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Wh the ERA Remains Legall Viable
and Properl Before the States
(Summar)
[Fll aricle]
The Ea Righ Aede, aed b Cge i 1972, d
hae bece he 27h Aede he Cii if hee-
fh f he ae had aified i b Je 30, 1982. Hee, ha
dae aed ih 35 f he ecea 38 ae aificai.
Iead, he 27h Aede i he "Madi Aede,"
cceig Cgeia a aie, hich e he ae f
aificai i 1789 ad eached he hee-fh ga i 1992.
The fac ha a 203-ea aificai eid a acceed a aid
ha ed ERA e e ha Cge ha he e
aiai he ega iabii f he ERA ad he eiig 35 ae
aificai. If , hee e ae aificai d be
eeded ae he ERA a f he Cii. Lega aai
ig hi aeg a deeed i 1995 b Ai Hed,
She Hed ad Daiee Sage, he hid-ea a de a
he T. C. Wiia Sch f La i Richd, VA. Thei aice,
"Wh he ERA Reai Lega Viabe ad Pe Befe he
Sae," a bihed i he Sig 1997 ie f William & Mar
Journal of Women and the Law.
LEGAL RATIONALE
Aice V f he U.S. Cii gie Cge he e
e a aede ad deeie he de f aificai, b
i i ie a he e f Cge ie ie ii i e
afe aificai b hee-fh f he ae.
Time Limi
A 1921 See C decii (Dillon . Gloss) ecgied ha
Cge ha he e fi a defiie ie ii f aificai; i
a ied ha a aede bece a f he Cii
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once ratiIied by the Iinal state constituting a three-Iourths majority oI
the states. The Dillon Court said that an amendment should be
ratiIied within a "reasonable" and "suIIiciently contemporaneous" time
Irame "to reIlect the will oI the people in all sections at relatively the
same period," because the amendment process is presumably triggered
by a perception oI "necessity" with respect to the subject oI the
amendment.
A 1939 Supreme Court decision (Coleman v. Mille) reaIIirmed the
power oI Congress to Iix a reasonable time period Ior ratiIication but
also determined that Congress has the power to promulgate an
amendment aIter the Iinal state constituting a three-Iourths majority
ratiIies. In Coleman, the Court held that Congress, upon receiving
notiIication oI ratiIication by three-Iourths oI the states, may
determine whether the amendment is valid because it has been ratiIied
in a reasonable period oI time, or whether "the amendment has lost its
vitality through lapse oI time." The Court called the timeliness
decision a "political question" and said that Congress is uniquely
equipped to make that decision because oI its "Iull knowledge . . . oI
the political, social and economic conditions which have prevailed
during the period since the submission oI the amendment."
It is important to note that Congressional promulgation is not a
necessary Ieature oI Article V. In the history oI the amendment
process Congress has promulgated only two amendments, the 14th
and the 27th, Iollowing the Iinal state ratiIication. In addition, the
requirement Ior ratiIication within a "suIIiciently contemporaneous"
time Irame and the chronological deIinition oI "contemporaneous" are
now open to question in light oI the Madison Amendment experience.
The Iirst time limit ever imposed on the ratiIication period oI a
constitutional amendment was in the text oI the 18th Amendment
(Prohibition) in 1917; the seven-year limit was chosen by Congress
without extensive discussion about the particular length oI time. The
19th Amendment (Woman SuIIrage) was sent to the states in 1919
with no time limit, as was a proposed Child Labor Amendment in
1924. Seven-year time limits were placed in the text oI the 20th, 21st,
and 22nd Amendments, but Congress shiIted the seven-year limit out
oI the text and into the proposing clause oI the 23rd, 24th, 25th, and
26th Amendments. The 27th Amendment had no time limit.
Despite arguments by proponents that the Equal Rights Amendment
should go to the states without a time limit in the tradition oI the 19th
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Amendment, the ERA passed Congress in 1972 with a seven-year
time limit in its proposing clause. II the time limit had been placed in
the text oI the amendment itselI, that restriction would not be subject
to alteration by Congress aIter any state legislature had ratiIied.
