Constitutional Ratification Process (Article V)
The traditional constitutional amendment process is described in Article V of the Constitution. Congress must pass a proposed amendment by a two-thirds majority vote in both the Senate and the House of Representatives and send it to the states for ratification by a vote of the state legislatures. The amendment becomes part of the Constitution when it has been ratified by three-fourths (currently 38) of the states. This process has been used for ratification of every amendment to the Constitution thus far.
Article V also provides for an alternative process, which has never been utilized. If requested by two-thirds of the state legislatures, Congress shall call a constitutional convention for proposing amendments. To become part of the Constitution, any amendment proposed by that convention must be ratified by three-fourths of the states through a vote of either the state legislature or a state convention convened for that purpose.
The mode of ratification is determined by Congress, and in neither of these two processes is a vote by the electorate applicable to the ratification of a constitutional amendment.
Article V makes no mention of a time limit for the ratification of a constitutional amendment, and no amendment before the 20th century had a time limit attached to it. The first amendment with a time limit was the 18th Amendment (Prohibition), proposed in 1917. For political reasons, Congress included an arbitrarily chosen seven-year deadline in Section 3. The amendment was also the first to include a time delay before it would take effect, in that case one year after the date of ratification.
The next two proposed amendments, the 19th Amendment (Woman Suffrage) and the never-ratified Child Labor Amendment, had no time limit attached. However, beginning with the 20th Amendment, Congress has attached a time limit to the ratification of all proposed amendments. Some of these deadlines were in the language of the amendment itself, thus ratified by the states and not able to be changed. However, some of these deadlines, including the time limit for ratification of the Equal Rights Amendment, were in the proposing clause of the amendment, not in the language ratified by the state legislatures. In 1978, Congress acted on the premise that it could change a deadline in a proposing clause and passed by majority vote a bill to extend the ERA’s ratification deadline from March 22, 1979 to June 30, 1982.
The "three-state strategy" for ERA ratification was originally developed through the work of the ERA Summit, a volunteer coalition organized in Washington, DC in 1992. U.S. Representative Robert Andrews (D-NJ), Barbara Irvine (Alice Paul Centennial Foundation, NJ), Flora Crater (Virginia Equal Rights Amendment Ratification Council), and Allie Hixson (Kentucky ERA Alliance, ERA Summit Founding Chair) played a key role in the early implementation of this strategy.
The three-state strategy for ERA ratification was developed following the 1992 ratification of the "Madison Amendment" as the 27th Amendment to the Constitution after a ratification period of 203 years. Given that acceptance, some ERA advocates contended that the ERA's ratification period of just over two decades would surely meet the "reasonable" and "sufficiently contemporaneous" standards required by Supreme Court decisions in 1921 and 1939. Time limits were not attached to proposed amendments until 1917, and Congress demonstrated its belief that it may alter a time limit in a proposing clause by extending the original ERA deadline. Precedent regarding a state’s ability to withdraw its ratification by a rescission vote shows that such actions have not been accepted as valid. Thus, supporters argued, the 35 existing ratifications should still be legally viable, and Congress likely has the power to adjust or repeal the previous time limit on the ERA, determine whether state ratifications subsequent to 1982 are valid, and recognize the ERA as part of the Constitution after three more states ratify.
Summary of legal analysis
The legal rationale for the three-state strategy is explained in "The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States," by Allison Held, Sheryl Herndon, and Danielle Stager, published in the Spring 1997 issue of William & Mary Journal of Women and the Law. (Read the full article.)
As the legal article explains, Article V of the U.S. Constitution gives Congress the power to propose an amendment and to determine the mode of ratification, but it is silent as to the power of Congress to impose time limits or its role after ratification by three-fourths of the states.
A 1921 Supreme Court decision (Dillon v. Gloss) affirmed that Congress has the power to fix a definite time limit for ratification; it also pointed out that an amendment becomes part of the Constitution once ratified by the final state constituting a three-fourths majority of the states. The Dillon Court said that an amendment should be ratified within a "reasonable" and "sufficiently contemporaneous" time frame "to reflect the will of the people in all sections at relatively the same period," because the amendment process is presumably triggered by a perception of "necessity" with respect to the subject of the amendment.
