that a state has a right to rescind if the voting period is indefinite.
Prakash and Suk both expressed uncertainty as to whether courts will be willing to wade into these questions about the future of the ERA. But three different lawsuits filed by various states—including the three states that most recently ratified—along with individuals and groups on both sides of the ERA debate are working their way through the courts.
Some experts predict that this issue may end up before the Supreme Court, although even if it took the case, the Court could rule that the issue is a political question best left to the political branches, like Congress, to decide. But Prakash said that ERA proponents perhaps should not be discouraged even if the amendment were to ultimately fail, because the protections it seeks to add to the Constitution might not.
“My sense, given the way we conduct constitutional law today, is that if the Court wants to weaken or strengthen the equality guarantees that protect women, and men, on the basis of sex, they can do that with or without the ERA,” he said. “The ERA is mostly symbolic at this point.”