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(Slip Opinion)
Ratification of the Equal Rights Amendment
Congress has constitutional authority to impose a deadline for ratifying a proposed constitutional amendment. It exercised this authority when proposing the Equal Rights Amendment and, because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adop- tion and is no longer pending before the States. Accordingly, even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption under 1 U.S.C. § 106b.
Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.
January 6, 2020
M EMORANDUM FOR THE G ENERAL C OUNSEL N ATIONAL A RCHIVES AND R ECORDS A DMINISTRATION
You have asked for our views concerning the legal status of the Equal Rights Amendment (“ERA”). Consistent with Article V of the Constitu- tion, two-thirds of both Houses passed a joint resolution proposing the ERA, which would become part of the Constitution when ratified by three-fourths of the States. See 86 Stat. 1523 (1972) (“ERA Resolution”). Consistent with the last seven amendments adopted before 1972, Con- gress conditioned ratification on a deadline, requiring that the necessary number of States (thirty-eight) approve the amendment within seven years. See id. As that deadline approached, only thirty-five States had ratified the ERA, and several had sought to rescind their initial approvals. Congress took the unprecedented step of voting, with a simple majority in each House, to extend the deadline by three years, until June 30, 1982. See 92 Stat. 3799 (1978). That new deadline came and went, however, without additional ratifications. The ERA thus failed to secure the neces- sary ratifications within either of Congress’s deadlines.
Nearly four decades later, ERA supporters have renewed their push to ratify the amendment. Some have urged Congress to restart the ratifica- tion process by proposing it anew. See, e.g. , Remarks of Justice Ruth Bader Ginsburg, Georgetown University Law Center (Sept. 12, 2019) (“[T]he ERA fell three States short of ratification. I hope someday it will be put back in the political hopper, starting over again, collecting the
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necessary number of States to ratify it.”).^1 Others, however, have urged the outstanding States to ratify the long-expired ERA Resolution, arguing that the congressional deadline was invalid or could be retroactively nullified by Congress. In 2017, Nevada voted to ratify the ERA, see S.J. Res. 2, 79th Leg. (Nev. 2017), and in 2018, Illinois did the same, see S.J. Res. Const. Amend. 0004, 100th Gen. Assemb. (Ill. 2018). If the ratifica- tion period remains open, and if the efforts by five States to rescind their earlier ratifications are disregarded, then thirty-seven States could be credited with having voted to ratify the ERA. After falling just short of ratifying the ERA during its 2019 session, the Virginia legislature is expected to vote again early this year.
Congress has charged the Archivist of the United States with the responsibility to publish a new constitutional amendment upon receiving the formal instruments of ratification from the necessary number of States. Whenever the National Archives and Records Administration (“NARA”) receives “official notice” that an amendment to the Constitu- tion “has been adopted,” the Archivist “shall forthwith cause the amend- ment to be published” along with a certificate identifying the States that ratified the amendment and declaring “that the [amendment] has become valid, to all intents and purposes, as a part of the Constitution of the United States.” 1 U.S.C. § 106b. In view of this responsibility, NARA has received inquiries from Members of Congress and from several States asking about the status of the ERA. Accordingly, you have asked for our views on the legal status of the proposed amendment.^2
We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States. The Supreme Court has upheld Congress’s authority to impose a deadline for ratifying a proposed constitutional amendment. See Dillon v. Gloss , 256 U.S. 368, 375–76 (1921) (“Of the power of Congress, keeping within
(^1) https://www.facebook.com/georgetownlaw/videos/justice-ginsburg-to-address-new- georgetown-law-students/2325195750861807 (remarks starting at 1:03:35); see also Marcia Coyle, Partisan Divisions Are ‘Not Serving Our Country Well,’ Justice Ginsburg Says , Nat’l L.J., Sept. 12, 2019 (quoting Justice Ginsburg’s remarks on the ERA), https:// www.law.com/nationallawjournal/2019/09/12/partisan-divisions-are-not-serving-our- country-well-justice-ginsburg-says/. (^2) See Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, from Gary M. Stern, General Counsel, National Archives and Records Administration (Dec. 12, 2018).