A 1939 Supreme Court decision (Coleman v. Miller) reaffirmed the power of Congress to fix a reasonable time period for ratification but also determined that Congress has the power to promulgate an amendment after the final state constituting a three-fourths majority ratifies. In Coleman, the Court held that Congress, upon receiving notification of ratification by three-fourths of the states, may determine whether the amendment is valid because it has been ratified in a reasonable period of time, or whether "the amendment has lost its vitality through lapse of time." The Court called the timeliness decision a "political question" and said that Congress is uniquely equipped to make that decision because of its "full knowledge ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment."
It is important to note that Congressional promulgation is not a necessary feature of ratification under Article V. In the history of the amendment process Congress has promulgated only two amendments, the 14th and the 27th, following the final state ratification. In addition, the requirement for ratification within a "sufficiently contemporaneous" time frame and the chronological definition of "contemporaneous" are now open to question in light of acceptance of the Madison Amendment.
The first time limit ever imposed on the ratification period of a constitutional amendment was in the text of the 18th Amendment (Prohibition) in 1917, and the limit of seven years was chosen by Congress without extensive discussion. The 19th Amendment (Woman Suffrage) was sent to the states in 1919 with no time limit, as was a proposed Child Labor Amendment in 1924. Seven-year time limits were placed in the text of the 20th, 21st, and 22nd Amendments, but Congress shifted the seven-year limit out of the text and into the proposing clause of the 23rd, 24th, 25th, and 26th Amendments.
The most recent amendment to the Constitution, the 27th Amendment, had no deadline attached because it was passed by Congress and sent to the states for ratification in 1789. After languishing for two centuries without sufficient state ratifications, action on it resumed in the 1970s, and it was added to the Constitution in 1992.
Despite arguments by proponents that the Equal Rights Amendment should go to the states without a time limit in the tradition of the 19th Amendment, the ERA passed Congress in 1972 with a seven-year time limit in its proposing clause. If the time limit had been placed in the text of the amendment itself, that restriction would not be subject to alteration by Congress after any state legislature had ratified. However, the ERA language ratified by 35 states between 1972 and 1982 did not contain a time limit for ratification.
By transferring time limits from the text of an amendment to the proposing clause, Congress retained for itself the authority to review the time limit and to amend its own previous legislative action regarding it. In 1978, Congress clearly demonstrated its belief that it may alter a time limit in the proposing clause when it passed a bill moving the deadline from March 22, 1979, to June 30, 1982. A challenge to the constitutionality of the extension was dismissed by the Supreme Court as moot after the deadline expired, and no lower-court precedent stands regarding that point.
The Coleman decision asserted that Congress may determine whether the states have ratified in a "reasonable" time or whether the amendment is "no longer responsive to the conception which inspired it." Congress therefore could determine that the time period since the ERA went to the states for ratification in 1972 is "reasonable" and "contemporaneous" (particularly in light of the fact that it deemed the Madison Amendment's 203 years to be so), and it could decide that the ERA remains "responsive to the conception which inspired it" (indisputably so, since the fact that women's equal rights are not constitutionally affirmed will remain unchanged until the Constitution is amended or interpreted to establish unequivocally that women and men have equal rights).
Therefore, under the principles of Dillon and Coleman, and based on the fact that Congress voted to extend the ERA time limit and to accept the 203-year-long ratification period of the Madison Amendment as sufficiently "contemporaneous," it is likely that Congress has the power to legislatively adjust or remove the time limit constraint on the ERA if it chooses, to determine whether or not state ratifications which occur after the expiration of a time limit in a proposing clause are valid, and to promulgate the ERA after the 38th state ratifies.
Article V of the Constitution speaks only to the states’ power to ratify an amendment but not to the power to rescind a ratification. All precedents concerning state rescissions of ratifications indicate that such actions are not valid and that the constitutional amendment process as described in Article V allows only for ratification. For example, the official tally of ratifying states for the 14th Amendment in 1868 by both the Secretary of State and Congress included New Jersey and Ohio, states which had passed resolutions to rescind their ratifications. Also included in the tally were North Carolina and South Carolina, states which had originally rejected and later ratified the amendment. In the course of promulgating the 14th Amendment, therefore, Congress determined that both attempted withdrawals of ratifications and previous rejections prior to ratification had no legal validity.
Therefore, it is most likely that the actions of the five states — Idaho, Kentucky, Nebraska, South Dakota, and Tennessee — that voted to rescind their ratification of the ERA between 1972 and 1982 are a legal nullity.
