The Proposed Equal Rights Amendment:
Contemporary Ratification Issues
Thomas H. Neale
Specialist in American National Government
February 28May 9, 2013
Congressional Research Service
7-5700
www.crs.gov
R42979
CRS Report for Congress
Prepared for Members and Committees of Congress
The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Summary
The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights
Amendment’s extended ratification deadline. Since that time, new analyses have emerged that
bear on the question of whether the amendment proposed in 1972 remains constitutionally viable.
This report examines the legislative history of an Equal Rights Amendment (ERA) and both
identifies and provides an analysis of contemporary factors that may bear on its present and future
viability.
An Equal Rights Amendment was first introduced in Congress in 1923. After 49 years of effort by
supporters, an amendment declaring that “equality of rights under the law shall not be denied or
abridged by the United States or any State on account of sex” was proposed by Congress for
ratification by the states in 1972. This amendment will be referred to hereinafter as “the proposed
Equal Rights Amendment,” or “the proposed ERA.” Article V of the Constitution requires that
three-fourths of the states, 38 at present, must ratify an amendment before it becomes part of the
Constitution. In addition to this requirement, Congress has added a seven-year ratification
deadline to the 18th, 20th, and all subsequent amendments. In the proposed ERA, the deadline was
included in the preamble to the authorizing resolution, rather than in the body of the amendment.
As originally proposed, the amendment would have expired in 1979 if not ratified by 38 states.
Although the proposed ERA was eventually approved by 35 states, controversy and opposition
combined with other issues to bring the ratification process to a halt as the deadline approached.
In 1978, Congress voted to extend the deadline until June 30, 1982. Opponents claimed the
extension violated the spirit, if not the letter of the amendment process, but supporters insisted the
amendment needed more time for state consideration, and that the deadline, as noted previously,
was placed not in the amendment, but in the preamble to the authorizing resolution.
Notwithstanding the action of Congress, no further states ratified the proposed Equal Rights
Amendment during the extension period, and it was presumed to have expired in 1982. During
the same period, the legislatures of five states passed resolutions rescinding their earlier
ratifications, a process referred to as rescission. The Supreme Court had agreed to hear cases on
the rescission question, but the proposed ERA expired before they could be heard, and the High
Court dismissed the cases as moot.
In recent years, proponents of the proposed Equal Rights Amendment have asserted that Congress
possesses both the authority to repeal the original ratification time limit and its 1978 extension of
that limit, and to restart the clock on ratification at the current level of 35 states, without a time
limit. Thus, they contend that only three additional state ratifications would be necessary at any
time in the future for the proposed ERA to be adopted as an amendment to the Constitution. Joint
This
has been referred to as the “three state” approach. Joint resolutions to repeal the deadline and
reopen the ratification process were introduced in the
Senate and House of Representatives during
the 112th Congress. Although no action was taken
beyond routine committee referral, new
versions of these measures may be introduced in the 113th
Congress.
In support of their arguments, ERA proponents claim that Article V of the Constitution gives
Congress uniquely broad authority over the amendment process. They also point to Supreme
Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this
assertion. In addition, they cite the example of the 27th Amendment, also known as the “Madison
Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they
maintain, further supports their assertion that proposed amendments that do not include time
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
limits within the body of the amendment text itself, remain viable and eligible for ratification
indefinitely.
Opponents of further extension may argue that attempting to revive the amendment would be
politically divisive, and that providing the proposed ERA with a “third bite of the apple” would
be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in
setting the earlier limits. They would arguably reject the example of the 27th Amendment, which,
unlike the proposed ERA, never had a ratification time limit. Further, they might claim that
efforts to revive the proposed Equal Rights Amendment ignore the possibility that state
ratifications may have expired with the proposed ERA in 1982, and that proponents of the
amendment do not address the issue of state rescission, which has never been specifically
addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted
on appeal had become moot.
The “fresh start approach” provides an alternative means to revive the Equal Rights Amendment.
It consists of starting over by introducing a new equal rights amendment, identical to, but distinct
from the 1972 proposal. S.J. Res, 10, introduced by Senator Robert Menendez in the 113th
Congress, falls into this category.
These are some of the issues that could come before Congress should legislation repealing the
earlier deadlines assigned to the proposed Equal Rights Amendment be given active consideration
in the future, or should Congress seek to accede to additional ratifications without consideration
of the expired deadlines in the congressional resolutions.
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Contents
Introduction...................................................................................................................................... 1
An Equal Rights Amendment: Legislative and Ratification History ............................................... 1
Five Decades of Effort: Building Support for an Equal Rights Amendment in
Congress, 1923-1970 .............................................................................................................. 2
Congress Approves and Proposes the Equal Rights Amendment, 1970-1972 .......................... 4
First Vote in the House, 91st Congress—1970 ..................................................................... 5
Passage and Proposal by Congress, 92nd Congress—1971-1972 ........................................ 6
Congress Sets a Seven-Year Ratification Deadline ............................................................. 8
Ratification Efforts in the States ................................................................................................ 9
Ratification Is Extended in 1978, but Expires in 1982 .............................................................. 9
Rescission: A Legal Challenge to the Ratification Process ..................................................... 10
Renewed Legislative and Constitutional Proposals, 1982 to the Present ...................................... 11
“Fresh Start” Proposals............................................................................................................ 11
“Three-State” Proposals112th and 113th Congresses: Proposed “Fresh Start” Amendments ................................... 12
“Three-State” Proposals ....................................................................... 12
112th Congress: Proposed Equal Rights Amendment Legislation ................................... 12
112th and 113th Congresses: “Three-State” and Related Legislative Proposals ................................. 12
Contemporary Viability of the Equal Rights Amendment ............................................................. 14
Article V: Congressional Authority over the Amendment Process.......................................... 14
The Madison Amendment (the 27th Amendment): A Dormant Proposal Revived and
Ratified ................................................................................................................................. 16
Ratification of the Madison Amendment: A Model for the Proposed Equal Rights
Amendment? ........................................................................................................................ 18
The Role of the Supreme Court Decisions in Dillon v. Gloss and Coleman v. Miller ............. 20
Ancillary Issues ....................................................................................................................... 22
Origins of the Seven-Year Ratification Deadline .............................................................. 22
Rescission .......................................................................................................................... 23
Congressional Promulgation of Amendments ................................................................... 23
The Proposed District of Columbia Voting Rights (Congressional Representation)
Amendment—Congress Places a Ratification Deadline in the Body of the
Amendment .................................................................................................................... 24
Concluding Observations............................................................................................................... 26
Contacts
Author Contact Information........................................................................................................... 27
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Introduction
In July 1923, at a conference held to commemorate the 75th anniversary of the historic Seneca
Falls Convention, women’s suffrage leader and feminist Alice Paul announced her intention to
develop and promote a new constitutional amendment. Originally named the Mott Amendment
for Lucretia Mott, the prominent 19th century abolitionist, women’s rights activist, and social
reformer, it was intended to guarantee equality under the law for men and women. It was
proposed in the context of the 1920 ratification of the 19th Amendment, which established the
right of women to vote: Paul, a prominent suffragist and member of the National Women’s Party,
characterized the amendment as the next logical step for the women’s movement.1 The proposed
“Mott Amendment” originally stated that “men and women shall have equal rights throughout the
United States and every place subject to its jurisdiction.” The proposed amendment was first
introduced six months later, in December 1923, in the 68th Congress.
Nearly half a century passed before the Mott Amendment, later named the Paul Amendment, and
ultimately modified to become the proposed Equal Rights Amendment (ERA), was approved by
Congress and proposed to the states for ratification in 1972. In common with the 18th and 20th
through 26th Amendments, the proposed ERA included a seven-year deadline for ratification; in
this case the deadline was included in the proposing clause that preceded the text of the
amendment. After considerable early progress in the states, ratifications slowed, and the process
ultimately stalled at 35 states, three short of the 38 approvals (three-fourths of the states) required
by the Constitution. As the 1979 deadline approached, however, ERA supporters capitalized on
the fact that the seven-year time limit was incorporated in the amendment’s proposing clause
(also known as the preamble to the joint resolution authorizing the amendment) rather than in the
body of the amendment. Concluding that the amendment was not time-limited, Congress
extended the ratification period by 38 months, through 1982. No further states added their
approval during the extension, however, and the proposed ERA appeared to expire in 1982.
Since the proposed ERA’s extended ratification period expired in 1982, new analyses have
emerged that have led ERA supporters to assert that the amendment remains viable, and that the
period for its ratification could be extended indefinitely by congressional action.
This report examines the legislative history of the various proposals that ultimately emerged as
the proposed Equal Rights Amendment and both identifies and provides an analysis of
contemporary factors that may bear on its present and future viability.
An Equal Rights Amendment: Legislative and
Ratification History
Despite the efforts of women’s rights advocates in every Congress, nearly 50 years passed
between the time when the Mott Amendment was first introduced in 1923 and approval of the
proposed Equal Rights Amendment by Congress as submitted to the states in 1972.
1
“Alice Paul, Feminist, Suffragist, and Political Strategist,” The Alice Paul Institute, at http://www.alicepaul.org/
alicepaul.htm.
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Five Decades of Effort: Building Support for an Equal Rights
Amendment in Congress, 1923-1970
The first proposal for an equal rights amendment, drafted by Alice Paul, was introduced in the
68th Congress in 1923.2 In its original form, the text of the amendment read as follows:
Men and women shall have equal rights throughout the United States and every place subject
to its jurisdiction.
Congress shall have power to enforce this article by appropriate legislation.3
Although Alice Paul characterized the then-Lucretia Mott Amendment as a logical and necessary
next step in the campaign for women’s rights following the 19th Amendment, the proposal made
little progress in Congress over the course of more than two decades. During the years following
its first introduction, an equal rights amendment was the subject of hearings in either the House or
Senate in almost every Congress. According to one study, the proposal was the subject of
committee action, primarily hearings, on 32 occasions between 1923 and 1946, but it came to the
floor for the first time, in the Senate, only in the latter year.4 During this period, however, the
proposal continued to evolve. In 1943, for instance, the Senate Judiciary Committee reported a
version of an equal rights amendment incorporating revised language that remained unchanged
until 1971:
Equality of rights under the law shall not be denied or abridged by the United States or by
any State on account of sex.
Congress and the several states shall have power, within their respective jurisdictions, to
enforce this article by appropriate legislation.5
Throughout this period, amendment proponents faced opposition from traditionalists, organized
labor, and some leaders of the women’s movement. According to one study of the amendment’s
long pendency in Congress, “[t]he most persistent and most compelling trouble that crippled
prospects for an ERA from its introduction in 1923 until a year after Congress initially passed it
on to the states was opposition from most of organized labor during a period of ascending labor
strength.”6 A principal objection raised by organized labor and women’s organizations that
opposed the amendment was concern that the ERA might lead to the loss of protective legislation
for women, particularly with respect to wages, hours, and working conditions.7 One historian
notes that:
2
S.J.Res. 21, 68th Congress, 1st session, introduced on December 10, 1923, by Senator Charles Curtis of Kansas, and
H.J. Res. 75, introduced on December 13 by Representative Daniel Read Anthony, also of Kansas. Representative
Anthony was a nephew of women’s rights pioneer Susan B. Anthony.