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plate any continuing role for Congress during the ratification period. See U.S. Const. art. V. Even if Congress could validly extend the ERA’s ratification deadline before its expiration, that deadline expired decades ago. Should the people of the United States wish to adopt the ERA as part of the Constitution, then the appropriate path is for Congress (or a con- vention sought by the state legislatures) to propose that amendment once more, in a manner consistent with Article V of the Constitution.
I.
Congress proposed the ERA to the States after five decades of delibera- tion over whether such an amendment was necessary to secure equal rights for women or might instead cut back on existing protections. The first ERA proposal was introduced in 1923. It would have provided that “[m]en and women shall have equal rights throughout the United States and every place subject to its jurisdiction” and that Congress could “en- force this article by appropriate legislation.” S.J. Res. 21, 68th Cong. (1923); see also H.R.J. Res. 75, 68th Cong. (1923). The measure faced opposition from traditionalists and some leaders of the women’s move- ment, including many who feared that the amendment would invalidate labor laws that protected women. See Mary Frances Berry, Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Con- stitution 56–60 (1986). The proposal did not advance in 1923, but it was re-introduced repeatedly over the next fifty years, and it was the subject of multiple committee hearings.^4 The amendment appears to have first reached the Senate floor in July 1946, where it fell short of the required two-thirds majority by a vote of 38 to 35. See 92 Cong. Rec. 9404– (1946). The Senate would go on to approve the proposal by the required supermajority on two occasions, in 1950 and 1953. See 99 Cong. Rec. 8974 (1953); 96 Cong. Rec. 872–73 (1950). On both occasions, however, the House did not act on the measure.
(^4) See, e.g. , H.R.J. Res. 42, 79th Cong. (1945); S.J. Res. 8, 77th Cong. (1941); S.J. Res. 65, 75th Cong. (1937); H.R.J. Res. 1, 75th Cong. (1937); S.J. Res. 1, 73d Cong. (1933); H.R.J. Res. 55, 71st Cong. (1929); S.J. Res. 64, 70th Cong. (1928); S.J. Res. 11, 69th Cong. (1925); Equal Rights for Men and Women: Hearings on S.J. Res. 65 Before a Subcomm. of the S. Comm. on the Judiciary , 75th Cong. (1938); Equal Rights Amend- ment: Hearing on S.J. Res. 64 Before a Subcomm. of the S. Comm. on the Judiciary , 70th Cong. (1929).
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After languishing for decades, the ERA gained momentum during the 91st Congress. See H.R.J. Res. 264, 91st Cong. (1969). In 1970, Repre- sentative Martha Griffiths obtained the necessary signatures for a dis- charge petition to move the resolution out of the House Judiciary Com- mittee, and the House approved the resolution by an overwhelming margin. See 116 Cong. Rec. 28004, 28036–37 (1970). The Senate, how- ever, did not take a final vote on the resolution. See S. Rep. No. 92-689, at 4–5 (1972). Notably, in the debates over the ERA, opponents had seized on the absence of a ratification deadline. See, e.g. , 116 Cong. Rec. 28012 (1970) (remarks of Rep. Celler); see also 116 Cong. Rec. 36302 (1970) (remarks of Sen. Ervin) (proposing to amend the earlier resolution to include a seven-year deadline for ratification).
In the 92nd Congress, the resolution finally met with bicameral suc- cess. The House adopted the ERA Resolution by the requisite two-thirds majority on October 12, 1971. 117 Cong. Rec. 35815 (1971). The Senate did the same on March 22, 1972. 118 Cong. Rec. 9598 (1972).
The ERA Resolution reads in its entirety: JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. Resolved by the Senate and House of Representatives of the Unit- ed 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 with- in seven years from the date of its submission by the Congress: “A RTICLE — “S ECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. “S EC. 2. The Congress shall have the power to enforce, by appro- priate legislation, the provisions of this article. “S EC. 3. This amendment shall take effect two years after the date of ratification.”
