Whatever else one thinks about the Equal Rights Amendment, the campaign for it began in a constitutionally proper way: In 1972, the House and the Senate voted by a two-thirds margin to submit it to the states for ratification. That’s one of the methods Article V of the Constitution sanctions for an amendment.
Congress gave the states seven years to ratify the amendment. But it could not get the three-quarters of the states it needed in the time allotted. (I reviewed the history in NR last year.) Congress extended the ratification deadline by another three years — but, very dubiously, extended it by only a simple majority. A federal court ruled that this was unconstitutional, but the amendment didn’t get any additional state backing anyway.
There the matter stood for decades, with nearly everyone agreed that the amendment was dead. Last year, and again today, the House voted by a simple majority to remove the deadline. Advocates want to treat recent state ratifications as valid, even though they took place decades after either deadline; to ignore four states’ decisions to rescind their ratifications; and to treat the amendment as the 28th amendment to the Constitution.
A few Democratic state attorneys general have sued to get their way even in the absence of Senate passage of the deadline removal. Earlier this month, Judge Rudolph Contreras, an Obama appointee, shot them down by ruling that the deadline expired decades ago.
The late justice Ruth Bader Ginsburg was a strong proponent of the ERA, but she got this much right: If it is to be added to the Constitution, the process needs “to start over.”