The Virginia legislature ratified the Equal Rights Amendment earlier this month, and Virginia, Illinois, and Nevada filed a lawsuit this morning urging a federal judge to declare that the ERA is now part of the Constitution. This episode explores the fast-developing constitutional question of whether an amendment that declares that “equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex” will be adopted, despite its unusual ratification process. Dr. Julie Suk, author of a forthcoming book on the ERA, and Professor Sai Prakash, author of an article on its ratification process, join host Jeffrey Rosen.
Julie Suk is Dean for Master’s Programs and a professor of sociology and political science at the Graduate Center of the City University of New York. Dr. Suk is the author of the forthcoming book We the Women: The Forgotten Mothers of the Equal Rights Amendment, and numerous other works about gender equality and the ERA.
Sai Prakash is James Monroe Distinguished Professor of Law; Paul G. Mahoney Research Professor of Law; and Miller Center Senior Fellow at the University of Virginia. He is the author of “Of Synchronicity and Supreme Law” – a Harvard Law Review article that examines the timing of the ERA’s ratification process – among many other works.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
- Virginia v. Ferriero (D.C. Cir. 2019) – lawsuit filed by Virginia, Illinois, and Nevada seeking to force the U.S. archivist to adopt the Equal Rights Amendment into the Constitution
- Department of Justice memo on ratification of the Equal Rights Amendment
- Dillon v. Gloss (1921)
- Coleman v. Miller (1924)
- Frontiero v. Richardson (1973)
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Anne Corbett and Lana Ulrich.
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. The legislature of Virginia recently ratified the Equal Rights Amendment, earlier this month, reviving the debate about whether the ERA can be adopted despite its unusual ratification process.
Joining us to discuss this absolutely fascinating, and cutting edge, uh, series of constitutional questions are two of America's leading experts on the Equal Rights Amendment and The Constitution. Julie Suk is Dean for Master's Programs and a professor of sociology and political science at the Graduate Center of the City University of New York. Uh, Dr. Suk is the author of the forthcoming book, We the Women: The Forgotten Mothers of the Equal Rights Amendment, and numerous other works about gender equality and the ERA. Julie, thank you so much for joining!
Julie Suk:[00:01:06] Thank you for having me.
Rosen: [00:01:07] Sai Prakash is James Monroe Distinguished Professor of Law, Paul G. Mahoney Research Professor of Law, and Miller Center Senior Fellow at the University of Virginia. He is the author of, Of Synchronicity and Supreme Law, an article in the Harvard Law Review that examines the timing of the ERA’s ratification process, among many other works. Sai, it's great to have you back on the show!
Sai Prakash: [00:01:30] Great to be here with you and Julie, Jeff.
Rosen: [00:01:32] Let us jump in with the breaking news that, just this morning, as we record, uh, Virginia along with Illinois and Nevada, filed a lawsuit in District Court to compel the Archivist of the United States to recognize uh, the ERA as part of the constitution. Julie, let's begin by giving our listeners a sense of what the theory of the three states is, in their effort to compel certification.
Suk:[00:02:04] So, the legal theory behind this lawsuit, and the effort to compel certification by the Archivist, is that uh, Article V does not authorize Congress to impose time limits on ratification, and therefore there is no legally binding time limit uh, that would stop Virginia uh, from validly ratifying the amendment.
Rosen: [00:02:24] Sai, none of us has had the chance to read the complaint carefully, 'cause it's hot off the presses, but what is your initial response to the claim of these three states; that Article V of The Constitution, that's the article that sets out the procedure for the proposal on ratification of constitutional amendments, does not allow Congress to impose time limits?
Prakash: [00:02:44] Uh, Jeff, my, my first reaction is, I think, you know, it's not uncommon for states to sue the executive. uh, I think previously some states that opposed the ERA had sued the Archivist to try to prevent the Archivist from re- recognizing the validity of the ERA. And so these states are trying to do the opposite. And they're doing that in part because the Office of Legal Counsel put out an opinion saying that the amendment had become stale, that they, uh, proponents of the amendment, have to start from ground zero.
And I think, obviously, Virginia and these states r- ratified the amendment and believe that it's no ... that it is still uh, alive, and that it can be made part of our Constitution. And in fact, that it is part of our Constitution. So, I think it will you know, be very interesting to see whether the courts will actually adjudicate the case or whether they'll say that the political branches have to decide this question.
Rosen: [00:03:35] Well, Julie, Sai just mentioned the Office of Legal Counsel opinion, that's dated January 6th, 2020, and it's a memorandum for the General Counsel of the National Archives. And it reaches the opposite conclusion of the three states, it says, "We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA, and because that deadline has expired, the ERA resolution is no longer pending before the Senate." And it cites, among other cases, uh, the Supreme Court case of Dillon vs. Gloss from 1921, which said, "Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt."
