Congress Pushing to ‘Ratify’ ERA by Fiat

Amending the Constitutional through unconstitutional means is a very bad idea.

A bizarre and troubling proposal has bipartisan sponsorship in the United States House and Senate.

U.S. Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) announced Thursday that the first bipartisan legislation they will introduce for the 117th Congress is their joint resolution to remove the deadline to ratify the Equal Rights Amendment. Ratification of the ERA would expressly prohibit discrimination on the basis of sex in the U.S. Constitution. In the House of Representatives, the resolution is being introduced by Congresswoman Jackie Speier (D-Calif.) and Congressman Tom Reed (R-N.Y.).

Almost exactly one year ago, in January 2020, Virginia became the 38th state to ratify the ERA, which was first proposed in 1972. Congress has the authority under Article V of the Constitution to set and change deadlines for the ratification of constitutional amendments, and has done so on numerous occasions. In 1992, the 27th Amendment to the Constitution, prohibiting immediate congressional pay raises, was successfully ratified after 203 years. That amendment was initially proposed as part of the original Bill of Rights in 1789.

“There should be no time limit on equality. Even as we celebrate America’s first female Vice President, our nation is held back as the only modern constitution that fails to enshrine full equality for both men and women. This is unacceptable,” said Senator Cardin. “Most Americans are surprised to learn that the ERA is not already part of the U.S. Constitution. The states have done their job to make this happen. Now Congress must finally do its job and remove any legal obstacles to certifying the ERA.”

“As we begin a new Congress, I can think of no better legislation to lead with than one that removes impediments to find ratification of the Equal Rights Amendment—an amendment that firmly embeds in law equality between men and women. We first moved the ERA through Congress back in 1972, but we stalled out on certification by the states until last year when Virginia ratified the ERA. After years of work alongside Senator Cardin, I urge my colleagues to join us in ensuring equality for all,” said Senator Murkowski.

“Since our country’s founding, women have been left out of the Constitution – intentionally. We were second-class citizens deprived of basic rights to vote, enter most jobs, or own property. To this day, we are paid less for our work, violated with impunity, and disproportionately suffer the burden of the COVID-19 pandemic. Enough is enough. With President Biden and Vice President Harris at the helm, this will finally be the year we ratify the ERA to the Constitution,” said Congresswoman Jackie Speier, Co-Chair of the Democratic Women’s Caucus.

“We care about ensuring every individual in our great nation, regardless of gender, has the opportunity to enjoy the same basic rights before the law. For survivors of sexual violence, pregnancy discrimination, or unequal pay, the ratification of the ERA will be a critical step towards equal justice,” said Congressman Tom Reed. “This isn’t an issue of politics – it’s an issue of fairness for all Americans. Congress must press forward and end any unnecessary barriers to the ratification of the Equal Rights Amendment.”

There’s more but you get the drift.

I’m skeptical that the ERA isn’t redundant. Indeed, both legislation and Supreme Court rulings since the amendment’s failure have gone well beyond its original intent. Indeed, we’re well past reductio creep, with same-sex marriage and transgender rights the law of the land.

Still, I can understand the emotional and symbolic value of putting gender equality directly into the Constitution. That’s especially true in light of so many Trump-appointed judges and justices now having a say on interpretation.

But this is not the way to do it.

In the modern era, most Amendments passed by Congress have come with an expiration clause, requiring that the minimum 38 states required for ratification do so within a given period, typically seven years. That makes perfect sense, in that it conveys a relatively contemporaneous agreement on a change to our foundational governing document. Otherwise, we’re left with nonsense like the 27th Amendment, which was passed as part of the Bill of Rights by the first Congress in 1789 but not ratified for over 200 years.

The Equal Rights Amendment expired on March 22, 1979. Joe Biden was a young man, then. Pete Buttigieg, our soon-to-be Transportation Secretary, was not born. Alexandria Ocasio-Cortez would not be born for another decade.

Congress passed and President Jimmy Carter—Jimmy Carter!—signed an extension through June 30, 1982. It was almost certainly unconstitutional but, since no more states ratified, it became a moot point. (Buttigieg was now in diapers.)

In between, incidentally, several states passed resolutions rescinding their ratification. It’s unclear whether that’s a thing.

Regardless, if Congress wants to put an ERA into the Constitution, they should start fresh. Write a new Amendment, preferably one that takes into account the society changes over the past four decades. And then send it back to the states—with an expiration date—and get it ratified.

FILED UNDER: Gender Issues, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SKI says:

    Congress passed and President Jimmy Carter—Jimmy Carter!—signed an extension through June 30, 1982. It was almost certainly unconstitutional

    James, just because you don’t like something, doesn’t make it unconstitutional.

    Congress extending the deadline isn’t unconstitutional. Nothing in the Constitution prohibits it.

    Now, I think there is a problem ratifying right now as some of the states have rescinded their ratification meaning it is less than 75% right now but nothing in Article V of the Constitution prohibits Congress changing the rules.

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  2. James Joyner says:

    @SKI:

    James, just because you don’t like something, doesn’t make it unconstitutional.

    The deadline was in the Resolution passed by Congress and ratified by the states. There’s a pretty strong consensus among legal scholars that the Amendment died at that point.

