Fresh from the 1920 ratification of the Nineteenth Amendment, which prohibits sex discrimination in voting, the National Woman’s Party (NWP) called for a constitutional amendment to more broadly guarantee equality between men and women. During the next 50 years, Members of Congress introduced hundreds of resolutions to propose what has become known as the Equal Rights Amendment (ERA). Committees in both the Senate and House of Representatives held dozens of hearings on the meaning of legal equality between men and women, whether that goal could best be reached by legislation or a constitutional amendment, and, if the latter, what it should say and how it might apply.
Representative Martha Griffiths (D–MI), who became the ERA’s leading advocate in Congress, introduced House Joint Resolution 208 on January 26, 1971, to propose this language: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” She agreed to add a seven-year ratification deadline, which she placed in Resolution 208’s proposing clause, to help “gain united support for the amendment,” a decision supported by women’s groups that backed the ERA. Congress proposed the 1972 ERA on March 22, 1972, when, as the House had done, the Senate overwhelmingly approved Resolution 208.
The Ratification Deadline
Everyone understood that the 1972 ERA’s ratification deadline was binding. The Justice Department’s Office of Legal Counsel (OLC), for example, concluded in a February 1977 opinion that the 1972 ERA “must be approved within 7 years after its submission to the States.” Two months later, the U.S. Commission on Civil Rights released a report, co-authored by then-Professor Ruth Bader Ginsburg, agreeing that ratification “must occur within 7 years…by 1979.” And President Jimmy Carter’s Advisory Committee for Women observed that three-fourths of the states “must ratify the ERA by [the deadline] if it is to become an amendment to the Constitution.”
Adding a ratification deadline may have bolstered congressional support, but Griffiths’ prediction that states would ratify it “in less than 2 years” really missed the mark. With the March 1979 deadline looming, 35 states had passed ratification resolutions, three short of the necessary three-fourths threshold, and five of those states had rescinded their approval. Knowing that the deadline was binding, Congress passed a resolution, later found to be unconstitutional, to extend the deadline by 39 months, but it did not help; the last state to ratify the 1972 ERA, Indiana, had done so in January 1977. As a result, the Congressional Research Service (CRS) has observed, the 1972 ERA “formally died on June 30, 1982.”
No one disputed this conclusion. The National Organization for Women (NOW) “concede[d] defeat” and “officially ended its…battle to win ratification of the Equal Rights Amendment.” Less than a year after the 1972 ERA’s demise, Senator Paul Tsongas (D–MA) introduced the same language, and the same ratification deadline, as Senate Joint Resolution 10. In the first of several Judiciary Committee hearings on this proposal, Senator Dennis DeConcini (D–AZ) noted that a new resolution to propose the ERA was necessary because “the proposed [1972 ERA] died on June 30, 1982.” When asked about the ERA’s status on The Oprah Winfrey Show in January 1986, feminist leader Gloria Steinem explained that “because it was not ratified in the nine years allotted to it, it now has to start the process over again, and…be passed by the House and the Senate and go through all of the states’ ratification process…. It does have to go through the process over again.”
Steinem was right, but the prospect of Congress again proposing the ERA looked grim. When the 98th Congress opened in January 1983, for example, Representative Peter Rodino (D–NJ) introduced House Joint Resolution 1 to propose the same language—including the ratification deadline in the proposing clause—as the failed 1972 ERA. The original 352–24 vote in 1972, however, became a 278–147 tally that fell far short of the two-thirds threshold required for proposing amendments. Neither the Senate nor House has voted on a resolution to propose the ERA since then.
Also hampering the ERA’s future prospects was that, in addition to the issues that led to the 1972 ERA’s failure, it was becoming even more controversial. Advocates had already been arguing, for example, that the ERA would strengthen abortion rights, and began claiming that it was needed to address problems that originate in private, rather than government, action. These include “economic inequality,” the “feminization of poverty,” “differential occupational distributions” of men and women, “pay equity,” sexual harassment and assault, “intimate partner violence,” “gender-based violence,” “pregnancy discrimination,” “gender-driven injustices,” “victim-blaming,” “maternal mortality,” equality for “marginalized genders,” and healing “intergenerational wounds.”
Mostly Dead or All Dead?
ERA advocates turned their attention to making an argument that the 1972 ERA, the only one Congress would likely ever propose, might still be alive, that the rumors of its death had been greatly exaggerated. After all, as Miracle Max put it in The Princess Bride, “[t]here’s a big difference between mostly dead and all dead.” A 1997 article laid out the argument that would inform efforts going forward. That argument goes like this:
- While a ratification deadline placed in a proposed amendment’s text is binding, a “non-textual” deadline placed in a resolution’s proposing clause is only “advisory…rather than binding on the States”;
- A state that passes a resolution to ratify a proposed amendment may never rescind it, even while the amendment is still pending before the states;
- Because the 1972 ERA had no binding ratification deadline, it remained pending and could be ratified by additional states; and
- Congress has broad power over the entire constitutional amendment process, including retroactively changing or repealing the 1972 ERA’s ratification deadline and making it part of the Constitution by declaring it to be finally ratified.
Three-State Strategy. ERA advocates used this argument to launch what they called a “three-state strategy” that had two objectives.
- ERA advocates sought to persuade three additional states to pass resolutions ratifying the 1972 ERA; and
- They wanted Congress to retroactively remove the 1972 ERA’s ratification deadline and, upon three more state ratifications, to declare that the 1972 ERA had become the Twenty-Eighth Amendment.