So, uh, give us a sense of uh, w- what do you think of the Office of Legal Counsel's conclusion that Congress does have the constitutional authority to impose a deadline on the ratification of ERA?
Suk:[00:04:31] So, the Congress does have the authority to impose a deadline, and that's been recognized, at least w- in the context of Congress imposing a deadline in the text of the amendment itself. Uh, that is the precedent of Dillon vs. Gloss. And, of course, Article V in the text, really doesn't mention anything about time limits on ratification, but Dillon v. Gloss seemed to uh, suggest that Congress was in, in the driver seat in the ratification uh, process, or the timeline for ratification, and therefore Congress could impose time limits.
But it's that same power to impose time limits which, in Coleman v. Miller, uh, the Supreme Court a- affirmed as including uh, the uh, f- freedom to not have a time limit at all. Uh, which th- uh, Congress di- Congress decided in uh, proposing the Child Labor Amendment, not to impose a time limit. So when you typ- put those two cases together, I think the conclusion that has been reached by some of the ERA proponents is that Congress can impose time whatso- time limits, but the same power to impose time limits gives Congress the power to change time limits. Which it did with the- with regard to the ERA in 1978, once already, and it's that same power that would give Congress uh, the authority to remove the time limit altogether. And there's a bill uh, in both uh, the House and the Senate that proposes to do just that.
Rosen: [00:05:54] Sai, tell us more about these two cases, Dillon against Gloss and Coleman v. Miller, uh, tell us more about the reasoning of the Office of Legal Counsel's memorandum concluding that Congress both has the power to impose time limits, and that here uh, Congress may not modify a deadline having once imposed it, and give us a sense of where you think we stand?
Prakash: [00:06:20] Sure. I mean, I, I, I think uh, I think I agree with Julie that Congress can impose a time limit. And Congress has done so dozens of times. Uh, initially Congress put many of these time limits in the, am- the body of the amendment itself, and so the, the, the body of these amendments inside the resolution that contain the amendment, they, they would say that if this amendment's not ratified within seven years, it can't be, it can't be validly ratified.
And, and so, states knew that if they ratified this amendment, it has this, sort of, you know, self-defeating proposition within it, and so, there was no way for the uh, you know, the amendment to take legal effect, given that, that, that, that language within the resolution. Eventually, Congress decided that it didn't want to have these time limits in the body of the amendment, I think for aesthetic purposes, because there was basically like a, you know, like a time limit in the body of several amendments, and it, there wasn't necessary to do that they thought, so they included in the resolution accompanying the amendment.
So, every amendment is you know, voted on by Congress, and part of the amendment is embedded in a resolution, and the resolution typically specifies which states will, whi- which entities within the states, either popular conventions, or legislatures, will ratify. And then, in modern times, it's also specified a time limit. And so, their, I guess their question is, by moving the time limit from the body of the amendment to the resolution accompanying the amendment, have, have they basically uh, invalidated, or eviciated, or uh, weakened, or made irrelevant this, this time limit.
And I think I, I think I disagree with those supporters of the ERA that, that suggest that this time limit, it has no validity because it's not in the body of the amendment. I, I should add, I support the Equal Rights Amendment, I just don't believe that it's uh, has any continuing validity.
Rosen: [00:08:10] So, Julie, Sai has identified an important but technical question. Namely, is the fact that the ERA's time limit uh, w- w- was originally not in the text of the amendment itself, it was transmitted to the states, do- does that call its uh, validity into question? Please, share your thoughts on that and also on the more foundational question of, whether you agree with the Office of Legal Counsel that Congress may not revive a proposed amendment after the initial deadline has expired, even if it wants to.
Suk:[00:08:38] So, I don't agree with that conclusion. But I want to go back uh, to what Sai was saying earlier about the reasons why uh, Congress did not put the time limit uh, into the text of the amendment itself. Uh, I don't think it was purely aesthetic, because the language also changed. That is when Congress put the time limit into the text of the Prohibition Amendment, the Eighteenth Amendment, for the first time, it said that, "The amendment would be inoperative unless ratified uh, within seven years."
Uh, when it moved to the resolutions uh, in the Twenty-Third Amendment, I believe, the resolution was worded, "only if ratified, uh, within seven years." But then, by the time you got to the Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth Amendments, and, and then with the ERA as well, the language changed to, "when ratified." So this shift over time for "inoperative unless," to "only if," uh, to "when ratified," suggests that "when ratified," uh, signals a congressional intention to revisit the question uh, as to whether or not the amendment is still uh, in the public interest and relevant.
And this is an argument that was made by now-Justice Ruth Bader Ginsburg in the hearings on the ERA uh, deadline extension uh, in 1977 and 1978. And so, uh, I do think that uh, the uh, changes that, that happened over the last hundred years since prohibition, uh, suggest a growing understanding that, really, it's for Congress to determine once they put in that time limit, what to do with it uh, if it takes longer uh, for this process to work itself out. Uh, and so, that said, I think that also in some ways answers the question as to whether or not Congress is also free uh, to remove a time limit, after the time limit has already lapsed.
