Could the Equal Rights Amendment Come Back to Life?

Paging Phyllis Schlafly: Please call your office. The founder of the Eagle Forum, which led the campaign against the Equal Rights Amendment, hasn’t been with us since 2016, of course. Yet four decades after she defeated the ERA when it was a few states shy of ratification, the amendment ordaining equality between men and women could be back from the dead — if it survives a collision course with the courts. That, at least, is the hope of a group of state attorneys general, all Democrats, who have secured a hearing before a panel of riders of the District of Columbia Circuit of the United States Court of Appeals.They are arguing that the ERA belongs not in the dustbin of history but as part and parcel of the Supreme Law of the Land. Never mind that their claim was defeated at the trial level: The appeal is under way and will be heard September 28.The case will come before a panel of three judges: Neomi Rao, Michelle Childs, and Robert Wilkins. The effort to make the ERA part of the Constitution has been opposed by Alabama, Louisiana, Nebraska, Tennessee, and South Dakota.The ERA, initially proposed in 1923 and finally passed by Congress in 1972, reads: “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 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”The suit arises from the fact that when Congress approved the ERA, it gave the states seven years to ratify it. Backers of the ERA were unable to get enough states to do so. Some 38 states, making up three-quarters of the total, are required by the Constitution.It looked like the entire process was dead, or would have to be started over from scratch. In 2020, though, the attorneys general of Virginia, Nevada, and Illinois — all states that ratified the ERA in recent years — sued.Their aim is to force the archivist of the United States, then David Ferriero and now Debra Steidel Wall on an acting basis, to carry out the “statutory duty of recognizing the complete and final adoption of the ERA as the Twenty-eighth Amendment to the Constitution.” That suit was triggered by the Old Dominion’s passage of the ERA two years ago, which made it the 38th state to have done so. That, in the minds of some, meant it cleared the Constitution’s requirement in Article V that three-quarters of states approve an amendment for it to join the national parchment.For the attorneys general leading the charge, the ERA is already part of the Constitution, a phantom limb waiting to be made flesh. Yet Virginia itself has since dropped out of the lawsuit (it now has a Republican attorney general). In any event, Judge Rudolph “Rudy” Contreras ruled that the deadline for ratification passed “long ago.”The judge held that when Congress passed the ERA in 1972, it imposed a seven-year deadline to secure ratification, which was later extended by three years. When that expired in 1982, the ERA was three states short of passage. The clock ran out 40 years ago. Also militating against the ERA’s belated ratification is that between 1973 and 1977, five states — Nebraska, Tennessee, Idaho, Kentucky, and South Dakota — rescinded their ratification. A question raised by this appeal is whether rescinding ratification is constitutionally permissible. History suggests that it is not, as both New Jersey and Ohio attempted to back out of the 14th Amendment, a maneuver that was recognized by neither Congress nor the secretary of state. However, in 2020 Justice Ruth Bader Ginsburg, a long-time ERA champion, remarked that “if you count a latecomer on the plus side, how can you disregard states that said ‘we’ve changed our minds?’”On the question of the expired deadline, proponents of passing the ERA now argue that because the expiration date was not in the text of the amendment but rather passed separately, it does not bind. The archivist, dubious of this reading, has in consultation with the Department of Justice’s Office of Legal Counsel refused to certify the ERA “unless otherwise directed by a final court order.”Judge Contreras, in his decision, rejected the notion that such certification would be effective even if it transpired, observing that “an amendment becomes law when it secures ratifications from three-fourths of the states — not when the Archivist publishes and certifies it.”Against the notion that the Archivist must certify the ERA, Judge Contreras offered the rejoinder that “the ministerial nature of the Archivist’s obligations does not mean that he must rubberstamp any ratification he receives but rather that, once he has determined that a proposed amendment has met Article V’s requirements, he must publish it.”To the point that because the deadline was not bundled into the amendment itself it is superfluous, the Supreme Court has held that Congress can attach a deadline to an amendment “as an incident of its power to designate the mode of ratification.” There is a long history, Judge Contreras writes, of “Congress placing ratification conditions in its proposing resolutions’ prefatory language.”In seeking to persuade the riders of the D.C. Circuit that the ERA is not defunct, advocates bring up the 27th Amendment, which prohibits a Congress from increasing its own pay.First submitted for ratification in 1789, the 27th failed to win ratification. It languished unratified for 202 years until a college student at the University of Texas at Austin, Gregory Watson, led a successful campaign for ratification. There’s a big difference, though, between the 27th and the ERA, the would-be 28th. The congressional enactment of the 27th Amendment did not specify that ratification had to be achieved within a certain number of years. It set no deadline at all.

Could the Equal Rights Amendment Come Back to Life?

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