Comment: So, is the ERA part of the Constitution, or not?

Legal scholars differ on whether it’s met the requirements, but so have other amendments over the years.

By David Pozen and Thomas P. Schmidt / Special To The Washington Post

Americans are accustomed to disagreeing about the Constitution. Questions such as whether the 14th Amendment protects a right to abortion or whether the First Amendment prohibits campaign finance regulation elicit passionate arguments on both sides.

But even if we endlessly debate what the Constitution means, we tend to assume that we can at least agree on what the Constitution says. Although different people may interpret phrases like “due process” or “freedom of speech” differently, surely it is a legal fact that the constitutional text contains those phrases.

The Equal Rights Amendment (ERA) unsettles this assumption. Last month, the U.S. House of Representatives held a hearing to commemorate the 50th anniversary of the date it passed the amendment. The ERA guarantees that “equality of rights under the law shall not be denied or abridged … on account of sex.” At the hearing, speakers advanced a bewildering variety of views on the legal status of this language. Majority witness Eleanor Smeal asserted that the ERA “has met all the constitutional requirements for the adoption of an amendment.” Minority witness Inez Feltscher Stepman countered that the ERA has followed a “short-circuited and illegitimate process.” How is it possible that sophisticated legal minds could be debating not just whether the ERA should be added to the Constitution but whether the ERA has already gained entry into the canonical document?

The answer has to do with our spare and rusty machinery for revising the constitutional text. Article V of the Constitution states that an amendment is valid when proposed by two-thirds of both chambers of Congress and then ratified by legislatures or conventions in three-fourths of the states. Straightforward as it may seem, this terse provision raises a long list of fundamental problems. When Congress proposes an amendment, how long does it remain pending? Can Congress impose additional requirements on the ratification process? May states ratify amendments through referendums? Does the president participate? Is there anything an amendment cannot change? Perhaps most important, who gets to decide whether an amendment has succeeded in becoming part of the Constitution? These problems were largely overlooked at the nation’s founding and to this day have not been definitively resolved.

The ERA showcases the silences and ambiguities of Article V. On the one hand, the amendment has won the approval of two-thirds of the House and Senate and three-fourths of the states. Smeal is correct that the ERA has checked all the boxes indicated on the face of Article V. On the other hand, when Congress proposed the ERA a half-century ago, it tried to put a deadline in the resolution sending the amendment to the states, even though it is not settled that Congress may impose a deadline in that manner. The purported deadline expired before several ratifications came in. Further complicating matters, a handful of states have voted to rescind their prior ratifications. Depending on how one counts, the ERA has received as few as 29 ratifications or as many as the requisite 38. To some, the ERA is long dead and unrevivable; to others, it is now the Twenty-Eighth Amendment.

As strange as this saga has been, it turns out that the ERA is far from alone in raising knotty issues under Article V. As we detail in a forthcoming article, legally questionable amendments have been the norm throughout our constitutional history. The first 11 amendments were not presented to the president, even though Article I, Section 7 of the Constitution arguably requires this. The 12th Amendment, which set the rules for electing the president, was passed by less than two-thirds of the full Senate. The framers of the 13th, 14th and 15th amendments, which abolished slavery and established new guarantees of equality and due process, undertook a number of highly unusual maneuvers to prevent obstruction by former secessionists. The states ratified inconsistent versions of the 16th Amendment, which authorized an income tax. The 17th Amendment, providing for the direct election of senators, was passed by the House and Senate during different legislative sessions. The 18th Amendment, which banned the manufacture and sale of alcohol, was initially invalidated by a district court on the ground that it should have been taken up by state conventions rather than state legislatures. Prohibition was repealed by the 21st Amendment, which sparked fierce debates about how state ratifying conventions could operate. The catalogue of controversies goes on and on.

In our own time, the 27th Amendment, which prevents Congress from giving itself a pay raise before an intervening election, was ostensibly ratified in 1992, over 200 years after it had been proposed by the first Congress along with the Bill of Rights. Prominent constitutional scholars have argued that in light of this extraordinary delay, “the so-called twenty-seventh amendment should be treated as a bad joke by sensible citizens.” Yet Congress has accepted it, and virtually every published version of the Constitution now includes it. The joke, apparently, is on us.

This history holds at least two lessons for the ERA. The first is that for all that is distinctive about the amendment’s story, there is nothing unusual about the legal uncertainty that surrounds its status. On the contrary, attempts to amend the Constitution have consistently generated difficult legal puzzles. Critics of the ERA insist that its compliance with Article V is “constitutionally suspect.” The same could be said of nearly every recognized amendment. The Constitution supplies only limited guidance when fights break out over the textual content of the Constitution itself.

The second lesson is that the fate of the ERA should now rest in the hands of Congress. Because the law of Article V is so unsettled, controversies over the amendment process will continue to arise. It is critical that we have some means of resolving these controversies authoritatively and peacefully. Congress is in the best position to serve this function. The president has not played any significant legal role in this domain. The judiciary has intervened only sporadically; the last time the Supreme Court considered the merits of an Article V lawsuit was over 90 years ago. As seven justices acknowledged in the 1939 case Coleman v. Miller, disputes over Article V will often involve “political questions” unfit for judicial review. The argument against turning to the courts is all the stronger when Article V has been activated to overturn the Supreme Court’s own constitutional rulings.

This leaves Congress as the least bad option. Consistent with constitutional text and history, Congress should understand itself to have the power to change the deadline it originally sought to impose on the ERA. Congress may also decide how to treat the recent state ratifications, as well as the attempted “take backs” by those state legislatures that first voted to ratify the ERA and then voted to reverse course.

To enhance the democratic legitimacy of the process, Congress could eliminate the old deadline while at the same time crediting the rescissions. That would mean that the ERA does not become part of the Constitution right away. Instead, the ratification effort would return to the state legislative arena for a final push, rather than needing to start from scratch. Or Congress could call for a national vote, perhaps on Election Day in 2022, to help decide whether to certify the ERA. The entire electorate could weigh in on the validity of the ERA in an advisory referendum.

On many matters of constitutional law, the legal community has accepted that the Supreme Court enjoys the final word. Questions about whether an amendment has become part of the Constitution are an important exception. Congress, not the courts, is the primary arbiter of an amendment’s validity. Whatever their views on the current legal status of the ERA, members of Congress should defend this institutional prerogative; and remember that navigating the hurdles of Article V has always required not only a great deal of political will but also a good dose of constitutional creativity.

David Pozen is the Charles Keller Beekman Professor of Law at Columbia Law School, where he teaches and writes about constitutional law, information law, and nonprofit law. In 2019, the American Law Institute named Pozen the recipient of its Early Career Scholars Medal.

Thomas P. Schmidt is an academic fellow at Columbia Law School. His research focuses on federal courts and constitutional law, history, and theory.

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