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In the Nov 2019 election, the Democrats won the majority of both Virginia state houses, and there is some discussion that Virginia could be the 38th state to ratify the (proposed) Equal Rights Amendment. (See this law.SE question for discussion of the ERA's possible effects.)

Approval by 3/4ths of the States would normally be enough to pass a Constitutional Amendment, but there are apparently two problems:

Even if Virginia acts as expected next year, there is no guarantee the amendment would take hold. A handful of the states that initially ratified the ERA have since rescinded those decisions and the most recent congressional deadline passed about four decades ago. Despite those roadblocks, activists believe they are well-positioned -- legally and politically -- to push the amendment, which was written by the suffragist Alice Paul in 1923, over the line.

1. Withdrawn ratifications

Apparently four states (Nebraska, Tennessee, Idaho, Kentucky) have "rescinded" their ratifications, after initially approving them, and one state (South Dakota), added a "sunset" provision to their ratification if it wasn't approved in whole by the original deadline.

Are these "take backs" valid? Could they prevent the Amendment from going into effect? How would this question be adjudicated? Is there any relevant case law on the matter?

2. Congressionally-imposed Deadlines

The original resolution by the 92nd Congress included the following preface (emphasis added):

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress

In 1978 another resolution was passed, extending the deadline to 1982, although this extension was passed by simple and not 2/3rds majority.

Despite these deadlines, the Amendment was ratified by Nevada in 2017 and Illinois in 2018.

Are these post-deadline ratifications (and a hypothetical 2020 one from Virginia) valid?

Would Congress simply need to pass a new (future) deadline, and all the past ratifications would take effect?

Wikipedia does list some purportedly relevant case law, can anyone help me understand how these might apply to these questions?

  • Yes, 3/4ths of the state's would have to approve it. – Putvi Nov 6 at 18:21
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The true answer is this is fundamentally unclear and ratification would definitely set up for a Supreme Court showdown.

The Supreme Court would in my opinion need to resolve 3 issues:

  1. Are Congressionally imposed deadlines in resolutions proposing an amendment to the States for ratification binding?
  2. Does a state withdrawal of its ratification of an amendment annul its ratification of the amendment?
  3. Who decides when an amendment is ratified?

For the first question this is perhaps the most unresolved question. Clearly if the deadline is imposed in the text of the amendment it is binding. For example, see the text of the 18th amendment, Section 3.

What is not clear is what if any binding effect a deadline in the text of the resolution proposing an amendment has as to the validity of the proposed amendment. Article V makes no provision on such deadlines. In fact the most recent amendment ratified was submitted for ratification on September 25, 1789, but ratified May 5, 1992. In this instance the Archivist of the United States declared the amendment ratified, but Congress also acted to do so and several members scolded the Archivist for doing so before Congress acted. However, there was no resolution of who had to actually approve the ratification.

For the second question there is absolutely no answer to this question except Coleman v. Miller which suggests this is a political question. This essentially means that the question should be resolved by Congress, not the courts.

Lastly, for the third question see also my response to the first question. If Congress is indeed the ratifier, what happens if one Congress decides the amendment was not ratified, but a future one decides it was?

Honestly, ratification of the ERA would open a whole can of worms and make it difficult to really resolve this issue. Probably the most direct method to force the Supreme Court to rule on this issue would be someone challenging their requirements to register with the Selective Service System.

  • 1
    Another reason the SCOTUS has been reluctant in ruling on constitutional amendment is that it is perhaps the most important check over SCOTUS in terms of overruling SCOTUS's constitutional interpretation. – xuhdev Nov 6 at 23:46
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As the Wikipedia entry says, the Constitution does not say whether a state can rescind it's ratification. No one can say otherwise until the matter goes to court, if it does.

Whether that counts would ultimately be up to a judge.

  • Actually it does, in the 9th and 10th amendment, which state that the Constitution is a list of all the rights of the Federal Government but is not a list of all the rights of the state governments or individuals and where there is no explicit mention of a right or power, it is assumed to exist and reside with the state or the individual. Basically put, If the constitution doesn't say the states cannot do it nor explicitly stops the feds from doing it, then the states can do it. – hszmv Nov 6 at 19:19
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Nov 7 at 2:38
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So yes, the combination of the deadline and the withdrawl of support would mean that the 75%+ threshhold has yet to be crossed by whatever deficit is required (where there three more states needed, prior to the sunset and repeals of approval? Or would the two states that passed recently plus Virginia close that gap? Your math is rather fuzzy in how many states approved, approved, then rescinded, and aprovved past sunset).

While the Constitution does not require amendments to pass with windows of time, it's also not constitutional to put a sunset clause on in the Constitution or a Clause that is only relevant to grandfathering scenarioes. However, if it passes after the sunset clause, it's technically unconstitutional (as the law is required to pass before a date, it is literally unconstitutional to pass after the date as the amendment contains the sunset clause, which effectively self-terminates (if passed after the sunset date, it's unconstitutional to enforce the amendment because it's unconstitutional to have it pass after 7 years from ratification by Congress and it's unconstitutional to ignore a part of the constitution).

To get around this, the process would have to go back to square one (Sitting on the Capital Steps singing "I'm Just a Bill, yes I'm only a Bill and I'm sitting here on Capital Hill) and go through the whole process all over again.). States are not obligated to consider an amendment nor are the bound to their vote to ratify prior to the amendment's sucessful passing of 75%. So essentially, all states listed as in your post do not count to 75% for the purposes of the amendment (three reconsidered, one applied it's own sunset to consideration, and 2 voted two late, and another hasen't voted at all at time of writing).

That said, at this stage, you couldn't even get a SCOTUS ruling as there is no damaged party by it's continued non-passage (Even if it could pass with VA, it's sunset is self-terminating as it's out of the window. NV, IL, and VA likely don't have a case as they had ample time to pass it prior to sunset and did not. The other four wouldn't have standing as they passed and later repealed while it was not effective.

  • Saying the Supreme Court would not take it up, saying certain things are not constitutional, and the other statements about what would be constitutional before the Supreme Court has ruled are all conjecture. – Putvi Nov 6 at 19:18
  • Supreme court cannot answer hypothetical situations or for parties that were not damaged (that's in the Article III of the Constitution). Amendments to the constitution are adopted whole cloth, not piece-meal. If the the constitution says "it's only constitutional if it's ratified prior to this date" and the ratification occurs after the date, then it's self-terminating at best or a paradoxical "Schrodenger's Amendment" that is both legal and illegal at the same time. Neither is going to do much good, and I'd rather not bring string theory into it. – hszmv Nov 6 at 19:27
  • Virginia makes 38 only if you count those states which have ratified after the deadline and those which have passed measures to rescind their prior approval, so yes, both questions matter. See state list here – BradC Nov 6 at 19:48
  • @BradC: So yeah, baring this going through the courts, logically it does not follow that Virginia or any post sunset state would make 38 pre-sunset, nor would 38 exist if you over look the sunset clause as they would basically be four states from 38 in total. – hszmv Nov 6 at 19:55
  • But it is unclear whether either of the two questions (expiration dates and retractions) are resolved as a matter of law; your answer appears to assume they both are, without explanation or citation. – BradC Nov 6 at 20:02

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