The first step was achieved when three states—Nevada in 2017, Illinois in 2018, and Virginia in 2020—passed ratification resolutions. The second step, however, has stalled. The House of Representatives twice passed a resolution asserting that the 1972 ERA will be part of the Constitution “whenever ratified by the legislatures of three-fourths of the states.” On April 27, 2023, a Senate filibuster blocked consideration of a resolution asserting that the 1972 ERA had, in fact, already become part of the Constitution, “having been ratified by the legislatures of three-fourths of the several States.”
After some background on the constitutional amendment process, this Legal Memorandum will first address the two pillars of the three-state strategy: (1) that a ratification deadline’s location determines its validity; and (2) that Congress can affect the status of a proposed constitutional amendment. It will then examine specific arguments by liberal constitutional scholars intended to advance that strategy.
The Constitutional Amendment Process
“The Founders established a process for amending the Constitution that requires substantial agreement within the Nation to alter its fundamental law.” Article V outlines the process by which constitutional amendments can be proposed and ratified. An amendment can be proposed by two-thirds of the Senate and House or by a convention called by Congress after application by two-thirds of state legislatures. Either way, to become part of the Constitution, a proposed amendment must be ratified by three-fourths of the states in the mode, by legislatures or conventions, that Congress chooses.
Congress proposes a constitutional amendment in the form of a joint resolution with two parts: a proposing clause with procedural rules, including the mode of ratification and any ratification deadline, and the text of the proposed amendment. When the Senate and House have passed the same resolution by a two-thirds margin, which “ha[s] the effect of formally proposing the amendment to the states for ratification,” the Archivist of the United States transmits the resolution to the governor of each state.
States that ratify a proposed amendment by the mode Congress has specified prior to any deadline Congress has imposed send to the Archivist a certified copy of their ratification resolutions. The Office of the Federal Register, which is part of the National Archives and Records Administration, “examines ratification documents for facial legal sufficiency and an authenticating signature” and “transfers the record to the National Archives for preservation.” A federal statute provides that, when an “amendment…has been adopted, according to the provisions of the Constitution,” the Archivist is required to publish the amendment, “with his certificate, specifying the States by which the same may have been adopted, and that the same has become…a part of the Constitution of the United States.”
As the Justice Department explains, the constitutional amendment process is “self-executing upon completion.” A proposed constitutional amendment becomes part of the Constitution, and the amendment process comes to an end, when a proposed amendment is ratified by three-fourths of the states (today, 38 of 50 States). The Archivist’s certification and publication, while required by statute, merely provide “official notice” that the amendment process “has been completed.”
More than 12,000 resolutions to propose constitutional amendments on a host of subjects have been introduced since the Constitution was ratified in June 1788. The states have ratified 27 of the 33 amendments that Congress has proposed, and four amendments, proposed without a ratification deadline, have yet to be ratified by three-fourths of the states. The remaining two proposed amendments—including the 1972 ERA—expired when their deadline passed with insufficient state support.
Ratification Deadlines: Location, Location, Location
To succeed, the three-state strategy requires either that Congress has no authority to set a ratification deadline when proposing constitutional amendments, or that the deadline it set for the 1972 ERA was somehow invalid. The Supreme Court took the first option off the table by holding, in Dillon v. Gloss, that Congress’ authority to set the mode of state ratification includes setting a ratification deadline.
A path to ratification success, therefore, exists only if the 1972 ERA’s ratification deadline was not binding. ERA advocates claim that a deadline’s validity depends on its location; a deadline placed in the proposed amendment’s text is binding, but one placed in the resolution’s proposing clause is not. By placing the ratification deadline in Resolution 208’s proposing clause, they contend, Congress effectively proposed the 1972 ERA with no ratification deadline at all.
All of the relevant evidence, however, supports the understanding by everyone associated with the 1972 ERA that its ratification deadline, placed in the resolution’s proposing clause, was binding. Congress, for example, believes that it has authority not only to set a ratification deadline, but to place it in either location. Congress has proposed 10 constitutional amendments with a ratification deadline, placing five in the text and five in the proposing clause, and the states have ratified four in each category.
The Justice Department, including under the current Administration, rejects the argument that a ratification deadline’s validity depends on its location. In 2022, the Justice Department defended the Archivist against a lawsuit by Illinois and Nevada trying to force his certification and publication of the 1972 ERA as the Twenty-Eighth Amendment. Its appellate brief in Illinois v. Ferriero argued that “Members of Congress did not ascribe any substantive difference to the two types of deadlines” and that “substantial historical practice…supports Congress’s authority” to decide where to place a ratification deadline.
The proper location for a ratification deadline did come up in a 1932 hearing on what would become the Twentieth Amendment. The only question, however, was the suitability, not the validity, of placing a ratification deadline in the amendment’s text or the resolution’s proposing clause. Since final ratification renders a deadline irrelevant, placing it in the proposing clause would, some said, avoid “cluttering up” the Constitution with inoperative provisions. This idea caught on, and Congress placed a ratification deadline for Amendments Twenty-Three to Twenty-Six in their respective resolutions’ proposing clause. Similarly, the first ratification deadline in an ERA resolution, introduced in 1943, appeared in its proposing clause, as have 93 percent of the ERA ratification deadlines since then.
This shift from placing a ratification deadline in a proposed constitutional amendment’s text to its resolution’s proposing clause went virtually unnoticed. “The House report [on the proposed Twenty-Third Amendment] did not note that for the first time Congress had shifted the seven-year limit from the text of the amendment to the [proposing clause]. Similarly, neither the House nor Senate debates on the [Twenty-Third through Twenty-Sixth] amendments observed the fact that the seven-year limitation had shifted.”
Illinois v. Ferriero. As noted above, the Justice Department rejected the location-determines-validity argument in its brief defending the Archivist in Illinois v. Ferriero. The brief also observed that, while the Supreme Court has not directly addressed this question, it has “offered three ‘clues’ that the validity of a ratification deadline does not turn on its precise location within the joint resolution.”
