The Volokh Conspiracy

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ERA Now?

|The Volokh Conspiracy |

Virginia has now become the 38th state to vote to ratify the Equal Rights Amendment, which arguably crosses the ratification threshold set out in Article V of the U.S. Constitution for constitutional amendments. And so, Virginia has forced us to think seriously about the question of how the Constitution can be validly amended.

Back in June of 2018, as the National Organization for Women was gearing up a campaign to push the ratification of the ERA over the finish line, I argued that the effort was misguided and that the states should properly consider the proposed amendment dead and no longer available for potential ratification. Although the Virginia legislature apparently disagrees, I still think the ERA has not been properly ratified and should not be considered to be part of the Constitution.

There are a host of issues here. Some are purely procedural. The Office of Legal Counsel has recently issued an opinion concluding that the ERA is dead. The key issue for the OLC is whether Congress has the authority to set a time limit on the ratification of a constitutional amendment, which Congress purported to do in the case of the Equal Rights Amendment. When Congress voted to adopt the ERA in 1972 and send it to the states for potential ratification, it conditioned its approval on a seven-year ratification deadline (Congress subsequently voted to extend the deadline to the summer of 1982).

This is consistent with the relatively modern practice by which Congress has attempted to limit how long the ratification process can take. The text of the Constitution provides very little guidance about the ratification process and says nothing about whether or not Congress can set a deadline on the process. The OLC says that it can, and the national archivist, who is tasked with registering a successful ratification, has deferred to the OLC. For the moment, the executive branch of the federal government at least has concluded that the ERA has not yet been ratified and cannot be ratified in its current form. (Even if the OLC is right about the initial deadline, there is a further interesting question of whether Congress could now vote to further extend the deadline and retroactively validate the tardy ratification votes.)

Some issues are conceptual, and those were the focus of my earlier post. Why do we have this kind of process for revising the Constitution and what are the implications of this design? Ultimately, I think Article V is best understood as creating a supermajoritarian process of democratic deliberation on constitutional change. It requires broad democratic agreement to change the constitutional rules. That process of democratic deliberation becomes incoherent if adoption and ratification is not more-or-less contemporaneous. Most amendments to the U.S. Constitution have taken about two years to be ratified, and nearly all of them have been adopted well within the seven-year limit set by Congress when it adopted the ERA. The singular outlier is the Congressional Pay Amendment, which was adopted by the First Congress and was recognized as successfully ratified in 1992. The Office of Legal Counsel (mistakenly in my view) accepted the Twenty-Seventh Amendment as validly ratified.

Now the ERA would be the only other example of a constitutional amendment that was adopted through a multi-generational process of ratification with votes separated by decades. It might be the case that there is currently a national supermajority to adopt the ERA, but we have no idea if that is true. In truth, we are effectively adopting the ERA on the basis of the votes of three state legislatures that responded to the new NOW ratification strategy that presumed that the ERA was not dead after all. Swept under the rug are the state legislatures that subsequently rescinded their ratification votes and those that conditioned their own ratification votes to the original congressional deadline. NOW would prefer to play the game of "heads I win, tails you lose" with the constitutional amendment process.

Finally, this unorthodox ratification process also raises interpretive issues. At least with the Congressional Pay Amendment we had a clear technical rule that raises very few interpretive quandaries. Legislators in 1789 and 1992 both understood themselves to be adopting the same rule. No one can confidently say what constitutional rule the ERA embodies. It does not embody a straightforward technical rule. It references deeply contested political principles, and there is little guidance about which potential principle is actually being enshrined in the Constitution through the language of the ERA.

Some urge that it should simply be adopted for the sake of political symbolism. That's fine if we can all agree that it has no legally consequential effects, but I suspect those who say today that this is just symbolism will say tomorrow that it has consequences that courts should enforce against democratically elected legislatures. Perhaps we should just think that the ERA is a cypher that effectively delegates to federal judges the authority to make up and enforce whatever rule they want in the name of gender equality. That might well be the practical effect of accepting the validity of the ERA. For those who might generally favor originalism as the proper guide to constitutional interpretation, the ERA is an interpretive nightmare. An amendment that was initially proposed to alter a legal environment that has not existed for decades in the United States but that is somehow still seen as necessary by current proponents hardly has an obvious public meaning. Perhaps we should just think that Congress and the states have now endorsed the U.S. Supreme Court's 1971 decision of Reed v. Reed?

If we think there is a serious need for the ERA and genuine support for it in the contemporary United States, then there is a ready solution—draft a new amendment, push it through Congress, and send it to the states. If we think that the ERA could not currently be adopted and ratified in a reasonable amount of time, then perhaps we should not be eager to say that the ERA is part of the Constitution because exactly three states legislatures have endorsed it since Jimmy Carter was in the White House.