The Equal Rights Amendment (ERA), a measure initially proposed by Congress in 1972, has recently seen renewed legislative action. Following the approval of resolutions by lawmakers in both houses of the Virginia legislature endorsing the amendment, an Associated Press story—in line with proponents’ characterization—described these actions as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” This development raises the critical legal question of whether this action, decades after the original deadline, can legally constitute ratification.
The Opinion of the Office of Legal Counsel
The U.S. Department of Justice’s Office of Legal Counsel (OLC) has issued an opinion concluding that the ERA cannot be adopted now without starting the entire amendment process anew. This conclusion rests on the fact that the requisite number of states did not ratify the amendment before Congress’s previously imposed deadline. This ruling is binding on executive branch agencies, including the National Archives, which, per the Associated Press, “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”
The OLC’s position is supported by the 1921 Supreme Court decision in Dillon v. Gloss, which confirmed that Congress acted constitutionally in prescribing a time limit for ratification of a constitutional amendment.
Proponents’ Arguments and Legal Counterpoints
Advocates for the ERA challenge the validity of the expired deadline on several grounds. They argue that the time limit should not be counted because it appeared in the measure’s preamble rather than in the main text of the proposed amendment.
Furthermore, proponents maintain that a combination of Congress and the courts is free to validate extensions, revival measures, and delayed ratification votes, even if these actions were assented to by only a bare majority. Simultaneously, they argue that five states’ prior rescissions of earlier approvals should not be counted as valid.
The case of the 27th Amendment is often cited by proponents. This amendment, which was proposed without a time limit, did not reach the requisite number of states until more than two centuries later. This suggests that the principle of a contemporaneous “meeting of the minds” may not be as intrinsic to the amendment process as some legal scholars once assumed. However, the Dillon v. Gloss precedent remains a significant counterpoint regarding the constitutionality of imposed deadlines.
Legal scholars have noted that if one accepts some ERA proponents’ theories—specifically, that time limits do not apply and that states can never rescind their prior ratification—it could have broader implications. For example, some analysts, such as Josh Blackman, suggest that these theories might also lead to the conclusion that the required number of states may already exist to compel Congress to call a balanced budget constitutional convention.
The Looming Legal Confrontation
The opposing legal viewpoints concerning the deadline and the validity of state rescissions are likely to lead to a legal confrontation. The situation could result in advocates claiming the ERA has been duly adopted as the 28th Amendment to the Constitution, while opponents contend that its ratification process has legally lapsed. This disagreement over the interpretation of constitutional law and the amendment process sets the stage for potential judicial review to resolve the matter.
