Under Article V of the Constitution, two-thirds of Congress can propose constitutional amendments and, after 50 years of trying, sent the Equal Rights Amendment to the states in March 1972 with a seven-year ratification deadline.
Even after a disputed deadline extension, only 35 of the necessary 38 states had approved the ERA, and five of those states quickly withdrew their support.
The Congressional Research Service has repeatedly said that, as a result, “the ERA formally died on June 30, 1982.” Maybe not. Four decades later, Illinois and Nevada are suing the archivist of the United States, claiming that the ERA is already part of the Constitution after all.
Their case was argued before the U.S. Court of Appeals for the District of Columbia Circuit this week.
What’s going on?
Constitutional amendments proposed by Congress begin as resolutions introduced in the House or Senate. Of the thousands of resolutions, on a host of subjects, introduced since America’s founding, only 33 had the two-thirds support of Congress to be proposed, and 27 of those were approved by three-fourths of the states.
Four of the unratified amendments are still pending before the states because Congress did not set a ratification deadline, though no states have ratified any of them for nearly a century. One amendment, proposed in 1978 to give the District of Columbia congressional representation, expired when only 16 states ratified it by its seven-year ratification deadline.
That leaves the ERA.
The last state to ratify the ERA before its expiration date was Indiana in 1977. Then, Illinois passed a resolution purporting to ratify in 2017, Nevada did so in 2018, and Virginia followed in 2020.
Advocates claim that these “ratifications” were valid even decades after the deadline, while ratification rescissions by five states before the deadline were invalid.
Do the math, they say, 38 total states means the ERA is officially part of the Constitution. On advice of the Justice Department, however, the archivist of the United States concluded that those approvals were not legally sufficient, and the three latecomers originally sued in 2020 to force the archivist to officially publish in the Federal Register that the ERA is part of the Constitution.
With Virginia now under more sensible political and legal leadership, Illinois and Nevada pressed on.
ERA advocates do not claim that Congress lacks authority to set a ratification deadline at all. Nearly one-third of the amendments in the Constitution were proposed and ratified under a deadline. More than a century ago, the Supreme Court held that Congress’ authority under Article V to propose constitutional amendments includes the power “to fix a definite period for the ratification.”
Nor do ERA advocates argue that Congress’ ratification deadline for the ERA was questioned or disputed by anyone when it was proposed. Resolutions to propose the ERA had included ratification deadlines since the 1940s.
Supporters said in 1972 that such a deadline was “customary,” and the National Woman’s Party, which originated the ERA in the 1920s, said that the ERA’s backers would have no objection to it.
In a 1977 report co-authored by then-professor Ruth Bader Ginsburg, the U.S. Commission on Civil Rights acknowledged that the ERA would become part of the Constitution only if ratified by enough states within Congress’ seven-year deadline.
And when Congress extended that deadline by 39 months, the President’s Advisory Committee for Women conceded “three more states must ratify the ERA by [the June 30, 1982, deadline] if it is to become an amendment to the Constitution.” The only federal court to rule on the question said that the original deadline was firm and that the extension was unconstitutional.
Nor can supporters dispute that the ERA’s extended ratification deadline ended decades ago. In June 1982, five days before the ERA’s final expiration date, The Washington Post reported that the National Organization for Women had “concede[d] defeat,” ending its battle for the ERA’s ratification.
The Justice Department’s Office of Legal Counsel concluded the obvious in a 2020 opinion: “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 States.”
The slim reed on which Illinois and Nevada base their claim is that Congress placed the 1972 ERA’s ratification deadline in the wrong place. It appears in the introductory clause of the proposing resolution rather than the text of the proposed amendment itself, and advocates claim that, therefore, it was not part of what the states ratified.
Everything rests on that distinction making an enormous constitutional difference. That’s the issue that the appeals court explored on Wednesday.
Where the deadline appears on the page, however, is irrelevant to whether the ERA remains open for ratification 40 years after everyone agreed it had died.
When Congress proposes a constitutional amendment, it votes on the proposing resolution, not simply on the amendment text. Testimony in 1978 during hearings on the ERA’s ratification extension established that 25 states passed an ERA ratification resolution that quoted Congress’ resolution in its entirety, including the ratification deadline.
In five other states, the record shows that the deadline was an explicit consideration during the ratification process.
ERA advocates are throwing some pretty dry legal spaghetti against the judicial wall and hoping it sticks in this case. Reviving the ERA, which—to again quote the Congressional Research Service—“formally died” 40 years ago is their only hope of ever getting something like this in the Constitution.
The original case for the ERA—namely, that states would not eliminate discriminatory laws and the courts would not interpret the Constitution to do so without it—evaporated long ago.
After joining the Supreme Court, Ginsburg said in a 1997 interview that “[t]here is no practical difference between what has evolved and the ERA.” In this case, the U.S. District Court dismissed the states’ lawsuit, finding that the states did not have legal standing to sue the archivist and that “even if Plaintiffs had standing, Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count.”
The appeals court panel hearing from Illinois and Nevada included Judges Neomi Rao, appointed by President Donald Trump; Robert Wilkins, appointed by President Barack Obama; and, in her first oral argument, Michelle Childs, appointed by President Joe Biden.
During the argument, Wilkins acknowledged the Supreme Court precedents upholding Congress’ authority to set a ratification deadline, and Rao called the standing issue “tricky.” Since the requisite number of approving states, not the archivist’s announcement, determines final ratification, Rao said, the archivist’s decision not to issue that announcement does not legally harm Illinois or Nevada.
The Justice Department filed a brief agreeing with the 2020 opinion that Illinois and Nevada do not have legal standing to bring the lawsuit. Attorney Sarah Harrington suggested that a case in which legal standing is clear might be a better way to address the underlying issue of the ERA’s status.
This case in the D.C. Circuit parallels one brought in the 1st Circuit, which last year affirmed a district court’s dismissal on standing grounds.
The ERA has certainly acquired symbolic significance, even as the concrete need for it has disappeared. Its backers want to hang onto it for a host of other purposes, including to reestablish a constitutional right to abortion and block state pro-life laws.
But expiration dates matter, and even then-Justice Ginsburg said that the proposal and ratification process should start over. That should be an easy decision.
This piece originally appeared in The Daily Signal