- In recognizing Congress’ power to set a deadline, the Court “did not specify where in the resolution the deadline was placed…perhaps because it did not attach any significance to that particular detail.”
- In Coleman v. Miller, the Supreme Court noted that, unlike the Eighteenth Amendment at issue in Dillon, the pending Child Labor Amendment had “[n]o limitation of time for ratification…either in the proposed amendment or in the resolution of submission.” The Justice Department noted that there would have been “no need to confirm the absence of a deadline in the proposing clause if such a deadline could not have been effective.”
- “Third, and most telling, is the Court’s decision in 1982 that the controversy regarding Congress’s extension of the ERA’s deadline became moot when the extended deadline expired.”
The third clue deserves additional emphasis. The 1972 ERA’s extended deadline expired while the U.S. District Court’s decision in Idaho v. Freeman that this deadline was unconstitutional was pending before the Supreme Court. A few days later, Acting Solicitor General Lawrence G. Wallace prepared a memorandum for the Administrator of General Services, the defendant in the states’ lawsuit, arguing that the case should be dismissed as moot. “Even if all the ratifications remain valid, the rescissions are disregarded, and Congress is conceded the power to extend the ratification period as it did here,” Lawrence wrote, only 35 of the necessary states can be regarded as having ratified the Amendment.”
The Supreme Court agreed, vacating the case on October 4, 1982, “[u]pon consideration of the memorandum for the Administrator of General Services suggesting mootness.” The only way to understand this decision is that the 1972 ERA was no longer pending before the states. If the deadline had been invalid, as ERA advocates claim today, the case would not have been moot and the Supreme Court would not have dismissed it. Because the 1972 ERA’s ratification deadline was valid, it died when that deadline passed with insufficient state support.
The three-state strategy also asserts that Congress has robust control over the entire constitutional amendment process. ERA advocates, for example, claim that Congress has authority to resolve conflicts over a proposed amendment’s ratification, can retroactively change a joint resolution proposing an amendment that it passed decades ago, and even affect the ratification status of a proposed constitutional amendment. This theory, sometimes referred to as congressional promulgation, is incompatible with the text of Article V, which gives Congress three specific powers in the constitutional amendment process.
- “[W]henever two thirds of both Houses shall deem it necessary, [it] shall propose Amendments to this Constitution.”
- “[O]n the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments.”
- Whether an amendment is proposed by Congress or a convention, Congress establishes its “Mode of Ratification,” that is, whether ratifying states must act through their legislatures or in conventions. The Supreme Court has unanimously held that the power to set the mode of ratification includes “fix[ing] a definite period for the ratification.”
Applying long-established interpretive canons makes it clear that, by giving Congress specific enumerated powers in the constitutional amendment process, Article V cannot be read as giving Congress additional unenumerated ones. Congress, in other words, has only the specific powers explicitly granted by Article V, powers that end with the proposal of a constitutional amendment. ERA advocates claim that Congress has more power than Article V provides by misconstruing and misapplying two Supreme Court precedents.
Dillon v. Gloss. Congress proposed the Eighteenth Amendment, which initiated Prohibition, on December 18, 1919. Ratification was complete in 13 months, long before the seven-year ratification deadline that appears in the amendment’s text. In Dillion v. Gloss, an individual arrested for violating the Volstead Act, which Congress enacted to enforce Prohibition, challenged the Eighteenth Amendment’s validity, arguing that Congress had no authority to set any ratification deadline. The Supreme Court unanimously rejected this argument, holding that the authority to set a proposed amendment’s mode of ratification includes setting a ratification deadline.
Dillon’s actual holding, which concerned the ratification deadline that Congress placed in the Eighteenth Amendment, stopped there. For whatever reason, however, the Court went on to examine constitutional amendments “proposed long ago…[that] are still pending” because they did not have a ratification deadline. The Court thought it “quite untenable” that such a long-pending amendment could still be ratified because of the “inference or implication from article 5…that ratification must be within some reasonable period of time after the proposal.” Dillon’s holding that Congress has authority to set a ratification deadline is relevant to the 1972 ERA; its dicta about Congress’s authority regarding amendments proposed without a deadline is not.
Coleman v. Miller.Coleman v. Miller involved one of the long-pending amendments that the Court had referenced in Dillon. Congress proposed the Child Labor Amendment in June 1924 without a ratification deadline, and 28 states passed ratification resolutions over the next 13 years. In January 1937, a dozen years after rejecting the proposed amendment, the Kansas Senate split 20–20 on a new ratification resolution. The Lieutenant Governor, the Senate’s presiding officer, broke the tie to pass the resolution, and the House then passed it. Members of the legislature, including the 20 senators who opposed the ratification resolution, sued to declare passage of this resolution invalid, arguing that “the proposed amendment had lost its vitality” because of “the failure of ratification within a reasonable period of time.”
The Supreme Court found that the dicta in Dillon carried the “fair implication” that “ratification must be within some reasonable time after the proposal” but concluded that Congress rather than the courts may decide “what constitutes a reasonable time and determine accordingly the validity of ratification.” This requirement must be implicit in Article V itself because the Court repeatedly emphasized that it is an issue only when “the limit has not been fixed in advance.” Coleman, therefore, is irrelevant to the 1972 ERA.
The theory of congressional promulgation, in general, and the decisions in Dillon and Coleman, in particular, have been widely criticized. In its 1992 opinion on ratification of the Twenty-Seventh Amendment, for example, the OLC concluded that “the notion of congressional promulgation is inconsistent with both the text of Article V and with the bulk of past practice.” Similarly, in its 2020 opinion on ratification of the 1972 ERA, the OLC stated that “[n]othing in Article V suggests that Congress has any role in promulgating an amendment after it has been ratified by the requisite number of state legislatures or conventions.”
