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?
— Walter Olson (@walterolson) January 17, 2020
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]