Bench Memos

Law & the Courts

Justice Ginsburg Slays the ERA Zombie

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 As of that date, only 35 states had ratified the ERA (and four or five of those 35 had rescinded their ratifications).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.” Every amendment but one that Congress has proposed since then has included a seven-year period for ratification. (For the 20th, 21st, and 22nd amendments, that time period was set forth in the text of the amendment; for the 23rd, 24th, 25th, and 26th amendments, as for the ERA, the time limit was in Congress’s proposing clause.)

Despite the fact that the ERA expired more than forty years ago, Democrats in Congress are now pretending that a joint resolution of both Houses of Congress could somehow revive the zombie. (I don’t see how a joint resolution adopted by 2/3 of each House—the threshold needed for Congress to propose an amendment—could perform the miracle; the idea that a majority vote in each House could do so simply adds to the absurdity.) A House floor vote on the joint resolution is scheduled to take place on Thursday. But perhaps it would be better not to go forward with the charade.

In remarks yesterday at Georgetown law school Justice Ruth Bader Ginsburg declared the plain reality that Virginia’s recent purported ratification of the ERA came “long after the deadline passed.” Observing further that “a number of states have withdrawn their ratification,” Ginsburg wondered how those who maintain otherwise could “count a latecomer on the plus side” yet fail to subtract rescinding states. Ginsburg made similar remarks last September, when she noted that any effort to adopt the ERA would require “starting over again.” (I don’t think that Ginsburg should be persisting in her practice of commenting publicly on contested legal and political matters, but at least in this instance her comments are on target.)

On this same question of rescinding states, there appears to be some interesting discord on the Left. A reliable source has forwarded me a February 6 email (highlights in original; most recipients and phone number redacted) that Ellen Nissenbaum, senior vice president for government affairs for the liberal Center on Budget and Policy Priorities, sent to a group of Democratic congressional staffers. In her email, Nissenbaum notes that five states rescinded their ratifications of the ERA, and she complains that “Many of the [sic] those promoting the ERA now choose to ignore those rescissions – and some even go so far as to argue the rescissions don’t count.” (Emphasis in original.)

Nissenbaum is alarmed about ongoing conservative efforts to have a balanced-budget amendment (BBA) proposed by a convention called by 2/3 of the states—the alternative means that Article V of the Constitution provides for proposing amendments. Noting that eight states have rescinded their calls for an Article V convention to propose a BBA, she fears that the position that “rescissions don’t count” “will hand a powerful argument to the right that will be used in court to undercut these 8 BBA rescission [sic] – and we could find ourselves on our way to a new Constitutional Convention.” (Emphasis in original.) She continues:

It’s extremely important that members do not go to the floor to argue that state rescissions of the ERA do not count, because that will be used by the right to argue state rescissions of the BBA do not count.    Ideally, Members would not say that VA’s ratification brings them to 38 states – which implies rescissions don’t count, but that may be hard to stop VA Dems from saying this.  From a legal perspective, it’s most important for Members to just not talk about the rescissions at all on the floor. [Emphasis in original.]


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