86 Stat. at 1523.
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political winds shifted, however, and only thirteen more States ratified within the next five years.^7 During those years, four States voted to re- scind their earlier ratifications.^8 A fifth State, South Dakota, later adopted a resolution providing that its prior ratification would be withdrawn if the requisite number of the States failed to ratify the ERA within the seven- year period. S.J. Res. 2, 54th Leg. (S.D. 1979).
As the seven-year deadline approached, Congress considered resolu- tions that would take the historically unprecedented step of extending the ratification deadline. See H.R.J. Res. 638, 95th Cong., 1st Sess. (1977); H.R.J. Res. 638, 95th Cong., 2d Sess. (1978). Congress had never before sought to adjust the terms or conditions of a constitutional amendment pending before the States. A subcommittee of the House Judiciary Com- mittee conducted hearings over six days during which government offi-
California. S. Con. Res. 39, 6th Leg. (Haw. 1972); H.R. Con. Res. 1, 1972 Sess. Gen. Ct. (N.H. 1972); S. Con. Res. 47, 126th Gen. Assemb. (Del. 1972); S.J. Res. 1008, 64th Gen. Assemb. (Iowa 1972); S.J. Res. 133, 41st Leg. (Idaho 1972); H.R. Con. Res. 1155, 1972 Sess. Leg. (Kan. 1972); Legis. Res. 86, 82d Leg. (Neb. 1972); S. Con. Res. 1, 62d Leg. (Tex. 1972); H.R.J. Res. 371, 87th Gen. Assemb. (Tenn. 1972); H.R.J. Res. 125, 7th Leg. (Alaska 1972); S. Res. 3482, 1972 Jan. Sess. Gen. Assemb. (R.I. 1972); S. Con. Res. 74, 195th Leg. (N.J. 1972); H.R. Con. Res. 1017, 48th Gen. Assemb. (Colo. 1972); S.J. Res. 3, 60th Leg. (W. Va. 1972); Enrolled J. Res. 52, 1972 Spec. Sess. Gen. Assemb. (Wis. 1972); S. Con. Res. 9748, 179th Leg. (N.Y. 1972); S.J. Res. GG, 76th Leg. (Mich. 1972); H.R.J. Res. LLL, 76th Leg. (Mich. 1972); Res. 35, 1972 Sess. Gen. Assemb. (Md. 1972); Res. Ratifying the Proposed Amend. to the Const. of the U.S. Prohibiting Discrim- ination on Account of Sex, 167th Gen. Ct. (Mass. 1972); H.R.J. Res. 2, 1972 1st Extra. Sess. Gen. Assemb. (Ky. 1972); J. Res. 2, 1972 Sess. Gen. Assemb. (Pa. 1972); S.J. Res. 20, 1972 Sess. Leg. (Cal. 1972). (^7) Eight States ratified the ERA in 1973: Wyoming, South Dakota, Oregon, Minnesota, New Mexico, Vermont, Connecticut, and Washington. H.R.J. Res. 2, 42d Leg. (Wyo. 1973); S.J. Res. 1, 48th Leg. (S.D. 1973); S.J. Res. 4, 57th Legis. Assemb. (Or. 1973); H.R. Res. 1, 68th Leg. (Minn. 1973); H.R.J. Res. 2, 31st Leg. (N.M. 1973); H.R.J. Res. 8, 1973 Sess. Gen. Assemb. (Vt. 1973); H.R.J. Res. 1, 1973 Jan. Sess. Gen. Assemb. (Conn. 1973); H.R.J. Res. 10, 43d Leg. (Wash. 1973). Three ratified in 1974: Maine, Montana, and Ohio. J. Res. to Ratify the Equal Rights Amend. to the Federal Const., 106th Leg., 1st Spec. Sess. (Me. 1974); H.R.J. Res. 4, 43d Leg. (Mont. 1974); H.R.J. Res. 11, 110th Gen. Assemb. (Ohio 1974). North Dakota ratified the ERA in 1975. S. Con. Res. 4007, 44th Legis. Assemb. (N.D. 1975). Indiana did so in 1977. H.R.J. Res. 2, 100th Gen. Assemb. (Ind. 1977). (^8) Kentucky voted to rescind its ratification in 1972. H.R.J. Res. 20, 1978 Sess. Gen. Assemb. (Ky. 1978). Nebraska did the same in 1973, Legis. Res. 9, 83d Leg. (Neb. 1973); Tennessee in 1974, S.J. Res. 29, 88th Gen. Assemb. (Tenn. 1974); and Idaho in 1977, H. Con. Res. 10, 44th Leg. (Idaho 1977).