Both liberal and conservative scholars have also rejected this theory. The late professor, and former Acting Solicitor General, Walter Dellinger, for example, wrote that Article V “requires no additional action by Congress or by anyone else after ratification by the final state. The creation of a ‘third step’—promulgation by Congress—has no foundation in the text of the Constitution.” Similarly, Professor Grover Rees has written that this theory “is no more defensible than to find a third house of Congress hidden cleverly in the interstices of the constitutional language vesting all legislative power in a House and a Senate.”
Significantly, many liberal scholars who support the first pillar of the three-state strategy nonetheless reject congressional promulgation. In their amicus curiae brief in Illinois v. Ferriero, for example, 16 of the liberal scholars whose arguments are examined below asserted that nothing in Article V “suggests the primacy of Congress over the States in making an amendment a valid part of the Constitution. In particular…promulgation by Congress has no foundation in the text of the Constitution and has been widely discredited.”
The Scholars’ Arguments
In different combinations, 25 liberal constitutional scholars have made arguments supporting one or both pillars of the three-state strategy by signing two letters dated January 8, 2022, and March 22, 2022, to House Oversight Committee chairwoman Carolyn Maloney (D–NY); two amicus curiae briefs dated January 10, 2022, filed with the U.S. Court of Appeals for the D.C. Circuit in Illinois v. Ferriero; and a memorandum dated February 28, 2023, submitted to the Senate Judiciary Committee for its hearing on Senate Joint Resolution 4, purporting to declare the 1972 ERA part of the Constitution. The following analysis will address some of the claims and arguments in these documents, taking them in chronological order.
The January 8, 2022, Letter
Ten scholars signed this letter to Maloney, who had asked for their analysis of the 2020 OLC opinion. These scholars assert that, in Coleman, the Supreme Court “stated that Congress has authority to ‘promulgate’ or ‘proclaim’ an amendment after its ratification.” As discussed above, ratification by three-fourths of the states, by itself, makes a proposed constitutional amendment part of the Constitution and terminates the amendment process. The terms “promulgate” or “proclaim,” therefore, cannot refer to any action by Congress that has any effect on the ratification status of a proposed constitutional amendment.
Even if these scholars correctly characterized Coleman, that decision is relevant only when “Congress did not fix a time limitation for ratification.” Whatever Coleman said and however it might apply in that context, it is irrelevant to the 1972 ERA. Strangely, three legal scholars—Laurence Tribe and Martha Minow of Harvard University and Geoffrey Stone of the University of Chicago—signed both this letter citing Coleman as the basis for congressional promulgation and the amicus curiae brief in Illinois v. Ferriero, mentioned above, insisting that Coleman is relevant “only in the absence of any congressional ratification deadline.”
These scholars next claim that Congress has “effectively resolved…conflicts over prior ratification processes.” Similarly, in one of the amicus briefs filed in Illinois v. Ferriero, discussed below, four scholars assert: “History demonstrates that Congress has authority to resolve disagreements on ratification.” Even if history, rather than the Constitution, established Congress’ authority in the constitutional amendment process, however, the examples offered by both sets of scholars do not support their position.
The Fourteenth Amendment. When Congress proposed the Fourteenth Amendment on June 13, 1866, ratification by 28 states was required to meet the Constitution’s three-fourths threshold. By July 9, 1868, 28 states had passed ratification resolutions and two of them, Ohio and New Jersey, had rescinded their approval. Alabama ratified on July 13, 1868, and, one week later, Secretary of State William Seward issued a “conditional certification” stating that the amendment had become part of the Constitution if the Ohio and New Jersey ratification rescissions were invalid.
The next day, as Congress was passing a concurrent resolution declaring the Fourteenth Amendment to be part of the Constitution, word arrived that Georgia had also ratified it. With 28 unrescinded ratifications, the Fourteenth Amendment had unquestionably reached the three-fourths threshold and become part of the Constitution. After receiving the official ratification certification from Georgia, Seward issued a new certification on July 28 that included Ohio, New Jersey, Alabama, and Georgia on the list of ratifying states.
The scholars’ suggestion that Congress’ resolution helped make the Fourteenth Amendment become part of the Constitution is problematic for several reasons. First, it is incompatible with the text of Article V, which gives Congress no role in the process after proposing an amendment. Second, if the scholars’ contemporary argument that states may not rescind ratification of a proposed constitutional amendment is valid, then the Fourteenth Amendment was already part of the Constitution when Congress passed its resolution. The OLC concluded in its 1992 opinion that this resolution, “adopted with no substantive debate, was unnecessary and an aberration.” Third, Georgia’s ratification meant that the Fourteenth Amendment had been finally ratified even if Ohio and New Jersey’s ratification rescissions were valid.
The Twenty-Seventh Amendment. The scholars claim that “ratification of the 27th Amendment similarly illustrates Congress’s leading authority to resolve ambiguities or conflicts incident to the ratification process.” They assert that “Congress in fact affirmed the amendment’s ratification in 1992,” implying that Congress did something that helped complete the 27th Amendment’s ratification or somehow affected its status. This suggestion, however, is false.
The House and Senate did pass resolutions “recognizing the [27th] Amendment,” but they had no legal effect whatsoever. House Concurrent Resolution 320, for example, simply declared that the proposed amendment “has been ratified by a sufficient number of the States and has become a part of the Constitution.” Just as the Archivist’s certification is nothing more than a public notice that a constitutional amendment has been proposed, these resolutions simply recognized an event—final ratification—that had already taken place. If this was an example of a power of Congress, it was the power of the Senate or House to express its opinion, nothing more.
