Why the ERA Is Still Pending Before the States
Let’s delve more deeply into the question of why the ERA can still be ratified by the states.
In some constitutional amendments, a time limit for ratification was written directly into the amendment’s text. Take the Eighteenth Amendment, which imposed Prohibition. Section 3 of that amendment stated: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”
This “inoperative” language, which also appears in the Twenty-First and Twenty-Second Amendments, sets a deadline that Congress cannot change through ordinary means. The only way to extend the seven year period would be to start from scratch and propose a new amendment. If Congress had tried to change the deadline through legislation, a court would have been bound to say that the amendment (if ratified after more than seven years) could not be applied.
Starting with the Twenty-Third Amendment, though, the ratification timeline was not included in the amendment’s text. Instead, Congress included a preface to the amendments that said they “shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”
There are two things that stand out here. One is that the preface is not part of the amendment. If it is not part of the amendment, then it is hard to see why a subsequent Congress cannot change it through ordinary means. (This was, in fact, done by Congress in 1978 to extend the ratification deadline for the ERA from seven to ten years.) The other point is that “inoperative” is missing from the preface. I think that inoperative is a way of saying that Congress cannot change the ratification timeline. Without that word, the deadline can be changed. When Congress proposed another (unsuccessful) amendment in 1978 to give the District of Columbia representation in Congress, the debate over extending the ERA timeline informed the decision to put the “inoperative” language back into a proposed amendment.
If Congress can just change the ERA ratification timeline, does that make the timeline meaningless? No. Congress must still act. If Congress does not change the timeline, then the ERA cannot be ratified. If there was no timeline (as was the case with constitutional amendments proposed before the 20th century), then no congressional action would be required for ratification to occur. What we call the Bill of Rights, for example, was just proclaimed as part of the Constitution by Secretary of State Jefferson when enough states voted aye. Congress took no action at all.
None of this, I’ll add in conclusion, relies on the notion that Congress can just do whatever it wants with respect to the ratification process because that presents a political question. That may be the case, but if not a court would still be bound to say that Congress can alter the ERA’s ratification timeline at its discretion.
In the next post I’ll talk more about interpreting the ERA if it is ratified in the coming years and discuss what was said in the Nevada Legislature during its ratification debate this Spring.