Equal Rights Amendment Cannot Be Ratified for One Rather Simple Reason

COMMENTARY The Constitution

Equal Rights Amendment Cannot Be Ratified for One Rather Simple Reason

Apr 30th, 2020 2 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.

Key Takeaways

In 1978, Congress passed a controversial resolution extending the state ratification deadline to June 1982, although no more additional states had ratified it.

The Congressional Research Service has repeatedly declared that the 1972 Equal Rights Amendment technically “died” in June 1982.

Congress can no more amend House Joint Resolution 208 than it could amend the resolution introduced last year, during the 115th Congress. Neither of them exists.

Congress may soon consider House Joint Resolution 79, which appears to amend the resolution proposing the Equal Rights Amendment to remove its ratification deadline. The problem is that the previous measure, House Joint Resolution 208, no longer exists. It was adopted in March 1972 and included a seven year ratification deadline. When the deadline had passed with less than the 38 ratifying states the Constitution requires, it expired.

Efforts to add the Equal Rights Amendment to the Constitution began in the 1920s, and resolutions for proposing it have been introduced in almost every Congress since then. Only one of them, House Joint Resolution 208, had the necessary supermajority support for proposing an amendment to the Constitution. As it had done before, Congress included a seven year ratification deadline. By that deadline, 35 states had ratified the Equal Rights Amendment, and five of those states rescinded their ratification.

In 1978, Congress passed a controversial resolution extending the state ratification deadline to June 1982, although no more additional states had ratified it. So it is no wonder, therefore, that the Congressional Research Service has repeatedly declared that the 1972 Equal Rights Amendment technically “died” in June 1982. It should not require saying so, however, the House is not able to amend a resolution that in fact no longer exists.

The House certainly knows it. The website of the House Clerk has a tab for frequently asked questions. One of them asks, “When does a bill become ‘dead’ or no longer open to consideration?” The answer on the website is, “A bill may be introduced at any point during a two year Congress. It will remain eligible for consideration throughout the duration of that Congress until the Congress ends or adjourns.” So when does a joint resolution for proposing an amendment to the Constitution expire and, therefore, is no longer eligible for consideration in Congress? Here are three possibilities.

First, if Congress fails to adopt such a resolution, it dies at the end of the two year Congress in which it was introduced. That is why over 1,100 joint resolutions for the Equal Rights Amendment have been introduced since the 1920s. They expire and the process must start over. This does not apply to the resolution proposing the 1972 Equal Rights Amendment.

Second, if Congress adopts a resolution proposing an amendment to the Constitution without a ratification deadline, the resolution expires when 75 percent of the states ratify the proposed amendment. This can take a very long time. The 38th state had ratified the most recent amendment, regarding pay raises in Congress, more than 200 years after Congress proposed it without a deadline. This option also does not apply here.

Third, if Congress adopts a resolution proposing an amendment to the Constitution that does have a ratification deadline, the resolution expires when 75 percent of the states ratify the proposed amendment or when the ratification deadline passes, whichever one ends up coming first.

The 1972 Equal Rights Amendment is in the third category. Congress had adopted House Joint Resolution 208 with a seven year state ratification deadline. That deadline passed with fewer than 38 ratifying states. The resolution, therefore, is dead and, in the words of the House Clerk, “no longer open to consideration.” Congress can no more amend House Joint Resolution 208 than it could amend the resolution introduced last year, during the 115th Congress. The reason is simple. Neither of them exists.

House Joint Resolution 79, introduced last fall, has 224 cosponsors. This means that a majority of House members, therefore, have deliberately disregarded one of the most basic operating principles of the legislative process. States can no longer ratify the 1972 Equal Rights Amendment, and Congress can no longer amend the resolution that has proposed it.

This piece originally appeared in The Hill on 02/06/20