I think that, too, is a judgment that Congress needs to make about whether or not it's still in the public interest, and whether or not it's still timely. And I think depending on what amendment it is, uh, whether it's the Equal Rights Amendment or the Child Labor Amendment, you could imagine Congress arriving at different conclusions uh, with regard to uh, whether the time limit should be enforced or ignored.
Rosen: [00:10:54] Thanks for noting uh, Justice Ginsburg's uh, comments. The Office of Legal Counsel cites them on September 12th, 2019, she said at Georgetown Law Center, "The ERA fell three states short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it." Um, Sai, uh, your response to Julie's thoughtful points? And, and your views about whether or not Congress has the power to uh, reject a deadline after it's already imposed it?
Prakash: [00:11:32] Yeah, um, I th- I think, you know ... I think Julie is, is, is incredibly thoughtful. I've pulled up the ERA resolution and it, it does say "when ratified." It says, "This ame- this article will be valid when ratified by three-fourths of the, s- the state legislatures, within seven years from the date of submission." So, I- I ... She's right that it says "when ratified," but there's this condition within seven years from the date of submission.
And as, as Julie knows, there was a controversy when they tried to extend, uh, extend the deadline uh, for the ERA, and the controversy was the resolution was passed by the se- you know, the two-thirds majority in both chambers, but the extension was not. And the sort of second controversy was you know, are we gonna keep the existing, es- existing ratifications as valid when we extend it? 'Cause it's one thing to extend it, but it's another thing to say that the existing ratifications are gonna have continuing validity in a context in which the states would have ratified over, over ... believing, over a seven year period, that that was the period in which it had to be ratified.
And I, I think the problem with saying that you can, there's a problem with saying you can extend it, but there's a, there's a, maybe even a more ... a more difficult problem with saying that you can revive it. And the, the problem is, like, I don't know if people would have voted for the amendment if they were told, back in 1971 in Congress, or uh, you know, if they were in the states, that the, uh, what they were agreeing to was an amendment that could be ratified indefinitely. If you believe that the Constitution forbids Congress from posing a limit, uh, that's a coherent position, and, and the, they may be right, I think it's wrong, but it may be right. But, but you don't know if people would've voted for the amendment had they known of that, o- of that constraint.
And it's a mistake to think that uh, um, states that have ratified it, under a different understanding, are, are, are basically agreeing to ratify it without regard to their conception of, of the ratification periods. So the, the, you know, members of Congress may not have voted for the amendment had they known of this, this rule, and certainly the states would not, may, may not, some states may not have voted for it had they known of this, this open-ended period.
Rosen: [00:13:50] Let me focus the discussion by noting, as Julie did in her January 21st Washington Post piece about the ERA, uh, that there's a bipartisan bill to remove the ERA's deadline in the House and Senate. The House is expected to vote on the bill, sponsored by Jackie Speier of California, uh, and there's a bipartisan bill to remove the deadline in the Senate sponsored by Ben Cardin of Maryland, and Lisa Murkowski of Alaska. Um, Julie, imagine that that bill passes uh, and becomes law. Um, eh, tell us why you think that would be constitutional?
Suk:[00:14:31] So once that deadline has been removed, I think that would be sufficient to uh, count all the ratifications uh, that have come in, which is at 38. And so, it become part- it becomes part of the Constitution then, on the understanding that Congress does have the authority uh, to remove the time limit, stemming from the same authority to impose the time limit in the first place.
If I can go back to this question of whe- of this, "we don't know uh, if the members of Congress would have still voted for the ERA had that seven-year-deadline not been in place." I think it is actually important to look at the origins of that seven-year-deadline, with regard to the ERA in particular. Because, it is true that it was adopted in 1971 and '72, uh, b- by the 92nd Congress, but this version of the ERA really begins in the previous Congress, uh, in the 91st Congress. And um, it gets adopted with- originally, without a time li- uh, limit on ratification in 1970, by an overwhelming majority in the House. And this was only able to happen because Martha Griffiths, a congresswoman from Michigan, got it to the floor.
I mean, the real problem with the ERA was that the Hou- House Judiciary Committee kept it bottled up in committee, and never got to the floor. And once it got to the floor, it had overwhelming, well over two-thirds majority, uh, support. Uh, and that version did not have a time limit. Uh, but then, when it went to the Senate in that same legislative session, uh, they tried to amend uh, the ERA resolution uh, with a whole bunch of things, including that seven-year time limit.
