Is the Equal Rights Amendment Still Viable in 2017? (Part 1)

The Equal Rights Amendment (ERA) was sent to the states for ratification in 1972. The Amendment provided that "[e]quality of rights under the law shall not be denied or abridged . . . on account of sex." A time limit in the preamble to the amendment gave states seven years to ratify the ERA. In 1978, Congress extended that deadline by three years. When the deadline came around in 1982, only 35 of the 38 states needed had ratified the Amendment (the last in 1977), and five of those had voted to rescind their ratifications. Given this history, is the ERA still open to ratification in 2017?

Nevada appears to think so. A few weeks ago, the state voted to ratify the ERA, notwithstanding the 1979 and 1982 deadlines. Their dilatory effort to ratify the Amendment likely has the support of at least 184 members of Congress. That's the number of sponsors and cosponsors on joint resolutions in the House of Representatives (H.J. Res. 53) and Senate (S.J. Res. 5) that purport to eliminate the ERA's time limit. Nevada and these members of Congress are seeking to implement the three-state strategy that proponents of the ERA have supported for at least 20 years. That strategy is supported by three arguments that conclude that the ERA will become part of the U.S. Constitution following ratification by only three more (two more after Nevada) states.

The Three-State Strategy for Enacting the Equal Rights Amendment

The three-state strategy for ratifying the Equal Rights Amendment was originally outlined in the William and Mary Journal of Women and the Law (PDF) in 1997. There, Allison Held, Sheryl Herndon, and Danielle Stager argued that the ERA could still be ratified by the three states needed to meet the Constitution's three-fourths threshold. Specifically, they argued:

  1. The Constitution imposes no deadline on proposed constitutional amendments.
  2. Because the ERA's deadline was included in the preamble, Congress could change or eliminate it by majority vote.
  3. States cannot rescind their ratification decisions.

These three arguments are all plausible (to say the least), but none is uncontroversial. I'll discuss the first argument in this post, and the second and third in a subsequent post.

Does the Constitution Limit the Time For Ratification?

In 1921, the U.S. Supreme Court decided the case of Dillon v. Gloss. In Dillon, the petitioner challenged his conviction under the National Prohibition Act. He argued that the 18th Amendment, which authorized the Act, was invalid, because it included a time limit for ratification. The Supreme Court rejected Dillon's argument, holding that Congress could fix a time limit for proposed constitutional amendments. In dicta, the Court stated that "ratification [of a proposed amendment] must be within some reasonable time after the proposal." Otherwise, the Court reasoned, amendments proposed as early as 1789 might still be subject to ratification, a view to which "few would be able to subscribe."

But in the late 20th century, many did subscribe to just such a view. Beginning in the late 1970s, one state after another began ratifying an amendment that was submitted to the states in 1789. That amendment, governing changes in congressional pay, was ratified by only seven states during the 1700s. Another ratified it in 1873. Between 1978 and 1992, 34 more states ratified it. On May 18, 1992, the Archivist of the United States certified the enactment of the 27th Amendment to the Constitution, and Congress affirmed that certification through H. Con. Res. 320, S. Con. Res. 120, and S. Res. 298.

Arguments by Proponents and Opponents of the Equal Rights Amendment

Proponents of the three-state strategy point to the history of the 27th Amendment to support their arguments. They also point to another early-20th-century Supreme Court case, Coleman v. Miller. In Coleman, the Court held that Congress, and not the Court, had the final say in whether a proposed amendment had lapsed because of the passage of time. Put differently, the Supreme Court held that what qualifies as a "reasonable time" under Dillon is a political question that the Court cannot answer.

ERA opponents argue that Dillon's "reasonable time" requirement is subject to judicial determination despite what the Court said in Coleman. They point out that only four justices joined the part of the opinion in Coleman that swore off any judicial role in calculating a "reasonable time," and that the Court has narrowed its political question jurisprudence in subsequent cases. Opponents also distinguish the 27th Amendment, which contained no time limits on ratification, from the ERA, which included a seven-year limit in its preamble.

Nonetheless, if the three-state-strategy proponents are right, then the only potential timing issue with the ERA is the time limit imposed in its preamble, which I'll turn to in my next post.