When Congress proposed the Equal Rights Amendment in March 1972, it included a seven-year ratification deadline, which everyone knew was valid and binding.
In a 1977 report for the U.S. Commission on Civil Rights, then-Professor Ruth Bader Ginsburg wrote that the ERA could become part of the Constitution only if ratification was “completed by 1979.”
It wasn’t. Ratifications stopped in January 1977 at 35 (five of them quickly rescinded), three shy of the 38 the Constitution requires. Rather than make absurd arguments that the ERA was really only hibernating, advocates today should follow then-Supreme Court Justice Ginsburg’s 2020 advice and “start over.”
Afraid that they would fall short by the March 1979 deadline, ERA supporters in 1978 pushed Congress to pass a resolution purporting to extend the deadline to June 30, 1982. The only court to address it found this extension unconstitutional, in part because it passed Congress with less than the two-thirds majority the Constitution requires for proposing constitutional amendments.
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The only reason to attempt an extension at all was that the original deadline was both looming and binding. In fact, shortly after the extended deadline passed with no new ratifications, acting Solicitor General Lawrence G. Wallace wrote in a memo that the ERA “had failed of adoption” because fewer than 38 states ratified it before either the original or the extended deadline.
Even the National Organization for Women conceded defeat, The Washington Post reported. And as the Congressional Research Service has concluded multiple times, the 1972 ERA “died on June 30, 1982.”
Was Michigan Democratic Rep. Martha Griffiths, the 1972 ERA’s own sponsor, wrong when she agreed to add a binding seven-year deadline to gain further support? Was Rep. Elizabeth Holtzman, New York Democrat, wrong to introduce the deadline extension resolution because the original deadline was binding? Were the U.S. District Court, acting solicitor general, and Congressional Research Service all wrong that the 35 ratifying states fell short when the deadlines passed?
Virginia Deputy Attorney General Walter S. Felton Jr. said in 1994 that “the ERA was not currently before the states for ratification because its original and extended time limits had expired.” Even National Public Radio has reported that the 1972 ERA “fell short and expired in 1982.” Were they all wrong? No. What did they all miss? Nothing.
The current claim that the ERA was only “mostly dead” all those years balances on an exceptionally slim reed. The argument is that the ratification deadline in House Joint Resolution 208, which Congress passed in March 1972, appears not in the text of the proposed ERA but a few inches up the page in the resolutions’ introductory clause. Yup, that’s it.
Here’s one of many problems with this weak argument. Article V of the Constitution gives Congress two powers related to constitutional amendments. The Supreme Court has held that Congress’ power to propose constitutional amendments includes the power to set ratification deadlines.
Article V also gives Congress the power to dictate whether ratification must be made “by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” Congress has always provided for the mode of ratification the proposing resolution’s introductory clause, never in the text of the proposed amendment.
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If a ratification deadline in the introductory clause is invalid, then so is a mode of ratification designation. States would be free to disregard Congress’ instruction and ratify a proposed amendment by any method they choose. ERA supporters cannot have it both ways, and so they must come up with an answer to this obvious implication of their argument.
In January 2021, Sen. Ben Cardin, Maryland Democrat, introduced Senate Joint Resolution 1, purportedly to remove the ratification deadline in the 1972 ERA. The deadline extension resolution in 1978, as contentious as it was, was at least passed before the original March 1979 expiration date. The 1972 ERA was at least still pending before the states. But Congress cannot amend or change a legislative measure that has not existed for more than 40 years.
Mr. Cardin has introduced a similar resolution, Senate Joint Resolution 4, which is even more problematic. Rather than saying that “whenever ratified by the legislatures of three-fourths of the several States,” it argues that the 1972 ERA has actually “been ratified by the legislatures of three-fourths of the several States.” Even if the 1972 ERA were still alive, Congress has no power to determine whether a proposed constitutional amendment has been ratified.
Congress’ power to set a ratification deadline, not where on the page Congress chooses to put it, determines whether the deadline is valid. The 1972 ERA died no later than June 30, 1982. Everyone knew it then, and ERA advocates should accept it now.
This piece originally appeared in The Washington Times