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cials, legal scholars, and political activists expressed differing views over whether Congress could validly extend the ratification deadline, whether it could adopt such a resolution by only a simple majority vote, and whether States could validly rescind their earlier ratifications. See Equal Rights Amendment Extension: Hearings on H.J. Res. 638 Before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judi- ciary , 95th Cong. (1978) (“ House Extension Hearings ”). The witnesses included future Justice Ruth Bader Ginsburg, who was then a professor at Columbia Law School, and John Harmon, who was the Assistant Attorney General for this Office. A subcommittee of the Senate Judiciary Commit- tee also conducted hearings. See Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary , 95th Cong. (1979) (“ Senate Extension Hear- ings ”).
In connection with these hearings, Assistant Attorney General Harmon released an opinion, which he had provided to the Counsel to the Presi- dent, concluding that the proposed extension of the ERA would likely be constitutional. See Constitutionality of ERA Extension at 1. The opinion advised that “respectable arguments can be made on both sides of this question,” since Article V “can be viewed as envisioning a process whereby Congress proposes an amendment and is divested of any power once the amendment is submitted to the States for ratification.” Id. at 7. Nevertheless, the opinion ultimately concluded that Congress’s authority to “establish a ‘reasonable’ time in which ratification may occur,” id. , may be subject to modification by a later Congress at least where the deadline has not yet expired, see id. at 5–8, 16–17. The opinion reasoned that the ERA’s deadline was not in the proposed amendment’s actual text and therefore concerned only a “‘subsidiary matter[] of detail’” that Congress could revise by a simple majority vote of both Houses. Id. at 22–23 (quoting Dillon , 256 U.S. at 376).
In 1978, the House and Senate, acting by simple majorities, adopted a resolution extending the deadline for the ERA’s ratification. 92 Stat. at
3799.^9 The ERA’s supporters had initially sought to extend the ratification deadline by an additional seven years, but a compromise extended the deadline by just over three years, to June 30, 1982. See H.R. Rep. No. 95- 1405, at 1 (1978). Although this Office had advised that the President
(^9) The votes in the House and Senate were 233–189 and 60–36. 124 Cong. Rec. 26264, 34314 (1978).
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and 51 Members of the Senate,” had “reintroduced the equal rights amendment,” and analogizing the new proposal to “the phoenix rising from the ashes”); id. at 16108–09 (statement of Rep. Rodino) (acknowl- edging that the previously proposed ERA “failed of ratification as of June 30,” arguing that “what we need to do is to really go forward once again,” and introducing a resolution to “begin the battle anew”); see also Berry, Why ERA Failed at 82 (“The supporters of ERA in Congress... did not give up the effort either. They announced on July 14, that they had fifty- one cosponsors in the Senate and 201 in the House to reintroduce ERA.”).
In January 1983, Joint Resolution 1 was introduced in the House, pro- posing the ERA for ratification by state legislatures with a new seven-year deadline. See H.R.J. Res. 1, 98th Cong. (1983). The House voted on the resolution, but it fell short of the necessary two-thirds majority. See 129 Cong. Rec. 32668, 32684–85 (1983). In the following decades, similar resolutions were regularly introduced. See, e.g. , H.R.J. Res. 1, 101st Cong. (1989); S.J. Res. 1, 101st Cong. (1989); S.J. Res. 40, 103d Cong. (1993); H.R.J. Res. 41, 106th Cong. (1999); S.J. Res. 7, 109th Cong. (2005); H.R.J. Res. 69, 112th Cong. (2011); S.J. Res. 6, 115th Cong. (2017). None, however, was adopted. In the current Congress, similar resolutions were introduced in the House on January 29, 2019, see H.R.J. Res. 35, 116th Cong., and in the Senate on March 27, 2019, see S.J. Res. 15, 116th Cong. Two-thirds passage of either of those resolutions in both chambers of Congress would restart the ratification process by re- proposing the ERA to the States.