They also tried to add a School Prayer Amendment, guaranteeing the right to school prayer in public buildings, and the, the intent of adding all these amendments was actually to ensure uh, that the amendment would not get through uh, in the Senate uh, before uh, they would have to uh, end the session, uh, before elections were to take place. Uh, and it was because, uh, and, of course, in, in the Senate, uh, they can debate for a really long time. There are hours and hours of debate about all these uh, amendments to the ERA that aren't even particularly relevant uh, to equal rights. Uh, there was even a proposal which failed uh, to end busing in the South, uh, that they would have tacked onto the ERA resolution.
And it was after all of this happened, that when uh, the next Congress, the Congress that actually adopts the ERA in 1971, when they come back and introduce the bill, Martha Griffiths added the seven-year-deadline, uh, into the resolution. In part, because she didn't want all the other crippling uh, amendments to be part of the package, uh, so it was a bit of a political compromise, but I think s- the evidence from this record suggests uh, that a, a large number of uh, congressmen and senators would've actually voted for it without the deadline. So, uh, I don't ... I think this should be considered as we think about the political question uh, that Congress is facing in de- determining whether to uh, remove the deadline.
Rosen: [00:17:31] Sai, uh, you have uh, your fascinating paper on Synchronicity and Supreme Law, which argues that the Constitution requires ratification of amendments within a reasonable period of time. And there are two great pieces where you talk about that article. But I'd like your thoughts about whether, if Congress were to pass a law rescinding the ratification deadlines on the ERA, you believe that the ERA would become part of the Constitution or not?
Prakash: [00:18:01] Well, I, I think, I mean, I ... Just to step back for a second, there might be some people out there who think, "Look th- the requisite number of states have ratified it, the, the resolution that contains a limitation, the limitation itself is unconstitutional, Congress doesn't need to do anything." That's one possibility. A second possibility is the resolution actually is valid, and therefore, we need to pass some counter resolution, or counter bill that will remove this language. And I guess this statute is ... uh, it has that sort of point of view, because what's the point of pointing, of, of, of passing a statute, if you already believe that the ERA has become part of our Constitution, whether or not the, the Archivist is willing to recommend it.
A- as you, as you note, I, I have the view that the Constitution itself imposes a requirement of, of synchronous ratification, such that, you can't have an amendment become law over centuries. The, the difficulty with my position is that everybody now has a copy of the Constitution that has something called the Twenty-Seventh Amendment. That, uh, you know, was basically [laughs] sent to the states in 1789, and was supposedly ratified in 1992.
And, and you know, my view of that, of that episode is that, e- until basically 1989, the entire country thought that there was this requirement that you ratify within a, a synchronous period. And we know this, in part, because every- almost everyone who spoke to it said this, but it also sort of, sort of coheres with common sense, right? That the, the, the process is not an open invitation to ratify the Constitution in perpetuity. 'Cause if it is, then amendments that were sent to the states by Congress are still valid, including the notorious original Thirteenth Amendment that would have protected slavery.
And so, I think that you know, the idea's that, when, when the Con- 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. But if you can instead concatenate votes from states across decades, or centuries, there's no, there's no sense in which, at any given point in time, there's a, there's a- an agreement o- of- of a super-majority to do something.
And so, you know, the, too ... I try to analogize this, in the piece, to Congress, if Congress kept votes open for centuries, the floor votes in the House, you could eventually get a majority, perhaps, but it would be a majority that, that's you know, uh, concocted with votes strewn acos- across centuries. And this is sort of no way to to make sausages. So, I think, you know ... I don't, I don't, I don't think that it will matter whether or not they, they withdraw, or they a- amend the resolution, I think it still won't be good law. Um, I think there are questions, you know, b- beyond my paper, there are questions about whether, if Congress imposes a restriction, whether that restriction oughta be valid.
Rosen: [00:20:59] Uh, Julie, in its Office of Legal Counsel opinion, the Justice Department reached a conclusion opposite to the one that you just defended. It suggested that even if Congress wanted to remove the deadline on the ERA, it could not do so, and it cited cases like Dillon, which noted that uh, app- the approval of three-fourths of the states needs to be sufficiently contemporaneous to reflect the will of the people in all sections, at relatively the sign- the same period. Can you uh, give our listeners a sense, with a little more detail, of why the Office of Legal Counsel concluded that Congress can't revive th- the ERA even if it wants to, and then tell us again, why you disagree with that conclusion.
Suk:[00:21:42] Sure. So, as Sai was saying, there, there are many people who believe that Article V has an implied requirement of contemporaneous ratification. And I think that is a political theory that is grounded in an understanding that the democracy requires these changes that occur within a generation, so that the people uh, know what they're agreeing to, and there's a conversation that's contemporaneous. And I think that there's some validity to that theory, but I want to point out that when Lisa Murkowski spoke of the bipartisan resolution that's been introduced to remove the ERA deadline, she said there should not be a time limit on equality.
