The Virginia legislature, taking a break from bludgeoning the Second Amendment, took up an old piece of business and ratified the Equal Rights Amendment, becoming the 38th state* to do so. Thus the 28th Amendment has been ratified.
Not so fast. There are a couple of reasons why this ultimately will go down as little more than an empty political gesture. First, and most importantly, Congress set an expiration data which originally expired in 1979, and then was extended to 1982. Ed Whelan makes a persuasive case that not even this original extension was lawful. Be that as it may, the 1982 deadline came and went without the requisite number of states to ratify.
Defenders of the ERA argued that Congress doesn’t have the ability to create a deadline for ratification, but there is nothing in the Constitution suggesting that this is improper, and Supreme Court jurisprudence has upheld this right. Also, pointing out that the 27th Amendment (originally the second of the twelve amendments that were submitted by Madison in the First Congress) was ratified two centuries after its original submission doesn’t work as a defense since this amendment was proposed with no deadline.
Really that’s the end of the argument. But there’s more. Five states rescinded their ratification in the 1970s, thus the actual number of states to have ratified stands at 33, short of the required number for ratification. The website for the Equal Rights Amendment (yes, there is one) makes a rather weak argument that once a state votes in favor of ratification (see question 6) it is forever locked in, as exemplified by the passage of the 14th Amendment and the actions of New Jersey and Ohio to rescind their vote. There’s nothing in the Constitution that would suggest that states cannot rescind approval prior to ratification and there’s little in the way of substantive precedent to go on (this law review article suggests that the actions of Congress around passage of the 14th Amendment were not treated as setting a precedent – see page 907). There is little precedent to go on, so it remains an open question how state rescission of approval would be treated by the courts.
From a moral or philosophical point of view, there are a few reasons the ERA should not be recognized as being ratified. There is something strange in the idea that a constitutional amendment could be proposed, fail to be ratified, then suddenly a few states bring it up again half a century later when much has changed, and then suddenly it becomes a part of the constitution. Yes, this is precisely what happened with the 27th Amendment, but I think it’s fair to state that though technically legal, it’s fairly absurd that a long dormant clause gets added to the constitution in an environment where no one is debating the issue.
There should be a broad consensus when a constitutional amendment is adopted. The Virginians who voted to approve the ERA are far removed from those who voted for adoption 50 years earlier. It can hardly be said that a few states voting now to ratify represent a consensus in favor of an amendment, especially as evidenced by the handful of states who manifestly expressed their second opinion. (And others likely would have voted to rescind their approval but likely thought the issue moot).
It also seems odd to suggest that there is a no backsie’s rule when a state gives its approval, but not when it renders disapproval, as several states originally did when the Constitution was originally ratified. Allowing states to rescind an Amendment once ratified would of course be chaotic and essentially serve as a form of nullification. But while an issue is being actively debated, it would seem that a state should retain the right to change its mind.
It might seem contradictory for a constitutional originalist to argue that changing circumstances justify opposition to the ERA being ratified nearly half a century after originally being proposed. After all, the Constitution itself is a 233 year old document, and we still live by its consensus. But it is precisely because the constitution is a sacrosanct document that binds political action for centuries that anything added to it should represent the broad will of the people at the time the amendment or clause is added. If changing circumstances or opinions lead to a state’s population changing its mind while there is still a live debate surrounding an amendment, then I think that state retains the right to reconsider before it essentially binds its hand in blood to the document.
Even if we count those states who later rescinded their approval, there remains the concrete legal point that the time limit expired a long time ago for ratification for the ERA. Both legally and morally it would be prudent to let it lapse. If supporters want to bring it back up, that’s fine. They’re just going to have to start at square one.