The Equal Rights Amendment Died Over 40 Years Ago. Democrats Are Trying To Raise It From The Dead.

Capitol Hill is full of wishful thinking. One example: The Senate Judiciary Committee is holding a Hear On February 28, titled “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.”

This hearing is to promote the myth that Congress has the power to revive the ERA that it had proposed in 1972, but which was over 40 years old.

The Constitution’s Article V gives Congress two rights in constitutional amendment. First, “whenever two thirds of both Houses shall deem it necessary,” Congress may propose modifications. In Dillon v. GlossThe Supreme Court exclaimed “no doubt” This includes a deadline for ratification. Second, Congress could dictate the “Mode of Ratification,” That is, whether states have to ratify an amendment by conventions or in their legislatures.

That’s it. After it has submitted a constitutional amendment including any deadline for ratification and the method of ratification, Congress is no longer able to exercise any authority or role.

Congress used these powers to propose the Equal Rights Amendment in March 1972. It had a seven year deadline for states to ratify it. In January 1977, 35 states had done so. Five of these states quickly withdrew their approval. This was less than the 38 required by Constitution for ratification. ERA supporters pushed Congress into passing a resolution extending the deadline to June 30, 1982.

The only court in the country that allows you to Address The issue declared the extension invalid. Congress does not have the authority to amend a deadline once an amendment has been submitted. Congress also passed the extension resolution with less than the two-thirds required by the Constitution.

Nevertheless, the ERA has not been ratified in any new state, as the Congress Research Service reports. Many times, the ERA has been used. “formally died on June 30, 1982.”

However, supporters are still looking for vital signs. After three states passed, the 1972 ERA became part of the Constitution. “ratification” Resolutions made in the past several years, well after the termination date.

Justice Ruth Bader Ginsburg was an ERA booster and easily highlighted the problems with this position. 2020 InterviewShe stated that “[i]f you count a latecomer on the plus side, how can you disregard states that [rescinded ratification]?” Ginsburg Math shows that only 33 states have ratified 1972’s ERA. Ginsburg concluded that ERA advocates should start all over again.

But they are not done. Which brings us to the Senate Judiciary Committee Hearing, which will focus primarily on a resolution introduced by Sen. Ben Cardin (D-MD) that purports to remove the 1972 ERA’s ratification deadline and declare that it has been ratified by 38 states.

Senators should re-read Article V. A proposed constitutional amendment becomes part of the Constitution upon ratification by three-fourths of the states; no congressional action can affect ratification in any way.

On that point, Democrats should also check in with their favorite liberal constitutional scholars. The late professor, and former Acting Solicitor General, Walter Dellinger, for example, has written that Article V “requires no additional action by Congress or by anyone else after ratification by the final state. The creation of a ‘third step’ – promulgation by Congress – has no foundation in the text of the Constitution.” 

Senate Democrats face another awkward situation. Under federal law, when notified “that any amendment proposed to the Constitution … has been adopted, according to the provisions of the Constitution,” the archivist of the United States must “cause the amendment to be published … as a part of the Constitution.” The Archivist declined to publish the 1972 ERA because, as advised by the Justice Department’s Office of Legal Counsel, it “is no longer pending before the States.” 

Alabama and Illinois sued the archivist in December 2019, seeking a final declaration on whether the 1972 ERA had been finally ratified. U.S. District Judge Rudolph Contreras dismissed the lawsuit in March 2021, holding that “Congress set deadlines for ratifying the ERA that expired long ago.” The states appealed, and the case is before the U.S. Court of Appeals for the District of Columbia.

Because the archivist is an executive branch official, the Biden Justice Department is defending him and filed its brief in March 2022. Here are some of the Biden administration’s arguments that should be raised before the Senate Judiciary Committee.

First, citing a law journal article by then-Professor Ginsburg, the Department observed that even the 1972 ERA’s congressional sponsors saw adding a ratification deadline as a “customary statute of limitations.”

Second, “Congress acted consistent with established practice by fixing that [ratification] period through the” proposing clause of the ERA resolution.

Third, a proposed constitutional amendment “is complete when three-fourths of the States properly ratify [it].”

Fourth, those arguing “that the ERA has been validly adopted notwithstanding the congressional deadline … have not

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