Separately, ERA supporters in recent years have sought to revive the expired ERA Resolution from 1972, contending either that the original deadline was legally invalid or that Congress may retroactively nullify the deadline decades after the original proposal’s expiration. See Allison L. Held et al., The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States , 3 Wm. & Mary J. Women & L. 113 (1997).^10 In the current Congress, several proposed resolutions would
(^10) See also Maggie Astor, The Equal Rights Amendment May Pass Now. It’s Only Been 96 Years , N.Y. Times, Nov. 6, 2019 (“‘It’s been extended by Congress, so if you can extend it, you can certainly strike it,’ said Representative Jackie Speier of California, the lead sponsor of a bipartisan House resolution to repeal the deadline.”), https://www. nytimes.com/2019/11/06/us/politics/virginia-ratify-equal-rights-amendment.html; Dana Canedy, Advocates of Equal Rights Amendment Resume Their Fight , N.Y. Times, May 4, 2003, § 1, at 41 (“Supporters contend they can challenge the deadline if they can now find three more states to vote in favor of the amendment.”).
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purport to void the deadline in the ERA Resolution. See S.J. Res. 6, 116th Cong. (2019); H.R.J. Res. 79, 116th Cong. (2019); H.R.J. Res. 38, 116th Cong. (2019). The House Judiciary Committee voted on November 13, 2019 to report one of those resolutions favorably. See H.R.J. Res. 79, 116th Cong. (2019) (as amended).^11
In seeking to revive the ERA, supporters have urged several States to ratify the ERA as proposed in the ERA Resolution. See, e.g. , Kristina Peterson, Equal Rights Amendment Could Soon Be Back in Congress , Wall St. J., July 3, 2019, https://www.wsj.com/articles/equal-rights- amendment-could-soon-be-back-in-congress-11562155202. In March 2017, Nevada’s legislature approved it. S.J. Res. 2, 79th Leg. (Nev. 2017). In May 2018, the Illinois legislature did the same. S.J. Res. Const. Amend. 0004, 100th Gen. Assemb. (Ill. 2018). The Virginia legislature narrowly failed to approve the amendment in 2019, but ERA supporters will try again this year.^12 If the ratification votes from 1972 to 1977 remain valid, and the five rescissions of those ratifications are disregard- ed, then thirty-seven of the States may be viewed as having approved the ERA Resolution. In that case, the approval by Virginia, or by another state legislature, would require a determination as to whether the ERA Resolution remains pending, notwithstanding the congressional deadline. The passage of House Joint Resolution 79, or a similar resolution, would likewise require a determination as to whether Congress may revive the ERA Resolution by retroactively removing the earlier deadline. Accord- ingly, you have requested our opinion on these matters.
(^11) See also Press Release, H. Comm. on the Judiciary, House Judiciary Committee Passes Resolution Removing Ratification Deadline for the ERA (Nov. 13, 2019), https:// judiciary.house.gov/news/press-releases/house-judiciary-committee-passes-resolution- removing-ratification-deadline-era. (^12) See Jenna Portnoy, ERA Bill Dies for Good in GOP-Controlled Virginia House of Delegates , Wash. Post, Feb. 21, 2019, https://www.washingtonpost.com/local/virginia- politics/virginia-house-kills-era-ratification-bill/2019/02/21/82920204-3560-11e9-854a- 7a14d7fec96a_story.html (noting the narrow failure); Rachel Frazin, Virginia Targets Historic Push on Equal Rights Amendment for Women , The Hill, Dec. 1, 2019, https:// thehill.com/homenews/state-watch/472295-virginia-targets-historic-push-on-equal-rights- amendment-for-women (noting that joint resolutions to ratify the ERA have been prefiled in both houses for consideration in the upcoming session).
