The ERA: Is Seven Years Enough?

Report Civil Society

The ERA: Is Seven Years Enough?

November 15, 1977 11 min read Download Report
Thomas R.
Senior Visiting Fellow

(Archived document, may contain errors)

IS SEVEN YEARS ENOUGH ER-A For nearly five years the E qual Rights Amendment to the Constitution. has been stalled short of ratification by the re quired three-fourths (thirty-eight of the states. With over whel.ming votes of approval in both the House and the Senate Cgngress sent the ERA to the states on Mar c h 22 1.972 thusiasm in the' state legislatures produced thirty ratifica huns within one year. Since that time, only five additional t.ates have ratified the amendment while three have rescinded p?evious ratifications As state legislatures across the count r y prepare for new sessions in January, the possibility of ratification of the ERA before the 7-year time limit ex:pires on March 22, 1979, is. in-doubt. Additionally, the legality of rescission presents an unprecedented problem for l.egal ex,perts the Con gress and, .perhaps, eventually the Supreme Court Does e ERA need three rn0r.e states for ratification or six InitiaJ.

During the summer of 1977, supporters of the ERA, appre give that 'the the limit might expire and .kill the amendment aikogkther, b egan,tb investigate the Legal possibility of .ex tending t8he time limit for ratification. This investigation to,the introduction .of H..J. Resolution ,638 (by Congress goinan .Eliza.beth 'Hbltzman, D-N.'Y and twenty cO-sponr;ors which provides for an add i tional Seven years for ratification. The h3A.l was referred to thb House Subcommittee on Civi.1 and %on stitutional Rights whh5h hela hearings .at the .beginning 2 of November. Arguments were heard from six professors of Con stitutional law and from the J u stice Department 0 This paper is not concerned with the merits of the Equal Rights Amendment itself but instead presents an analysis of the history of ratification of the other twenty-six amendments to the Constitution, an analysis of the ratification his t ory of the ERA by the states,and an inquiry into the question of rescission AMENDMENT PRECEDENCE Since the Bill of Rights was ratified in 1791, there have been nearly 6,000 Constitutional amendments introduced into the U.S. Congress. Only twenty-two of th ose proposed amendments have been passed by the required two-thirds majority of both houses and sent io the states for ratification. Only sixteen have been ratified by the states and become part of the Consti tution.

James Madison, in Federalist No. 43, ex plains that the ratification procedure decided upon for amending the Constitution guards equally against that extremefacility, which might ren der the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. The m ode pre ferred by the convention seems to be stamped with every mark of propriety Alexis de Tocqueville, writing in his famous work Democracy in America, states that "The Federal system therefore rests upon a theory which is necessarily complicated, and w h ich demands the daily exercise of a considerable share of discre tion on the part of those it governs the Constitution shall be proposed when they are deemed "neces Article V of the Constitution provides that amendments to sary In Di'llon v. Gloss 1921) t h e Supreme Court states that Article V of the Constitution strongly implies that "proposal and ratification were but succeeding steps in a single endeav or that amendments "should be considered and disposed of presently I and that "ratification must be wit h in some reason able time after the proposal The Court stated further that nothing was found in Article V which suggested that an amend ment once proposed was to be open to ratification for all time or that ratification in some states might be separated fr om that in others by many years and yet be effective."

The original Constitution left unanswered a number of ques tions on the detailed operation of the amending Grocess. In Dillon v. Gloss and Coleman v. Miller (19391, the Supreme Court 3 attempted to out line some general principles which are rele vant to the amending process, for instance, the principle of a reasonable time," already quoted. But what constitutes a rea sonable time? What are the standards which will ensure that the amending process will b e stamped with the "propriety" of which Madison speaks and the "discretion" of which Tocqueville speaks has been contemporaneous agreement between the U.S. Congress and the state legislatures about how and when the fundamental law of the land should be alt e red. Most Constitutional amend ments were ratified expeditiously, and no ratified amendment can be said to have brought up questions of propriety, discre tion, reasonable time or lack of necessity. The history of the Constitution seems to have p r ovided a precedence of practical experience concerning the question of the rele vance and timeliness of Constitutional amendments Nearly 200 years of Constitutional history show that there Does the ERA violate this precedent of experience? The following t able shows the ratification time of all amendments to the Constitution.

