The Volokh Conspiracy

As promised, my new paper on the Equal Rights Amendment, "The Twelfth Amendment and the ERA," is now available on SSRN. The paper lays out new historical evidence on prior Article V amendments, to show that Congress can and has placed legally operative language in its proposing resolutions, and not just in the proposed article text. The implication is that the ERA's seven-year time limit is valid—and that the article the ERA proposed to add is not.

Here's the abstract:

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden's statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis.

But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA's deadline rendered it incapable, even with thirty-eight states' assent, of making any valid change to the Constitution's text. The recent lobbying efforts on its behalf, including President Biden's statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution's text carries an especially high cost. The National Archives is the wrong place to play with fire.

And from the introduction:

If there's one thing that Americans are entitled to expect from their law professors, to paraphrase Justice Robert Jackson, it's rules of law that let them tell whether the Constitution has been amended, and if so, how. Unfortunately, whether the Equal Rights Amendment is, right now, part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, the required number under Article V's three-fourths ratification requirement. Were these ratifications successful, the ERA would have come into effect on January 27, 2022. But three states acted only after the lapse of the ERA's seven-year deadline, which Congress put in its resolution proposing the Amendment fifty years earlier. (Four more states had purported to rescind their ratifications before the deadline expired, and a fifth did so on its expiration. ) Nonetheless, in the waning hours of his term, President Biden endorsed the ERA's validity, announcing his view that it was "the 28th Amendment" and "the law of the land." Similar claims had been made by the majority of Democratic members of Congress, joined by influential scholars and groups such as the American Bar Association. To date the ERA hasn't yet been published as valid by the Archivist of the United States, whose statutory duty it would be; nor is the second Trump Administration likely to recognize it as valid. But in the meantime, or under a future Congress or Administration, the ERA's doubtful validity could provoke a minor constitutional crisis.

This makes the ERA's validity an urgent question for constitutional scholars. If its proposed text really were valid, and the seven-year deadline really were void, then officials, lawyers, and academics alike would all be obliged to proclaim them so. By contrast, if the deadline really were valid, and the proposed text really were void, then declaring the ERA as adopted might be seen as a shocking act of constitutional vandalism, one that threatens to destroy one of the last remaining areas of consensus in American law: our agreement on the Constitution's text.

But the legal answer may be clearer than many recognize. Underappreciated historical evidence suggests that Congress was right to think it could place legally operative language in a proposing resolution, without repeating that language in a proposed article's text. Not only in proposing the Bill of Rights, but also in proposing the Twelfth and Seventeenth Amendments, Congress included operative language in the proposing resolutions that specified which changes were to be made in the Constitution, altering the legal force of the newly added text or repealing contrary language in the then-existing Constitution. Congress's language was deliberately chosen; it was repeated by states in their instruments of ratification; and it seems to have been accepted as legally effective at the time.

In other words, our earliest and longest-held understandings of Article V, on which Congress relied in the eighteenth, nineteenth, and twentieth centuries, treat proposing resolutions as legally operative. Yet despite its importance, this historical practice has gone almost entirely unnoticed by legal scholars.

This practice also suggests a different understanding of the amendment process, one that might seem novel today but that's more consistent with the actual text of Article V. The "Seventeenth Amendment" isn't just the 134 words that follow that heading in a standard copy of the Constitution : it's a particular change worked in the text of the Constitution, a change proposed by Congress in a joint resolution in 1912 and then agreed to by the states in 1913. As a legal matter, the resolution is the amendment. When acting under Article V, Congress isn't limited to proposing pieces of extra language to be tacked on at the end. It can make detailed edits, can delete provisions of the existing Constitution, and can include conditions for its various proposals—say, that they'll add specified language to the Constitution only "when ratified . . . within seven years." Each of these options carries the same legal force as the text of any proposed article, and each is equally immune from future legislative alteration.

This understanding of Congress's Article V powers entails that, while the text of our familiar printed Constitutions is correct, some familiar editorial notes to that text might be in error: some provisions of the Constitution of 1788 have been repealed, and not just "affected" or "superseded," by subsequent amendments. This understanding also entails rather straightforwardly that the ERA has failed to alter the Constitution's text. Whether or not states can rescind ratifications, the original deadline in Congress's resolution means that the article it proposed was never added to the Constitution, and that the only way of adding it is for another amendment to the same effect to be proposed and ratified. In other words, despite having attracted ratifications from thirty-eight different states, the ERA makes and can make no valid change to the Constitution's text, no matter how many states ratified it after the deadline or might choose to ratify in future.

Finally, this view suggests that the declarations by President Biden and members of Congress in favor of the ERA, as well as the recent lobbying efforts on its behalf, have been seriously misguided. In a deeply divided society, in which legal experts already disagree on key questions of constitutional law, losing consensus even as to the content of the Constitution's text could be quite dangerous. While the best legal account of that text may be one thing and popular belief another, any competing account needs to be supported by adequate evidence—and on the arguments presented here, this evidentiary bar is one the ERA simply can't clear. Advocates of the ERA should take note of this evidence and should identify a different path for pursuing their constitutional goals.

As they say, read the whole thing!

(Prior posts on this topic here and here)