The scholars next claim that “[i]n Coleman, the Supreme Court held that questions regarding the ratification process of a proposed amendment and the ‘period within which ratification may be had’ are political questions for Congress to resolve.” Coleman, however, addressed only one ratification process question, that is, the length of time between Congress proposing a constitutional amendment and a state ratifying it. And even if the scholars had not mischaracterized its scope, Coleman did not, as the OLC has noted, explain “the constitutional basis for the assertion that Congress had authority to ‘promulgate’ an amendment.” And, once again, the Supreme Court explicitly limited Coleman to amendments proposed without a ratification deadline. Coleman, therefore, is irrelevant to the 1972 ERA.
ERA advocates attempt to equate Congress retroactively repealing a ratification deadline long after that deadline has expired, as they want Congress to do today, with extending a ratification deadline before it has expired, as Congress did in 1978. These scholars, for example, claim that the 2020 OLC opinion that Congress cannot change an expired deadline “contradicts” the 1977 OLC opinion that Congress could change the 1972 ERA’s ratification deadline that had not yet expired. On its face, however, the 1977 OLC opinion makes that position untenable.
Certainly if a time limit had expired before an intervening Congress had taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House and thereby begin the ratification process anew.
The Illinois v. Ferriero Briefs
The Justice Department’s Brief. The Justice Department’s brief defending the Archivist on appeal makes four significant arguments that, individually and especially in combination, contradict arguments by liberal scholars in two amicus curiae briefs filed in this litigation.
- Because the ratification process is “‘self-executing upon completion,’” the Archivist’s actions have “no effect on [a proposed amendment’s] legal status or validity.” Without suffering any injury caused by the Archivist declining to certify and publish the 1972 ERA as the Twenty-Eighth Amendment, therefore, the states had no standing to sue.
- “Although the plaintiff States argue that the ERA has been validly adopted notwithstanding the congressional deadline, they have not identified any relevant legal authority establishing that this is so.”
- “Members of Congress did not ascribe any substantive difference” between “a ratification deadline placed in the resolution’s proposing clause and one placed in the proposed amendment’s text.” In fact, “substantial historical practice…supports Congress’s authority to place a ratification deadline in either location.”
- “Congress has repeatedly acted on the assumption that the [1972 ERA’s ratification] deadline is valid (including by voting to extend it).”
The Scholars’ Amicus Curiae Briefs. Two groups of scholars filed amicus curiae briefs in this case. In one brief, mentioned above, 16 scholars focused on the first pillar of the three-state strategy, that a ratification deadline in the resolution’s proposing clause is not binding. They claim, for example, that Dillon recognized Congress’ power to set a ratification deadline “only where the time limit was set forth in the text of the proposed amendment that was itself sent to the States for ratification.”
Simply reading Dillon shows that this is pure fiction. While the Court discussed “[w]hether a definite period for ratification shall be fixed” at all, the Court said nothing about a deadline’s location. “Notably,” wrote the Justice Department in its appellate brief, “the Court did not specify where in the resolution the deadline was placed.” The Justice Department was right, the scholars are wrong.
This error is especially significant because the legitimacy of the three-state strategy depends on whether a ratification deadline’s location affects its validity. On that point, the proper reading of both Dillon and Coleman contradicts these scholars’ argument. The fact that the Court in Dillon said nothing about the ratification deadline’s location, the Justice Department argued, suggests that it “did not attach any significance to that particular detail.” Similarly, the Court observed in Coleman that the Child Labor Amendment had no ratification deadline “either in the proposed amendment or in the resolution of submission,” implying that either placement would have been equally valid.
These scholars next claim that there is “no evidence” that Congress intended a ratification deadline placed in the resolution’s proposing clause “to bind the States in the same manner as a deadline the States themselves could vote upon.” Representative Griffiths, however, repeatedly spoke to the validity of the ratification deadline that she placed in Resolution 208’s proposing clause. That deadline could only have served her objective of promoting “united support for the amendment” if it were binding. And, as noted elsewhere, everyone believed that the 1972 ERA’s ratification deadline was valid. The scholars neither suggest a reason why Congress would set a binding ratification deadline in some proposed amendments, but a non-binding deadline in others, nor offer any evidence that Congress ever took this unusual step.
The basis for the scholars’ further suggestion that a ratification deadline is binding only if “the States [can] vote upon” it is a mystery. Procedural rules for the ratification process are not negotiated with the states or require the states’ approval but are set by Congress when it proposes a constitutional amendment. Congress, for example, designated the mode of ratification for all 33 amendments it has proposed in each resolution’s proposing clause; under the scholars’ theory, the states would have been free to ignore Congress’ instruction and express their position on ratification in any manner they chose.
Even if that notion had any merit, the scholars are, once again, wrong on the historical facts. In at least 25 of the 35 ratifying states, the legislature adopted a ratification resolution that “quoted [Resolution] 208 in its entirety, including the language [in the proposing clause] referring to the seven year ratification period.” Five other states passed resolutions that “did not quote [Resolution] 208 in its entirety, but during the ratification process included reference to the seven year time limit for ratification.” Even under the scholars’ own theory, the 1972 ERA died no later than June 30, 1982.
The three scholars—Tribe, Minow, and Stone—who signed both the January 8, 2022, letter and this amicus curiae brief argue in the letter that “Congress has the authority to ‘promulgate’…an amendment” and cite Coleman for the idea that “questions regarding the ratification process…are political questions for Congress to resolve.” But in the brief, they argue that congressional promulgation “has been widely discredited” and that Coleman is “inapplicable” to the 1972 ERA. Needless to say, they cannot have it both ways.
