The Equal Rights Amendment expired. Can it be revived?

Lawmakers in both houses of the Virginia legislature have approved resolutions endorsing the Equal Rights Amendment, a measure proposed by Congress in 1972. An Associated Press story, in line with proponents’ characterization, describes the actions in Richmond as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” Is that the case?

The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. [Keith Whittington] The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”

Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval. The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, confirms that Congress did not act unconstitutionally in prescribing a time limit. [more: Michael Stokes Paulsen, Yale Law Journal, 1993]

The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty]

More: If you accept some ERA proponents’ theory that time limits don’t apply *and* that states can never rescind, then — surprise! — we may already be over the required number of states to require Congress to call a balanced budget constitutional convention [Josh Blackman]


  • The seven year clock was part of the proposal sent to the states. And that is exactly what 35 states ratified, an act that had an explicit time limit attached.
    Rather than try and drag this amendment across the finish line to have it subsequently argued for another decade in the courts whether it is valid, just have another shot at it. It can hardly be said that the 1972 amendment represents the will of any one group of people, as more than 2/3 of the people of this country were not yet born at that time.

    A clean ratification by 38 states in under seven years (or whatever time period the new article would attach) would be much more meaningful both from a legal perspective, and also a cultural and societal perspective.

    • It’s highly unlikely that you could get a fresh ERA bill passed out of the current congress.

    • What would an equal rights amendment look like written today? Would it include transgender rights? All 60(?) proposed genders?

      I have a feeling that it would not stand the test of time very well. 10 years from now the attitudes would have changed again.

  • And now three state attorneys general (Virginia, Illinois, Nevada) have sued the Archivist in an attempt to force recognition of the amendment as validly ratified:

    • Using the mechanisms of the Law to try to subvert Rule of law.
      And if the ERA bill doesn’t mean what it says in the text, how can it possibly be relevant to enact it?
      The court could (and should) dismiss this suit on multiple grounds.

  • One would think that some sort of humility would counsel against this litigation. The Constitution is supposed to be the supreme law of the land. Thus, its amendment should be completely free from doubt. There is some trickery to get to 38, and that should be enough to say no to the attempt.

  • If a Democrat wins in 2020, we can expect a new round of lawsuits when he orders his archivist to certify the ERA.

    • Yes. And at that point the political question abstention doctrine, which at present cuts against ERA advocates, will cut in their favor, unless the Supreme Court has resolved the issue in the mean time.