And I think that whatever we think of the implied requirement of contem- contemporaneity in Article V, with regard to a whole range of amendments having to do with things like presidential term limits, or congressional pay, it's quite possible that a democratic theory that's fully, uh, that embraces equality as a principle within democracy might take a different approach to constitutional amendments that expand "We the people." Uh, I mean, of course, we did not have time limits on the Thirteenth, Fourteenth, Fifteenth, or Nineteenth Amendments. And, to be fair, time limits were just not used at all before the Eighteenth Amendment, and that might explain why we didn't have them on the Thirteenth, Fourteenth, or Fifteenth Amendment.
But I think it's actually quite notable that the question of time limits came up in debates about the Nineteenth Amendment in 1918, and the time limit was rejected. It was rejected in testimony by Carrie Chapman Catt, uh, that same month, but on the floor of the House, the time limit was rejected because it was understood that women had been fighting for suffrage for 70 years before that point, possibly longer, uh, and that these changes, how do you get the right to vote when you don't have the right to vote? Um, how do you obtain a recognition of equality uh, when there's certain institutional features of your political system uh, that d- exclude certain people from equality?
These are the kinds of changes that tend to be trans-generational uh, because of the, uh, the setup of the political institutions. So, I think it does make sense to have a different understanding of contemporaneity, uh, within democratic theory, when it comes to these kinds of amendments.
Rosen: [00:24:01] Thank you very much for that fascinating suggestion that amendments dealing with equality might have a different status with respect to time limits than other kinds of amendments. Sai, your response? Uh, please also help our listeners understand, is the question of contemporaneity, eh, let me try that again. [laughs]
Uh, Sai, your response? And, and help our listeners understand; is the question of basically contemporaneous ratification at the core of the Office of Legal Counsel's conclusion that Congress can't lift the deadline? Is that why you agree with the Office of Legal Counsel? And if the Murkowski, eh, eh, if the Murkowski bill were to pass, would a court presume to decide the matter, or would it ultimately be up to the Archivist about whether or not to accept Congress's conclusion?
Prakash: [00:24:48] Yeah. I, just to take the last question first, I think it's quite possible that the courts will stay away from this question because of what the Court said in Coleman Vs. Miller. Um, I think the Court has indicated both in Dillon and in Coleman that Congress can impose a deadline. They, but they clearly haven't said anything about Congress altering the deadline or repealing the deadline, and uh, you know, given the, given the disagreements the people have, and given the Court's uh, you know, uh, unwillingness to layout its prestige on the matter, it may, it may just choose to say that it's not justiciable.
I, I don't, I'm not saying that they're gonna do that, I, that's certainly, uh, certainly a possibility. Um, in terms of, you know, in terms of uh, the OLC's opinion, the OLC's opinion is really focused on the time limit in, in the ERA. Uh, the OLC, in, in the early 90's, with respect to the Twenty-Seventh Amendment, concluded that there was no contemporany- re- cont- uh, contemporaneit- [laughs] sorry.
The OLC in the 1990's concluded that there was no requirement of synchronicity in state ratifications, and uh, so they said there was no, no bar to deeming the Seventeenth Amendment ratified, and they, this was sort of, I think, a wooden reading of, of, of Article V. If there's no time limit there, and therefore none, none is to be found, and none is to be imposed. Um, in saying that, they basically upended what the Supreme Court had said, but they also had um, gone against a previous OLC opinion issued in the context of the ERA.
So, I think it was a very poorly done opinion. But this opinion does nothing to, uh, uh, to move away from that previous opinion, it's not even talking about whether the Constitution itself imposes a synchronicity requirement. It's really just talking about the fact that Congress imposed a synchronicity requirement, its view that uh, and its view that Congress can't uh, you know, ignore that requirement, and that the Archivist can't ignore it. And then, further, that Congress can't delete these uh, synchronicities requirement it imposed in the 1970s, and, and thereby deem the amendment ratified.
Rosen: [00:27:00] Uh, Julie, there's a second legal issue percolating about the ratification of the ERA. You note it in your Washington Post piece, and that's the fact that five states have rescinded their ratifications of the ERA. That's: Idaho, Kentucky, Nebraska, Tennessee, and South Dakota. And, as you noted, these reversals hold up legally. That would bring the number of states that back the amendment down to 33. What's your view of the legal status of these rescissions?
Suk:[00:27:26] So, my view is that, just as Congress is in control of the time limit, including the decision to impose one or to remove the time limit, I think Congress is also in control of whether or not to recognize rescissions, depending on the circumstances of the amendment. And in our history, there have been attempts to rescind the Fourteenth Amendment, and the Fifteenth Amendment, and those have not been recognized by Congress, and I don't think Congress should start recognizing rescissions with the ERA.
Rosen: [00:28:00] Sai, what's your vision of the legal status of the rescission of those five states? As Julie notes, the ratification of the Fourteenth and Fifteenth Amendments were highly irregular, some have even argued illegal according to the formal uh, requirements of Article V, but nevertheless, those amendments are recognized valid parts of the Constitution. So, do you think that those five states have the power to rescind, or not?