However, the ERA language ratiIied by 35 states between 1972 and
1982 (see above) did not contain a time limit Ior ratiIication.
By transIerring time limits Irom the text oI an amendment to the
proposing clause, Congress retained Ior itselI the authority to review
the limit and to amend its own previous legislative action regarding
that time limit. In 1978, Congress clearly demonstrated its belieI that it
may alter a time limit in the proposing clause when it passed an
extension oI the original seven-year limit Ior ERA ratiIication and
moved the deadline Irom March 22, 1979, to June 30, 1982. A
challenge to the constitutionality oI the extension was dismissed by the
Supreme Court as moot aIter the deadline expired, and no lower-court
precedent stands regarding that point.
The Cea decision asserted that Congress may determine whether
the states have ratiIied in a "reasonable" time or whether the
amendment is "no longer responsive to the conception which inspired
it." Congress thereIore could determine that the time period since the
ERA went to the states Ior ratiIication in 1972 is "reasonable" and
"contemporaneous" (particularly in light oI the Iact that it deemed the
Madison Amendment's 203 years to be so), and it could decide that
the ERA remains "responsive to the conception which inspired it"
(indisputably so, since the Iact that women's equal rights are not
constitutionally aIIirmed will remain unchanged until the Constitution
is amended or interpreted to establish unequivocally that women and
men have equal rights).
ThereIore, under the principles oI Di and Cea, and based on
the Iact that Congress voted to extend the ERA time limit and to
accept the 203-year-long ratiIication period oI the Madison
Amendment as suIIiciently "contemporaneous," it is likely that
Congress has the power to legislatively adjust or remove the time limit
constraint on the ERA iI it chooses, to determine whether or not state
ratiIications which occur aIter the expiration oI a time limit in a
proposing clause are valid, and to promulgate the ERA aIter the 38th
state ratiIies.
Reciion
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Article V oI the Constitution speaks only to the positive terms oI the
ratiIication process, thus giving the states the power to ratiIy but not
the power to rescind a ratiIication. All precedents concerning state
rescissions oI ratiIications indicate that such actions are not valid and
that the constitutional amendment process as described in Article V
allows only Ior ratiIication. For example, the oIIicial tally oI ratiIying
states Ior the 14th Amendment in 1868 by both the Secretary oI State
and Congress included New Jersey and Ohio, states which had passed
resolutions to rescind their ratiIications. Also included in the tally were
North Carolina and South Carolina, states which had originally
rejected and later ratiIied the amendment. In the course oI
promulgating the 14th Amendment, thereIore, Congress determined
that both attempted withdrawals oI ratiIications and previous
rejections prior to ratiIication were invalid.
In over 200 years oI experience with Article V, covering the
ratiIication oI 27 constitutional amendments, no authorized
decisionmaker has given conclusive validity to a purported rescission.
ThereIore, it is most likely that the acts oI the Iive states which have
attempted to rescind their ratiIication oI the ERA since 1972 are a
legal nullity. (The Kentucky legislature's rescission bill was vetoed by
Lieutenant Governor Thelma Stovall, Acting Governor at the time.)
CONCLSION
While women enjoy more rights today than they did when the ERA
was Iirst introduced in 1923 or when it passed out oI Congress in
1972, hard-won laws against sex discrimination do not rest on any
unequivocal constitutional Ioundation; they can be inconsistently
enIorced or even repealed. Elements oI sex discrimination remain in
statutory and case law, and courts have had diIIiculty applying a
consistent standard to gender-based classiIications, which are not
inherently suspect or comparable to racial or ethnic classiIications
under equal-protection analysis.
The need Ior a Iederal Equal Rights Amendment remains as
compelling as it was in 1978, when now Supreme Court Justice Ruth
Bader Ginsburg wrote in the Harard Women's La Jornal: "With
the Equal Rights Amendment, we may expect Congress and the state
legislatures to undertake in earnest, systematically and pervasively, the
law revision so long deIerred. And in the event oI legislative deIault,
the courts will have an unassailable basis Ior applying the bedrock
principle: All men and all women are created equal."
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