3
Ibid.
4
Amelia Fry, “Alice Paul and the ERA,” in Joan Hoff Wilson, ed., Rights of Passage, The Past and Future of the ERA
(Bloomington, IN: Indiana U. Press, 1986), pp. 13-16.
5
S.J. Res. 25, 78th Congress, introduced by Senator Guy Gillette of Iowa.
6
Gilbert Y. Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington,
DC: Brookings Institution, 1985), p. 7.
7
Kathryn Kish Sklar, “Why Were Most Politically Active Women Opposed to the ERA in the 1920s?” in Rights of
Passage, pp. 25-28. Opponents included the League of Women Voters and the General Federation of Women’s Clubs.
Steiner, Constitutional Inequality, pp. 7-10.
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Through the years of the New Deal and the Truman administration, however, protective
legislation for women held a firm place in organized labor’s list of policy favorites. Since an
ERA threatened protective laws, it and its supporters qualified as the enemy.8
The nature of opposition from women’s groups was illustrated by a 1946 statement issued by 10
prominent figures, including former Secretary of Labor Frances Perkins and former First Lady
Eleanor Roosevelt, which asserted that an equal rights amendment would “make it possible to
wipe out the legislation which has been enacted in many states for the special needs of women in
industry.”9
These attitudes toward the proposal persisted, even though great numbers of women entered the
civilian workforce and the uniformed services during the four years of U.S. involvement in World
War II (1941-1945), taking jobs in government, industry, and the service sector that had
previously been filled largely by men. Congressional support for an equal rights amendment grew
slowly in the late 1940s, but a proposal eventually came to the Senate floor, where it was the
subject of debate and a vote in July 1946. Although the 39-35 vote to approve fell short of the
two-thirds of Senators present and voting required by the Constitution, it was a symbolic first
step.10
The so-called Hayden rider, named for its author, Senator Carl Hayden of Arizona, was perhaps
emblematic of the arguments ERA advocates faced during the early post-war era. First introduced
during the Senate’s 1950 debate, this proposal stated that:
The provisions of this article shall not be construed to impair any rights, benefits, or
exemptions conferred by law upon persons of the female sex.11
Although the rider’s ostensible purpose was to safeguard protective legislation, one source
suggested an ulterior motive: “Hayden deliberately added the riders in order to divide the
amendment’s supporters, and these tactics delayed serious consideration of the unamended
version of the Equal Rights Amendment.”12 Whatever the rider’s intent, it was not welcomed by
ERA supporters,13 and was opposed on the floor by Senator Margaret Chase Smith of Maine, at
that time the only woman Senator.14
The Senate ultimately passed an equal rights amendment resolution that included the Hayden
rider twice in the 1950s. In the 81st Congress, S.J. Res. 25, introduced by Senator Guy Gillette of
8
Steiner, Constitutional Inequality, p 10
Ibid., p. 52.
10
“Equal Rights Amendment,” Congressional Quarterly Almanac, 81st Congress, Second Session, 1950, vol. V
(Washington, DC: Congressional Quarterly News Features, 1951), p. 419.
11
See S.J. Res. 25, as amended, 81st Congress.
12
Mary Frances Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution
(Bloomington, IN: Indiana U. Press, 1986), p. 60
13
In oral history interviews conducted between November 1972 and March 1973, Alice Paul recalled that Senator
Hayden’s intentions in introducing the rider were sincere, and that he was dismayed when she told him it made the
amendment unacceptable to many ERA activists. See “Conversations with Alice Paul: Women’s Suffrage and the
Equal Rights Amendment,” Suffragists Oral History Project, U. of California, Calisphere, c. 1976, at
http://content.cdlib.org/view?docId=kt6f59n89c&brand=calisphere&doc.view=entire_text.
14
While she voted against the rider, Senator Smith voted yes on final passage of the resolution as amended, which
included the rider. Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), p. 870. See also,
Congressional Quarterly Almanac, 1950, p. 420.
9
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Iowa and numerous co-sponsors, was approved by a vote of 63-19 on January 25, 1950, a margin
that comfortably surpassed the two-thirds of Members present and voting required by the
Constitution.15 An amendment came before the Senate again in the 83rd Congress, when Senator
John M. Butler of Maryland and co-sponsors introduced S.J. Res. 49. The resolution, as amended
by the Hayden rider, passed by a vote of 73-11 on July 16, 1953.16 Over the next 16 years, the
Senate considered various equal rights amendment resolutions in committee in almost every
session, but no proposal was considered on the floor during this period. By 1964, however, the
Hayden rider had lost support in the Senate as perceptions of the equal rights amendment concept
continued to evolve; in the 88th Congress, the Senate Judiciary Committee effectively removed it
from future consideration when it stated in its report:
Your committee has considered carefully the amendment which was added to this proposal
on the floor of the Senate.... Its effect was to preserve “rights, benefits, or exemptions”
conferred by law upon persons of the female sex. This qualification is not acceptable to
women who want equal rights under the law. It is under the guise of so-called “rights” or
“benefits” that women have been treated unequally and denied opportunities which are
available to men.17
At the same time, there was no action in the House of Representatives for over two decades,
between 1948 and 1970. Throughout this period, Representative Emanuel Celler of New York had
blocked consideration of the amendment in the Judiciary Committee, which he chaired from 1949
to 1953 and again from 1955 to 1973. A Member of the House since 1923, Chairman Celler had
been a champion of New Deal social legislation, immigration reform, civil rights legislation, and
related measures throughout his career, but his strong connections with organized labor, which, as
noted earlier, opposed an equal rights amendment during this period, may have influenced his
attitudes toward the proposal.18
Congress Approves and Proposes the Equal Rights Amendment,
1970-1972
Although proposals for an equal rights constitutional amendment continued to be introduced in
every Congress, there had been no floor consideration of any proposal by either chamber since
the Senate’s 1953 action. By the early 1970s, however, the concept had gained increasing
visibility as one of the signature issues of the emerging women’s movement in the United States.
As one eyewitness participant later recounted:
The 1960s brought a revival of the women’s rights movement and more insistence on
changed social and legal rights and responsibilities. The fact of women’s involvement in the
civil rights movement and the anti-war movement and their changed role in the economy
15
Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), pp. 870-873. For an analysis of the vote, see
Congressional Quarterly Almanac, 1950, pp. 419-422.
16
As with her vote in 1950, Senator Smith opposed the rider, but voted yes on final passage of the resolution in 1953.
Senate debate, Congressional Record, vol. 99, pt. 7 (July 16, 1953), p. 8974.
17
U.S. Congress, Senate, Committee on the Judiciary, Equal Rights for Men and Women, report to accompany S.J. Res.
45, S. Rept. 1558, 88th Congress, 2nd session (Washington, DC: GPO, 1964), p. 2.
18
Steiner, Constitutional Inequality, pp. 14-15.
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created a social context in which many women became active supporters of enhanced
legislation for themselves.19
By the time the concept of an equal rights amendment emerged as a national issue, it had also
won popular support, as measured by public opinion polling. The first recorded survey on support
for the proposal was a CBS News telephone poll conducted in September 1970, in which 56% of
respondents favored an equal rights amendment.20 Favorable attitudes remained consistent during
the 1970s and throughout the subsequent ratification period.21 Labor opposition also began to
fade, and in April 1970, one of the nation’s largest and most influential unions, the United Auto
Workers, voted to endorse the concept of an equal rights amendment.22
In actions that perhaps reflected changing public attitudes, Congress had also moved during the
1960s on several related fronts to address women’s equality issues. The Equal Pay Act of 1963
“prohibited discrimination on account of sex in payment of wages,”23 while the Civil Rights Act
of 1964 banned discrimination in employment on the basis of race, color, religion, sex, or national
origin.24 Although it remained pending, but unacted upon, in Congress, proposals for an equal
rights amendment had gained support in other areas. The Republican Party endorsed an earlier
version of the amendment in its presidential platform as early as 1940, followed by the
Democratic Party in 1944.25 Both parties continued to include endorsements in their subsequent
quadrennial platforms, and, by 1970, Presidents Eisenhower, Kennedy, Johnson, and Nixon were
all on record as having endorsed an equal rights amendment.26
First Vote in the House, 91st Congress—1970
Representative Martha Griffiths of Michigan is widely credited with breaking the legislative
stalemate that had blocked congressional action on a series of equal rights amendment proposals
for more than two decades.27 Against the background of incremental change outside Congress,
Representative Griffiths moved to end the impasse in House consideration of the amendment. On
19
Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution, p. 60.
CBS News Survey, September 8-10, 1970. Source: Jane J. Mansbridge, Why We Lost the ERA (Chicago, IL: U. of
Chicago Press, 1986), pp. 206-209.
21
Major survey research firms regularly conducted surveys of public attitudes toward the Equal Rights Amendment
between the 1970s and the 1990s. Their findings reflected consistent support for the proposed amendment throughout
the ratification period. For instance, an early Gallup Poll, conducted in March 1975, showed 58% of respondents
favored the proposed ERA, while 24% opposed it, and 18% expressed no opinion. These levels of support changed
little during the period of ratification for the proposed ERA, never dropping below a 57% approval rate. Source: The
Gallup Poll, Public Opinion, 1982 (Wilmington, DE: Scholarly Resources Inc., 1982), p. 140. In ensuing years, public
support rose. The most recent available survey, conducted by the CBS News Poll in 1999, reported that 89% of
respondents supported the proposed ERA, while 8% opposed and 4% didn’t know or had no opinion. Source: CBS
News Poll, conducted December 13-16, 1999.
22
Mansbridge, Why We Lost the ERA, p. 12.
23
Equal Pay Act of 1963, 77 Stat. 56.
24
Title VII, Civil Rights Act of 1964, 78 Stat. 241.
25
Donald Bruce Johnson, comp., National Party Platforms, vol. I, 1840-1956 (Urbana, IL: U. of Illinois Press, 1978),
pp. 393, 403.
26
U.S. President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (Washington, DC:
GPO, 1970), p. 5.
27
“Martha Griffiths and the Equal Rights Amendment,” National Archives, Center for Legislative Archives, at
http://www.archives.gov/legislative/features/griffiths.
20
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January 16, 1969, she introduced H.J. Res. 264, proposing an equal rights amendment, in the
House of Representatives. The resolution was referred to the Judiciary Committee where, as had
been expected, no further action was taken.28 On June 11, 1970, however, Representative Griffiths
took the unusual step of filing a discharge petition to bring the proposed amendment to the floor.