AMENDMENT YEAR RATIFIED TIME PENDING RATIFICATION Bill of Rights Eleventh Twelfth Thirteenth Fourteenth Fifteenth Sixteenth Seventeenth Eighteenth Nineteenth Twentieth Twenty-first Twe nty-second 1791 1798 1804 1865 1868 1870 1913 1913 1919 1920 1933 1933 1951 1 year, 2f months 3 .years, 10 months 8% months 10% months 2 years, 1% months 1 year, 1 month 3 years, 735 months 1 year, f month 1 year, 1% months 1 year, 2f months 11 months 94 m onths 3 years, 11% months Twenty-third Twenty-fourth Twenty-fifth Twenty-sixth 4 1961 1964 1965 1971 9 months 1 year, 54 months 1 year, 6% months 4 months PROFOSED AMENDMENTS NOT RATIFIED Subject of Amendment Date Proposed Apportionment 1789 Pqy of Senato rs and Congressmen 1789 Titles of Nobility 1810 States Rights Amendment Protecting Slavery 1861 Child Labor Amendment has been ratified by 28 states to date 1924 Summary Analysis Six amendments took less than one year to be ratified.

Seven amendments took less than two years to be ratified.

Only three amendments took more than three years to be ratified.

No amendment took four years to be ratified.

The twenty-six amendments took an average of 1.2 years each to Of the four most recent amendments, the longest ratification be ratified period was 14 years.

The ERA, sent to the states on March 22, 1972, has been pending ratification for 5 years, 74 month s (as of the date of this Backgrounaer As compared to the history of ratification of amendments, the states have proved more hesitant about the ERA than any other amendment which has become part of the Con stitution. The expeditious ratification of all am e ndments to the Constitution seems to be a proof of their necessity, broad consensus of the states, and correspondingly, a mandate of the people's will. The ERA shatters precedent. 6 RATIFICATION HISTORY OF THE ERA The Congress sent the ERA to the states o n March 22, 1972 The votes approving it were 354-24 in the House and 84-8 in the Senate.

STATE Hawaii Delaware New Hampshire Idaho Iowa Kansas Nebraska Texas Tennessee Alaska Rhode Island New Jersey Colorado West Virginia Wisconsin New York Michigan Maryla nd Massachusetts Kentucky Pennsylvania California Wyoming South Dakota Oregon Minnesota New Mexico Vermont Connecticut Washington Maine Montana Ohio North Dakota Indiana RATIFICATION"

March 22, 1972 March 23 March 23 March 24 March 24 March 28 March 29 Ma rch 30 April 4 April 5 April 14 April 17 April 21 April 22 April 26 May 18 May 22 May 26 June 21 June 26 September 27 November 13 January 26, 1973 February 5 February 8 February 8 February 28 March 1 March 15 March 22 January 18, 1974 January 25 February 7 March 19, 1975 January 24, 1977 HOUSE 51-0 37-0 179-81 59-5 73-14 86-37 unicameral legislature 139-9 70-0 38-2 70-12 62-4 61-0 81-11 117-25 86-32 56-31 54-16 41-20 42-27 50-9 104-28 40-22 120-28 83-77 76-21 78-68 73-23 54-40 52-49 54-45 unrecorded 90-18 2 05-7 178-3 SENATE 25-0 16-0 21-0 31-4 44-1 34-5 unanimous unanimous 25-5 16-2 39-11 34-0 30-1 31-0 29-4 51-4 voice vote unanimous voice vote 20-18 43-3 29-9 17-12 22-13 23-6 48-18 33-8 19-8 27-9 29-19 19-11 35-14 20-12 30-20 26-24 Data for all tables in t h is paper was taken from research done by the Con gressional Research Service of the Library of Congress. I 8 SENATE STATE HOUSE 1 floor vote Alabama Arizona 3 committee votes 1 floor vote 2 committee votes 4 floor votes 1 floor vote 1 committee vote 3 flo o r votes Arkansas Florida '1 committee vote 3 floor votes 1 floor vote Georgia 1 committee vote 1 floor vote 1 committee vote 5 floor votes I11 inois 6 floor votes 2 floor votes Loui S iana 4 committee votes 1 floor vote 3 committee votes Mississippi Misso u ri 1 committee vote 2 floor votes 2 floor votes 2 floor votes 3 floor votes Nevada North Carolina 2 floor votes 1 committee vote 3 floor votes 6 floor votes 1 floor vote Oklahoma South Carolina i Utah Virginia 3 floor votes 2 floor votes 4 committee votes 2 floor votes 12 committee votes 27 floor votes 2 committee votes 1 floor vote 12 committee votes 31 floor votes TOTALS Summary Analysis Only one state has had no floor votes.

