Can a dormant proposed constitutional amendment come back to life?
This week, the state of Illinois voted to ratify the proposed Equal Rights Amendment to the Constitution 36 years after its ratification deadline expired, reviving several debates about the shelf life of constitutional amendments.
Back in March 1972, Congress approved a joint resolution presenting the Equal Rights Amendment to the states for ratification. Its first section read, “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
The resolution consisted of an introductory preamble explaining its purpose and the proposed amendment’s text. Within the preamble, Congress stated the amendment would become “part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years of its submission by the Congress.”
Similar ratification deadlines or sunset clauses were included in eight other proposed constitutional amendments, all of which were ratified by the time of their expiration periods. For the 18th, 20th, 21st and 22nd Amendments, the actual amendment text included the deadline; for the 23rd, 24th, 25th and 26th Amendments, the deadline was in the introductory text to the amendment.
For the Equal Rights Amendment, after a quick push for ratification, the movement stalled and fell three states short of the 38 states needed for ratification within seven years. Amid controversy, Congress in 1978 extended the ratification deadline to June 1982. No new states ratified the ERA during its extended deadline, but five states voted to rescind their previous ratification of the proposed amendment.
Also in 1982, arguments over the legality of the extended ratification deadline and the ability of states to rescind their ratifications made it to the Supreme Court. In a one paragraph statement in National Organization of Women v. Idaho, the Court dismissed the case as moot because the ERA’s deadline had just expired.
But that didn’t end the debate, particularly over a lower-court decision (that was then mooted by the Supreme Court) that Idaho had a right to rescind its ratification of the ERA and the Congress lacked the power to extend a ratification deadline.
Before that, the Supreme Court had something to say about the amendment ratification process in 1939 during the Roosevelt administration, in a dispute about Kansas’ ratification vote for a proposed amendment regulating child labor. In the majority opinion in Coleman v. Miller, Chief Justice Charles Evans Hughes said when it came to a ratification dispute, it was a “question for the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.”
Hughes also added that “Congress, in controlling the promulgation of the adoption of a constitutional amendment, has the final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures.”
To the supporters and opponents of a revived Equal Rights Amendment ratification process, the Court’s prior statements and the ratification of the 27th Amendment after a 203-year delay offer evidence that they are both correct.
The current ERA ratification supporters believe Congress would have the power to decide if the amendment can be ratified today under a “three-state proposal” that would see Nevada (which also voted in 2017 to approve ratification), Illinois and a third state get the vote total to 38 states. They also believe the 27th Amendment’s long-delayed ratification rejects the viability of deadlines imposed by Congress on ratification. (There is also an argument that the ERA deadline’s placement in its preamble doesn't make it as applicable as to other amendments.)
The three-state strategy’s critics believe it was clearly Congress’ intent to limit the ratification period by establishing two ratification deadlines; the fate of the five states that rescinded their ratifications needs to be decided; and all the state ratifications may have already expired after 1982.
In any event, Congress would certainly play a critical role in any effort to revive the proposed Equal Rights Amendment, and possibly the Supreme Court if it is asked to settle the fate of the five states that voted to rescind their ratifications – as it had been asked in 1982.
After the Illinois vote was passed, the Chicago Tribune asked University of Chicago law professor Geoffrey Stone if the proposed amendment was eligible to be added to the Constitution. Stone said it was unclear if “there’s an obvious right or wrong answer.”
But if the Equal Rights Amendment finds its way into the Constitution after its original deadlines expired, there are other “dormant” amendments that could be eligible for more ratification votes.
For example, the District of Columbia Voting Rights amendment missed its seven-year deadline in 1985, with only 16 states ratifying. Five other amendments proposed by Congress without ratification deadlines are still on the books, including the Child Labor amendment, the Titles of Nobility amendment and a pre-Civil War amendment legalizing slavery.
Scott Bomboy is the editor in chief of the National Constitution Center.