While women enjoy more rights today than they did when the ERA was first introduced in 1923 or when it passed out of Congress in 1972, hard-won laws against sex discrimination do not rest on any unequivocal constitutional foundation. They can be inconsistently enforced or even repealed by a simple majority vote. Elements of sex discrimination remain in statutory and case law, and courts have had difficulty applying a consistent standard to gender-based classifications, which are not inherently suspect or comparable to racial or ethnic classifications under equal-protection analysis.
The need for a federal Equal Rights Amendment remains as compelling as it was in 1978, when now Supreme Court Justice Ruth Bader Ginsburg wrote in the Harvard Women's Law Journal: "With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal."
Library of Congress analyzes three-state strategy in "Equal Rights Amendment: Ratification Issues"
On March 18, 1996, the Congressional Research Service at the Library of Congress released a memorandum on ERA ratification, "Equal Rights Amendment: Ratification Issues," including analysis of the "three-state strategy" for preserving the existing 35 state ratifications. While noting that there is no precedent for accepting state ratifications after a deadline, the report stated that inclusion of the 27th (Madison) Amendment in the Constitution has implications for the premise that ratification of the ERA by three more states could allow Congress to declare ratification accomplished.
Despite Supreme Court rulings requiring a "sufficiently contemporaneous" time period, the CRS analysis concludes that "Congress' acceptance of the ratification of the 27th Amendment...appears to have disproved the assumption that, absent a deadline, an amendment ceases to be eligible to be ratified merely because of the passage of time." The three-state strategy expands on this concept to propose that amendments whose time limit is not in the text, such as the ERA, likewise remain valid for ratification indefinitely. While ERA opponents might argue that 21st century ratifications could not be counted as contemporaneous with those from 1972 – 1982, the CRS report notes that "the acceptance of the Congressional Pay Amendment makes this argument much more difficult."
Congress has already shown that it claims authority to alter time limits in resolving clauses by extending the original ERA deadline from 1979 to 1982. In light of that action, the CRS memorandum poses a key question: "Does this mean this (or another) Congress has the authority to recognize state ratifications of the ERA that may be received in the future, even though the deadlines have passed?"
The report, while taking no position, discusses three possible alternatives for a three-state strategy.
- ERA proponents could ask Congress to pass a new ratification deadline, thereby reviving the process that has already produced 35 of the necessary 38 state ratifications.
- Through the approach of H.Res. 39 [now H.J.Res. 47 in the 112th Congress], Congress could be requested to "take any legislative action necessary to verify the ratification of the Equal Rights Amendment as part of the Constitution" if three additional states vote to ratify.
- Proponents could pursue the argument of the legal analysis in "Why the ERA Remains Legally Viable and Properly Before the States" (A. Held, S. Herndon, D. Stager, published in the Spring 1997 issue of William & Mary Journal of Women and the Law), which claims that because future Congresses can extend ratification deadlines in resolving clauses, those deadlines constitute no absolute closure on the process, and the ERA remains open to ratification by the states.
The proposition that one Congress cannot bind a future Congress by means of a rule or law offers both possibilities and difficulties for the three-state strategy. While a deadline might be able to be extended or eliminated by a future Congress, the commitment of H.Res. 98 to affirm ratification after three more states could also be ignored by a future Congress.
The CRS report sketches a possible scenario if three more states ratify the ERA. The U.S. Archivist, who maintains records regarding amendment ratifications, would likely file the new state ratification documents with the prior ones rather than rejecting them, but would probably not certify the amendment by a proclamation after the 38th state approval as long as existing instructions from Congress indicate that the ratification deadline has expired. Further action would likely be required from Congress prior to or at that time in order to validate the ERA as part of the Constitution.
This CRS analysis does not in general challenge the following arguments for the three-state strategy:
- The ratification process of the Equal Rights Amendment, which began in 1972, might remain open because the time limit is in the resolving clause rather than in the text of the amendment.
- Ratification of the ERA over three or more decades can be considered sufficiently contemporaneous, since the 203-year time period for the 27th Amendment was considered so.
- The existing 35 state ratifications remain potentially viable if three more states ratify the ERA.
- Congress retains authority to declare the ERA ratification process valid after the 38th state ratifies.