Four states have had floor votes in only one house.

Nine states have had at least five committee and/or floor votes..

Seven states have had at least six committee and/or floor votes.

Six states have had at least seven committee and/or floor votes.

Seven states have had at least four floor votes. 9 RESCINDING RATIFICATION For the first time in American Constitutional history, re scission of state ratifications of a Constitutional amendment has become a significant problem. The schizophrenic history of the ERA, that is, overwhelming enthusiasm for ratification during its first year , and circumspectionandhesitation during the last four and a half years, has pr0duced.a thorny Constitu tional question. As mentioned earlier, three skates have voted in favor of rescission: Idaho, Nebraska, and Tennessee. Seven additional states have had significant attempts to rescind the ratification.

RESCISSIONS State Date House Senate Idaho February 8, 1977 44-22 18-17 Nebraska March 15, 1973 31-17 (unicameral legislature Tennessee April 23, 1974 56-33 17-11 SIGNIFICANT ATTEMPTS TO RESCIND Kansas House rejected rescission in 1977, 66-56 Kentucky House voted to rescind in 1976, 57-40 Montana Senate rejected rescission in 1977, 25-25 North Dakota Senate rejected rescission in 1977, 32-18 South Dakota House rejected rescission in 1977, 34-33 West Virginia Senate rejected rescission in 1974, 18-15 Wyoming Senate rejected rescission in 1977, 16-14 In addition, Wisconsin, which ratified the ERA overwhelm ingly in its state legislature in 1972, rejected an equal rights amendment to its state constitution by mo re than 60,000 votes in a statewide referendum on April 3, 19

73. New York and New Jer sey, whose legislaturesratified the ERA in 1972, both rejected equal rights amendments to their state constitutions in state wide referendums in November of 1975.

ARE R ESCISSIONS CONSTITUTIONAL 10 ERA proponents have often cited the ratification of the 14th amendment to support their claim that it is illegal for state legislatures to rescind a previous ratification. The 14th amend ment was very close to being ratified b y the requisite three fourths of the states when New Jersey and Ohio decided to re scind their ratifications. Ratification by the required twenty-eight states, including those two which decided to re scind, was completed on July 9, 18

68. The Reconstruction Con gress decided not to accept the rescissions. And befor.e,Conc;ress adopted a joint resolution declaring the amendment a part of the Constitution on July 21 1868, two more states, Alabama and Georgia, ratified So the real importa nce of the recissions be came moot since even without the two states which had rescinded there were still twenty-eight states to meet the ratification requirements.

In Coleman v. Miller, the Supreme Court, citing the ratifi cation of the 14th amendment, de clared that the decision of con gress not to accept the rescissions of New Jersey and Ohio was entirely proper because the subject of rescissions was ''a poli tical question pertaining to the political departments, with the ultimate authority in the Congr e ss in the exercise of its control over the promulgation of the adoption of the amendment So the Court stated that it is the proper province of Congress to make a decision about accepting or rejecting rescissions, but the Court did not rule on the constitu t ionality of the act of rescissions itself. The present Congress can take the ruling of Coleman v. Miller as a precedent that declares that only Congress has the authority to decide. But there is no guiding precedent that includes all the circumstances of the present case of the ERA. The magnitude of the problem facing the pre sent Congress is more severe than 'that which faced the Recon struction Congress.