Prakash: [00:28:23] You know, that's a tough question, Jeff, and I haven't really focused on it. I, I would say the following: I think if you believe that the Constitution forbids the congressional imposition of a synchronicity requirement, either in the amendment or in the resolution accompanying it, uh, which means, in effect, that uh, amendments last forever once sent to the states, and can be ratified across centuries, I think it becomes more problematic to say that a decision made by a state a hundred years ago can't be undone.
Um, and so, it sh- it's not so much that I think the Constitution um, re- you know, gives states the right to rescind, I, I guess what I would say is it becomes more, more plausible to say that a state has a right to rescind if the, the voting period is indefinite. And, and you know, there are situations where people sort of understand that there's at least a practice of, of changing one's mind. So if you go- you know, if you watch a floor vote in Congress, or the House in particular, you'll see the vote totals, and sometimes, they'll go down. And what's going on is people are switching their vote for, for various reasons, often political. And that's because Congress is, is keeping the vote open.
The House is keeping the vote open for say, 15 minutes, and giving people time to get to the, fl- you know, to, to, to register their vote. Um, and so, there, there's, there clearly are situations where entities allow people to change their votes, and there are other times when, where they don't, right? People typically don't get to change their vote at the ballot box; once it's cast, it's cast. Um, but I think those situations are rather different than a situation where a state is, is being asked to vote once and for all time, across centuries, and, and, and expecting that their vote will be counted uh, centuries later. And I, I think, again, it becomes more plausible to say that they should be able to rescind, but I don't have a, a considered position on the point.
Rosen: [00:30:17] So, so far in this really interesting debate, we've talked about the question of rescission, which seems like a open question, about which there is uncertainty. And we've talked about the question of whether or not Congress has the power, if it chooses, to uh, rescind the original deadline, uh, and you've uh, disagreed about that. Uh, let's talk about what happens next.
Imagine that a, uh, a district court, and other courts were to agree with the three states, that the ERA is now a valid part of the Constitution, and the Office of Legal Counsel has reached a different conclusion. The Archivist, right now has said that he'll defer to the Justice Department. Um, what would happen, Julie, if there were a clash between the courts and the OLC opinion? And who do you think should decide this crucially important question?
Suk:[00:31:09] Well, even the Supreme Court precedent that we have suggests that it's really up to Congress, that this is a political question. And so, I don't ... I really think that it's up to Congress to determine uh, the validity of the rescissions, and the, uh, the time limit.
So ... And, that said, I think what could happen is that if you get a district court decision, uh, or g- generally judicial decision, saying that the ERA is a valid part of the Constitution, then I think uh, it's possible that we'll get more litigation in a few years. Because the ERA itself says that the amoul- the amendment shall take effect two years after the date of ratification, uh, and at that point, uh, it becomes judicially enforceable, and if someone tries to bring an action uh, claiming their rights under the ERA, it's possible that defendants in those cases will raise the argument that it was not validly ratified.
Uh, and so, that's kind of a long-term thing, that we might see s- continuing challenges to the validity, uh, because of those who agree with the OLC opinion. I think for the immediate uh, future, in terms of what it, what the Archivist does, the Archivist has said that he's going to abide by the OLC opinion, and presumably that means, "If you don't get a court order telling him not to," uh, or, "If you don't get a court order requiring him uh, to recognize Virginia's ratification, it means that Virginia's ratification will not be recorded, and it will not be published in the Archivists uh, official copy of the Constitution."
But, the role of the Archivist is purely ministerial. I think whether the Archivist decides to publish it or not, if there has been a valid amendment, even if it's not published by the Archivist, it does become effective within two years after the date of ratification, uh, including judicially enforceable.
Rosen: [00:33:02] Sai, uh, do you agree with Julie or not? Then, in the event of a clash between the uh, Office of Legal Counsel and the executive branch, and the judiciary, that Congress should have the final say about whether or not the amendment is a valid part of the Constitution? And maybe game out with us, our listeners, what you think might happen next.
Prakash: [00:33:21] I, I think I agree with much of what Julie said. The, The Constitution doesn't say who gets to decide whether an amendment has been validly ratified. I think the practice, early on, was that Congress decided this question without executive branch uh, involvement. And, and that kind of makes sense, because the executive branch doesn't have a role in Article V, or more specifically, Article V doesn't mention the executive branch. Um, and the executive branch has been involved, only in so far as Congress has asked the, I- initially asked the executive branch to forward the amendment to states. And then, later on, because of a statute that you know, talked about publishing the amendment after receiving notification of ratification.
