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. Continue Reading...