Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, January 28, 2019

Why the Equal Rights Amendment's Ratification Deadline may be Invalid, Waived, or Extended

On the horizon is the possible 38th state ratification of the ERA.  Legislative action pending in Virginia, North Carolina, and Minnesota makes this likely.  The question is whether this will matter given the expired deadline.

The original ERA passed by Congress in 1972 had a 7 year deadline.  Congress, with the assent of the president, then extended that deadline in 1979, prior to its expiration, by 3 years to 1982.  

There are several arguments now as to why the 1982 deadline does not apply:

1.  The original ERA deadline was constitutionally invalid because (a) Article V says nothing about permitting time restriction on amendment (but see Dillion v. Glass); or (b) the ratification of the 27th Amendment after a 203 gap overrules Dillion v. Glass and the judicially-created mandate that ratification be sufficiently contemporaneous; or (c) it was contained in the introductory preamble to the amendment rather than the substantive text of the amendment itself which distinguishes the holding in Dillion that Congress may impose amendment deadlines in determining the mode of amendment.  Without a deadline, the amendment, per Article V "shall be valid for all Intents and Purposes" upon ratification by the 38th state. 

2.  Congress retains the power to alter its original ERA deadline by waiver, repeal, and/or extension because the deadline is not contained in the substantive text of the amendment and because it has already passed one such extension. 

3.  Congress has the power to conduct a post-ratification acceptance of the amendment (so-called Coleman analysis).

4. The modern precedent of the 27th Amendment regarding salary increases for members of Congress and its 203 year gap in ratification provides strong precedent for a gap in ratification and calls into doubt the the limited judicial acceptance of amendment deadlines.  

The basic arguments are made here, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, Note,  The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 William & Mary J. Women & Law 113 (1997);

Then-Professor Ruth Bader Ginsburg addressed some of these issues when considering the propriety of the extension of the ERA deadline in 1979.  Ratification of the Equal Rights Amendment: A Question of Time, 57 Texas L. Rev. 919 (1979)  [Westlaw Link]; see also Jean Witter, Extending Ratification Time for the Equal Rights Amendment Constitutionality of Time Limitations in the Federal Amending Process, 4 Women's Rights L. Rep. 209 (1978).

