In the Beginning
In 2020, the United States marked the 100th anniversary of the addition of the 19th Amendment to our Constitution, extending the privilege of the vote to American women. One of the people spearheading the effort to make this happen was Alice Paul. Born in 1885 to a Quaker family in New Jersey, Miss Paul was well connected. She was descended from William Penn, and had graduated from Swarthmore College, which had been co-founded by her maternal grandfather. But it wasn’t her heritage or connections that got the 19th Amendment passed and ratified. It was her organizational skill and hard, persistent work.
Having succeeded in winning the right to vote for American women, Alice Paul turned her energy and attentions to adding another amendment to the U.S. Constitution, the Equal Rights Amendment. This proposed amendment did not have universal support, even among women. Many feared it would undermine traditions and laws that protected women, especially homemakers.
First formally proposed in Congress in 1923, the Equal Rights Amendment was introduced in every Congress after that, and was included in the platforms of both major political parties a number of times. In 1972, Congress finally passed it and, with the endorsement of President Nixon, sent it to the states for ratification. It read:
Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),
That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
“SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
“SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
“SEC. 3. This amendment shall take effect two years after the date of ratification.”
Note the seven-year deadline for ratification.
Congress passed the ERA on March 22, 1972, and, by the end of that calendar year, it had already been ratified by 22 states. In 1973, eight more states voted to ratify it, bringing to 30 the number who had done so. But Nebraska, which had ratified it in 1972, rescinded its ratification that year. In 1974, three states voted to ratify the ERA, and Tennessee, which had ratified it the year before, rescinded its ratification. One state voted to ratify in 1975 and one in 1977. In each of 1977, 1978 and 1979, however, a state rescinded its vote to ratify. Even without giving effect to the five recissions, then, by the 1979 deadline, only 35 states, not the requisite 38, had ratified the ERA. [For a discussion of the validity of recissions, see discussion beginning on page 31 of the Congressional Research Service’s report on The Proposed Equal Rights Amendment: Contemporary Ratification Issues] So Congress passed, and President Carter signed, a three-year extension, giving states until 1982 to ratify. No additional states ratified during the extended period, though, and, in 1982, ERA’s proponents accepted defeat.
Reviving the ERA
In 2007, taking the position that states do not have the power to rescind their ratifications, ERA advocates initiated a “three-state solution.” If 35 states had ratified the ERA, only three more states were needed to add it to the Constitution. Working assiduously toward this goal, ERA promoters added Nevada, Illinois, and Virginia to their tally in 2017, 2018, and 2020, respectively. So depending on whether you honor the rescissions, the ERA has been ratified by 35 or 38 states.
But wait! The lawmakers who approved the ERA in 1972 attached a seven-year, later extended to a ten-year, deadline for ratification. And that expired in 1982. Do those last three ratifications count?
The General Counsel of the National Archives and Records Administration asked the Department of Justice for advice about the deadline. In response, DOJ’s Office of Legal Counsel issued an Opinion in January 2020. The Opinion starts with an executive summary of its 38 pages of history and analysis:
Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.
Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.
Suing for Recognition
The late-ratifying states have sued the Archivist, seeking to require him to certify the ERA as ratified. They claim that, because the deadline was in the preamble, it is ineffective. In March 2021, Judge Rudolph Contreras, of the United States District Court for the District of Columbia, issued a Memorandum Opinion which explained the issue and answered the question, all in one easy-to-read first paragraph:
Hoping to secure a place in the Constitution for sex equality, Plaintiffs Nevada, Illinois, and Virginia ratified the Equal Rights Amendment (“ERA”) years after many presumed it was dead. They now challenge the refusal of the Archivist of the United States to publish and certify the amendment as part of the Constitution. Laudable as their motives may be, Plaintiffs run into two roadblocks that forbid the Court from awarding the relief they seek. First, the Archivist’s publication and certification of an amendment are formalities with no legal effect. His failure to perform those formalities does not cause Plaintiffs any concrete injury, so they lack standing to sue. Second, even if Plaintiffs had standing, Congress set deadlines for ratifying the ERA that expired long ago. Plaintiffs’ ratifications came too late to count. For those two reasons, the Court dismisses Plaintiffs’ suit.
In response to the plaintiffs’ argument based on the placement of the deadline in the preamble, the court found that:
. . . Congress has routinely put ratification conditions in the preambles of proposing resolutions since the Founding. And that practice is consistent with what few hints the Supreme Court has provided on the subject as well as the common understanding that Congress’s ratification conditions have had meaning even when placed in introductory language. Consequently, the Court holds that the ERA’s ratification deadline is effective despite its location outside the text of the proposed amendment.
Having found two grounds to dismiss the suit, the court did not deal with the effect, if any of the five states’ rescissions of their ratification votes. The plaintiffs have filed notice they will appeal this decision, and it is presently docketed in the United States Court of Appeals for the District of Columbia Circuit.