A discharge petition “allows a measure to come to the floor for consideration, even if the
committee of referral does not report it and the leadership does not schedule it.”29 In order for a
House committee to be discharged from further consideration of a measure, a majority of
Representatives (218, if there are no vacancies) must sign the petition. As reported at the time, the
use of the discharge petition had seldom been invoked successfully, having gained the necessary
support only 24 times since the procedure had been established by the House of Representatives
in 1910, and Representative Griffiths’s filing in 1970.30 By June 20, Representative Griffiths
announced that she had obtained the necessary 218 Member signatures for the petition.31
Although the Judiciary Committee had neither scheduled hearings nor issued a report, the
resolution was brought to the House floor on August 10. The House approved the motion to
discharge by a vote of 332 to 22, and approved the amendment itself by a vote of 334 to 26.32
The Senate had begun to act on a resolution proposing an equal rights amendment in the 91st
Congress in 1970, before the amendment came to the House floor. In May, the Judiciary
Committee’s Subcommittee on Constitutional Amendments held hearings on S.J.Res. 61, the
Senate version of an amendment. These hearings were followed by hearings in the full committee
in September, and consideration on the Senate floor in early October. Floor debate was dominated
by consideration and adoption of two amendments that would have (1) exempted women from
compulsory military service and (2) permitted non-denominational prayer in public schools, and a
final amendment that provided alternative language for the resolution. Thus encumbered, the
Senate resolution was unacceptable to ERA supporters, but, in any event, the Senate adjourned on
October 14 without a vote on the resolution as amended, and failed to bring it to the floor for final
action in the subsequent lame-duck session.33
Passage and Proposal by Congress, 92nd Congress—1971-1972
In the 92nd Congress, Representative Griffiths began the process anew in the House of
Representatives when she introduced H.J.Res. 208, proposing an equal rights amendment.
Chairman Celler continued to oppose it, but no longer blocked committee action. After
subcommittee and full committee hearings, the House Judiciary Committee reported an
amendment on July 14, but the resolution as reported included amendments concerning
citizenship, labor standards, and the exemption of women from selective service that were
unacceptable to ERA supporters. When H.J. Res. 208 came to the floor in early October, however,
28
Congressional Record, vol. 115, pt. 1 (January 16, 1969), p. 1144.
CRS Report 97-552, The Discharge Rule in the House: Principal Features and Uses, by Richard S. Beth, p. 3.
30
“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 91st Congress, 2nd Session—1970,
vol. XXVI (26) (Washington, DC: Congressional Quarterly, Inc., 1970), p. 707.
31
Ibid.
32
For debate and vote on the amendment, see Congressional Record, vol. 116, pt. 21 (August 10, 1970), pp. 2800428037.
33
“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 1970, pp. 708-709.
29
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the House stripped out the committee amendments, and, on October 12, it approved the resolution
by a bipartisan vote of 354 to 24.34
The Senate took up the House-passed amendment during the second session of the 92nd Congress,
in March 1972. On March 14, the Judiciary Committee reported a clean version of H.J. Res. 208
after rejecting several amendments, including one adopted by the Subcommittee on the
Constitution, and several others offered in the full committee. The resolution was called up on
March 15, and immediately set aside. The Senate began debate on the amendment on March 17,
with Senator Birch Bayh of Indiana, a longtime ERA supporter, as floor manager. On the same
day, President Richard Nixon released a letter to Senate Republican Leader Hugh Scott of
Pennsylvania reaffirming his endorsement of the Equal Rights Amendment.35 After two days in
which the Members debated the proposal, Senator Sam Ervin of North Carolina offered a series
of amendments that, among other things, would have exempted women from compulsory military
service and service in combat units in the U.S. Armed Forces, and preserved existing genderspecific state and federal legislation that extended special exemptions or protections to women.
Over the course of two days, Senator Ervin’s amendments were serially considered and rejected,
generally by wide margins. On March 22, the Senate approved the House version of the
amendment, H.J. Res. 208, by a vote of 84 to 8, with strong bipartisan support.36
The text H.J. Res. 208—the Equal Rights Amendment as proposed by the 92nd Congress—
follows:
House Joint Resolution 208
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 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 of its submission by
the Congress:
“Section 1. Equality of rights under the law shall not be denied or abridged by the United
States or any State on account of sex.
34
The vote in the House was 217 Democrats and 137 Republicans in favor, 12 Democrats and 12 Republicans opposed.
Congressional Record, vol. 117, pt. 27 (October 12, 1971), p. 35815. See also “House Passes Equal Rights
Constitutional Amendment,” Congressional Quarterly Almanac, 92nd Congress, 1st Session, 1971, vol. XXVII (27)
(Washington, DC: Congressional Quarterly Inc. 1972), pp. 656-658.
35
In his letter, President Nixon noted that he had co-sponsored the ERA as a freshman Senator in 1951, and that he
remained committed to the amendment. “Letter to the Senate Minority Leader About the Proposed Constitutional
Amendment on Equal Rights for Men and Women,” U.S. President, Public Papers of the Presidents of the United
States, Richard Nixon, 1972 (Washington, DC: GPO, 1972), p. 444.
36
The Senate vote was 47 Democrats and 37 Republicans in favor; two Democrats and six Republicans opposed.
Congressional Record, vol. 118, pt. 8 (March 22, 1972), p. 9598. See also “Equal Rights: Amendment Passed Over
Ervin Opposition,” Congressional Quarterly Almanac, 92nd Congress, 2nd session, 1972, vol. XVIII (18) (Washington,
DC: Congressional Quarterly Inc. 1973), pp. 199-204.
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“Section 2. The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.
“Section 3. This amendment shall take effect two years after the date of ratification.”
The action of the two chambers in approving H.J. Res. 208 by two-thirds majorities of Members
present and voting (91.3% in the Senate and 93.4% in the House) had the effect of formally
proposing the amendment to the states for ratification.
Congress Sets a Seven-Year Ratification Deadline
When it proposed the Equal Rights Amendment, Congress stipulated in the preamble of the joint
resolution that the ERA was to be ratified by the constitutionally requisite number of state
legislatures (38 then as now) within seven years of the time it was proposed, in order to become a
valid part of the Constitution. A time limit for ratification was first instituted with the 18th
Amendment,37 proposed in 1917, and, with the exception of the 19th Amendment and the Child
Labor Amendment, all subsequent proposed amendments have included a ratification deadline of
seven years.
With respect to the Child Labor Amendment, Congress did not incorporate a ratification deadline
when it proposed the amendment in 1924. It was ultimately ratified by 28 states through 1937, 8
short of the 36 required by the Constitution at that time, the Union then comprising 48 states.
Although the amendment arguably remains technically viable because it lacked a deadline when
proposed, the Supreme Court in 1941 upheld federal authority to regulate child labor as
incorporated in the Fair Labor Standards Act of 1938 (52 Stat. 1060) in the case of United States
v. Darby Lumber Company (312 U.S. 100 (1941)). In this case, the Court reversed its earlier
decision in Hammer v. Dagenhart (24 U.S. 251 (1918)), which ruled that the Keating-Owen Child
Labor Act of 1916 (39 Stat.675) was unconstitutional.38 The amendment is thus widely regarded
as having been rendered moot by the Court’s 1941 decision.39
In the case of the 18th, 20th, 21st, and 22nd Amendments, the “sunset” ratification provision was
incorporated in the body of the amendment itself. For subsequent amendments, however,
Congress determined that inclusion of the time limit within its body “cluttered up” the proposal.
Consequently, all but one of the subsequently proposed amendments40 proposed later: the 23rd,
24th, 25th and 26th, and the ERA, placed the limit in the preamble, rather than in the body of the
amendment itself.41 This decision, seemingly uncontroversial at the time, was later to have
profound implications for the question of extending the ratification window for the ERA.
37
The origins of and rationale for the seven-year ratification deadline are examined in greater detail later in this report.
(312 U.S. 100 (1941)). In this case, the Court reversed its earlier decision in Hammer v. Dagenhart (24 U.S. 251
(1918)), which ruled that the Keating Owen Child Labor Act of 1916, 39 Stat.675, was unconstitutional.
39
John R. Vile, “Child Labor Amendment,” in Encyclopedia of Constitutional Amendments, Proposed Amendments,
and Amending Issues, 1789-2010, 3rd edition (Santa Barbara, CA: ABC-CLIO, 2010), vol. 2, p. 65.
40
Only the proposed District of Columbia Voting Rights (Congressional Representation) Amendment included a
ratification deadline within the body of the amendment. This exception is examined later in this report.
41
U.S. Congress, The Constitution of the United States of America, Analysis and Interpretation, “Article V, Mode of
Amendment,” online edition available to Members of Congress and their staff at http://www.crs.gov/conan/
default.aspx?doc=Article05.xml&mode=topic&t=1|2|3; hereafter, The Constitution Annotated.
38
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Ratification Efforts in the States
States initially responded quickly once Congress proposed the Equal Rights Amendment for their
consideration. Hawaii was the first state to ratify, on March 22, 1972, the same day the Senate
completed action on H.J. Res. 208. By the end of 1972, 22 states had ratified the amendment, and
it seemed well on its way to adoption. Opposition to the amendment, however, began to coalesce
around organizations like “STOP ERA,” which revived many of the arguments addressed during
congressional debate. Opponents also broadly asserted that ratification of the amendment would
set aside existing state and local laws providing workplace and other protections for women and
would lead to other, unanticipated negative social and economic effects.42 In 1976, ERA
supporters established a counter-organization, “ERA America,” as an umbrella association to
coordinate the efforts of pro-amendment groups and serve as a high-profile national advocate for
the amendment.43
Opposition to the proposed Equal Rights Amendment continued to gain strength, although one
scholar noted that public approval of the amendment never dropped below 54% during the
ratification period.44 Following the first 22 state approvals, eight additional states ratified in 1973,
three more in 1974, and one each in 1975 and 1977, for an ultimate total of 35, three short of the
constitutional requirement of 38 state ratifications. 45 At the same time, however, ERA opponents
in the states promoted measures in a number of legislatures to repeal or rescind their previous
ratifications. Although the constitutionality of such actions has long been questioned, by 1979,
five states had passed rescission measures.46 The question of rescission will be addressed in detail
later in this report.
Ratification Is Extended in 1978, but Expires in 1982
By the late 1970s, the ratification process had clearly stalled, and the deadline for ratification as
specified in the preamble to H.J. Res. 208 was approaching. Reacting to the impending “sunset”
date of March 22, 1979, ERA supporters developed a novel strategy to extend the deadline by
congressional resolution. The vehicle chosen by congressional supporters was a House joint
resolution, H.J.Res. 638, introduced in the 95th Congress on October 26, 1977, by Representative
Elizabeth Holtzman of New York and others. In its original form, the resolution proposed to
extend the deadline an additional seven years, thus doubling the original ratification period.
During hearings in the House Judiciary Committee’s Subcommittee on Civil and Constitutional
Rights, legal scholars debated questions on the authority of Congress to extend the deadline;
42
David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence, KS: University
of Kansas Press, 1996), pp. 409-412.
43
Ibid., pp. 412-413. Berry, Why ERA Failed, p. 69.
44
Mansbridge, Why We Lost the ERA, pp. 206-209.
