What happens when the Virginia legislature ratifies the Equal Rights Amendment

Politics & Elections
1

The Democratic Party won control of both houses of the Virginia legislature last night which will take effect early next year. When they convene they are likely to be the 38th state legislature to ratify the Equal Rights Amendment.

Here’s the relevant text on the amendment process from Article V of the U.S. Constitution.

Two thirds of both houses of Congress and Virginia will make three quarters of state legislatures. Seems pretty cut and dried.

What’s the problem? There are two problems at the forefront.

  1. Four states (Idaho, Kentucky, Nebraska, and Tennessee) have rescinded their ratifications, but it is not at all clear that that is a thing that states can do.

  2. “Like it’s been like a really long time and stuff man,” is also an argument that will almost certainly come up, but I’m not seeing any time limits in the Article V text.

There may be other arguments that I’m missing as well.

Does anyone else have any thoughts on this?

2

I think it’s unclear as to whether the original 7 year deadline for ratification (long since passed) is still in force and also unclear whether a state may rescind ratification.

3

With all of the federal legislature that has happened since along with case law would the ERA make any meaningful difference now?

4

Yes, it is unclear. That’s the point of this thread. Those are the exact two arguments I brought up in the OP. Are those arguments valid? Is there support for those arguments in the text of the Constitution?

This, however, is not the point of this thread. Whether or not the ratification of the ERA will actual make a practical difference is interesting but not relevant. What should happen when Virginia ratifies the ERA? What will happen? Those are the thread pertinent questions.

5

Ratification history of the Twenty-Seventh Amendment:

6

If Virginia passes the amendment, this Supreme Court will decide that since state legislatures must ratify the amendment and four state legislatures have rescinded their approval, it is not ratified. The holding will basically mean that 2/3 of states must approve of it at the same time. The court will say that whether a state legislature has ratified the amendment will be a determination made under state law and the current state law in those places is that the amendment is (currently) not ratified. Of course, if the amendment were ratified by a sufficient number of states and adopted into the constitution, states could no longer withdraw their ratification. The mechanism for change then would be another amendment.

I’m not sure if the Supreme Court will touch arguments that the approval came too late. My personal take is that amendments are meant to be permanent, barring future constitutional amendments. Congress imposing a seven-year approval period for a Constitutional amendment makes no sense. In fact, there is no specific Congressional authority in the constitution to impose such a timing limit on approval by the states. I think the Supreme Court, if forced to opine on this point, would hold that Congress passed the amendment and whether it was approved was left up to the states from that point forward. The timing requirement would have no effect. Of course, a conservative court that wants to put a final nail in the coffin of the ERA might just say that Congress can impose a ratification deadline and it’s too late even if every state re-ratified it tomorrow.

7

The amendments are meant to be permanent until another amendment makes them not so permanent. But I don’t see how that is relevant here. There is no amendment currently just a proposal. There is also nothing in the constitution that says there can’t be a time limit. There is also nothing in the constitution stating that states can’t rescind their ratification. It wouldn’t matter in the case of an actual amendment since it would take the full amendment process to change. In the case of a proposed amendment it seems to me there isn’t a no backsies clause in the constitution. Those states currently have not ratified the amendment. I think it’s just possible that SCOTUS could rule that it is beyond the powers of Congress to set a time limit on ratification but I’m doubtful they will rule that a state can’t change their ratification prior to an amendment being final.

8

Fair enough.

See my reply above. I don’t see SCOTUS ruling that states can’t rescind their ratification prior to the amendment being final.

9

So we agree Loach? I’m okay with that.

10

I don’t see SCOTUS ruling that either. I do, however, see a textualist argument that states rescinding ratification has no legal weight.

There’s nothing in the text about three quarters of the states having currently ratified the proposed amendment. The text is, “when ratified by the legislatures of three fourths of the several states.” Should Virginia ratify the ERA it will have been ratified by the legislatures of three fourths of the several states.

11

Yes but that amendment did not contain a time limit as part of its text.

I don’t know who has the final say? Doesn’t seem like the Supreme Court- they only decide what the Constitution means, not what goes into it. Congress? Suppose House and Senate disagree? Can’t be the president, he has no role in the amendment process.

