(Editor’s note: This is the second article in a series on the fight to add the ERA to the U.S. Constitution. See the previous piece by former Senator Russ Feingold here.)
Most constitutions in the world guarantee equal rights between women and men, or prohibit discrimination on grounds of sex or gender. Constitutions that were written after World War II enshrined the United Nations Charter’s commitment to equal rights between women and men. Although the U.S. Constitution was amended 100 years ago to end the exclusion of women from suffrage following World War I, the century-long effort to add an Equal Rights Amendment (ERA) to the Constitution was unsuccessful.
Until this year. In January 2020, Virginia became the 38th state to ratify the ERA. But legal wrangling over the future of the ERA continues, raising questions about state sovereignty and its relationship to international gender equality norms.
Under Article V, amendments proposed by Congress require ratification by three-fourths of the states, so 38 would be sufficient. But when Congress proposed the ERA for state ratification in 1972, it said that the ERA would be valid “when ratified within seven years.” Thirty-five states ratified the ERA from 1972 to 1977. Congress voted in 1978 to extend the time for ratification to 1982, but no additional states ratified by then. The last three states – Nevada, Illinois, and Virginia – delivered their ratifications a generation later, in 2017, 2018, and 2020. Meanwhile, five states that ratified the ERA voted to rescind their ratifications between 1973 and 1979 – Nebraska, Tennessee, Idaho, Kentucky, and South Dakota.
The recently ratified states and some of the unratified and rescinding states are now litigating in the U.S. District Court for D.C., demanding a judicial determination as to whether or not the ERA is now the 28th Amendment to the U.S. Constitution. The lawsuit names the National Archivist as the defendant, and demands that he now publish the ERA as part of the Constitution because 38 states have ratified it. The Archivist has refused to do so, in deference to a Justice Department Office of the Legal Counsel (OLC) opinion that deems the ERA expired as of 1979 and is no longer ratifiable.
Virginia argues that ratification deadlines had no legally binding effect on the states, since there is no provision for a ratification deadline in the Constitution, thereby leaving the states free to ratify the amendment at any time. Enforcing Congress’s deadline, they say, would ignore states’ dignity as sovereigns.
The Archivist has avoided the merits of the deadline issue by moving to dismiss the case as non-justiciable, primarily arguing against plaintiffs’ standing. But the court has recognized the standing of two unratified states (Alabama and Louisiana) and three rescinding states (Tennessee, Nebraska, and South Dakota) to intervene as defendants. These states urge the court to enforce the deadline. The intervenor-defendants seem to agree with Virginia that states have special sovereign powers in the federal constitutional amendment process under Article V – only they understand their ratification power differently, to include the power to rescind until the deadline has elapsed. If the intervenors prevail, in this proceeding or as it goes up to the D.C. Circuit and the U.S. Supreme Court, judges could write the intervenors’ reasoning – or that of the Trump administration OLC — on the ERA’s gravestone.
If Congress takes action to remove the deadline first, the ERA could avoid this fate. Constitutional law scholars Erwin Chemerinsky, Noah Feldman, Reva Siegel and I filed an amicus brief arguing that the ERA’s timeliness is a political question for Congress in the first instance, not the courts. This week, Joe Biden released his Women’s Agenda, explicitly supporting the ERA, and vowing to “advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action.”
Congress’s Special Role in Amending the Constitution
The Supreme Court reasoned in Coleman v. Miller that Congress’s power under Article V to propose amendments and to determine the mode of ratification included the power to determine what constitutes a reasonable time period for states’ ratification. Coleman explained Congress’s special role in the Article V process of amending the Constitution: As the democratically elected national lawmaking body, Congress — rather than the courts, the executive branch, or a handful of states — is uniquely positioned to assess “the tenor of the nation, to be aware of the political, social, and economic factors affecting the nation, and to be aware of the importance to the nation of the proposed amendment.”
Congress embraced Coleman’s account of congressional power in 1978, when it voted to change the ERA deadline by extending it to 1982. It is in the assessment of the political, social and economic factors affecting the nation, as well as the importance of the ERA to the nation, that the opportunity to engage and embrace intervening global developments in women’s rights would arise.
And Congress is now in the process of exercising that constitutional power again. Two weeks after Virginia’s ratification, the U.S. House voted in February to remove the ERA ratification deadline. Noting that the deadline was in the preamble, and not in the text of the proposed constitutional amendment ratified by 35 states in the past, the House exercised Congress’s power to change the ratification time limit, as it had done once before in 1978, by removing it altogether this time.
Before that vote, a subcommittee of the House Judiciary Committee conducted a hearing with witnesses and the Judiciary Committee debated the continuing relevance of the ERA in a markup hearing and issued a written report. In the floor debate leading up to the vote, a diverse array of congresswomen spoke about the meaning of the ERA today.