45
Ratifications by year and order of approval: 1972: Hawaii, New Hampshire, Delaware, Iowa, Kansas, Idaho,
Nebraska, Texas, Tennessee, Alaska, Rhode Island, New Jersey, Colorado, West Virginia, Wisconsin, New York,
Michigan, Maryland, Massachusetts, Kentucky, Pennsylvania, and California; 1973: Wyoming, South Dakota, Oregon,
Minnesota, New Mexico, Vermont, Connecticut, and Washington; 1974: Maine, Montana, and Ohio; 1975: North
Dakota; 1977: Indiana. (CRS Report 82-218, The Proposed Equal Rights Amendment, by Leslie W. Gladstone, p. 33.)
46
State rescissions by year: 1973: Nebraska; 1974: Tennessee; 1977: Idaho; 1978: Kentucky; 1979: South Dakota.
Source, Congressional Research Service Memorandum, Questions Pertaining to the Equal Rights Amendment, by
David C. Huckabee, August 19, 2004, p. 2. Available to Members of Congress and staff from CRS.
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whether an extension vote should be by a simple majority or a supermajority of two-thirds of the
Members present and voting; and if state rescissions of their ratifications were lawful. The full
Judiciary Committee also addressed these issues during its deliberations in 1978. 47 Continuing
controversy in the committee and opposition to extending the ratification period a full seven years
led to a compromise amendment to the resolution that reduced the proposed extension to three
years, three months, and eight days. ERA supporters accepted the shorter period as necessary to
assure committee approval of the extension. Two other changes, one that would have recognized
the right of states to rescind their ratifications, and a second requiring passage of the extension in
the full House by a two-thirds super majority, were both rejected by the committee when it
reported the resolution to the House on July 30.48
The full House debated the resolution during the summer of 1978, rejecting an amendment that
proposed to recognize states’ efforts to rescind their instruments of ratification. Another
amendment rejected on the floor would have required votes on the ERA deadline extension to
pass by the same two-thirds vote necessary for original actions proposing constitutional
amendments. The House adopted the resolution by a vote of 233 to 189 on August 15, 1978.49
The Senate took up H.J.Res. 638 in October; during its deliberations it rejected amendments
similar to those offered in the House and joined the House in adopting the resolution, in this case
by a vote of 60 to 36 on October 6.50 In an unusual expression of support, President Jimmy Carter
signed the joint resolution on October 20, even though the procedure of proposing an amendment
to the states is solely a congressional prerogative under the Constitution.51
During the extended ratification period, ERA supporters sought unsuccessfully to secure the three
necessary ratifications for the amendment, while opponents pursued rescission in the states with
similarly unsuccessful results. A Gallup Poll reported in August 1981 that 63% of respondents
supported the amendment, a higher percentage than in any previous survey, but, as one observer
noted, “The positive poll results were really negative, because additional ratifications needed to
come from the states in which support was identified as weakest.”52 On June 30, 1982, the Equal
Rights Amendment deadline expired with the number of state ratifications at 35, not counting
rescissions.
Rescission: A Legal Challenge to the Ratification Process
As noted earlier, while ratification of the proposed Equal Rights Amendment was pending, a
number of states passed resolutions that sought to rescind their earlier ratifications. By the time
the amendment’s extended ratification deadline passed in 1982, the legislatures of more than 17
47
“ERA Deadline Extended,” Congressional Quarterly Almanac, 95th Congress, 2nd Session, 1978, vol. XXIV (34)
(Washington, DC: Congressional Quarterly Inc., 1979), pp. 773-775.
48
Ibid.
49
Ibid., pp. 775-776.
50
Ibid., p. 773.
51
“ERA Deadline Extension,” Congress and the Nation, vol. V, 1977-1980 (Washington, DC: Congressional Quarterly
Inc., 1981), pp. 798-800. For President Carter’s explanation of his signing of the extension joint resolution, see “Equal
Rights Amendment, Remarks on Signing H.J.Res. 638,” in U.S. President, Public Papers of the Presidents of the
United States, Jimmy Carter, 1978 (Washington, DC: GPO, 1979), pp. 1800-1801.
52
Berry, Why ERA Failed, p. 79.
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states had considered rescission, and five passed these resolutions.53 Throughout the period,
however, legal opinion as to the constitutionality of rescission remained divided.
On May 9, 1979, the State of Idaho, joined by the State of Arizona and individual members of the
Washington legislature, brought legal action in the U.S. District Court for the District of Idaho,
asserting that states did have the right to rescind their instruments of ratification.54 The plaintiffs
further asked that the extension enacted by Congress be declared null and void.55
On December 28, 1981, District Court Judge Marion Callister ruled (1) that Congress had
exceeded its power by extending the deadline from March 22, 1979, to June 30, 1982; and (2) that
states had the authority to rescind their instruments of ratification, provided they took this action
before an amendment was declared to be an operative part of the Constitution.56 The National
Organization for Women (NOW), the largest ERA advocacy organization, and the General
Services Administration (GSA)57 appealed this decision directly to the Supreme Court, which, on
January 25, 1982, consolidated four appeals and agreed to hear the cases. In its order, the High
Court also stayed the judgment of the Idaho District Court. On June 30, as noted earlier, the
extended ratification deadline expired, so that when the Supreme Court convened for its term on
October 4, it dismissed the appeals as moot, and vacated the district court decision.58
Renewed Legislative and Constitutional Proposals,
1982 to the Present
Interest in the proposed Equal Rights Amendment did not end when its extended ratification
deadline expired on June 30, 1982. Since that time, there have been regular efforts to introduce
the concept as a “fresh start” in Congress, while additional approaches have emerged that would
revive H.J. Res. 208, the amendment as originally proposed by the 92nd Congress.
“Fresh Start” Proposals
Perhaps the most basic means of restarting an equal rights amendment would be by introduction
of a new joint resolution, a “fresh start.” Even as the June 30, 1982, extended ratification deadline
approached, resolutions proposing an equal rights amendment were introduced in the 97th
Congress. New versions of the ERA have continued to be introduced in the House and Senate in
each succeeding Congress. For many years, Senator Edward Kennedy of Massachusetts
customarily introduced an equal rights amendment early in the first session of a newly convened
Congress. In the 112th Congress, Representative Carolyn Maloney of New York and Senator
53
Kyvig, Explicit and Authentic Acts, p. 415. For state rescissions, see above at footnote 45.
It may be noted, however, that neither the Idaho nor the Arizona legislature had passed a resolution of rescission.
55
State of Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981).
56
John F. Carroll, “Constitutional Law: Constitutional Amendment, Rescission of Ratification, Extension of
Ratification Period, State of Idaho v. Freeman,” Akron Law Review, vol. 16, no. 1 (summer 1982), pp. 151-161.
57
GSA became involved in 1982 because it was at that time the parent agency of the National Archives and Records
Service, now the National Archives and Records Administration, which, then, as now, received and recorded state
ratifications for proposed constitutional amendments.
58
Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and
remanded to dismiss, 459 U.S. 809 (1982).
54
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Robert 112th and 113th Congresses: Proposed “Fresh Start” Amendments
In the 112th Congress, Representative Carolyn Maloney of New York and Senator Robert
Menendez of New Jersey continued the tradition when they introduced Equal Rights
Amendment Amendment
proposals in the House, H.J.Res. 69, and the Senate, S.J.Res. 21, respectively. At the
time of this writing, a “fresh start” equal rights amendment resolution has yet to be introduced in
the 113th CongressThese resolutions
received no action beyond routine committee referral.
One “fresh start” version of the Equal Rights Amendment has been introduced to date in the 113th
Congress. On March 5, 2013, Senator Robert Menendez introduced S.J.Res. 10, a fresh start
Equal Rights Amendment.59 The resolution’s text uses the familiar formula: “[e]quality of rights
under the law shall not be denied or abridged by the United States or by any State on account of
sex.” Significantly, in light of the controversy surrounding ratification of the original ERA,
S.J.Res. 10 does not include a time limit for ratification, in either the preamble or the body of the
proposed amendment.
“Three-State” Proposals
In addition to “fresh start” proposals, alternative approaches to the ratification question have also
emerged over the years. In 1994, Representative Robert E. Andrews of New Jersey introduced
H.Res. 432 in the 103rd Congress. His proposal sought to require the House of Representatives to
“take any legislative action necessary to verify the ratification of the Equal Rights Amendment as
part of the Constitution when the legislatures of an additional 3 states ratify the Equal Rights
Amendment.” This resolution was a response to the “three-state strategy” proposed by an “ERA
Summit” in the 1990s,5960 which was called following adoption of the 27th Amendment, the
Madison Amendment, in 1992. The rationale for H.Res. 432, and a succession of identical
resolutions offered by Representative Andrews in subsequent Congresses,6061 was that, following
the precedent of the Madison Amendment, the ERA remained a valid proposal and the ratification
process was still open. Representative Andrews further asserted that the action of Congress in
extending the ERA deadline in 1978 provided a precedent by which “subsequent sessions of
Congress may adjust time limits placed in proposing clauses by their predecessors. These
adjustments may include extensions of time, reductions, or elimination of the deadline
altogether.”6162 The influence of the Madison Amendment is examined at greater length later in this
report.
112th Congress: Proposed Equal Rights Amendment Legislationand 113th Congresses: “Three-State” and Related Legislative Proposals
The year 2012 marked the 30th anniversary of the expiration of the proposed Equal Rights
Amendment’s extended ratification deadline. During that period, new analyses have emerged that
bear on the question of whether the amendment proposed in 1972 remains constitutionally viable.
59
Co-sponsors include Senators Begich, Blumenthal, Boxer, Cardin, Gillibrand, Harkin, Hirono, Levin, Stabenow,
Warren, and Whitehouse.
60
The Equal Rights Amendment, a project of the Alice Paul Institute, in collaboration with the ERA Task Force of the
National Council of Women’s Organizations, at http://www.equalrightsamendment.org.
61
Most recently, H.Res. 794 in the 112th Congress.
62
Rep. Robert E. Andrews, “Applauding the Recent Actions Taken by the Illinois State Legislature Regarding the
Equal Rights Amendment,” Extension of Remarks in the House, Congressional Record, vol. 149, pt. 10 (June 5, 2003),
pp. 14039-14040.
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As noted earlier, one of the most influential developments opening new lines of analysis occurred
when the 27th “Madison” Amendment, originally proposed in 1789 as part of a package that
included the Bill of Rights, was taken up in the states after more than two centuries and ultimately
ratified in 1992. This action, and Congress’s subsequent acknowledgment of the amendment’s
viability, bear directly on the issue of the current status of the proposed Equal Rights Amendment,
and are examined later in this memorandum.
The year 2012 also marked the emergence of legislative proposals in both houses of Congress
that may have been influenced by these developments. For the first time since the proposed Equal
Rights Amendment’s ratification deadline expired, resolutions were introduced in the House and
Senate that sought to:
59
The Equal Rights Amendment, a project of the Alice Paul Institute, in collaboration with the ERA Task Force of the
National Council of Women’s Organizations, at http://www.equalrightsamendment.org.
