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02/02/2020

John Vlahoplus on Ratification of the Equal Rights Amendment
Michael Ramsey

John Vlahoplus (independent) has posted Ratification of the Equal Rights Amendment: Lessons From Special Elections to the House of Representatives in 1837 (95 Indiana Law Journal Supplement (forthcoming 2020)) (10 pages) on SSRN.  Here is the abstract:

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in its representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court--rather than Congress--should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

ANDREW HYMAN ADDS: The Office of Legal Counsel at DOJ issued this opinion on the ERA Amendment.