Limitation periods have accompanied only the more recent constitutional amendments. Congress specified no time frame for ratification of the first seventeen amendments. When the eighteenth amendment (Prohibition) was before Congress, legislators expressed concern about proposed amendments “floating around in a cloudy, nebulous, hazy way.” That was unseemly, Senator Ashurst said: “10, 12, 14, 16, 18, or even 20 years,” he ventured, might be a reasonable period for ratification, but Congress should provide a check against handing down to posterity proposals submitted to the states many decades earlier.
Without extensive discussion of the time span suitable generally or  in the particular context, Congress specified seven years for ratification of the Prohibition amendment. The same seven year period was specified, without fresh debate, for amendments twenty through twenty-six. But significantly, Congress sent the nineteenth amendment (Woman's Suffrage) to the states without a ratification time frame. The suffragists, who had struggled for the better part of a century to win the vote for women through state-by-state campaigns, resisted a deadline for the federal amendment.
Suffragists still with us in 1970 argued against a time limit for the ERA. They wanted to keep the pattern consistent with the nineteenth amendment. But principal congressional proponents of the ERA accepted addition of a seven year specification to the proposing clause that preceded the text of the amendment. They thought the stipulation innocuous, a “customary” statute of limitations, not a matter of substance worth opposing. The nineteenth amendment, after all, was proposed in 1919 and ratified in 1920. No amendment now part of the Constitution had taken even four years to be ratified. [But since then, the 27th Amendment had 203 years]. ***
Few participants in the extension debate questioned the authority of Congress to specify initially a decade or more for ratification of the ERA, or to say nothing at the outset regarding a time frame. The issue was whether Congress, having said seven years, was locked into that specification, essentially, whether Congress could establish in two steps a time frame it might have set in one. Relevant to resolution of this threshold issue was the placement of the time limitation.
Congress fixed the time for ratification in the text of the eighteenth, twentieth, twenty-first, and twenty-second amendments. That placement appeared to make the time provision an inseparable part of the proposed addition to the Constitution submitted to the states for approval. Amendments later proposed, including the ERA, contained no time limitation in the “Article of Amendment.” Instead, the limitation was separated from the text of the amendment and placed in the proposing clause.
The change from text to proposing clause was effected largely to avoid “cluttering up” the Constitution with vestigial provisions serving no function once an amendment was ratified. But the very judgment that the limitation should be transferred from text to preamble may reflect an underlying recognition that setting a time for ratification entails a determination qualitatively different from agreement on the substantive content of an amendment.
Apart from the acknowledged purpose of the time limitation—to inter proposed amendments grown stale through the passage of time—and the “placement” argument—that a time provision placed in the proposing clause forms no part of the amendment text submitted to the states for ratification— what support did Congress draw upon in making the judgment to extend the time for state consideration of the ERA? Article V, the terse amendment provision of the Constitution, is silent on the period for ratification. But the Supreme Court has drawn two base lines.
In 1921 the Court ruled in Dillon v. Gloss25 that article V implicitly requires occurrence of ratification within a reasonable time. Dillon sustained the power of Congress to set a time for ratification in the text of the Prohibition amendment.
What time span is reasonable? The Court addressed that issue in 1939 in Coleman v. Miller, it held that determination of the limitation period calls for an eminently legislative judgment, one for Congress to make. Coleman involved, inter alia, a claim that by 1937 the Child Labor amendment, proposed by Congress in 1924 without a ratification time limit, was dead—no longer open for ratification. Congress is uniquely equipped to decide the timeliness question, Chief Justice Hughes wrote, because of its “full knowledge and appreciation ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.”
When the ERA was proposed, Congress had no fine crystal ball to forecast the political, social, and economic conditions prevailing in the ensuing years. At best, Congress could make only an estimate in 1972. Was Congress disabled in 1978 from deciding that it estimated incorrectly when it specified for the ERA the time frame used for amendments more readily comprehended and less vulnerable to distortion—the vote for eighteen-year-olds, the order of succession to the Presidency, prohibition of a poll tax—to take the most recent examples?
Some extension opponents urged that Congress exhausts its authority once it proposes an amendment and designates the mode of ratification. At that point, so the argument goes, the process is entrusted entirely to the states. Just as Congress, after submitting an amendment to the states, may not change the wording of the text or the mode of ratification, so it may not alter the time frame.
But the view that “the only Congress that has power over any particular amendment is the Congress that proposed it,” and even that Congress, only up to the moment of proposal, seems shortsighted. Unquestionably, when a limitation period is not fixed in advance, the “reasonable time” appraisal must be made by Congress after submitting the amendment to the states. Coleman v. Miller also appears to indicate that even when a time period is set by the proposing Congress, it is within the province of a later Congress to decide that a reasonable time had elapsed prior to the deadline day, because conditions had so changed that the amendment was “no longer responsive to the conception which inspired it.” Other questions too may arise post submission, for example, the efficacy of a purported rescission, or the validity of a state-imposed rule requiring for ratification a three-fifths vote of the legislature. Is Congress disarmed, is it barred from addressing such questions if it does not anticipate and resolve them before submitting a proposed amendment to the states?
Most constitutional law teachers consulted by Congress while the extension measure was pending, whether they supported or opposed the measure, agreed on the threshold question—Congress has authority to extend a ratification time limit. Dillon and Coleman had bracketed the issue. Dillon held Congress could deal with timeliness at the outset, Coleman confirmed Congress could “wait and see,” deferring the question until “the time arrives for the promulgation of the adoption of the amendment.” Extension indicated a middle course: a time frame intended to ensure the proposed amendment would not roam around state legislatures indefinitely was enlarged upon a congressional determination that “the public interests and changing conditions” so warranted. Absent this continuing evaluation and control by Congress, a time limit in a proposing clause could be cut loose from its function. The limitation could inter a proposed amendment that remained vibrant, as the Supreme Court put it in Coleman, fully “responsive to the conception which inspired it.”
Professor Julie Suk explains further in a her remarks included in Feminism in the Age of Trump, 23 Cardozo J. Law & Gender 419 (2017) (available on Westlaw)