60
Most recently, H.Res. 794 in the 112th Congress.
61
Rep. Robert E. Andrews, “Applauding the Recent Actions Taken by the Illinois State Legislature Regarding the
Equal Rights Amendment,” Extension of Remarks in the House, Congressional Record, vol. 149, pt. 10 (June 5, 2003),
pp. 14039-14040.
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•
repeal, or eliminate entirely, the deadlines set in 1972 and 1978;
•
reopen the Equal Rights Amendment for state ratification at the present count of
35 states; and
•
extend the period for state action on ratification indefinitely.
Representative Tammy Baldwin of Wisconsin and several co-sponsors introduced the House
version, H.J.Res. 47, on March 8, 2011.6263 Senator Ben Cardin of Maryland and several cosponsors introduced the Senate version, S.J.Res. 39, on March 22.6364 These two proposals took the
form of similar joint resolutions, which declared:
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, That notwithstanding any time limit contained in House Joint
Resolution 208 of the Ninety–second Congress, second session (Senate version read: “92d
Congress, as agreed to in the Senate on March 22, 1972”), the article of amendment
proposed to the States in that joint resolution shall be valid to all intents and purposes as part
of the Constitution whenever ratified by three additional States (Senate version read:
“whenever ratified by the legislatures of three fourths of the several States.”).
These resolutions proposed to exercise congressional authority claimed by ERA proponents to
make the original amendment, as proposed in H.J. Res. 208, 92nd Congress, eligible for
ratification for an indefinite period. Both resolutions would have removed previous deadlines for
ratification of the proposed Equal Rights Amendment, and, if enacted, they sought to provide that
the existing ERA would be, as stated in Article V, “valid for all intents and purposes as part of the
Constitution when ratified by the legislatures of three additional states.”
As noted earlier, on September 20, 2012, Representative Robert E. Andrews also introduced
H.Res. 794 in the 112th Congress. This proposal would have authorized the House of
Representatives to “take any legislative action necessary to verify the ratification of the Equal
Rights Amendment as part of the Constitution when the legislatures of an additional 3 states ratify
the Equal Rights Amendment.”
By the end of the 112th Congress, no action had been taken on any of these measures, aside from
referral to the respective Judiciary Committees of the House and Senate.
6263
By the end of the 112th Congress, co-sponsors of H.J.Res. 47 included Representatives Andrews, Capps, Capuano,
Castor, Chu, Clarke, Connolly, Conyers, Cummings, Deutch, Dingell, Edwards, Ellison, Farr, Franks, Grijalva,
Gutierrez, Hastings of Florida, Heinrich, Himes, Hoyer, Israel, Jackson of Illinois, Kaptur, Kucinich, Lee of California,
Levin, Maloney, McCollum, McGovern, Michaud, Moore, Moran, Murphy of Connecticut, Holmes Norton, Perlmutter,
Peters, Pingree, Richardson, Ruppersberger, Ryan of Ohio, Loretta Sanchez, Sarbanes, Schakowsky, Sewell, Smith of
Washington, Speier, Tsongas, Van Hollen, Wasserman Schultz, Welch, Wilson of Florida, and Woolsey.
6364
By the end of the 112th Congress, co-sponsors of S.J.Res. 39 included Senators Akaka, Bingham, Boxer, Brown of
Ohio, Durbin, Gillibrand, Harkin, Kerry, Kirk, Landrieu, Lautenberg, Menendez, Mikulski, Murkowski, Sanders, and
Stabenow.
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Rights Amendment as part of the Constitution when the legislatures of an additional 3 states ratify
the Equal Rights Amendment.”
By the end of the 112th Congress, no action had been taken on any of these measures, aside from
referral to the respective Judiciary Committees of the House and Senate.
Contemporary Viability of the Equal Rights
Amendment
Supporters of the ERA identify a number of sources that they claim support their contention that
the proposed Equal Rights Amendment remains constitutionally viable, to which various scholars
and other observers have raised concerns or objections.
Article V: Congressional Authority over the Amendment Process
Proponents of the proposed Equal Rights Amendment cite the exceptionally broad authority over
the constitutional amendment process granted to Congress by Article V of the Constitution as a
principal argument for their case. The article’s language states that “[t]he Congress, whenever two
thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution ...
which ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by
the Legislatures of three fourths of the several States or by Conventions in three fourths thereof....
” While the Constitution is economical with words when spelling out the authority extended to
the three branches of the federal government, it does speak quite specifically when it places limits
on these powers. In this instance, the founders placed no time limits or other conditions on
congressional authority to propose amendments, so long as they are approved by the requisite
two-thirds majority of Senators and Representatives present and voting.
In his 1992 opinion for the Counsel to the President concerning ratification of the 27th
Amendment, Acting Assistant Attorney General Timothy Flanigan took note of the absence of
time limits in Article V, and drew a comparison with their presence in other parts of the
Constitution:
... [t]he rest of the Constitution strengthens the presumption that when time periods are part
of a constitutional rule, they are specified. For example, Representatives are elected every
second year ... and a census must be taken within every ten year period following the first
census, which was required to be taken within three years of the first meeting of Congress.....
Neither House of Congress may adjourn for more than three days without the consent of the
other, ... and the President has ten days (Sundays excepted) within which to sign or veto a
bill that has been presented to him.... The Twentieth Amendment refers to certain specific
dates, January 3rd and 20th. Again, if the Framers had intended there to be a time limit for the
ratification process, we would expect that they would have so provided in Article V.6465
65
U.S. Department of Justice, Office of Legal Counsel, Congressional Pay Amendment, Memorandum Opinion for the
Counsel to the President, by Timothy E. Flanigan, Acting Assistant Attorney General, Washington, November 2, 1992,
at http://www.justice.gov/olc/congress.17.htm.
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Further, Article V empowers Congress to specify either of two modes of ratification: by the state
legislatures, or by ad hoc state conventions. Neither the President nor the federal judiciary is
allocated any obvious constitutional role in the amendment process. To those who might suggest
the Constitutional Convention did not intend to grant such wide authority to Congress, ERA
supporters can counter by noting that the founders provided a second mode of amendment,
through a convention summoned by Congress at the request of the legislatures of two-thirds of
the states.6566 The suggestion here is that the founders deliberately provided Congress with plenary
64
U.S. Department of Justice, Office of Legal Counsel, Congressional Pay Amendment, Memorandum Opinion for the
Counsel to the President, by Timothy E. Flanigan, Acting Assistant Attorney General, Washington, November 2, 1992,
at http://www.justice.gov/olc/congress.17.htm.
65
The founders were concerned that Congress might resist the proposal of necessary amendments. As a result, they
(continued...)
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authority over the amendment process, while simultaneously checking it through the supermajority requirement, and balancing it with the Article V Convention alternative.6667 In the case of
the proposed Equal Rights Amendment, it has been inferred by ERA supporters that since neither
ratification deadlines nor contemporaneity requirements for amendments appear anywhere in
Article V, Congress is free to propose, alter, or terminate such ratification provisions at its
discretion.6768
Advocates of congressional authority over the amendment process might also note the fact that
Congress has acted on several occasions in the course of, or after, the ratification process by the
states to assert its preeminent authority under Article V in determining ratification procedures.6869
For instance, on July 21, 1868, Congress passed a resolution declaring the 14th Amendment to
have been duly ratified and directing Secretary of State William Seward to promulgate it as such.
Congress had previously received a message from the Secretary reporting that 28 of 37 states then
in the Union had ratified the amendment, but that of the 28, two state legislatures had passed
resolutions purporting to rescind their ratifications, and the legislatures of three others had
approved the amendment only after previously rejecting earlier ratification resolutions. Congress
considered these issues but proceeded to declare the ratification process complete.6970 Congress
similarly exercised its authority over the process less than two years later when it confirmed the
ratification of the 15th Amendment by resolution passed on March 30, 1870.70 Congress exercised
its authority over the amendment process again in 1992 when it declared the 27th Amendment, the
so-called “Madison Amendment,” to have been ratified, an event examined in the next section of
this report.
(...continued)
66
The founders were concerned that Congress might resist the proposal of necessary amendments. As a result, they
included the Article V Convention process as an alternative to congressional proposal of amendments. Alexander
Hamilton explained the origins of the Article V Convention process in The Federalist: “The intrinsic difficulty of
governing thirteen states ... will, in my opinion, constantly impose on the national rulers the necessity of a spirit of
accommodation to the reasonable expectations of their constituents. But there is yet a further consideration.... It is this,
that the national rulers, whenever nine States concur, will have no option on the subject. By the first article of the plan,
the Congress will be obliged to call a convention for proposing amendments.... The words of this article are
peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” See
Alexander Hamilton, “Conclusion,” in The Federalist, Number 85 (Cambridge, MA: The Belknap Press of the Harvard
University Press, 1961), p. 546.
6667
For further information on the “Article V Convention” alternative method for the proposal of constitutional
amendments, see CRS Report R42589, The Article V Convention to Propose Constitutional Amendments:
Contemporary Issues for Congress, by Thomas H. Neale; and CRS Report R42592, The Article V Convention for
Proposing Constitutional Amendments: Historical Perspectives for Congress , by Thomas H. Neale.
6768
Mason Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” University
of Chicago Law Review, vol. 66, no. 2 (spring, 1999), pp. 451-453.
6869
While these are precedents that Congress could follow, or at least look to for guidance, it should be recalled that one
Congress may not bind succeeding Congresses in expression of their decision making. See, for example, William
Holmes Brown, Charles W. Johnson, and John V. Sullivan, House Practice: A Guide to the Rules, Precedents, and
Procedures of the House (Washington, DC: GPO, 2011), p. 158: “The Constitution gives each House the power to
determine the rules of its proceedings.... This power cannot be restricted by the rules or statutory enactments of a
preceding House.”
6970
15 Stat. 709. The reconstructed legislatures of North Carolina, South Carolina, and Georgia reversed rejections by
earlier unreconstructed state legislatures. Ohio and New Jersey had passed resolutions purporting to rescind their earlier
ratifications of the amendment. For further information, see The Constitution Annotated, “Article V, Ratification.”
70
16 Stat. 1131. Here again, Congress refused to acknowledge the act of the New York legislature purporting to rescind
its previous instrument of ratification.
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ratification of the 15th Amendment by resolution passed on March 30, 1870.71 Congress exercised
its authority over the amendment process again in 1992 when it declared the 27th Amendment, the
so-called “Madison Amendment,” to have been ratified, an event examined in the next section of
this report.
Opponents of extension, while not questioning the plenary authority of Congress over the
amending process, raise questions on general grounds of constitutional restraint and fair play.