In a second brief “on behalf of neither party,” four legal scholars focused on the second part of the three-state strategy, that Congress has authority over the entire constitutional amendment process and can take steps to affect a proposed amendment’s ratification status. They argue, for example, that the “text of Article V…suggest[s]” that whether a proposed constitutional amendment has become part of the Constitution “is a political question for Congress.” Anyone reading Article V, however, will look in vain for that suggestion. Rather, it says that a proposed constitutional amendment becomes part of the Constitution upon ratification by three-fourths of the states, not when Congress says so.
These scholars rely on Coleman for the proposition that “the issue of a time period for ratification was a non-justiciable political question.” But, to repeat, Coleman involved a constitutional amendment proposed without a ratification deadline and the Supreme Court repeatedly disclaimed that its decision extended beyond that context. It is, as the 16 scholars argued in their separate brief, “inapplicable” to the 1972 ERA.
These four scholars argue that because Congress has “a textually prescribed role in amending the Constitution…Congress should have the opportunity to decide whether the ERA has been effectively ratified.” Article V, however, already determines when a proposed constitutional amendment has been effectively ratified: “when ratified by…three fourths of the several States.” The scholars, therefore, appear to argue that Congress’ explicit power to propose constitutional amendments comes with the implicit power to set aside Article V’s objective ratification criterion in favor of a standard it prefers.
That assertion is absurd on its face. The fact that Congress’ role in the constitutional amendment process is “textually prescribed” means the opposite of what these scholars claim. It forecloses Congress from having any unenumerated powers, such as promulgating a proposed amendment or taking any other action that might affect a proposed amendment’s ratification status.
Professor Tribe’s March 22, 2022, Letter
Professor Tribe wrote Representative Maloney on March 22, 2022, to provide his “opinion as a legal scholar on the current status of the Equal Rights Amendment.” He signed the January 8, 2022, letter asserting that Congress can promulgate a proposed constitutional amendment and the 16-scholar brief in Illinois v. Ferriero emphatically rejecting congressional promulgation. In his letter, Tribe returned to the position that Congress can make the 1972 ERA part of the Constitution “by taking concurrent action to recognize [its] status as part of the Constitution.”
Tribe argued that whether a proposed amendment becomes part of the Constitution will not be decided “by any formal criterion or procedure to be found in the Constitution itself.” That argument renders inexplicable Article V’s directive that “Amendments…shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”
Tribe argued that because Congress extended the 1972 ERA’s original deadline before that deadline expired, it may retroactively change or repeal that deadline decades after it expired. Whether Congress has the power to extend a ratification deadline it has already set, and on which the states have voted, was so controversial that the Senate Judiciary Committee held a week-long hearing on that question in 1978 before Congress voted on the extension resolution. Congress passed that resolution by only a simple majority rather than the two-thirds majority required to propose a constitutional amendment.
ERA advocates pushed for an extension before the March 1979 deadline expired precisely because they knew they could not do so after. When that deadline expired with insufficient state support, however, Resolution 208 no longer existed. Legislative measures, including resolutions to propose constitutional amendments, expire if not approved within the two-year Congress in which they were introduced. A new resolution must be introduced after the next Congress convenes because the previous one no longer exists. No Member of Congress would try to continue work on a resolution introduced in the previous Congress, but rather, he or she would introduce a new resolution, even if identically worded, and start the legislative process again.
Similarly, a constitutional amendment proposed with a ratification deadline no longer exists when that deadline passes with insufficient state support. When its ratification deadline passed, Resolution 208 was no longer pending before the states. It was neither available to the states to be further ratified nor to Congress to be amended. This is why the Supreme Court dismissed Idaho v. Freeman as moot and what Gloria Steinem explained on Oprah in 1986.
Steinem was right, Tribe is wrong.
Tribe also observed that “[t]here is no historical example of enforcing preamble deadlines like the one contained in the proposing resolution for the  ERA.” This is an observation, not an argument, and means only that, like those with textual ratifications deadline, previous amendments proposed with a preamble deadline—Amendments Twenty-Three to Twenty-Six—were ratified well before their deadline expired. Tribe does not even suggest how that observation about ratification history is relevant to the 1972 ERA.
Tribe repeats the factual error in the brief he signed in Illinois v. Ferriero: “Because these deadline concerns are unrelated to the text of the ERA on which state legislatures have based their ratification votes, the deadline’s expiration does not impact post-deadline ratifications.” Neither Congress nor the states, when proposing or ratifying a constitutional amendment, however, vote solely on its text; they act upon a resolution that includes both that text and procedural rules for its consideration by the states.
This has been Congress’ practice from the start. Its 1789 resolution proposing 12 amendments, for example, placed in the proposing clause the instruction that “any or all” of them would become part of the Constitution “when ratified by three fourths of the [state] Legislatures.” This proposing clause “was debated by the House and the Senate and considered of a piece with the substantive proposed amendments.” The states obviously considered this procedural rule to be valid, despite its placement in the proposing clause, by ratifying some, but not all, of the proposed amendments.
Tribe concluded by asserting that “Dillon and Coleman leave to Congress the power to determine an amendment’s contemporaneity under the political question doctrine.” Since the sole issue in Dillon was whether Congress had authority to set any ratification deadline, its discussion of Congress’ authority over ratification of an amendment proposed without a deadline was irrelevant dicta. And the Supreme Court could not have been clearer in Coleman that its conclusion was limited to when Congress has not, as it did for the 1972 ERA, set any ratification deadline. As the 16-scholar brief in Illinois v. Ferriero—that Tribe signed—stated: “The political-question language in Coleman was…narrowly framed so as to be inapposite here.”