Ratification of the Equal Rights Amendment
The infrequency with which the Constitution has been amended attests not just to the genius of the original design but also to the difficulty inher- ent in securing the broad consensus required by Article V. In connection with promises made during the state ratifying conventions for the original Constitution, the First Congress in 1789 proposed twelve amendments to the States. See 1 Stat. 97 (1789); see also, e.g. , David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 , at 110– (1997). By 1791, three-fourths of the States had approved ten of those twelve articles—the Bill of Rights. See U.S. Const. amends. I–X; see also 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 339–40 (2d ed. 1836). In the nearly 230 years since then, the States have ratified only seventeen additional amendments. See U.S. Const_._ amends. XI–XXVII.
Article V of the Constitution sets forth the procedures for proposing and ratifying constitutional amendments:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Con- stitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suf- frage in the Senate.
Id. art. V.
The process for proposing amendments is one of only two instances where the Constitution requires both Houses of Congress to act by a supermajority.^13 The other is when Congress seeks to override the Presi-
(^13) The Constitution alternatively provides that a supermajority (two-thirds) of the state legislatures may petition Congress to convene a convention for proposing amendments. U.S. Const. art. V. The Founders believed that this process would likely be unnecessary unless Congress had become corrupted. See, e.g. , 1 The Records of the Federal Conven- tion of 1787 , at 202–03 (Max Farrand ed., 1911); 1 Blackstone’s Commentaries 371 (St.
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dent’s veto of a bill or other form of joint resolution. See id. art. I, § 7, cls. 2–3.^14 The Founders thus established a high bar by requiring that two-thirds of both Houses agree upon the terms of any amendment to be proposed to the States and that three-fourths of the States ratify the amendment on those terms.
The Constitution further grants Congress the authority to specify “one or the other Mode of Ratification” in the States, either by the legislatures thereof or by state conventions chosen for that purpose. Id. art. V. In adopting the Constitution, the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments.” United States v. Sprague , 282 U.S. 716, 733 (1931); see also 4 Elliot, Debates in the Several State Conventions at 177 (statement of James Iredell) (“Any amendments which either Congress shall propose, or which shall be proposed by such general convention, are afterwards to be submitted to the legislatures of the different states, or conventions called for that purpose, as Congress shall think proper[.]”). Congress therefore exercises discretion in determining not just the substance of the amendment, but which of the two modes of ratification is to be used. See Sprague , 282 U.S. at 732 (recognizing that “the choice of mode rests solely in the discretion of Congress”).
In making such determinations, Congress has specified the mode of rat- ification in the proposing clause included within every resolution propos- ing a constitutional amendment. For every successful amendment, both Houses of Congress approved the proposing clause at the same time as the text of the proposed amendment, and they did so by a two-thirds vote. Congress included such a clause in the very first set of amendments proposed to the States, ten of which were ratified in 1791 as the Bill of Rights (and one of which was ratified in 1992 as the Twenty-Seventh Amendment). The resolution recited that Congress was proposing twelve
George Tucker ed., 1803) (observing that the convention process “will probably never be resorted to, unless the federal government should betray symptoms of corruption,” and describing the convention process as a “radical and effectual remedy”). As a historical matter, the state legislatures have never successfully petitioned for such a convention, and every amendment proposed to the States to date has come from Congress in the first instance. (^14) The Constitution requires a two-thirds majority in the Senate to convict a civil of- ficer in an impeachment trial, U.S. Const. art. I, § 3, cl. 6, and to give advice and consent to ratification of a treaty, id. art. II, § 2, cl. 2. It requires two-thirds of either House to concur in the expulsion of one of its Members. Id. art. I, § 5, cl. 2.
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Each of these deadlines was adopted as part of the same resolution that proposed each amendment by the required two-thirds majorities of both Houses of Congress.
B.