And so, I think the, the OL- the OLC has an opinion, uh, the same opinion from 1990, that talked about, 1992, I think. That talked about the Twenty-Seventh Amendment claiming that the OLC or the executive branch decides whether something is ratified. Um, I, I actually have a student who's writing a note on this question, and I think, I think the student's right, and I think that Julie is right to suggest that uh, Congress has a better claim to deciding whether an amendment's ratified as compared to the executive.
Um, and so, I think, you know, I think if Congress ... if both, both chambers pass a resolution, um, I think you know, I, I'm not sure that the Archivist can refuse to certify it. And, I'm, I'm not certain that that even matters, because um, uh, th- th- the statute says that when the Archivist receives notification of ratification he's gotta, he or she's gotta promulgate it. But it's not clear from whom, and it ... you might think that if they, if he or she gets notification from Congress, then he's got- he or she's got all the notification he or she needs. And that he or she's not supposed to make some independent determination of whether the amendment's part of our Constitution.
As far as the, you know, the litigation goes, I, I, I think if a district court decides that it's an amendment, I would be very surprised if the case didn't go all the way up to the Supreme Court, and then the Supreme Court would have to decide whether it wants to decide the legal questions, or say it's some sort of political question. And, and so, I don't think that we're gonna get a district or circuit court opining that it's part of our Constitution, but no, no judici- Supreme Court involvement with the question. I don't think they'll allow it to fester like that.
Rosen: [00:35:44] Julie, if it does go up to the Supreme Court, how do you think the Court will decide?
Suk:[00:35:49] So, I think consistent with uh, Coleman v. Miller, I think the Court will see it as a political question for Congress to determine. I think after the Twenty-Seventh Amendment, the holding uh, in Dillon vs. Gloss, uh, that suggests a contemporaneity requirement. I think because of the Twenty-Seventh Amendment, I don't see the Supreme Court um, seeking to enforce a contemporaneity requirement now. Uh, I think that what they'll most likely do is say that it's really up to Congress to remove the deadline, and Congress hasn't removed the deadline, it's quite possible that the uh, uh, Court will take the view that the original uh, deadline uh, should be enforced.
Rosen: [00:36:33] Thanks for that. I hear you both saying that th- you expect the Court to decide that it's ultimately up to Congress. Um, Sai, do you th- think that there's any chance that this bipartisan bill might pass both Houses of Congress? Tell our listeners about whether or not it requires the president's signature, and is it at all a possibility that Congress might decide to recognize the ERA?
Prakash: [00:36:58] Well, I, I th- you know ... On the question of whether it has to be presented to the president, the original amendment is not presented to the president, the resolution that, you know, ac- accompanies the amendment's not presented to the president, and so I don't believe that, uh, that the two chambers would present it to the president. Um, so I don't, I don't think he'll have a say. Is it gonna pass the House? I would defer to Julie, I think she's, I think she's right that it will pass the House.
Will it pass the Senate? I think that's harder to say. It's always possible that someone will try to filibuster it, in which case, you know, then you need at least 60 votes to, to break the filibuster. So, I don't know whether it's gonna pass the, the Senate. Um, I think, you know, I think if it gets to the Court, the Court could do one of two things: the Court could say um, "Even though we've said that when there's no deadline imposed it's up to Congress to decide whether it's been ratified, when there is a deadline we have no problem with enforcing it." That's one possibility.
Another possibility is to say, you know, "We're not gonna get in the business of deciding to, to enforce even the deadlines that do exist." Right? "That is to say, we've said that Congress can impose a deadline, but we're not gonna get in the business of en- of enforcing it." And, and, I, and you can imagine them saying that, because they perhaps just don't wanna get in the middle of, of what might be a very contentious dispute. And, and so, they might invoke something like a, a political question doctrine, to, to not decide the case.
Rosen: [00:38:23] Julie, in your new book, uh, which will be out in the spring, Women: The Forgotten Mothers of the Equal Rights Amendment, you make a powerful case for why you believe the Equal Rights Amendment should be passed in the 21st century. So, first, uh, predictably, do you believe that the bipartisan bill might pass the Senate as well as the House, and then tell our listeners why you think it should pass.
Suk:[00:38:46] Great. So it's hard to predict what will happen in the Senate. I think that the House will uh, pass the deadline removal, and then I think there will be a lot of pressure on the Senate. Right now there are two Republican co-sponsors, Lisa Murkowski and Susan Collins, and I think a few more Republican sponsors, and that should be enough to remove the deadline. And I think that there might be some political costs of opposing uh, the ERA in the centennial year of the Nineteenth Amendment which gave women the right to vote.
Uh, there's uh, many people in the United States think that the Constitution already has a sex equality guarantee, because most countries around the world have such a provision in their constitutions. And I think this is precisely why uh, we need to have the ERA now, because the Fourteenth Amendment of the US Constitution, originally, was not interpreted -ed to prohibit sex discrimination.
