The ERA Has Not Been Ratified, Unfortunately
President Biden just released a statement “affirming what [he] believe[s]: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.” He’s thus joining with the people who argue that Virginia’s ratification of the Equal Rights Amendment in 2020 completed the requirements for amending the Constitution as defined in Article V. Virginia was the 38th state to ratify the ERA, thus bringing it over the three-quarters requirement to ratify a Constitutional amendment. However, the Congressional resolution in 1972 sending the ERA to the state’s for ratification included a time limit that has long since expired. The initial time limit was seven years (to 1979), and then Congress extended that in 1978 to 1982. There’s some debate over whether the extension was valid, but even with the extension, Virginia’s action would be 38 years too late. That raises two questions: (1) Can Congress validly place a time limit on ratification? and (2) Who determines whether a Constitutional amendment has been ratified?
Much as I wish that the ERA had been ratified, under the existing precedents, time limits are valid. A good argument exists that Congress is the final arbiter of whether a Constitutional amendment has been properly adopted, and that the Supreme Court should defer to Congress’s judgment if even a simple majority of both houses concluded that the ratification was valid. I don’t think the current Supreme Court would in fact defer to Congress’s judgment — they would conclude that the time limit in the original joint resolution rendered the purported ratification invalid, regardless of Congress’s conclusion. However, without Congressional action, the current courts would certainly conclude that the Equal Rights Amendment has not been ratified, and neither a statement by the President nor the hypothetical ministerial act of the National Archivist purporting to add its text to the Constitution would create any possibility of success in the courts.
Supreme Court Precedents Unambiguously Hold that Congress Can Validly Place Time Limits on Ratification
Prior to the twentieth century, most proposed Constitutional amendments submitted by Congress to the states had no time limits on ratification. As a result, it’s generally accepted that the Twenty-Seventh Amendment — limiting the timing of Congressional pay increases — was validly ratified when a 38th state ratified it, even though that ratification process took 202 years from its proposal as part of the Bill of Rights to its ratification by Alabama in 1992. However, it has become standard practice for Constitutional amendments to include time limits on ratification after the 1917 proposal of the Eighteenth Amendment (prohibiting the manufacture or distribution of alcohol).
In 1921, the Supreme Court heard a habeas appeal in which the petitioner asserted that the Eighteenth Amendment was invalid (and therefore the National Prohibition Act, which he had been convicted under, was also invalid), because Congress had included a time limit on the ratification of the Eighteenth Amendment. Dillon v. Gloss, 256 U.S. 368 (1921). Under Dillon’s theory, the purported time limit on ratification was invalid because Article V does not authorize Congress to set time limits for the ratification of Constitutional amendments, and thus rendered the entire joint resolution proposing the amendment invalid. The Supreme Court squarely rejected this argument, holding that Article V’s silence on time limits for ratification leaves it up to Congress. The Court argued that while Article V is silent, the concept of ratification by a super-majority of the states following a super-majority vote by Congress “strongly suggests” that ratification has to take place within a reasonable time following the proposal of the amendment. The Court then went on to say that Congress’s power to set a reasonable period for ratification was a matter about which the Court “entertain[ed] no doubt.” Because the limitation was permissible under Article V, the Court concluded that Dillon’s conviction was proper.
The Dillon Court thus unambiguously held that Congress can set a time limit for ratification. Some people would be tempted to argue that the Dillon Court’s statements were dicta — non-binding statements of opinions that aren’t necessary to the outcome of the case. After all, the ratification process met the time limit anyway, and even if the time limit were invalid, under an ordinary severability analysis the conclusion would be that the rest of the joint resolution was valid. However, the test for whether something is a holding or mere dicta is whether the Court relied on the reasoning in its decision, not whether the Court could have more easily reasoned in a different way. Where the Court upheld the validity of the Eighteenth Amendment because the time limitation was valid, the fact that it could have (and probably should have) avoided the question does not change the binding precedent of the holding into non-binding dicta.
Some of the language of Dillon makes it seem likely that that Court would have held that the purported Twenty-Seventh Amendment was not validly ratified. To the best of my knowledge, the question of whether that amendment was validly ratified has not been considered by either the courts or Congress. But even if we view the general acceptance of the ratification of the Twenty-Seventh Amendment as contradicting Dillon, that is an instance where it only contradicts Dillon’s dicta, not its holding. The question of whether there is an implicit reasonableness time limit on the ratification of amendments simply was not before the Court at all. Instead, Dillon had to answer whether Congress placing a time limitation on the ratification process was unconstitutional — and the Court unanimously held that it was not.
Based on Dillon’s holding, the settled law is that Congress can place a time limit on ratification. Against that background, the time limit on the ERA’s ratification would be valid.
Good Arguments Exist that this is a Question for Congress, not the Courts
Moving beyond the specific holding of Dillon, the Supreme Court has also sometimes acknowledged that the courts don’t have a role in the amendment process at all. When the courts claim unfettered ability to interpret what the Constitution means, giving them the ability to also decide what the Constitution says would be to remove what could otherwise be an important check on the courts’ power. In a peculiar case about whether a legislature can decide to not ratify a constitutional amendment and then subsequently ratify it anyway, the Court held that ultimate authority over whether an amendment has been ratified lies with Congress, not with the courts. Coleman v. Miller, 307 U.S. 433 (1939).