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  3. SKI says:

    @James Joyner: As I noted, there may be legal challenges to the ratifications but that doesn’t make it “unconstitutional” for Congress to extend the deadline – which was your claim I quoted. It may make the ratifications ineffective.

    Just as SCOTUS, in Dillon v Gloss (1921) said Congress *could* set time limits on ratification (something not specified in Article V), they also, in Colemen v. Miller (1939), held that it is solely the determination of Congress as to whether ratification is made in a timely fashion.

    When a proposed amendment springs from a conception of economic needs, it would be necessary, in determining whether a reasonable time had elapsed since its submission, to consider the economic conditions prevailing in the country, whether these had so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it, or whether conditions were such as to intensify the feeling of need and the appropriateness of the proposed remedial action. In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political, and not justiciable. They can be decided by the Congress with the full knowledge and appreciation ascribed to the national legislature of the political, social, and economic conditions which have prevailed during the period since the submission of the amendment.

    Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question — what is a reasonable time — lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.

    Also, I would not agree that there is a “strong consensus”. It definitely isn’t a fringe position but I don’t think it is the slam dunk you are stating.

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  4. James Joyner says:

    @SKI:

    It definitely isn’t a fringe position but I don’t think it is the slam dunk you are stating.

    There are arguments being made on both sides and there are really very few tests at the SCOTUS level because the deadline issue has largely been moot. That is, in all the previous amendments with deadlines, enough states passed them very quickly that it made no difference.

    Regardless, it seems obvious to me that overruling four states that have rescinded their ratification, overruling the contemporaneous statement from Congress that there was a deadline, and passing a nearly five-decade-old amendment is unconstitutional. The Supreme Court might disagree if it makes it that far. But that only settles what can be gotten away with, not what the Constitution reasonably requires.

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  5. JohnMcC says:

    The sausage making machine is frequently lubricated with hypocrisy. IANAL and leave the discussion to those qualified. But I will remark that the headline is rather inaccurate. Doesn’t seem like Congress is taking the actual ‘ratification’ upon themselves.

    But I’m inclined toward pedantry.

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  6. SKI says:

    @James Joyner:

    it seems obvious to me that overruling four states that have rescinded their ratification, overruling the contemporaneous statement from Congress that there was a deadline, and passing a nearly five-decade-old amendment is unconstitutional.

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    Here is Article V.

    The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

    Point to the text that prohibits delayed ratification or stop calling it unconstitutional.

    You can definitely argue that, legislatively or morally, it is improper and the ratifications are invalid – especially the ones that were explicitly rescinded. But you will find no support in the text of Article V.

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  7. James Joyner says:

    @SKI: The Supreme Court has recognized, for at least a century, that there was inherently an expectation of contemporaneity in the amendment process. The whole point of having the three-fourths requirement for ratification was to require a wide consensus.

  8. SKI says:

    @James Joyner: Did you read what I posted from SCOTUS? They explicitly stated that whether or not the amendment is still relevant is a political, not justicial, question and left to the discretion of Congress.

    You have an opinion on how to answer that question., I don’t think its wrong but I do think it isn’t mandated by the Constitution. It is not “unconstitutional” for Congress to disagree with your opinion.

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  9. Kathy says:

    Regardless, if Congress wants to put an ERA into the Constitution, they should start fresh. Write a new Amendment, preferably one that takes into account the society changes over the past four decades. And then send it back to the states—with an expiration date—and get it ratified.

    If they do this, it will likely languish way past the deadline for decades, and then when it finally gets enough ratifications to pass, someone else will propose we start fresh again.

    It’s a never-ending game of whack-a-mole. There will always be a group excluded and they will face some form of discrimination.

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  10. Andy says:

    So according to this theory, an amendment, once proposed and passed by Congress, can never actually die – it can be resurrected at any time by extending the deadline and does not need to be reauthorized by Congress. For example, by this logic, Congress could extend the deadline of the Corwin amendment and bring it back to life.

    In my view, this is not the intent of the Constitution, but I’m not sure it’s unconstitutional. Regardless, I think it’s bad to attempt this. Process matters, especially in terms of legitimacy. And when it comes to changing the Constitution, legitimacy is paramount.

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  11. Moosebreath says:

    @James Joyner:

    “The Supreme Court has recognized, for at least a century, that there was inherently an expectation of contemporaneity in the amendment process.”

    And yet no one is claiming that the 27th Amendment is unconstitutional, even though it took more than 2 centuries to be ratified from when Congress approved it:

    “On May 20, 1992, under the authority recognized in Coleman, and in keeping with the precedent established regarding the ratification of the Fourteenth Amendment, each house of the 102nd Congress passed its own version of a concurrent resolution agreeing that the amendment was validly ratified, despite the unorthodox period of more than 202 years for the completion of the task. The Senate’s approval of the resolution was unanimous (99 to 0) and the House vote was 414 to 3.”

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  12. Dick Nielson says:

    Time limits are not in the constitution. They are a procedural rule added by the legislature. That means that a legislature from a later time can modify those rules. They are not fixed in the constitution but by the legislative bodies. It makes bad precident, but can be done.