« Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport
| Main | Hassan Jabareen on Originalism and Israeli Constitutionalism
Michael Ramsey »

11/30/2019

Saikrishna Prakash on Ratifying the Equal Rights Amendment
Michael Ramsey

In the LA Times, Saikrishna Prakash (Virginia): Sorry, Virginia, you can’t revive the Equal Rights Amendment.

In January, when a new Democratic majority takes over in Virginia, the Commonwealth likely will become the 38th state to ratify the Equal Rights Amendment. At that point, the proposal will cross the three-quarters threshold for inclusion in the Constitution, almost a half century after the amendment went to the states. Understandably, the ERA’s supporters will be jubilant. Though I endorse the ERA, I can’t join them. Virginia’s ratification will be stillborn and the Equal Rights Amendment will still be dead. Under a proper reading of the Constitution, it perished decades ago.

When Congress sent the ERA to the states in 1972, the accompanying resolution provided that that the amendment would be valid only if ratified by three-fourths of the states in a little over seven years. As that expiration date drew near, Congress extended it an additional three years. The extension was controversial because it changed the terms of the ratification period midstream, and because it was not passed with a two-thirds majority in both chambers, as the 1972 resolution had been. To add to the uncertainty, by the time of the extension, a handful of states had voted to rescind their ratifications, a move as legally murky as monkeying with the deadline.

And from later in the analysis:

To be sure, the Constitution says nothing directly about time frames for lawmaking or amendment passage, but that doesn’t mean it doesn’t speak at all on the topic. It assumes and implies a great deal. No one thinks that Congress can pass laws “inter-generationally,” with the House voting for a bill in the 18th century, the Senate in the 19th century and the president receiving it and signing it into law in the 20th. Though the Constitution does not expressly forbid this wild scenario, it implicitly does. The same is true for amendments, both their proposal and their ratification. The various acts necessary to make an amendment cannot stretch across decades or centuries.

To take another example, the Constitution requires federal legislators to muster a majority to make laws. Such “majority rule” only makes sense within time limits. If Senators voted for something 50 years ago, how could those votes reasonably be added to ones cast today by new senators to conjure up supposed majority support for a bill? Or consider the question in contractual terms: Virginia’s attempt to ratify the ERA 47 years after it was sent to the states is akin to a person attempting to accept a contractual offer made over 50 years ago. It’s impossible.

(Via How Appealing).

I'm not sure I agree as a general matter.  Certainly nothing in the Constitution says directly (or even indirectly) that ratification periods have an expiration date.  It's true, of course, that one House's passage of legislation expires, but that's implied from the nature of the legislative process.  There's nothing really analogous for amendments.  In treaty law, by contrast, the time for ratification of a treaty does not expire, unless the treaty specifies a ratification period.  I don't see why that shouldn't also be true of amendments.  (Also I like the Twenty-seventh Amendment.)

As to the Equal Rights Amendment, though, I agree on the specifics.  The initial proposed amendment specified a fixed period for ratification.  Congress extended the period by legislation, but I think that itself is unconstitutional (or, rather, has to be done by a new proposed amendment).  Congress cannot by ordinary legislation change a proposed amendment, and the specified time for ratification was part of the original agreed proposal.  Consider, for example, if the original proposed amendment specified, say, a 10 year ratification period but Congress subsequent changed that to a five-year period by ordinary legislation.  The purported shortening of the period seems plainly invalid.  So too for a lengthening.