Legislative approval of extending the deadline for the original Equal Rights Amendment under the 3 state strategy is Constitutionally invalid and will undermine the integrity of the Constitution:
The proponents of the ERA claim that because 3 more states have ratified the original ERA, they have the required total of 38 ratifying states. They are now taking the ratifications to Congress and asking Congress to retroactively extend the time deadline and declare the ERA a binding Constitutional amendment. Such an action would violate the proscribed methods of passing a Constitutional Amendment and undermine the public’s belief in the fairness of our governing laws.
Facts:
The ERA was originally presented to the states for ratification on March 17, 1972 with a time deadline of 7 years in the preamble text.
The majority of ratifying states immediately ratified the ERA with very little discussion within the first 2 years. Once the states began to be informed as to the negative ramifications of the ERA wording, support dramatically dropped, and very few additional states ratified the ERA.
As the negative ramifications became apparent, five states rescinded their ratification (before the original time deadline). A U.S. district court upheld their right to rescind (Idaho v. Freeman, 1981).
24 of the 35 states who originally ratified the ERA included the time deadline as a material consideration of their ratification (Professor Jules Gerard, Letter to House Judiciary Committee, June 14, 1978). South Dakota passed a resolution declaring that their ratification would only be valid up until March 22, 1979.
Congress passed a time extension (by a simple majority rather than the 2/3 majority required for passing Constitutional amendments) in 1978 to extend the deadline to June 30, 1982 under questionable validity. There were several problems with this action: 1) The proponents of the ERA ignored the 2/3 majority requirement (if a 2/3 majority is required to pass an amendment out of Congress, any changes to that amendment also require a 2/3 majority). 2) The Constitution has never provided for any changes to be made to a Constitutional amendment after states’ ratification. 3) They also ignored the rights of the previously ratifying states. Any changes to an amendment subsequent to the states’ ratification must by principle require approval of the states (through a new cycle of states’ approval/ratification). As a comparative example, when any contract is changed after the interested parties have initially signed their agreement, all parties must sign again in agreement to the changes. The ratifying states were never provided with an opportunity to agree to the time deadline changes.
The same U.S. district court ruled the time extension unconstitutional (Idaho v. Freeman, 1981).
No additional states ratified the ERA during the extended deadline period in spite of the fact that considerable pressure was placed on the remaining states to ratify the amendment. Lengthy and involved debates in the respective states showed a clear consensus of the people to reject ratification of the ERA.
The ERA proponents appealed the Idaho case to the Supreme Court. In 1982 the Supreme Court ruled that it was a moot issue since the extended deadline, whether or not it was valid, had already expired, and the amendment was short the required number of ratifying states, and thus had failed of adoption (Now v. Idaho, 459 U.S. 809 1982).
Since 1982 new versions of the ERA (same wording without a time deadline) have been presented to Congress without success. The proponents of the ERA have not been able to garner enough votes to pass it by a 2/3 majority. This clearly indicates a lack of support for the amendment and its problematic wording.
In 1993 proponents of the ERA announced their 3 state strategy. Since they had been unable to pass a new version of the ERA to present to the states, they sought to resurrect the original ERA by using an unconstitutional backdoor approach. According to their claims, the 5 states that rescinded will not be able to rescind, but Congress can retroactively change the original terms of the time deadline. Their claims are based on a legally problematic basis: (1) the passage of the 27th Amendment (The Madison or Congressional Pay Raise amendment that was recently ratified in 1992 after 202 ½ years of being presented before the states. The Madison amendment did not have a deadline); (2) The Supreme Court case of Coleman v. Miller, 307 U.S. 433 (1939) in which the court ruled that Congress can choose not to specify a deadline for an amendment. This ruling is an example of the Court deeming a case to be a political case that is better decided by the designated parties that are stipulated by the Constitution to have responsibility. In this case, the states and Congress; and (3) the time extension given to the ERA in 1978 (which is still controversial and did not follow the 2/3 majority rule). It’s important to note that in the case of the ERA, Congress chose to specify a time deadline; 24 of the ratifying states included the deadline as a material consideration; and the time deadline extension did not follow the Constitutional requirements. In addition, the 3 state strategy does not allow the states who already ratified the amendment to have any voice in resolving the controversy (including those who have rescinded). Such an attitude is a violation of the checks and balances system originally designed by the framers of the Constitution and a violation of states’ rights. Thus, Congress must uphold the rights of the states by declaring the original ERA dead and voting against a time deadline extension.
Justice Ruth Bader Ginsberg, a strong proponent of equal rights for women, recently stated that the process of ratifying the ERA must start over. She stated: “I would like to see a new beginning. I’d like it [the ERA] to start over. There’s too much controversy about latecomers. Virginia long after the deadline passed, plus a number of states have withdrawn their ratification. So, if you count a latecomer on the plus side, how can you disregard states that have said, ‘We’ve changed our minds?” (Justice Ruth Bader Ginsberg, Georgetown University Law Center 2/10/20)
Those who claim the Constitution grants Congress the right to change time limits retroactively in a state/federal government ‘contract’ are completely missing the point of states’ rights with the separation of state and federal government. Such actions would never be accepted with contracts. Nor should they be accepted in the formation of our laws. This is a complete violation of the Constitution, and those who have sworn to uphold the Constitution must consider this carefully in the actions they take with the legally dead ERA.
Furthermore, if the original ERA were passed retroactively through means that twist and distort the proscribed procedures of the Constitution, and an activist court allowed such actions, its passage would severely undermine law abiding citizens’ perceptions of the fairness and validity of the law. If the negative ramifications of the ERA were then forced upon the people, those people who are normally law abiding citizens would rebel against what could only be called unlawful dominion. A system of law can only effectively govern when its development is perceived as fair, and the legislative rules are universally applied. Laws do not force obedience, rather the perception of fairness in the formation of those laws brings about obedience.
Congress must honor the Constitution and states’ rights and declare the original ERA dead by voting no on the deadline extension.