Some reject it on fundamental principle; Grover Rees III, writing in The Texas Law Review,
asserted that
... extension is unconstitutional insofar as it rests on the unsubstantiated assumption that
states which ratified the ERA with a seven-year time limit also would have ratified with a
longer time limit, and insofar as it attempts to force those states into an artificial consensus
regardless of their actual intentions.7172
Mary Frances Berry noted a similar argument raised by ERA opponents:
... some scholars pointed out that legally an offer and agreed-upon terms is required before
any contract is valid. ERA ratification, according to this view, was a contract. Therefore,
states could not be regarded as contracting not in the agreed upon terms. The agreed upon
terms included a seven-year time limit. When seven years passed, all pre-existing
ratifications expired.7273
Writing in Constitutional Commentary, authors Brannon P. Denning and John R. Vile offered
additional criticisms of efforts to revive the proposed Equal Rights Amendment, noting that
ample time had been provided for ratification between 1972 and 1982. They further suggested
that elimination of ratification deadlines would reopen the question of purported state rescissions
of acts of ratification; that progress in women’s equality in law and society may have “seemed to
render ERA superfluous”;7374 and that allowing the proposed amendment “a third bite at the apple
would suggest that no amendment to the U.S. Constitution ever proposed ... could ever be
regarded as rejected.”7475
The Madison Amendment (the 27th Amendment): A Dormant
Proposal Revived and Ratified
Supporters of the proposed Equal Rights Amendment cite another source in support of their
argument for the proposed amendment’s viability: the 27th Amendment to the Constitution, also
known as the Madison Amendment, which originated during the first year of government under
the Constitution, but fell into obscurity, and became the object of renewed public interest only in
the late 20th century. In 1789, Congress proposed a group of 12 amendments to the states for
ratification. Articles III through XII of the proposals became the Bill of Rights, the first 10
amendments to the Constitution. They were ratified quickly, and were declared adopted on
December 15, 1791. Articles I and II, however, were not ratified along with the Bill of Rights;
Article II, which required that no change in Members’ pay could take effect until after an election
7171
16 Stat. 1131. Here again, Congress refused to acknowledge the act of the New York legislature purporting to rescind
its previous instrument of ratification.
72
Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,”
Texas Law Review, vol. 58, no. 5, (May 1980), p. 930.
7273
Berry, Why ERA Failed, p. 71.
7374
For additional information, see CRS Report RL30253, Sex Discrimination and the United States Supreme Court:
Developments in the Law, by Jody Feder.
7475
Brannon P. Denning and John R. Vile, “Necromancing the Equal Rights Amendment,” Constitutional Commentary
(University of Minnesota), vol. 17, winter, 2000, issue 3, p. 598. See also the discussion of the unique circumstances of
the 27th Amendment in The Constitution Annotated, “Article V, Ratification.”
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the Constitution, but fell into obscurity, and became the object of renewed public interest only in
the late 20th century. In 1789, Congress proposed a group of 12 amendments to the states for
ratification. Articles III through XII of the proposals became the Bill of Rights, the first 10
amendments to the Constitution. They were ratified quickly, and were declared adopted on
December 15, 1791. Articles I and II, however, were not ratified along with the Bill of Rights;
Article II, which required that no change in Members’ pay could take effect until after an election
for the House of Representatives had taken place, was ratified by six states between 1789 and
1791 (the ratification threshold was 10 states in 1789), after which it was largely forgotten.7576
After nearly two centuries, the Madison Amendment was rediscovered in 1978, when the
Wyoming legislature was informed that as no deadline for ratification had been established, the
measure was arguably still viable. Seizing on the opportunity to signal its disapproval of a March
3, 1978, vote by Congress to increase compensation for Representatives and Senators, the
legislature passed a resolution approving the proposed amendment. In its resolution of
ratification, the legislature cited the congressional vote to increase Member compensation, noting
that:
...the percentage increase in direct compensation and benefits [to Members of Congress] was
at such a high level, as to set a bad example to the general population at a time when there is
a prospect of a renewal of double-digit inflation; and ... increases in compensation and
benefits to most citizens of the United States are far behind these increases to their elected
Representatives.... ”7677
The Wyoming legislature’s action went almost unreported, however, until 1983, when Gregory D.
Watson, a University of Texas undergraduate student, studied the amendment and concluded that
it was still viable and eligible for ratification. Watson began a one-person campaign, circulating
letters that drew attention to the proposal to state legislatures across the country.7778 This grassroots
effort developed into a nationwide movement, leading ultimately to 31 additional state
ratifications of the amendment between 1983 and 1992.
In 1991, as the number of state ratifications of the Madison Amendment neared the requisite
threshold of 38, Representative John Boehner of Ohio introduced H.Con.Res. 194 in the 102nd
Congress. The resolution noted that, “this amendment to the Constitution was proposed without a
deadline for ratification and is therefore still pending before the States.” The resolution went on to
state “the sense of the Congress that at least 3 of the remaining 15 States should ratify the
proposed 2nd amendment to the Constitution, which would delay the effect of any law which
varies the compensation of Members of Congress until after the next election of
Representatives.”7879 Although no further action was taken on the resolution, its findings
anticipated Congress’s response to the amendment.
On May 7, 1992, the Michigan and New Jersey legislatures both voted to ratify the “Madison
Amendment,” becoming the 38th and 39th states to approve it. As required by law,79 the Archivist
of the United States certified the ratification on May 18, and the following day an announcement
that the amendment had become part of the Constitution was published in the Federal Register.80
Although the Archivist was specifically authorized by the U.S. Code to publish the act of
75
76
In 1873, Ohio provided the only additional ratification to the pay amendment. For the record, Article I proposed
regulating the size of the House of Representatives so that it eventually would include “not less than two hundred
Representatives, nor more than one Representative for every fifty thousand persons.”
7677
Wyoming legislature, H.J. Res. 6 (March 3, 1978), quoted in Richard B. Bernstein, “The Sleeper Wakes: The History
and Legacy of the Twenty-Seventh Amendment,” Fordham Law Review, vol. 61, issue 3, (December 1992), p. 537.
7778
Ibid.; Kyvig, Explicit and Authentic Acts, p. 465.
7879
H.Con.Res. 194, 102nd Congress, introduced August 1, 1991.
79
1 U.S.C. §106.
80
Archivist of the U.S., “U.S. Constitution, Amendment 27,” Federal Register, vol. 567, no. 97, (May 19, 1992), pp.
21187-21188.
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On May 7, 1992, the Michigan and New Jersey legislatures both voted to ratify the “Madison
Amendment,” becoming the 38th and 39th states to approve it. As required by law,80 the Archivist
of the United States certified the ratification on May 18, and the following day an announcement
that the amendment had become part of the Constitution was published in the Federal Register.81
Although the Archivist was specifically authorized by the U.S. Code to publish the act of
adoption and issue a certificate declaring the amendment to be adopted, many in Congress
believed that, in light of the unusual circumstances surrounding the ratification, positive action by
both houses was necessary to confirm the Madison Amendment’s legitimacy.8182 In response, the
House adopted H.Con.Res. 3208232083 on May 20, and the Senate adopted S.Con.Res. 1208312084 and S.Res.
2988429885 on the same day. All three resolutions declared the amendment to be duly ratified and part
of the Constitution.8586
By providing a recent example of a proposed amendment that had been inactive for more than a
century, the 27th Amendment suggests to ERA supporters an attainable model for renewed
consideration of the proposed Equal Rights Amendment. In particular, it may be noted that
H.Con.Res. 194 (Representative Boehner) in the 102nd Congress offered wording very similar to,
but actually more emphatic than, the language of H.J.Res. 47 (Representative Baldwin) and
S.J.Res. 39 (Senator Cardin) in the 112th Congress.
Ratification of the Madison Amendment: A Model for the
Proposed Equal Rights Amendment?
The example of the Madison Amendment contributed to the emergence of a body of advocacy
scholarship that asserts the proposed Equal Rights Amendment has never lost its constitutional
viability. One of the earliest expressions of this viewpoint was offered in an article that appeared
in the William and Mary Journal of Women and the Law in 1997. The authors reasoned that
adoption of the 27th Amendment challenged many of the assumptions about ratification generated
during the 20th century. Acceptance of the Madison Amendment by the Archivist and the
Administrator of General Services, as advised by the Justice Department86Department87 and ultimately
validated by Congress, was said to confirm that there is no requirement that ratifications of
proposed amendments must be roughly contemporaneous.87 The authors went on to examine the
history of the seven-year time limit, concluding after a review of legal scholarship on the subject
that this device was a matter of procedure, rather than of substance, i.e., part of the body of the
amendment itself. As such it was “separate from the amendment itself, and therefore, it can be
81
80
1 U.S.C. §106.
Archivist of the U.S., “U.S. Constitution, Amendment 27,” Federal Register, vol. 567, no. 97, (May 19, 1992), pp.
21187-21188.
82
“Madison Amendment,” Congress and the Nation, vol. VII, 1989-1992 (Washington, DC: Congressional Quarterly
Inc., 1993), p. 972. For additional examination of the role and authority of the Archivist, see Bernstein, “The Sleeper
Awakes: The History and Legacy of the Twenty-Seventh Amendment,” pp. 540-542.
8283
H.Con.Res. 320, 102nd Congress, sponsored by Representative Jack Brooks.
8384
S.Con.Res. 120, 102nd Congress, sponsored by Senator Robert Byrd and others.
8485
S.Res. 298, 102nd Congress, sponsored by Senator Robert Byrd and others.
8586
S.Con.Res. 120 and S.Res. 298, Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 11869; H.Con.Res. 320,
Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 12051. Senator Robert Byrd of West Virginia also introduced
S.Con.Res. 121 on May 19, 1992, to declare that the ratification periods for four other pending amendments had lapsed,
and that they were no longer viable. He did not, however, include the Equal Rights Amendment among them. The
resolution was referred to the Senate Judiciary Committee, but no further action was taken.
8687
Office of Legal Counsel, U.S. Department of Justice, “Congressional Pay Amendment,” Memorandum Opinion for
the Counsel to the President, May 13, 1992, and November 2, 1992, at http://justice.gov/olc/congress/17.htm. See also
Michael Stokes Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh
Amendment,” Yale Law Journal, vol. 103, no. 3 (December 1992), p. 680, at footnote 7.
87
Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, “The Equal Rights Amendment: Why the ERA Remains
Legally Viable and Properly Before the States,” William and Mary Journal of Women and the Law, vol. 3, (no issue
number), 1997, p. 121.
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proposed amendments must be roughly contemporaneous.88 The authors went on to examine the
history of the seven-year time limit, concluding after a review of legal scholarship on the subject
that this device was a matter of procedure, rather than of substance, i.e., part of the body of the
amendment itself. As such it was “separate from the amendment itself, and therefore, it can be
treated as flexible.” By extending the original ERA deadline, Congress relied on its broad
authority over the amendment process, as provided in Article V.8889
Finally, the authors asserted, relying on the precedent of the 27th Amendment, that “even if the
seven-year limit was a reasonable legislative procedure, a ratification after the time limit expired
can still be reviewed and accepted by the current Congress.... ”8990 In their view, even if one
Congress failed to extend or remove the ratification deadline, states could still ratify, and a later
Congress could ultimately validate their ratifications.