The February 28, 2023, Memo
Five scholars signed onto this memo and submitted it to the Senate Judiciary Committee for its hearing on Senate Joint Resolution 8, introduced by Senator Ben Cardin (D–MD). Like previous resolutions of this kind that Cardin had introduced, Resolution 8 purported to remove the 1972 ERA’s ratification deadline. Resolution 8, however, went further and declared that the 1972 ERA had, in fact, become the Twenty-Eighth Amendment. To support this resolution, these scholars argued that Congress has broad authority over the entire constitutional amendment process, including the resolution of any questions about whether a proposed amendment has been finally ratified.
These scholars’ first claim that “nearly all of the 27 amendments to the Constitution” were ratified despite “irregularities” and “uncertainties” has two glaring flaws. First, their proffered “irregularities” and “uncertainties” turn out to be nothing of the kind. They observe, for example, that the 27th Amendment “was proposed by the First Congress and then took more than 200 years to be ratified by 38 state legislatures.” The scholars offer no hint why this statement, while factually correct, identifies an irregularity or an uncertainty.
To be sure, more than two centuries is a long time for a proposed constitutional amendment to be pending; the states ratified the others in an average of about 20 months. Like any other amendment proposed without a ratification deadline, however, it remained pending until three-fourths of the states ratified it—exactly as Article V requires. Even if there were something about the Twenty-Seventh Amendment’s ratification that appears irregular or uncertain, however, Congress did nothing that had any effect on its status. And the scholars do not explain how ratification of an amendment proposed without a deadline is relevant to ratification of the 1972 ERA, which had one.
The Twelfth Amendment. The scholars’ next example is an even more misleading observation masquerading as an uncertainty or irregularity. The Twelfth Amendment, they say, “was approved in the Senate by 2/3 of a quorum and not the full body.” Wording it this way implies that, perhaps, the Senate was supposed to approve the Twelfth Amendment by “2/3 of…the full body.”
It is difficult to believe that these scholars do not know the default rule for the Senate or House to conduct legislative business. Article I provides that “a Majority of [the Senate or House]…shall constitute a Quorum to do Business.” Unless the Constitution, a chamber’s standing rules, or a unanimous consent agreement says otherwise, an act by a majority of a chamber’s quorum is an act of the chamber itself. Article V provides that proposing a constitutional amendment requires “two thirds of both Houses,” which means that Congress proposes a constitutional amendment when two-thirds of each house’s quorum passes the same joint resolution for that purpose.
The Senate, therefore, passed the resolution to propose the Twelfth Amendment in exactly the manner that the Constitution requires. The only uncertainty comes from the scholars’ misleading suggestion to the contrary. If constitutional amendments required two-thirds of the entire Senate and House to be proposed, the validity of much of the Constitution would be in doubt. No less than 10 of the 27 amendments ratified by the states received less than two-thirds of the full Senate, House, or both when Congress proposed them.
The Thirteenth Amendment, for example, was approved by two-thirds of the House quorum, but not of the full House. The Fourteenth and Fifteenth Amendments failed to receive two-thirds of either the full Senate or House. So did the Eighteenth Amendment, which imposed Prohibition, and the Nineteenth Amendment, which prohibits sex discrimination in voting. No one would suggest that this legislative history indicates any uncertainty whatsoever because each amendment was proposed exactly as the Constitution requires.
The Sixteenth Amendment. The scholars next observe that the “text of the 16th Amendment…varied between state ratifications.” Tax protesters have used this argument to claim that the Sixteenth Amendment was not lawfully ratified and, therefore, that Americans are not required to pay any federal income tax. United States v. Thomas was one of those cases. Kenneth Thomas claimed that only four states, rather than the necessary 36 at the time, had properly ratified the Sixteenth Amendment word-for-word and punctuation mark–by–punctuation mark.
Congress proposed the following text for the Sixteenth Amendment on March 15, 1913:
ARTICLE XVI. The Congress shall have power to law and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
In Thomas, the U.S. Court of Appeals for the Seventh Circuit noted that, in their ratification resolutions, many states “neglected to capitalize ‘States,’ and some capitalized other words instead.” The Illinois resolution used “remuneration” rather than “enumeration” and Washington used the singular “income” rather than the plural “incomes.” Similarly, the Ninth Circuit has observed that 33 state ratification resolutions “contained punctuation, capitalization, or wording errors.”
When a state passes a ratification resolution, it is ratifying the amendment that Congress has proposed, in the form that Congress proposed it. No one, including these scholars, has suggested that such “trivial inconsistencies” can possibly cast any doubt on whether a particular proposed constitutional amendment has been ratified. As the Sixth Circuit has held, since no one claims that such “typographical errors [go] to the meaning of the amendment, we can only conclude that they did not affect the drafter’s purpose.” And it is bizarre to suggest that failing to capitalize a word or using a singular rather than a plural is a puzzle comparable to whether Congress has the power, found nowhere in the Constitution, to make part of the Constitution a proposed amendment that failed Article V’s ratification standard more than 40 years ago.
The scholars next observe that ERA opponents “cite no authority” for their claim that, if Congress had any authority to change the 1972 ERA’s ratification deadline, it had to exercise that authority “while the measure was still pending; that is, before it expired with the passage of the ratification time limit.” The best response comes from the assertion itself. Passage of the ratification deadline meant that the 1972 ERA “expired.”
The legislative process provides further support, if any is needed, for this obvious fact. As the Law Library of Congress website explains in its “Frequently Asked Questions” section, which asks, “What happens to a bill that does not become law at the end of a Congress?,” here is the answer:
If a bill…does not become law during the [two-year] congress in which it is introduced, it is considered “dead.” For a “dead” bill to be enacted in a new Congress, it would have to be reintroduced with a new number and begin anew its journey through the legislative process.