All of these deliberative occasions included references to constitutions outside the United States and to international norms. At the House Judiciary subcommittee hearing, Kathleen Sullivan testified, “the United States is now an outlier among all the major industrial democracies of the world in failing to have an express guarantee in its written constitution that men and women are equal under the law, a situation that our Nation should remedy as soon as possible.” Sullivan’s reference to constitutions around the world was quoted by Representative Steve Cohen (D-TN) in the House Judiciary Committee’s markup hearing. The committee’s report quoted Supreme Court Justice Ruth Bader Ginsburg remarking that “every constitution written since the Second World War” has included the principle of women’s equal stature. And in the House floor debate leading to the vote to remove the deadline, longtime ERA proponent Jackie Speier (D-CA) pointed out that 165 out of 193 countries who are members of the United Nations have enshrined women’s equality in their constitutions.
In the litigation, several international organizations filed a pro-ERA amicus brief noting that the U.S. failure to enshrine sex equality in the Constitution is shocking in light of constitutional action for sex equality in so many other countries around the world. They, and other amici, want an ERA to align the U.S. Constitution with transnational norms.
But while some amici and the House majority have justified the ERA in the language of transnationalism, the actual litigants in Virginia v. Ferriero are speaking the contrasting language of state sovereignty. Pro-ERA U.S. states are trying to save the amendment through litigation advancing a robust vision of state sovereignty that reduces Congress’s role in changing the federal constitution. They deny Congress’s power, not only to impose deadlines, but to change and remove them.
How might the judicial legitimation of states’ rights affect the ERA’s future? The robust theory of states’ rights to control ratification, including its timing, is based not on the text of Article V, which says nothing about timing, but is inferred by employing the 10th Amendment on federalism and states’ rights to fill Article V’s silences. By this logic, the states’ rights to control ratification could encompass states’ rights to rescind as part of their power to ratify.
Of course, as Virginia notes, the text of Article V only mentions ratifications and says nothing of rescissions. But if the 10th Amendment must fill Article V’s silences, the states’ rights to supersede Congress’s deadline could easily encompass their rights to rescind. The rescinding states are resisting the ERA because they are asserting states’ rights to restrict abortion and to reject national and transnational baselines for gender equality, including the protection against discrimination on the account of sexual orientation and gender identity.
Instead of states’ rights under the 10th Amendment, Article V’s silences should be filled by a more collaborative model of mutual respect between Congress and the states in making constitutional change across generations. Congress and the states are Article V partners in making a constitutional amendment; Article V envisions no role for the judicial or executive branches. When an amendment has not completed ratification within a generation, Article V’s silence about time frames can be read to empower both Congress and the states to work collaboratively.
When Congress proposed the ERA to the states, the resolution proposed that the ERA would be valid “when ratified within seven years.” It did not say that the ERA would be “inoperative unless” ratified within seven years, as the 18th Amendment on prohibition did; nor did it say that the ERA would be valid “only if” ratified within seven years, as the resolutions in the 23rd and 24th Amendments did. Congress left it open, and then three states ratified late.
A More Collaborative Approach
Nevada took a more collaborative approach when describing its decision to ratify late in the preamble to its ratification resolution: “Congress is in a unique position to judge the tenor of the nation, to be aware of the political, social, and economic factors affecting the nation, and to be aware of the importance to the nation of the proposed amendment.” Nevada ratified the ERA on the understanding that “it is for Congress, under the principles of Coleman v. Miller, to determine the validity of the state ratifications occurring after a time limit in the resolving clause, but not in the amendment itself.” It suggests a cooperative dialogue between Congress and the states about the amendment’s timeliness, with Congress as the ultimate decision-maker because it represents the entire nation – not just the views of three late-ratified states and five unratified and rescinding states.
Congress is in the process of determining the validity of these late ratifications, with the House accepting their validity by lifting the deadline, and the Senate considering a bipartisan resolution, S.J. Res. 6, introduced by Republican Senator Lisa Murkowski of Alaska and Democratic Senator Ben Cardin of Maryland, with 48 co-sponsors thus far. If the Senate does not move ahead, voters can express their views at the ballot box in 2020, as 35 Senate seats are being contested.
The procedural path by which the ERA gets added to the Constitution matters to the long-term acceptance of its legitimacy, particularly by the states that have rejected it. Furthermore, an ERA that engages global constitutional developments in the law of sex equality over the past generation is more likely to be made through a national democratic conversation in the national lawmaking body, not by strengthening state sovereignty. A judicial determination of the merits of the ERA deadline risks enlarging states’ rights in the amendment process, and losing constitutional opportunities for greater transnational engagement.