[T]here's a big question as to whether or not the ERA would just automatically become the 28th amendment. The deadline is a problem. For about a decade after the deadline passed in 1982, it was assumed that the ERA was dead. But something very interesting happened in our constitution, which was that in 1992, the 27th Amendment became part of the constitution. That amendment prohibits laws varying the compensation of members of Congress until an election cycle, and it was adopted by Congress and sent to the states for ratification under Article Five in 1789 along with the original Bill of Rights. But unlike the other rights in the Bill of Rights, only seven states ratified it within the 18th century, and an eighth state ratified in 1873. But a revival movement took shape in the 1980s, in part due to the mobilization of an undergrad who wrote a paper about it and received a C, but then started a letter-writing campaign to various state legislators, saying we can ratify this. There was no deadline. And then 38 states did ratify by 1992, and interestingly, additional states have continued to ratify even after 1992, even after we got to 38 and added it to the U.S. Constitution. So the 27th Amendment became part of the U.S. Constitution 202 years after it was sent to the states for ratification. So this makes it at least possible to imagine the ERA now becoming part of the constitution, if only we could do something about that deadline.

The ERA deadline was not part of the text of the amendment itself. Note that in the Prohibition Amendment, the ratification deadline was part of the text. But because the deadline wasn't part of the text of the ERA, now it's argued that Congress can just accept the ratifications and decide to repeal the deadline or just change the deadline, with bills introduced to that effect. Then, those post-deadline ratifications would be valid, and the ERA would come into effect. 

It's also argued further that even if Congress didn't change or repeal the ERA deadline, and the states just continued to ratify the ERA, we could still end up with a valid amendment on the theory that the deadline was never valid to begin with. The theory here would be that Article Five does not say anything about deadlines, so Congress imposed one illegitimately on the ERA.
Article Five tells you what the amendment process is. It's known throughout the world to be a deeply cumbersome process for amending the constitution. You need both Houses of Congress by two thirds, and then three fourths of the states to ratify. It's already pretty cumbersome. Imagine Congress then adding another layer of cumbersomeness to an amendment. Imagine Congress saying, “You also have to have a referendum in which at least 60% of the eligible electorate shows up and votes in order to validate that amendment.” You would think that Congress is imposing a condition on amending the Constitution that's not envisioned and even more cumbersome than Article Five. If Congress can't do that, I think the congressionally imposed deadlines on the ERA are arguably similar.
We have some precedent suggesting that congressionally imposed deadlines are not only legitimate, but possibly constitutionally required. The Supreme Court upheld the congressionally imposed deadline that was in the Prohibition Amendment. But as I said earlier, that congressionally imposed deadline was in the text of the Prohibition Amendment itself, in which case you could read Congress putting it in the amendment as an amendment or a partial amendment of Article Five.
By contrast, when Congress just puts the amendment into the legislation, setting off the ERA ratification process, then the ERA deadline is not a partial constitutional amendment. Rather, it could be seen as an effort by Congress to make the process of constitutionalizing gender equality more cumbersome than it's supposed to be.
As to the precedent itself.
In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court held that Congress could impose deadlines on constitutional amendments, and upheld the deadline in the Eighteenth Amendment on Prohibition. 
These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period.
That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, ‘as the one or the other mode of ratification may be proposed by the Congress.’ Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.
We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson ‘that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’ That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.
Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests**513 and changing conditions may require; and article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
The Court later held that any decision as to deadline was in the province of Congress, and was a political not legal question. Coleman v. Miller, 307 U.S. 433 (1939) (plurality) (Child Labor Amendment).
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Using these precedents, one district court invalidated the ERA's three-year extension. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982).
The question of whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to “propose” the “Mode of Ratification” have the power to change its proposal once it has been made and sent to the states; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a “conditional” ratification arguably prohibited by the amendment process.
To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution ....” Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256 U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the time restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “(a)n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments”, Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that
(w)hether a definite period for ratification should be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.
Id. at 376, 41 S.Ct. at 513 (emphasis added).
The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification.
The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon and Coleman cases found that as a “subsidiary matter of detail” to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are “sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period ....” Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority *1152 to decide that issue when the requisite number of states have acted.
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance “so that all may know what it is and speculation ... be avoided.” Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be re-evaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.
It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-“so all may know and speculation ... be avoided”-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.

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