This is why, like they would with any bill or resolution that had expired, Members of Congress introduced new “fresh-start” resolutions to propose the ERA in nearly every Congress since 1923. It is also the path that the 1972 ERA itself followed. On January 16, 1969, as the 91st Congress got underway, Griffiths introduced House Joint Resolution 264 to propose the ERA without a ratification deadline. Resolution 264 expired, however, when the 91st Congress adjourned on January 2, 1971, because the House, but not the Senate, had passed it.
More specifically, once Congress passes a resolution proposing a constitutional amendment, it remains pending before the states—that is, it exists—until ratified by three-fourths of the states or, if it has one, its ratification deadline passes with insufficient state support. After that time limit expires, no resolution exists for the states to ratify or for Congress to amend. Similarly, Resolution 208 has not existed for more than 40 years and is why the Supreme Court in Freeman dismissed the lawsuit over the 1972 ERA—the lawsuit was moot because the proposed amendment was no longer pending before the states. Does there really need to be “authority” for the idea that Congress cannot consider or amend a resolution that no longer exists?
The CRS Opinion. The scholars dismiss the CRS conclusion that the 1972 ERA “formally died on June 30, 1982,” because “the CRS’s interpretations of legal questions are advisory, not binding, on Congress.” True enough, but only begs the real question whether the CRS’ conclusion was correct. And it certainly does nothing to support the scholars’ contention that Congress has authority, which Article V does not provide, to affect a proposed constitutional amendment’s ratification status. Instead, the scholars put themselves in a bind by dismissing as only “advisory” the 2020 OLC opinion that Congress lacks authority to eliminate a ratification deadline after it passed. That advisory status applies equally to the 1977 OLC opinion, which the scholars favor, that Congress had authority to extend the 1972 ERA’s deadline before it expired.
These scholars’ attempt to establish robust congressional control over the constitutional amendment process also creates a profound constitutional problem. If Congress today is not bound by a ratification deadline set by a previous Congress, then a future Congress would likewise not be bound by a congressional determination today that the 1972 ERA’s ratification deadline was invalid and is now the Twenty-Eighth Amendment. If Congress can retroactively repeal a ratification deadline that has already expired, in a resolution Congress passed decades ago, then presumably it could retroactively impose a deadline on an amendment it had earlier proposed without one. The constitutional amendment process that the Founders actually established and placed in Article V has no such problems.
The idea of an Equal Rights Amendment was born when many state and federal laws discriminated against women and the Constitution had not been interpreted to require equality between the sexes. Both of those problems have been solved without the ERA; legislatures have eliminated discriminatory laws and the Supreme Court has applied the Fourteenth Amendment to sex discrimination. Ongoing and contentious debate about whether, untethered from its original objective, the ERA is still needed and might be used to further radically different agendas eventually led to the 1972 ERA’s defeat and make it highly unlikely that Congress will propose the ERA again, much to the disappointment of ERA supporters.
Although they initially acknowledged the 1972 ERA’s defeat, advocates now argue that its ratification deadline was invalid, states may still ratify it, and Congress has the power to place it into the Constitution. As the Justice Department stated in its Illinois v. Ferriero brief, however, advocates “have not identified any relevant legal authority establishing that this is so.” Nor have they “identified any relevant legal authority requiring the Archivist to certify the adoption of an amendment ratified after a deadline imposed by Congress.”
Additional states can ratify the 1972 ERA only if its ratification deadline was not binding. Advocates’ only argument for this notion has been that a deadline’s location determines its validity, but all the evidence points in the opposite direction. In fact, the argument that a ratification deadline’s location in one part of a proposing resolution but not another would affect that deadline’s validity has serious implications. Among other things, it would mean that:
- Representative Griffiths included, and women’s groups supported, a deadline in the 1972 ERA that they either knew or should have known was invalid.
- More than 60 Members of Congress, of both parties, who introduced resolutions to propose the ERA with a ratification deadline in the proposing clause, including feminist leaders such as Representative Bella Abzug (D-NY), were all wrong in assuming, or were duped into believing, that it was valid.
- The 436 Senators and House Members who voted for Resolution 208 approved a ratification deadline that they either knew or should have known was invalid.
- Congress went through the process of extending the 1972 ERA’s ratification deadline, including extensive hearings, unnecessarily.
- Ruth Bader Ginsburg was wrong when she said that ratification of the 1972 ERA “must occur within 7 years” of its proposal.
- The President’s Advisory Committee for Women was wrong when it stated that the 1972 ERA would be part of the Constitution only if enough states ratified it by the deadline.
- The Supreme Court was wrong to dismiss the Idaho v. Freeman litigation as moot out of the mistaken belief that the 1972 ERA was no longer pending before the states.
- Gloria Steinem was wrong when she explained that the 1972 ERA “was not ratified in the nine years allotted to it” and, therefore, “has to start the process over again.”
- Even though Congress alone has the discretion to choose the mode of ratifying a proposed constitutional amendment, its choice would be binding only if expressed in one part of the proposing resolution, but not in another. As a result, Congress’ designation of ratification mode in all 33 constitutional amendments it has proposed were invalid because each appeared in the resolution’s proposing clause.
The 1972 ERA “formally died on June 30, 1982,” not because the CRS says so, but because Article V does. Speaking at Georgetown University a few months before she passed away, Ginsburg echoed the view Steinem expressed 34 years earlier: “I would like to see a new beginning [for the ERA]. I’d like it to start over.” That was not merely a preference, it is the only way the ERA will ever become part of the Constitution.
Thomas Jipping is Senior Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial Studies at The Heritage Foundation.