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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
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Abbe Gluck abbe.gluck at yale.edu
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Marty Lederman msl46 at law.georgetown.edu
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Gerard Magliocca gmaglioc at iupui.edu
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Linda McClain lmcclain at bu.edu
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Nelson Tebbe nelson.tebbe at brooklaw.edu
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As it starts to look like the Equal Rights Amendment may soon be ratified by a thirty-eighth state, a number of Article V questions come into focus. A few days ago, Professor Sandy Levinson argued on this blog that to believe the ERA would pass, one would have to believe Congress has no power to set time limits for amendments and that states cannot rescind their ratifications. It may not be so simple. In this post I aim to lay out the major objections and rejoinders to the Article V questions raised by Illinois’ ratification of the ERA.
The proposing language of the ERA included a time limit, which expired in 1982. Walter Dellinger argues that time limits are unsupported by the Constitution, because the grant of power to Congress to decide the mode of ratification is only the ability to decide between whether ratification will be by state legislatures or conventions, not when ratification will occur. The Supreme Court, however, recognized Congress’s power to fix time limits in Dillon v. Gloss, and reaffirmed its holding two decades later in Coleman v. Miller.
But there is a distinction between textual time limits and proposing language time limits. Textual time limits are part of the amendment itself, meaning they become part of the Constitution upon ratification. Proposing language time limits are contained within the legislation that initially puts the amendment before Congress. Starting with the Twenty-Third Amendment, Congress began to put time limits in proposing language because it became wary of “cluttering up” the Constitution with single-use provisions. The ERA time limit took this format, and Ruth Bader Ginsburg was among those who lauded the flexibility of proposing language. She argued that proposing language is not binding, making any time limits therein subject to extension by Congress. On this theory, Congress simply needs to alter the proposing language and no ratifying states will be marked tardy. Professor Thomas Emerson went further, testifying to Congress that proposing language is not ratified by the states and is therefore never valid. Neither theory has been tested in the courts.
The ERA has a second time limit issue, its second time limit. The ERA was first set to expire in 1979, but in 1978 the deadline was extended to 1982. Some scholars believe the second deadline to be invalid, essentially on the theory that the ERA had its chance. This question is likely to be subsumed by debate over the validity of the second deadline because if Congress can extend the deadline once, presumably it can do so twice.
Beyond specified time limits, some scholars believe that too much time has passed between when the first states submitted their ratifications and now. The Dillon plurality took this view, believing that amendments ought to be “sufficiently contemporaneous” to “reflect the will of the people in all sections at relatively the same period.”The Coleman Court rejected that understanding, saying that timeliness should be determined based on political, social, and economic conditions in the intervening time period. Yet this was all before the Madison Amendment, which was submitted to the states in 1789 and became the Twenty-Seventh Amendment in 1992. What does the ERA’s forty-something intervening years have on the Twenty-Seventh’s 203?
To Professor Levinson’s second point, five states have rescinded their ratifications. By that count, the ERA needs an additional six signatories, not a mere one. Doubt persists on the validity of rescissions. Textualists point out that Article V only supplies for ratification and does not mention rescission. Walter Dellinger notes that no authorized decision-maker has ever given effect to a purported rescission, and Congress has a long-standing policy of rejecting rescissions, including with the Nineteenth and Fourteen Amendments. Even the Attorneys General of the states that attempted to rescind their ERA ratifications expressly opined that the rescissions would be legal nullities. Rescissions nevertheless cast doubt on whether the will of the people support the Amendment.
These puzzles necessitate an arbiter, but confusion also surrounds the question of who has the power to confirm ratification and promulgate the new amendment. By some views, no promulgation of amendments is necessary because an amendment is automatically part of the Constitution following ratification by three-quarters of the states. Others think that the Supreme Court should make such decisions, though in Coleman the Court held that rescissions are political questions and time limits are in Congress’s domain. Tribe agrees that Congress should be tasked with confirming ratifications, recognizing that for amendments, something “distinctly more radical than ordinary legal evolution is called for.” Yet when the Twenty-Seventh Amendment was ratified by the thirty-eighth state, the U.S. Archivist, who is formally tasked with proclaiming that new amendments are properly ratified, confirmed the Amendment on the recommendation of the Department of Justice. DOJ took the position that contemporaneous ratification was unnecessary, as was congressional approval. Not to be left out, Congress reiterated that the Twenty Seventh Amendment was indeed officially promulgated two days later.
The ERA won’t go into effect until two years after it is ratified. This leaves time for constitutional scholars, litigators, politicians, and judges to answer these questions. Of course, the delay brings questions of its own. From what date do we measure? The day the Archivist promulgates the amendment? The day Congress confirms it? And what if another rescission intercedes?
Rachel Frank is a student at Yale Law School. You can reach her by e-mail at rachel.frank at yale.edu.