Article V does not expressly address how long the States have to ratify a proposed amendment. The “article says nothing about the time within which ratification may be had—neither that it shall be unlimited nor that it shall be fixed by Congress.” Dillon , 256 U.S. at 371. The text does direct that “[t]he Congress, whenever two thirds of both Houses shall deem it necessary , shall propose Amendments to this Constitution[.]” U.S. Const. art. V (emphases added). This language authorizes Congress to propose amendments for ratification when two-thirds majorities in each chamber deem it necessary, thereby implying that Congress may propose amendments for the period that the requisite majorities deem necessary. See Dillon , 256 U.S. at 375 (“[I]t is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and dis- posed of presently.”). Article V thus requires Congress to make a judg- ment concerning the needs of the moment and, from that, the Supreme Court has inferred the power to set a deadline by which the States must ratify, or reject, Congress’s judgment. See id. at 375–76.
The Court reached this conclusion in Dillon , which upheld Congress’s authority to impose a deadline for ratifying the Eighteenth Amendment, which established Prohibition. See U.S. Const. amend. XVIII, §§ 1–2. In section 3 of the Amendment, Congress conditioned its effectiveness upon the requirement that it be ratified within seven years. See id. § 3 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”). The Senate had previ- ously considered proposing ratification deadlines for the Fourteenth and Fifteenth Amendments. See Cong. Globe, 40th Cong., 3d Sess. 912–13, 1309–14 (1869); Cong. Globe, 39th Cong., 1st Sess. 2771 (1866). But the Eighteenth Amendment was the first amendment to include one.
In Dillon , a prisoner detained in violation of the National Prohibition Act (which was enacted pursuant to federal power authorized by the Eighteenth Amendment) argued that the presence of the deadline invali-
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dated the amendment because “Congress has no constitutional power to limit the time of deliberation or otherwise attempt to control what the legislatures of the States shall do in their deliberation.” Br. for Appellant at 4, Dillon v. Gloss , 256 U.S. 368 (1921) (No. 251). In rejecting this claim, the Court observed that “some” of the first seventeen amendments had been ratified “within a single year after their proposal and all within four years.” Dillon , 256 U.S. at 372. Four other proposed amendments, however, had failed to obtain the necessary votes from the States and “lain dormant for many years,” leaving it an “open question” whether they “could be resurrected.” Id. at 372–73. To avoid such future uncertainty, the Court explained, Congress fixed a seven-year deadline for the ratifica- tion of the Prohibition amendment. Id. at 373; see also 55 Cong. Rec. 5557 (1917) (remarks of Sen. Ashurst) (expressing support for a provision “limiting the time in the case of this amendment or any other amendment to 10, 12, 14, 16, 18, or even 20 years, so that we will not hand down to posterity a conglomerate mass of amendments floating around in a cloudy, nebulous, hazy way”).
In upholding Congress’s authority to impose deadlines, the Court rec- ognized that Article V does not expressly address the timing of ratifica- tion. See Dillon , 256 U.S. at 371. It nevertheless read the text to imply a degree of contemporaneity between an amendment’s proposal and its ratification, which “are not treated as unrelated acts but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time.” Id. at 374–75. The Court inferred that the approval of three-fourths of the States needs to be “sufficiently contempo- raneous... to reflect the will of the people in all sections at relatively the same period.” Id. at 375. Thus, “‘an alteration of the Constitution pro- posed today has relation to the sentiment and the felt needs of today,’” and “‘if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’” Id. at 375 (quoting, with alterations, John Alexander Jameson, A Treatise on Constitutional Con- ventions § 585, at 634 (4th ed. 1887)).^16 The Court therefore concluded
(^16) The Dillon Court necessarily rejected Jameson’s contention that, although Article V gives Congress the powers to propose an amendment and to express the mode of ratifica- tion, it does not grant Congress the power “to prescribe conditions as to the time within which amendments are to be ratified, and hence to do so would be to transcend the power given.” Jameson, A Treatise on Constitutional Conventions § 585, at 634.