But that changed in the 1970s, and it's changed because of the brilliant advocacy of now-Justice Ginsburg, uh, and also because of the ERA. Uh, it's not a coincidence that the first cases where the Supreme Court started recognizing sex discrimination, like Reed vs. Reed and Frontiero vs. Richardson, were decided after both Houses of Congress had adopted the ERA by overwhelming majorities. And in Frontiero, some of the Justices even say that.
So, in Frontiero vs. Richardson, the Supreme Court Justices recognized the importance of the ERA in pointing towards a sex equality jurisprudence under the Fourteenth Amendment. So, I think the ERA today would be a way of recognizing uh, the contributions that women have made through advocacy for the ERA, and through thinking about sex discrimination as a Constitutional problem, instead of leaving it all to the Fourteenth Amendment.
Uh, the Fourteenth Amendment has recognized sex discrimination, but it hasn't recognized all sex discrimination. It's had particular problems dealing with motherhood and pregnancy discrimination, and I think these are problems that the framers of the ERA talked about in the legislative debates in the 1970s, and they're problems that continue to account for uh, many inequalities, economic inequalities between men and women today. And I think that the ERA is very important, as a political milestone, in moving the needle on some of these issues.
Rosen: [00:41:13] Thank you for mentioning that this is the 100th anniversary of the Nineteenth Amendment's ratification, the Constitution Center is launching a Women in the Constitution initiative that will include an exciting new permanent exhibit on the Nineteenth Amendment, which will open in June. And uh, Julie, we very much hope to have you back to the Center to discuss your book, as part of this initiative.
Sai, we'll give the last word to you. You did begin by saying that you support the ERA as a policy matter and would vote for it, and that's a significant uh, position from a Constitutionalist, as, as, as you are a Constitutional Conservative. Why don't you end by telling our listeners why you support the ERA?
Prakash: [00:41:52] Well, can I, can I actually say one, two other things, Jeff? I wanted to say two things about the politics of the situation. One is the fact that Justice Ginsburg is openly saying that the amendment has to start uh, again, I think is a, is a problem, politically, for the folks who want to revive the ERA, and it's, I, it's not clear to me why she's doing that. I think she might be doing it because that was her position in, in the 1970s, that, although they could extend the ratification period, they couldn't do so indefinitely. And that, and that comes clear to uh, w- uh, you know, through her testimony to Congress.
The second, the second political point I'd make is, um, I think it's curious that members of Congress are trying to repeal the, uh, the uh, restriction on ratification, 'cause I think that opens up the possibility that they won't be able to pass their bill. In, in which case, you know, then it might seem like, well then, it's not been ratified because they couldn't pass the bill.
I, I think it might be better to just not try to pass a bill and say it's ratified. Because the, the curious part of th- of, of their strategy is it, it might suggest that if 100 years from now someone finally did take out the ratification period, at that point, it would be deemed ratified. And so, I just, I, I, I, I don't know enough about their st- strategic thinking t- to understand why it is they're doing that.
I, I, I better understand the argument that the, the resolution has, the, the, the time limit in the resolution has no legal force and therefore has no operative force, and, and so we can ignore it. Why you would then bother to take it out, if you have that view, I, I don't understand. In terms of your actual question, Jeff, I, I, I, I'd say, um, uh, I think Julie's right, that the Court has read the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of the Due Process Clause, to make it rather difficult for states and the federal government to discriminate on the basis of sex, um, I think that makes a good deal of sense.
I think it's uh, you know ... In, in, in years, and decades, and centuries past, statutes reflected a, a, a prejudice and a bias against women that wasn't founded on any real differences. And um, as the father of three wonderful girls, I, I believe that it's improper for the go- the government, federal or state, to draw distinctions that you know, don't reflect realities, but instead, reflect prejudices. What the amendment will mean, whether it's more symbolic or will it actually change doctrine, that, that, those are, those are open and uh, and interesting questions.
My sense, given the way we conduct constitutional law today, is that if the Court wants to weaken or strengthen uh, the equality guarantees that protect, wome- women and men on the basis of sex, they can do that with or without the ERA. And so, the ERA is, is mostly symbolic at this point. Because if you've, if you've got enough Justices, you can make it more difficult to have sex-based distinctions, and if you've got enough Justices you can make it more easy for them to do so, and that would be true with or without the ERA.
Rosen: [00:45:02] Thank you so much Julie Suk and Sai Prakash, for an illuminating, detailed, and absolutely fascinating discussion of the constitutional path uh, to ratification for the Equal Rights Amendment.
Julie, Sai, thank you so much for joining!
Suk:[00:45:21] Thank you!
Prakash: [00:45:22] Thank you, Jeff! Thank you, Julie!
Rosen: [00:45:27] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Anne Corbett and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple Podcasts, and recommend the show to friends, colleagues, or anyone everywhere, who's hungry for a weekly dose of constitutional debate. And always remember, dear We the People friends, that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and engagement of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
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