In view of this, Congess will have to take into its con siderations the fact that no amendment has ev er been added to the Constitution without the contemporaneous ratifications of three-fourths of the states. Professor Charles Black of the Yale Law School, in testimony before the House Subcommittee on Civil and Constitutional Rights, stated that "The cru c ial ques tion is whether or not three-fourths of the states favor the amendment at the same time...It me that it woul'd be entirely impermissible to extend the time for ratification without also extending the time for rescission. Extension of tim e, in my view, must be for action on the amendment, and not simply for one kind of action on the amendment."

Professor William Van Alstyne of the Law School of William and Mary, while maintaining on the one hand that an 11 act of ratification within the or period should be deemed conclusive and irrevocable, that is, that each state, acting'within that seven-year period, once having determined to ratify should be held to have exhausted its power for further consideration," on the other hand stated that "to regard a state's ratification as conclusive when made within the originally-provided seven-year period is not the same as to treat it as conclusive after Congress subsequently resolves to provide for still another seven years I do regard i t as fair that a state might reasonably believe that, in light of that extension, its own original ratification should now be subject to reconsideration, i.e., that its original ratification, timely and conclusive when made within the original seven-year p e riod is not necessarily timely or conclusive in light of the greater number of years which Congress has now provided for allowing the proposed amendment to rest before the States ment testified that "We think that the whole history is that Article V as in t erpreted, does not permit states to. rescind or otherwise place conditions upon their ratifications are correct in this view, we think it follows that such a power can be granted only by an amendment to Article'V itself On the opposite side, John Harmon o f the Justice Depart If we CONCLUSION Although Ervin Griswold, former dean of Harvard Law School in his testimony bef-ore the Subcommittee on Civil and Constitu tional Rights, declared that "the only thing that is clear about this question is that no one e x cept five justices of the Supreme Court can answer it with authority," the other six witnesses before the ,subcommittee maintained that Congress, since it has sole authority over amendments to the Constitution, can indeed act to extend the time period. At any rate, that is probably the easiest of the many questions that Congress must'consider.

The following questions will have to be resolved Should the time period be extended at all Should the time period be extended for seven more years? If not, for how m any Since Article V of the Constitution states that Congress acts to propose amendments and then delivers them to the states for consideration would any Congressional action on the ERA at this time be an unwarranted intrusion into the process of ratificat i on which the Constitution declares is the exclusive jurisdiction of the states? 12 If the time period is extended for seven more years can Congress presume that a state ratification in 1972 can be interpreted as contemporaneous consent with a state ratifi c ation in 1986 What is the Congress to do with the thorny problem of rescission? What if more states rescind? Should Congress issue some resolution on this matter now or wait until the ERA receives three more ratifications if,indeed,it does receive those t hree ratifications?

Since both proponents and opponents of the ERA under stood the amendment to have a seven-year life, is it fair or necessary to extend the time period at this late date?

Since the Constitution requires that the original resolution sendi ng .the ERA to the states had to be passed by a two-thirds vote of both houses, should the same vote be required on a resolution to extend the time period? Or can Congress extend the time period with a simple majority vote?

Opponents of the ERA have decla red that they will take any extension resolution to court. Although Congress will probably want to proceed in a manner that will keep the Supreme Court out of the issue, the possiblity of a Court ruling is not out of the question. The Court ruled, in both Coleman v. Miller and Dillon v. Gloss, that it'had not yet se-for intervening into the Congressional prerogative of authority over amendments to the Constitution, and that it did not want to get involved in the process. But there has never been such a com plicated series of legal questions about any proposed amend ment to the Constitution. The possibility that the Court would see a place for itself in this debate-is a real one.

By Tom Ascik Policy Analyst


Thomas R.

Senior Visiting Fellow