Recently, Virginia became the 38th state to ratify the Equal Rights Amendment.  This vote by the Virginia legislature raises several issues that have only rarely been faced in terms of the text of the Constitution, and there is very little in terms of precedent.  In fact, the closest example might be the ratification of the Fourteenth Amendment.

There are, of course, some unique features of the Equal Rights Amendment.  Up until 1900, proposed constitutional amendments did not have time limits on ratification.  However,  starting with the Eighteenth Amendment (prohibition) in 1917, four of the nine amendments ratified had time limits.  In addition, two of the three other amendments submitted to the states also had time limits.  In other words, since 1916, half of the proposed constitutional amendments had time limits.  However, until the Equal Rights Amendment was ratified by it’s thirty-eighth state, there has never been a constitutional amendment ratified after the expiration of the time limit for ratification.

It is unclear if Congress has the authority to put a time limit on ratification.  Article V provides  that Congress may propose constitutional amendments (by a two-thirds vote of both houses).  It also gives Congress the power to refer the amendment to state conventions rather than to the state legislatures.  However, it is silent about whether Congress may place a time limit on ratification.  There are, of course, good reasons for having a time limit.  The only remaining pending amendment from the package of amendments that became the Bill of Rights would require one representative for every 50,000 persons in a state.  If adopted, it would instantly expand the House to over 6,000 members.  So there are policy arguments for recognizing the power of Congress to place a time limit on consideration.  On the other hand, a strictly textual argument and the practice of the original congresses would dictate that Congress does not have the policy to impose a time limit.

But the other issue with the Equal Rights Amendment call back to the experience of the Fourteenth Amendment.  Prior to the Fourteenth Amendment, no state had ever changed its mind on ratification of a constitutional amendment as of the time of ratification.  (Some states did “officially” ratify the Thirteenth Amendment despite their initial rejection after the Thirteenth Amendment had the necessary number of states to become part of the Constitution).

To understand the legal issues around the Fourteenth Amendment, you need to go back to the bigger issues of post-Civil War America.  After the defeat of the attempted rebellion, the question arose of the legal status of the eleven states that had participated in the rebellion.  Clearly, the current governments were invalid — having taken up arms against the federal government and having first violated their oaths of office and then having not taken a valid oath of office.  (The Constitution requires that all state officials take oaths to support and defend the Constitution.)  But were they still part of the Union (and thus counted toward the number of states needed to ratify a constitutional amendment).  While the legal position was not firmly established at the time, the ultimate legal consensus was that these eleven states were always part of the Union.  That left the only question as to what was necessary to reinstitute the government in these states.  The minimalist position (taken by the Johnson Administration) was that the states merely needed to hold new constitutional conventions which would rescind the secession constitutions, elect new governments, and ratify the Thirteenth Amendment).  The maximalist position (taken by the Radical Republicans) required additional provisions in state law to exclude former rebels from positions of power and to protect the rights of the freed slaves — including, ultimately, the requirement that these states ratify the Fourteenth and Fifteenth Amendment — before the elected representatives and senators from these states would be allowed to take their seats in Congress.

This bigger debate over the status of these states became crucial in the ratification of the Fourteenth Amendment.  There was also the issue of the power of a state to change its mind.  Upon receipt of the Fourteenth Amendment, ten of the former Confederate states refused to ratify it.  Since there were thirty-seven states at the time (requiring twenty-eight states to ratify and allowing ten states to block a constitutional amendment), the amendment appeared dead.  However, as noted above, Congress made clear to the former rebel states that they would not be allowed to take their seats until they ratified the Fourteenth Amendment.   By mid-July, the Secretary of State (at that time, the State Department) had received ratifications from twenty-nine states.  However, six of these states were the former rebel states that had initially rejected the amendment.  Additionally, two of the northern states had attempted to rescind that ratification.  Based on these documents, the Secretary of State issued a proclamation that conditionally deemed the Fourteenth Amendment ratified.  That document described the ratifications from the southern states as coming from “bodies avowing themselves to be and acting as the legislatures” of those states.  Additionally, the document noted the two attempted recessions.  Ultimately, the document concluded that — assuming that the two recessions were not valid — the Fourteenth Amendment had been ratified.   In response, Congress passed a resolution holding that all of these ratifications were valid and directing the Secretary of State to issue a new proclamation.  The Secretary of State then issued a new proclamation which, after reciting all of the history — including the congressional resolution and which states had initially rejected an then ratified and which states had ratified and then rescinded — declared that the Fourteenth Amendment had been ratified and listed as ratifying states all of the states which had ever ratified the Fourteenth Amendment regardless of whether the state had rejected and then ratified or ratified and then attempted to rescind.   To the extent that the history of the Fourteenth Amendment is a precedent for the current debate, the legal conclusion from that ratification process is that rejection is not permanent but ratification is.

Thus, we are now at thirty-eight states for the Equal Rights Amendment.  Of course, this administration will not certify that it has been ratified.  But on January 20, 2021, a new director for the National Archives could very well certify that the Equal Rights Amendment has been ratified.  The question will then become whether the Supreme Court will accept that decision.  Up until now, the validity of ratification has always been a political question.  We will see whether this Supreme Court — which refuses to look at gerrymandering because thinks that gerrymandering is a political question — will desire to get involved in the Equal Rights Amendment.

And the status of the Equal Rights Amendment is not just about the Equal Rights Amendment, there is one other “expired” constitutional amendment pending.  That amendment — the D.C. Voting Rights Amendment — would give the District of Columbia full representation in Congress.  It was ratified by sixteen states prior to its expiration.  There are probably twelve additional states that might ratify it if it were called up for a vote.  That would bring the total to twenty-eight (with another ten needed for ratification).  (And looking at other unratified amendments pending, progressives may want to quietly work on the Child Labor Amendments.  If progressive states ratified that amendment, we would get to thirty-seven states and would just need one more to ratify it.  With conservatives engaged in a legal revolution to overturn much of modern law, there is always the chance that we could return to the day when the federal government did not have the power to regulate employment.)