The United States of America could be mere weeks away from adding the first new amendment to her constitution in a generation, according to some liberal legal theorists and the mainstream media.
Remember the Equal Rights Amendment? In 1972, Congress sent the amendment, which declares that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” to the states for ratification. In short order, many states ratified it, but then Phyllis Schlafly and friends began warning their countrymen and countrywomen about all sorts of unintended consequences — from conscripting women into war to ending single-sex public restrooms — and ratification efforts ground to a halt.
Thirty-five state legislatures had passed the ERA — three states short of the three-fourths required for adoption — before the amendment’s deadline for ratification expired on March 22, 1979. In 1978, a simple majority of Congress purported to extend the deadline attached to the amendment until 1982, but the Supreme Court never ruled on the constitutionality of Congress’s action because no more states ratified the amendment.
Four decades later, the Equal Rights Amendment is nonetheless very much alive — or at least very much undead — according to congressional Democrats.
“Congressional Democrats to Revive Equal Rights Amendment Push,” read a New York Times headline on November 7. “The Equal Rights Amendment Is an Artifact No More,” The Atlantic declared on November 8.
Why after so many years are Democrats attempting to exhume the ERA? Liberal legal activists have promoted the theory that the seven-year deadline that a supermajority of Congress attached to the ERA in 1972 either is invalid or may be lifted ex post facto by a simple majority of Congress. And issues that once made the ERA toxic — from taxpayer funding of elective abortion to transgender rights — no longer split the Democratic party.
In recent years, Democratic state legislatures have acted on the theory that the 1972 ERA is still alive. The Nevada legislature passed it in 2017. Illinois followed suit in 2018. What brought the ERA back into the news this month were the elections that flipped Virginia’s legislature from Republican to Democratic control. Virginia Democrats have promised to pass the ERA when they take power in January 2020.
“We fully anticipate that there will be a Supreme Court decision involved in this,” Krista Niles of the Alice Paul Institute, a major backer of the ERA, told the New York Times. “Both sides of the argument have lawyers waiting to file their amicus briefs at any moment that the 38th state does ratify.”
But it simply defies logic that a simple majority of Congress may now alter the terms of an amendment passed by a constitutionally required supermajority of Congress in 1972. Michael Stokes Paulsen of the University of St. Thomas called that theory “frivolous” in a letter to Congress. As he wrote in The Yale Law Journal in 1993:
Any change in the terms of the original amendment proposal logically invalidates the ratifications of states that had voted for the earlier version. By changing the terms of the earlier amendment proposal — by adopting new legislation — Congress in effect proposes an entirely new constitutional amendment (albeit largely identical in substance), requiring the states to start all over again with new ratifications.
The theory that Congress lacks the power to attach any deadline to a constitutional amendment “is legally preposterous — utterly meritless to the point of foolishness,” Paulsen wrote to Congress this year.
Those who contend that the 1972 ERA did not expire in 1979 toss out several red herrings. They point out that adoption of the most recent amendment to the United States Constitution took 203 years: the 27th Amendment, also known as the “Madison Amendment,” which forbids congressional pay raises to take effect until after a new election takes place, was proposed in 1789 and adopted in 1992. The key difference between the Madison Amendment and the Equal Rights Amendment is that the Madison Amendment did not have any deadline attached to it.
“You don’t have to impose a ratification deadline if you don’t want to, but if you do, it sticks,” Professor Elizabeth P. Foley of Florida International University said in congressional testimony earlier this year. While the news pages of the New York Times recently informed readers that “constitutional amendments don’t normally have ratification deadlines,” Foley correctly observed that “every amendment proposed by Congress since 1917 (beginning with the Eighteenth Amendment) has contained an express seven-year ratification deadline.” As Foley noted, the Madison Amendment is an outlier in the Constitution; every other amendment was ratified in less than four years.
ERA advocates grasp at straws when they argue that the ERA’s deadline is invalid because it is not included in the text of the amendment, only in the preamble. A Congressional Research Service report notes that Congress, “having determined that inclusion of the time limit within [the amendment’s] body ‘cluttered up’ the proposal,” consequently “placed the limit in the preamble, rather than in the body of the amendment itself.”
“Congress can put a deadline in its enacting legislation or it can put it right in the constitutional amendment. There’s no material difference in terms of when the proposal itself expires,” Paulsen tells National Review. “Congress is the master of its proposals and can attach whatever conditions substantively to the period of ratification [that] it wishes.”
Paulsen is confident that the Supreme Court would not recognize adoption of the ERA if Virginia passed it. “I could say with virtual certainty that Kagan and Breyer, for sure, and Ginsburg and Sotomayor, probably, would find the argument frivolous and without substantial merit. Clearly, all the conservative justices would vote that way,” he says. “There is no reasonable chance in the world that the Equal Rights Amendment would be held to have been validly adopted when the proposal expired by its own terms at least 35 years ago.”
If Paulsen is right, the current effort to ratify the ERA looks more like Weekend at Bernie’s than a zombie-horror flick: Democrats are parading around a dead amendment and pretending it is alive, in order to raise money and attack Republicans as opponents of women’s equality.
Yet not everyone views the issue as Paulsen does.
The notion that the ERA needs only one more state and possibly an act of Congress for its adoption is taken seriously by virtually all congressional Democrats and even a few Republicans, including senators Lisa Murkowski of Alaska and Susan Collins of Maine. “Having the Equal Rights Amendment deadline removed would be symbolically a great thing for us to do this year,” Collins recently told the Wall Street Journal. “It would be particularly appropriate because this is the 100th anniversary of the Senate approving the 19th amendment, which affirmed the right of women to vote.”
During a House Judiciary Committee hearing on the Equal Rights Amendment earlier this year, Democratic witness Kathleen Sullivan, former dean of Stanford Law School, argued that “Congress should view itself as lacking the constitutional authority to fetter the ratification process of the states” with any deadline “and certainly as having the authority to lift its own self-imposed deadlines.”
Sullivan made at least one demonstrably false claim while advocating for the ERA. “The ERA is a totally separate issue from abortion,” Sullivan told Congress. “In those countries with ERAs and in those states with ERAs, the passage of the ERA has not changed the law of abortion.”
In fact, notes Douglas Johnson of the National Right to Life Committee, the New Mexico supreme court unanimously held that the state’s Equal Rights Amendment, nearly identical to the federal one, required the state’s Medicaid program to fund elective abortions. NARAL and the National Organization for Women openly acknowledge that the federal ERA would likely require almost all existing pro-life laws to be struck down.
Much remains unknown about exactly how the courts will handle the matter. The Supreme Court has never ruled on whether states may rescind ratification, as five states did with the ERA. A district court ruled in 1981 that Idaho acted lawfully when it rescinded ratification, but the Supreme Court declined to take up the case because the deadlines to pass the ERA (both the original 1979 deadline attached to the amendment and the constitutionally dubious extension) had expired and the issue was moot.
But one thing that is clear is that resurrecting a zombie Equal Rights Amendment would have disastrous consequences for the pro-life cause, and pro-life leaders don’t want to take any chances. “The 1972 ERA died 40 years ago. The Supreme Court could not possibly rule that this ERA has been resurrected and ratified without doing violence to the text and history of Article V, and opening the door to other manipulations of the constitutional amendment process by simple majorities in future Congresses,” Johnson of the National Right to Life Committee tells NR in an email. “Still, complacency is unwise — after all, we have seen before some justices apparently swayed by extra-constitutional factors such as perceived expectations, image-protection, and the like — and we cannot know how the Court’s makeup may change in the years just ahead.”