Earlier today, the Senate voted 51–47 on whether to consider Senate Joint Resolution 4, which purports to eliminate the seven-year ratification deadline in the 1972 resolution proposing the Equal Rights Amendment (ERA). With fewer than 60 votes, the cloture vote failed, but every senator, whether supportive of or opposed to the ERA itself, should have rejected this charade.
Senator Ben Cardin (D., Md.) has introduced similar resolutions every other year for the past decade. Why did he keep starting over? Because, as every member of Congress knows, bills or resolutions that receive no action during the two-year Congress in which they were introduced expire when that Congress finally adjourns. Resolutions that Congress passes to propose a constitutional amendment also have expiration dates.
If Congress passes a resolution to propose a constitutional amendment without a ratification deadline, it remains pending before the states until, per Article V of the Constitution, three-fourths of the states ratify it. While that usually happens quickly, the most recent ratification, of the 27th Amendment regarding congressional-pay raises, took more than 200 years.
A resolution to propose a constitutional amendment that does have a deadline, however, expires when ratified by three-fourths of the states or when the deadline passes with insufficient state support, whichever comes first. That was the fate of the 1972 ERA. Congress proposed it on March 22, 1972, with a seven-year deadline. Thirty-five states ratified it by the deadline, short of the three-fourths threshold, and five of those ratifying states had already withdrawn their support.
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Congress passed a resolution purporting to extend the original deadline to June 30, 1982, but no additional state got on board. The tally remained at 30 unrescinded ratifications. This is why the Congressional Research Service has repeatedly observed that the 1972 ERA “formally died on June 30, 1982.” It expired more than 40 years ago and is no longer pending before the states to be ratified, let alone pending before Congress to be retroactively amended.
This is why the Cardin resolution, and today’s vote on it, is a genuine charade. Congress cannot amend a resolution that it passed more than 50 years ago and that no longer exists.
Cardin’s current resolution, however, has some new language that presents its own problems. Unlike the previous versions, Resolution 4 also declares that the 1972 ERA has already been fully ratified and is part of the Constitution. Even if Congress had any authority to make a proposed amendment part of the Constitution, the idea that the 1972 ERA has been ratified is patently false. It is based on the fiction that three states—Nevada, Illinois, and Virginia—validly ratified the 1972 ERA in the last several years, decades after it had ceased to exist.
Congress has no such authority anyway. Cardin should read Article V of the Constitution that he has sworn to support and defend. Congress’s only powers in the constitutional amendment process are to propose amendments and to choose their “mode of ratification,” that is, whether states must act through their legislatures or in conventions. That’s it.
Even liberal constitutional scholars, including those whose views congressional Democrats are normally eager to promote, agree on this. The late Duke Law School professor and former acting solicitor general Walter Dellinger, for example, wrote that Article V “requires no additional action by Congress or by anyone else after ratification by the final state.” “The creation of a ‘third step’—promulgation by Congress,” he said, “has no foundation in the text of the Constitution.”
Both parts of the Cardin resolution—amending a 50-year-old resolution that no longer exists and asserting authority that Congress does not possess—make that resolution a legislative absurdity. To be sure, the Senate or House votes on legislative measures that, with no hope of passage, promote a particular message. Those measures, however, are typically real; the Cardin resolution is pure fiction.
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The truth is that ERA supporters in Congress have introduced more than 1,100 resolutions to propose the ERA since its first appearance a century ago. Representative Martha Griffiths (D., Mich.) introduced one in six successive Congresses before; after she agreed to add a ratification deadline, her colleagues finally voted to propose it. She kept starting over because, each previous resolution having expired, she had to.
Starting over is the only option for ERA supporters today. No less a women’s-rights pioneer than the late justice Ruth Bader Ginsburg urged them to do just that. In an interview a few months before her death in 2020, Ginsburg said:
I’d like it to start over. . . . There’s too much controversy about a latecomer [state] like Virginia ratifying long after the deadline passed. Plus, a number of states have withdrawn their ratification. If you count a latecomer on the plus side, how can you disregard states that said, ‘We’ve changed our minds’?
ERA supporters are desperate to find signs of life in the 1972 ERA because it is the only ERA that Congress will likely ever propose. Less than one year after the 1972 ERA died, Congress voted 278–147 (far below the necessary two-thirds) on a resolution to propose the identical language. And it has only become more controversial since, with advocates saying it could be used to establish abortion rights, promote the LGBTQ agenda, and much, much more.
The 1972 ERA is dead. Pretending Congress can resuscitate it will not only fail but further erode public confidence in Congress itself.
This piece originally appeared in the National Review