Ratification of the Equal Rights Amendment
course in the proposing clauses of the Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth Amendments. See 76 Stat. at 1259; 79 Stat. at 1327; 85 Stat. at 825. There is no reason for deadlines declared in proposing claus- es to be any less binding on the ratification process than those included in the text of proposed amendments.
In Dillon , the Supreme Court held that Congress’s decision to fix “a definite period for ratification” is “a matter of detail which Congress may determine as an incident of its power to designate the mode of ratifica- tion” under Article V. 256 U.S. at 376. In the first resolution proposing constitutional amendments, Congress identified the mode of ratification in the resolution’s proposing clause, separate from the text of the proposed amendments themselves. See supra pp. 14 – 15. Congress has specified the mode of ratification in the proposing clause of every resolution proposing a constitutional amendment since then. See supra note 15. Each time, two- thirds of both Houses of Congress approved these measures. Insofar as Congress and the States have relied upon proposing clauses to specify the mode of ratification since 1789, we think it clear that Congress may exercise its integrally related authority to set a deadline in precisely the same manner. Chief Justice Hughes suggested as much when he observed that the Child Labor Amendment did not include a ratification deadline “either in the proposed amendment or in the resolution of submission.” Coleman , 307 U.S. at 452.
As we recognized in 1977, “[t]he history of congressional use of a seven-year limitation demonstrates that Congress moved from inclusion of the limit in the text of proposed amendments to including it within the proposing clauses... without ever indicating any intent to change the substance of their actions.” Constitutionality of ERA Extension at 15. After the Court’s 1921 decision in Dillon confirmed the validity of the Eighteenth Amendment’s ratification deadline, Congress included a seven-year deadline in the Twentieth, Twenty-First, and Twenty-Second Amendments. See U.S. Const. amend. XX, § 6 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”); id. amend. XXI, § 3 (“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”); id. amend. XXII, § 2 (“This article shall be inoperative unless it shall have been ratified as an
Opinions of the Office of Legal Counsel in Volume 44
amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”). By including such a provision in the amend- ment itself, Congress ensured that approvals secured after the seven-year deadline would be ineffective. Even if three-fourths of the States later ratified the amendment—and it therefore became “valid to all Intents and Purposes, as Part of [the] Constitution,” id. art. V—the amendment, by its own terms, would be legally inert.
Members of Congress recognized, however, that these textual deadlines came at a cost. With each amendment, the Nation’s highest law became increasingly cluttered with extraneous sections imposing conditions on ratification that had no prospective effect. Once three-fourths of the States ratified amendments within the prescribed deadlines, the deadlines, hav- ing already fulfilled their purpose, were nonetheless added to the constitu- tional text. To avoid exacerbating that problem, Congress adopted an alternative way of setting a ratification deadline when it proposed the Twenty-Third Amendment. Rather than including the deadline in the amendment’s text, Congress put it in the proposing clause specifying the mode of ratification. See 74 Stat. at 1057. As Senator Kefauver had ex- plained:
The general idea was that it was better not to make the 7-year provi- sion a part of the proposed constitutional amendment itself. It was felt that that would clutter up the Constitution.... We wanted to put the 7-year limitation in the preamble. So the intention of the pream- ble is that it must be ratified within 7 years in order to be effective.
101 Cong. Rec. 6628 (1955); see also Appointment of Representatives: Hearing on S.J. Res. 8 Before a Subcomm. of the S. Comm. on the Judici- ary , 84th Cong. 34 (1955) (letter from Prof. Noel Dowling) (“The 7-year limitation is put in the resolution rather than in the text of the amendment. There is no doubt about the power of Congress to put it there; and it will be equally effective. The usual way, to be sure, has been to write the limitation into the amendment; but we hope such an unnecessary clutter- ing up of the Constitution can be ended.”).^18
(^18) In connection with the Twentieth Amendment, Representative Emanuel Celler had proposed placing the seven-year deadline in the proposing clause, but that approach drew objections. 75 Cong. Rec. 3856–57 (1932). Representative Lamar Jeffers protested that, “[i]f the gentleman wants his amendment in the Constitution, it should go in a new