Other observers question the value of the Madison Amendment as precedent. Writing in
Constitutional Commentary, Denning and Vile asserted that the 27th Amendment presented a poor
model for ERA supporters. Examining the amendment’s origins, they suggested that “the courts
and most members of Congress have tended to treat the 27th as a ‘demi-amendment,’ lacking the
full authority of the 26 that preceded it.”9091 Reviewing what they characterized as unfavorable
interpretations of the Madison Amendment in various legal cases, the authors asked whether what
they referred to as the “jury rigged ratification of the ERA might result in its similar evisceration
by the judiciary that will be called upon to interpret it.”9192 Similarly, a recent commentary in
National Law Journal asserted that, by blocking its own cost of living salary increases, Congress
itself has also persistently failed to observe the Madison Amendment’s requirements that “[n]o
law, varying the compensation for the services of the Senators and Representatives, shall take
effect, until an election of Representatives shall have intervened.”9293
Constitutional scholar Michael Stokes Paulsen further questioned use of the 27th Amendment as
an example in the case of the proposed Equal Rights Amendment. He returned to the
contemporaneity issue, suggesting that the amending process
... should be occasions, not long, drawn-out processes. To permit ratification over a period of
two centuries is to erode, if not erase the ideal of overwhelming popular agreement.... There
is no assurance that the Twenty-seventh Amendment ever commanded, at any one time,
popular assent corresponding to the support of two-thirds of the members of both houses of
Congress and three-fourths of the state legislatures.9394 (Emphases in the original.)
It could be further argued by opponents of proposed Equal Rights Amendment extension that,
whatever the precedent set by Congress in declaring the 27th Amendment to have been regularly
adopted, there is no precedent for Congress promulgating an amendment based on state
ratifications adopted after two ratification deadlines have expired.
88
Ibid., pp. 129-130.
Ibid., p. 131.
9088
Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, “The Equal Rights Amendment: Why the ERA Remains
Legally Viable and Properly Before the States,” William and Mary Journal of Women and the Law, vol. 3, (no issue
number), 1997, p. 121.
89
Ibid., pp. 129-130.
90
Ibid., p. 131.
91
Denning and Vile, “Necromancing the Equal Rights Amendment,” p. 598. See also the discussion of the unique
circumstances of the 27th Amendment in The Constitution Annotated, “Article V, Amendment.”
9192
Ibid., p. 599.
9293
Eric Fish and Daniel Hemel, “Congress’s Unconstitutional Pay Freeze,” National Law Journal, January 30, 2012, at
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202540170443&slreturn=1.
9394
Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” p. 692.
89
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adopted, there is no precedent for Congress promulgating an amendment based on state
ratifications adopted after two ratification deadlines have expired.
The Role of the Supreme Court Decisions in Dillon v. Gloss and
Coleman v. Miller
By some measures, the action of the Archivist of the United States in announcing ratification of
the 27th Amendment, followed by congressional confirmation of its viability, superseded a body
of constitutional principle that had prevailed since the 1920s and 1930s. This corpus of theory and
political consideration arguably originated with the Supreme Court’s 1921 decision in Dillon v.
Gloss, the case in which the Court first enunciated the principle that conditions of ratification for
proposed constitutional amendments could be determined by Congress, and that the conditions
should be roughly contemporaneous.9495 The Court concluded that, relying on the broad grant of
authority contained in Article V, Congress had the power, “keeping within reasonable limits, to
fix a definite period for the ratification.... ”9596
At the same time, the Court noted that nothing in the nation’s founding documents touched on the
question of time limits for ratification of a duly proposed constitutional amendment, and asked
whether ratification would be valid at any time
... within a few years, a century or even a longer period, or that it must be had within some
reasonable period which Congress is left free to define? Neither the debates in the federal
convention which framed the Constitution nor those in the state conventions which ratified it
shed any light on the questions.9697
Ultimately, however, the Court concluded that proposal of an amendment by Congress and
ratification in the states are both steps in a single process, and that amendments
... are to be considered and disposed of presently.... [A] ratification is but the expression of
the approbation of the people and is to be effective when had in three-fourths of the states,
there is a fair implication that it must be sufficiently contemporaneous in that number of
states to reflect the will of the people in all sections at relatively the same period, which of
course ratification scattered through a long series of years would not do.9798
The need for contemporaneity was also discussed by the Court with regard to the congressional
apportionment amendment and the Madison Amendment, which remained pending in 1921. The
Court maintained that the ratification of these amendments so long after they were first proposed
would be “untenable.”9899 Some scholars dispute the Court’s position in Dillon, however; Mason
Kalfus, writing in The University of Chicago Law Review, claimed that reference to the
9495
Dillon v. Gloss, 256 U.S. 368 (1921). Dillon, arrested on a violation of the Volstead Act, asserted, among other
things, that the 18th Amendment was unconstitutional because Congress had included a ratification deadline in the body
of the amendment, an action for which no authority appeared in the Constitution.
9596
Ibid.
9697
Ibid.
9798
Ibid.
9899
Ibid. Justice Van Devanter, delivering the majority opinion, asserted: “That this is the better conclusion
[constitutional amendments lacking contemporaneousness ought to be considered waived] becomes even more manifest
when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago—
two in 1789, one in 1810 and one in 1861—are still pending and in a situation where their ratification in some of the
States many years since by representatives of generations now largely forgotten may be effectively supplemented in
enough more States to make three-fourths by representatives of the present or some future generation. To that view few
would be able to subscribe, and in our opinion it is quite untenable.”
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Kalfus, writing in The University of Chicago Law Review, claimed that reference to the
contemporaneity doctrine is to be found neither in the text of Article V nor in the deliberations of
the Philadelphia Convention.99100
In Coleman v. Miller,100101 the Supreme Court explicitly held that Congress had the sole power to
determine whether an amendment is sufficiently contemporaneous, and thus valid, or whether,
“the amendment ha[s] lost its vitality through the lapse of time.”101102 In Coleman, the High Court
refined its holdings in Dillon, ruling that when it proposes a constitutional amendment:
•
Congress may fix a reasonable time for ratification;
•
there was no provision in Article V that suggested a proposed amendment would
be open for ratification forever;
•
since constitutional amendments were deemed to be prompted by some type of
necessity, they should be dealt with “presently”;
•
it could be reasonably implied that ratification by the states under Article V
should be sufficiently contemporaneous so as to reflect a nationwide consensus
of public approval in relatively the same period of time; and
•
ratification of a proposed amendment must occur within some reasonable time
after proposal.102103
The Court additionally ruled, however, that if Congress were not to specify a reasonable time
period for ratification of a proposed amendment, it would not be the responsibility of the Court to
decide what constitutes such a period. The Court viewed such questions as essentially political
and, hence, nonjusticiable, believing that the questions were committed to and must be decided
by Congress in exercise of its constitutional authority to propose an amendment or to specify the
ratification procedures for an amendment.103104
This “political question” interpretation of the contemporaneity issue is arguably an additional
element in the fundamental constitutional doctrine claimed by ERA advocates in support of the
amendment’s continuing viability.
Another observer suggests, however, that the constitutional foundation of the Supreme Court’s
ruling in Coleman v. Miller, and hence the political question doctrine, may have been affected by
the contemporary political situation. According to this theory, the Court in 1939 may have been
influenced by, and overreacted to, the negative opinion generated by its political struggles with
President Franklin Roosevelt over the constitutionality of New Deal legislation: “A later court,
bruised by its politically unpopular New Deal rulings, retreated somewhat from a dogmatic
defense of ratification time limits (as enunciated in Dillon v. Gloss).”104 Michael Stokes Paulsen
99
(...continued)
enough more States to make three-fourths by representatives of the present or some future generation. To that view few
would be able to subscribe, and in our opinion it is quite untenable.”
100
Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” pp. 451-453.
101
Coleman v. Miller, 307 U.S. 433 (1939). This case concerned the Child Labor Amendment, and arose from a dispute
in the Kansas Senate over ratification procedure. This amendment was examined at greater length earlier in this report,
under “Congress Sets a Seven-Year Ratification Deadline.”
101102
Ibid.
102103
Ibid.
103104
Ibid. Note, however, that in advising the Archivist on certifying ratification of the 27th Amendment, the Office of
Legal Counsel took the view that there was no role for Congress in promulgation of an amendment. See “Congressional
Pay Amendment,” Memorandum Opinion for the Counsel to the President.
104
Kyvig, Explicit and Authentic Acts, p. 468.
100
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President Franklin Roosevelt over the constitutionality of New Deal legislation: “A later court,
bruised by its politically unpopular New Deal rulings, retreated somewhat from a dogmatic
defense of ratification time limits (as enunciated in Dillon v. Gloss).”105 Michael Stokes Paulsen
also questioned the Supreme Court’s decision in Coleman v. Miller, suggesting that the “political
question” doctrine could be interpreted to assert a degree of unchecked congressional authority
over the ratification process that is arguably anti-constitutional.105106
Ancillary Issues
A range of subsidiary issues could also come under Congress’s purview should it consider revival
of the proposed Equal Rights Amendment or a signal to the states that it would consider
additional ratifications beyond the expired ratification deadline in the congressional resolutions.
Origins of the Seven-Year Ratification Deadline
One historical issue related to consideration of the proposed Equal Rights Amendment concerns
the background of the seven-year deadline for ratification that originated with the 18th
Amendment (Prohibition). The amendment was proposed in 1917, proceeded rapidly through the
state ratification process, and was declared to be adopted in 1919. During Senate consideration of
the proposal, Senator and, later, President Warren Harding of Ohio is claimed to have originated
the idea of a ratification deadline for the amendment as a political expedient, one that would
“permit him and others to vote for the amendment, thus avoiding the wrath of the ‘Drys’
(prohibition advocates), yet ensure that it would fail of ratification.”106107 As it happened, the law of
unintended consequences intervened, as “[s]tate ratification proceeded at a pace that surprised
even the Anti-Saloon League, not to mention the calculating Warren Harding.”107108 Proposed on
December 18, 1917, the amendment was declared to have been adopted just 13 months later, on
January 29, 1919.
Drawing from the apparent origin of the seven-year ratification deadline, ERA supporters might
suggest, as a supporting argument to their central assertions, that, far from being an immutable
historical element in the amendment process, bearing with it the wisdom of the founders, the
ratification time limit is actually the product of a failed political maneuver, and is, moreover, of
comparatively recent origin.
Opponents of extension might argue, however, that, whatever its origins, the seven-year
ratification deadline has become a standard element of nearly all subsequent proposed
amendments.108109 They might further note that if ratification deadlines were purely political,
Congress would not have continued to incorporate them in nine subsequent proposals.109 In their
judgment, these time limits ensure that proposed constitutional amendments enjoy both broad and
contemporaneous support in the states, and that they arguably constitute an important element in
the checks and balances attendant to the amendment process.
105110 In their
105
Kyvig, Explicit and Authentic Acts, p. 468.
Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” pp.
706-707, 718-721. See also the discussion of congressional authority in The Constitution Annotated, Article V.
