Bench Memos

Law & the Courts

Highly Dubious Ratification Tally for Equal Rights Amendment

In the various articles eagerly anticipating whether Virginia or Arizona or some other state will become the decisive 38th state to ratify the Equal Rights Amendment, very little attention seems to be given to how dubious it is to contend that there is a live tally of 37 states. There are lots of contested issues here, and it might take a long law-review article to address them all, so please just take this as an identification of some major issues:

1. In 1972, when Congress proposed the Equal Rights Amendment to the states for ratification, it specified a seven-year period for ratification. That seven-year period expired on March 22, 1979. As of that date, only 35 states had ratified the ERA (and four or five of those 35 had rescinded their ratifications).

Congress’s authority to impose deadlines on ratification has long been recognized. In its unanimous ruling in Dillon v. Gloss (1921), the Supreme Court held that Congress had the power to include a seven-year period for ratification in the 18th Amendment: “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.”

In short, there is a very strong argument that the deadline for ratifying the ERA expired forty years ago.

2. In October 1978, before the original deadline passed, Congress purported to extend the deadline until June 30, 1982. It did so by majority vote of each House, not by the 2/3 vote needed for proposing amendments. No additional states acted to ratify the ERA within that extended deadline.

There is a very strong argument that Congress lacked the authority to extend the deadline altogether and that, in any event, it couldn’t do so by simple majority. But even on the theory that it had that authority, the ERA did not obtain the necessary additional ratifications within that period. So on that theory, the time to ratify the ERA expired nearly 37 years ago.

Indeed, there was a widespread consensus at the time that the amendment proposed in 1972 was dead. Even supporters of the ERA recognized that they needed to start over after the 1982 deadline passed. That’s why they attempted to have Congress re-propose the ERA. But the effort failed in the House, falling six shorts vote of the two-thirds needed.

3. Congress has never purported to extend the June 30, 1982, deadline. If it ever did, its power to extend a deadline that has already passed (long ago) is even more dubious than its power to extend the initial deadline.

In 1981, a federal district court ruled that Congress could not lawfully extend the ratification deadline. On review in the Supreme Court after the extended deadline of June 30, 1982, had passed, the Solicitor General’s Office advised the Court that the states’ failure to ratify the ERA by the extended deadline rendered the matter moot. In October 1982, the Court entered an order dismissing the case as moot. That dismissal clearly signals the Court’s judgment that ratification of the ERA had failed. So how could state ratifications now revive something that died long ago?

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