12

If you ever hear someone describing constitutional interpretation as “calling strikes and balls,” in CJ Roberts’s words, point them to this thread and ask them which is which.

13

This one doesn’t either.

Full text…

Well, there is a time limit in there, but I don’t think that’s what you meant.

14

In 1981, a federal district court, in the case of Idaho v. Freeman, ruled that the extension of the ERA ratification deadline to June 30, 1982, was not valid and that, ERA had actually expired from state legislative consideration more than two years earlier on the original expiration date of March 22, 1979. On January 25, 1982, however, the U.S. Supreme Court “stayed” the lower court’s decision.

After the disputed June 30, 1982, extended deadline had come and gone, the Supreme Court, at the beginning of its new term, on October 4, 1982, in the separate case of NOW v. Idaho, 459 U.S. 809 (1982), vacated the federal district court decision in Idaho v. Freeman, which, in addition to declaring March 22, 1979, as ERA’s expiration date, had upheld the validity of state rescissions. The Supreme Court declared these controversies moot on the grounds that the ERA had not received the required number of ratifications (38), so that “the Amendment has failed of adoption no matter what the resolution of the legal issues presented here.”

In the 1939 case of Coleman v. Miller, the Supreme Court ruled that Congress has the final authority to determine whether, by lapse of time, a proposed constitutional amendment has lost its vitality before being ratified by enough states, and whether state ratifications are effective in light of attempts at subsequent withdrawal. The Court stated: “We think that, in accordance with this historic precedent, the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to 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.” However, this case was one where the Congress had not explicitly set a deadline, unlike the ERA proposal which explicitly contained a seven year limit. The Court, in 1939, upheld Congressional authority to determine in 1868 that the Fourteenth Amendment was properly ratified, including states that had attempted to rescind prior ratifications.

So, it reads to me as if the Supreme Court has already ruled that the EPA has “failed of adoption”, but that it is up to Congress to ultimately determine whether states can rescind ratification.

15

Definitely not a Constitutional lawyer, but my take on how it ought to work is:

  1. Legislatures that ratify amendments should be able to revoke that ratification. The legislature is the branch of government closest to the people, and an appropriate way for the people to respond to a legislature that votes something in that they don’t want is to vote in a new legislature that will do what they want. Obviously at some point the Amendment is approved and it’s too late to take it back. But it doesn’t seem like making every ratification a fait accompli is a good process.

  2. Congress should be able to set a time limit. Essentially, they’re saying “We approve it for this long.” Just like a later legislature should be able to retract an approval, a current one should be able to specify a limit.

So, both of those reasons mean that Virginia ratifying the ERA shouldn’t do anything. I have no way to determine whether those two points are valid legal arguments.

16

I don’t read it that way. I think SCOTUS instructed the lower court to rule that the question was moot because 38 states had not ratified. That no longer applies if 38 have ratified.

The ratification of the 14th Amendment included ratification by the the states of New Jersey and Ohio. Both states ratified the amendment and then later attempted rescission. Both those attempts to rescind ratification were ignored.

17

There is proposed legislation in the US congress to extend the ratification deadline. It needs to get through the Senate, and Mitch McConnell has made that his fiefdom where laws go to die.

So, in addition to Virginia passing the ERA, we probably need the US congress to get behind it, too, before it can be viable as a permanent amendment. This just underscores the dramatic effect of booting McConnell from his position as Majority Leader would have.

From here.

18

But if/when Dems regain control of both houses, the time limitation, such as it is, could still be lifted.

A WaPo article adds another consideration… [all bolding mine]

The same WaPo article notes that New York rescinded approval of the 15th and West Virginia the 19th Amendment, and the U.S. secretary of state overruled both, indicating states can’t rescind ratification.

But what about those five rescinding states?

Looks to me like the ERA will probably become an amendment eventually. The question may be whether any of us will still be around to see it.

19

The text is, “[W]hen ratified by the legislatures of three fourths of the several states […]”

The text is not, “[W]hen the number of states that have ratified the amendment minus the number of states that have sent ‘just kidding’ letters meets or exceeds three fourths of the total number of states […]”

20

Sorry, is this about what happens if Virginia ratifies the ERA, or what happens when the ERA is acknowledged to be passed? No opinion on the former.