Coleman considered whether the Kansas Supreme Court properly allowed the ratification of the Child Labor Amendment to be transmitted to Congress under a circumstance where the Kansas Senate had previously voted against ratification and only voted for ratification after the Lieutenant Governor broke a tie. Various Senators who disagreed with that action sued to prevent documents attesting the ratification from being transmitted to the Kansas Secretary of State and Governor, and the Kansas Supreme Court ruled that the ratification could be sent on. Coleman has several odd features — not least of which is that it decided an issue that ultimately had no effect whatsoever, because while the Court held that Kansas had ratified the proposed Child Labor Amendment, it was never ratified by the requisite three-quarters of the states. Kansas was the last of twenty-eight states to ratify the proposed amendment, well short of the thirty-six states necessary for ratification prior to the admission of Hawaii and Alaska as states. Nonetheless, the Court decided to weigh in on the issue anyway, presumably in case an additional eight states had ratified the proposed amendment.
The important point for the current question, however, is that a major focus of the Court in its consideration of whether Kansas’s ratification should be allowed to be transmitted to other bodies was that the question of whether a ratification was proper was ultimately a question for Congress. The Court held that ratification was “a political question pertaining to the political departments, with the ultimate authority in the Congress.” Id. at 450. The Court spent substantial time on the question of whether the implicit time limit on ratification that the Dillon Court suggested existed in the absence of an explicit one barred ratification, before concluding that that was a political question that the courts could not decide. Id. at 456 (“[W]e think that the Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications.”)
Four justices of the Coleman Court would have gone even further. Justice Hugo Black argued in a concurring opinion that the Court had no authority to reach the question at all. According to Justice Black, “[f]inal determination by Congress that ratification by three-fourths of the States has taken place is conclusive upon the courts.” Id. at 457 (Black, J., concurring) (internal quotation marks and citation omitted). Justice Black’s concurrence would thus leave questions of ratification to be determined entirely by Congress, without any role for the courts at all. While not a majority opinion, Justice Black’s opinion was joined by Justices Roberts (not the current Chief Justice), Frankfurter, and Douglas. Justice Black’s opinion has the better reasoning, but both the majority and the concurrence agree on a posture of substantial deference to Congress’s conclusions with regard to the ratification of an amendment.
If Congress concluded that the time limitation on the ratification of the Equal Rights Amendment could not close off subsequent ratification, Coleman would provide a strong argument that Congress’s determination would bind the courts. The argument would not be entirely one sided — Dillon’s holding would suggest that if Congress makes a time determination in its joint resolution proposing the amendment, that determination is final, while Coleman might suggest that Congress retains a free hand to determine whether an amendment has been properly ratified notwithstanding its own prior statement.
Unfortunately, Congress has not acted to recognize the validity of the Equal Rights Amendment. President Biden’s statement is nice as a matter of politics and argumentation, but neither the President nor the National Archivist has more than a purely clerical function in determining whether an amendment has been adopted. Article V commits the amendment power to Congress and to the states — not to Congress and the President, not to the Supreme Court, not to the Archivist, but to Congress and the states. If Congress were to state that Virginia’s ratification completed the ratification process for the Equal Rights Amendment, it would be proper for the courts to defer to that judgment. Conversely, when Congress has stated (in the original joint resolution, and in the time extension) that ratification has to take place by a certain date to be effective, and Congress has done nothing to overturn that conclusion, the precedents of the Supreme Court would make Congress’s determinations final.
The Equal Rights Amendment Is Not Binding Law, But Saying It Is Has Political Value
As a practical matter, I have little doubt that even if Congress were to pass a resolution stating that the Equal Rights Amendment has been duly ratified, the current Supreme Court would refuse to accept Congress’s decision. Six of the nine justices are conservative Republicans, none of whom would like to conclude that the Constitution has been amended to provide stronger equal protection against governmental discrimination on the basis of sex. They could easily point to the language in the original joint resolution and Dillon’s language affirming Congressional power to limit the time in which an amendment can be ratified to justify disregarding Congress’s judgment. The current Supreme Court majority has time and again demonstrated a willingness to disregard Congress’s role in enforcing civil rights and to substitute their judgment for that of the elected branches to promote conservative results. They would (and will, if any of the legal arguments that the Equal Rights Amendment now has legal force reach the Court) reject any arguments that the Equal Rights Amendment has been ratified if there is any reasonable doubt, or even if the doubt is only somewhat unreasonable.
That doesn’t mean that President Biden’s statement is meaningless, or that the “three state strategy” of pursuing ratification in additional states notwithstanding the apparent expiration of the Equal Rights Amendment was pointless. Sen. Kirsten Gillibrand and others have been pushing the idea that the Equal Rights Amendment has been ratified as a means to mobilize voters in defense of equal rights. Their argument is that the E.R.A. has been passed by a super-majority of Congress and ratified by three quarters of the states and that the Supreme Court should not be permitted to roll back equal rights for women, including reproductive rights, because of the justices’ policy preferences. That can be a winning political strategy — and it may lead to Congress someday taking actions that might lead to progress towards equal rights. I don’t object to President Biden attempting to place down markers for equal rights on the way out the door, and I hope that it causes political problems for the incoming Trump Administration. However, I think we should be realistic that this is a political argument and an effort to mobilize popular opinion, not a serious legal argument that could actually lead to courts treating the Equal Rights Amendment as a valid part of the Constitution today.