106107
Kyvig, Explicit and Authentic Acts, p. 225.
107108
Ibid., p. 224.
108109
The 19th Amendment, providing for women’s suffrage, and the unratified Child Labor Amendment, were the last to
be proposed by Congress without a ratification deadline.
109110
The nine proposals are the 20th, 21st, 22nd, 23rd, 24th, 25th, and 26th Amendments, and the proposed Equal Rights and
District of Columbia Voting Rights (Congressional Representation) Amendments.
106
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judgment, these time limits ensure that proposed constitutional amendments enjoy both broad and
contemporaneous support in the states, and that they arguably constitute an important element in
the checks and balances attendant to the amendment process.
Rescission
In addition to this question, the constitutional issue of rescission would almost certainly recur in a
contemporary revival of the proposed Equal Rights Amendment. As noted earlier in this report,
five states enacted resolutions purporting to rescind their previously adopted ratifications of the
proposed amendment. The U.S. District Court for the District of Idaho ruled in 1981 that states
had the option to rescind their instruments of ratification any time in the process prior to the
promulgation or certification of the proposed amendment, a decision that was controversial at the
time.110111 The Supreme Court agreed to hear appeals from the decision, but after the extended ERA
ratification deadline expired on June 30, 1982, the High Court in its autumn term vacated the
lower court decision and remanded the decision to the District Court with instructions to dismiss
the case.111112
It may be noted by ERA supporters, however, that since the Supreme Court ruled in Coleman v.
Miller that Congress has plenary power in providing for the ratification process, it may be
inferred from this holding that Congress also possesses dispositive authority over the question as
to the validity of rescission.
Speculation on potential future court action on this question is beyond the scope of this report, but
rescission arguably remains a potentially viable constitutional issue that could arise in response to
a revival of the proposed Equal Rights Amendment.
Congressional Promulgation of Amendments
Some observers have noted that, while Congress passed resolutions declaring the 14th, 15th, and
27th Amendments to be valid, congressional promulgation of amendments that have been duly
ratified is not necessary, and has no specific constitutional foundation. In his 1992 Memorandum
for the Counsel to the President concerning the 27th Amendment, Acting Assistant Attorney
General Timothy Flanigan, wrote that
Article V clearly delimits Congress’s role in the amendment process. It authorizes Congress
to propose amendments and specify their mode of ratification, and requires Congress, on the
application of the legislatures of two-thirds of the States, to call a convention for the
proposing of amendments. Nothing in Article V suggests that Congress has any further role.
Indeed, the language of Article V strongly suggests the opposite: it provides that, once
proposed, amendments “shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by” three-fourths of the States.112113 (Emphasis original in the
memorandum, but not in Article V.)
The same viewpoint has been advanced by constitutional scholar Walter Dellinger. Addressing the
question shortly after the 27th Amendment was declared to have been ratified, he noted
An amendment is valid when ratified. There is no further step. The text requires no
additional action by Congress or anyone else after ratification by the final state. The creation
110111
Kyvig, Explicit and Authentic Acts, pp. 451-416.
Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and
remanded to dismiss, 459 U.S. 809 (1982). See also “ERA Dies Three States Short of Ratification,” Congressional
Quarterly Almanac, 97th Congress, 2nd Session, 1992, pp. 377-378.
112113
“Congressional Pay Amendment,” Memorandum Opinion for the Counsel to the President.
111112
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The same viewpoint has been advanced by constitutional scholar Walter Dellinger. Addressing the
question shortly after the 27th Amendment was declared to have been ratified, he noted
An amendment is valid when ratified. There is no further step. The text requires no
additional action by Congress or anyone else after ratification by the final state. The creation
of a “third step”—promulgation by Congress—has no foundation in the text of the
Constitution.113114
Supporters of the proposed Equal Rights Amendment, however, might refer again to the Supreme
Court’s ruling in Coleman v. Miller. If plenary authority over the amendment process rests with
Congress, advocates might argue, it also presumably extends to other issues that arise, including
provision for such routine procedures as promulgation of an amendment.
The Proposed District of Columbia Voting Rights (Congressional
Representation) Amendment—Congress Places a Ratification Deadline in the
Body of the Amendment
Congress has proposed only one constitutional amendment to the states since the proposed Equal
Rights Amendment began the ratification process in 1972, the District of Columbia Voting Rights
(Congressional Representation) Amendment. For this amendment, Congress returned to the
earlier practice of placing a deadline for ratification directly in the body of the proposal itself.
According to contemporary accounts, this decision was influenced by the nearly concomitant
congressional debate over the ERA deadline extension.
The District of Columbia is a unique jurisdiction, part of the Union, but not a state, and subject to
“exclusive Legislation in all Cases whatsoever ... by Congress.”114115 Congress has exercised its
authority over the nation’s capital with varying degrees of attention and control, and through a
succession of different governing bodies, beginning in 1800. By the 1950s, the longdisenfranchised citizens of Washington, D.C., began to acquire certain rights. The 23rd
Amendment, ratified in 1961, established their right to vote in presidential elections. In 1967,
President Lyndon Johnson used his reorganization authority to establish an appointed mayor and
a city council, also presidentially appointed.115116 In 1970, Congress provided by law for a nonvoting District of Columbia Delegate to Congress, who was seated in the House of
Representatives.116117 Finally, in 1973, President Richard Nixon signed legislation that established
an elected mayor and council, while reserving ultimate authority over legislation to Congress.117118
After more than a decade of change, proponents asserted that voting representation in Congress
proportionate to that of a state would be an important step in the progress toward full selfgovernment by the District of Columbia. In 1977, Representative Don Edwards of California,
Chairman of the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights,
introduced H.J.Res. 554 (95th Congress). The resolution, as introduced, comprised the following
text:
Resolved by the Senate and the House of Representatives of the United States of America in
Congress assembled (two thirds of each House concurring therein), That the following article
113114
Walter Dellinger, “Legitimacy of Constitutional Change: Rethinking the Amendment Process,” Harvard Law
Review, vol. 97, issue 2 (December 1983), p. 398.
114115
U.S. Constitution, Article I, Section 8, clause 17. For additional information on the history of the governance of the
District of Columbia, see archived CRS Report 75-121, The Political Evolution of the District of Columbia: Current
Status and Proposed Alternatives, by Nelson Rimensnyder. Available to Members of Congress and staff from CRS.
115116
U.S. President, Lyndon B. Johnson, Reorganization Plan Number 3 of 1967, 81 Stat. 948.
116117
The District of Columbia Delegate Act, 84 Stat. 845.
117118
The District of Columbia Self Government and Government Reorganization Act, 87 Stat. 774.
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introduced H.J.Res. 554 (95th Congress). The resolution, as introduced, comprised the following
text:
Resolved by the Senate and the 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 of the date of its submission by the Congress:
Article—
Section 1. For purpose of representation in the Congress, election of the President, and
Article V of this Constitution, the District constituting the seat of government of the United
States shall be treated as though it were a state.
Section 2. The exercise of the rights and powers conferred under this article shall be by the
people of the District constituting the seat of government, and as shall be provided by the
Congress.
Section 3. The twenty-third article of amendment to the Constitution of the United States is
hereby repealed.
Extensive hearings were held in the subcommittee in 1977, and on February 15, 1978, the full
Judiciary Committee reported the measure to the House. The committee, however, adopted an
amendment offered by Representative M. Caldwell Butler of Virginia that incorporated the sevenyear ratification deadline directly in the body of the resolution, rather than in the preamble.
Congressional Quarterly reported that this provision
... was intended to ensure that the deadline could not be extended by a simple majority vote
of Congress. The Justice Department has said in the case of the Equal Rights Amendment
that Congress could extend the deadline for ratification by a simple majority vote because the
time limit was contained in the resolving clause rather than in the body of that amendment.118119
Similarly, writing in Fordham Urban Law Journal during the same period, Senator Orrin Hatch
of Utah noted that:
Section 4 of the D.C. Amendment requires that ratification of the necessary three-fourths of
the states must occur within seven years of the date of its submission to the states. The
inclusion of this provision within the body of the resolution will avoid a similar controversy
to that which has arisen with respect to the time limit for ratification of the proposed “Equal
Rights Amendment.”119120
During consideration of H.J.Res. 554 in the full House, language setting the ratification deadline
was deleted from the authorizing resolution, and the Butler amendment was incorporated in the
body of the proposal by voice vote as a new section:
Section 4. 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 States within seven years from
the date of its submission.120
118
119
“D.C. Representation,” Congressional Quarterly Almanac, 95th Congress, 2nd Session, 1978, vol. XXXIV (34)
(Washington: Congressional Quarterly Inc., 1979), p. 793.
119120
Orrin G. Hatch, “Should the Capital Vote in Congress? A Critical Analysis of the Proposed D.C. Congressional
Representation Amendment,” Fordham Urban Law Journal, vol. 7 (issue 3), 1978, p. 483.
120
“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 4 (March 2, 1978), p.
5263.
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
Section 4. 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 States within seven years from
the date of its submission.121
The amendment passed the House on March 2, 1978, by a margin of 289 to 127, 11 votes more
than the two-thirds constitutional requirement.121122 The Senate took up the House-passed resolution
on August 16, 1978. During four days of debate, it rejected a wide range of amendments, voting
to adopt H.J.Res. 554 on August 22 by a margin of 67 to 32, one vote more than the constitutional
requirement.122123
Sixteen states,123124 22 short of the constitutionally-mandated three fourths requirement, ultimately
voted to ratify the amendment before it expired on August 2, 1985, seven years following
passage.
Concluding Observations
The arguments and constitutional principles relied on by ERA supporters to justify the revival of
the proposed Equal Rights Amendment include, but may not be limited to, the following:
•
Article V, they assert, grants exceptionally broad discretion and authority over the
constitutional amendment process to Congress.
•
In their interpretation, the example of the 27th Amendment suggests that there is
no requirement of contemporaneity in the ratification process for proposed
constitutional changes.
•
ERA proponents claim that the Supreme Court’s decision in Coleman v. Miller
gives Congress wide discretion in setting conditions for the ratification process.
•
Far from being sacrosanct and an element in the founders’ “original intent,” the
seven-year deadline for amendments has its origins in a political maneuver by
opponents of the 18th Amendment authorizing Prohibition.
•
The decision of one Congress in setting a deadline for ratification of an
amendment does not constrain a later Congress from rescinding the deadline and
reviving or acceding to the ratification of a proposed amendment.
Against these statements of support may be weighed the cautions of other observers who argue as
follows:
•
The 27th Amendment is a questionable model for efforts to revive the proposed
Equal Rights Amendment; unlike the proposed amendment, it was not
encumbered by two expired ratification deadlines. Moreover, Congress has
generally ignored its provisions since ratification.
•
Even though the proposed Equal Rights Amendment received an extension,
supporters were unable to gain approval by three-fourths of the states. Opponents
suggest that a “third bite of the apple” is arguably unfair and, if not
unconstitutional, at least contrary to the founders’ intentions.
121
Ibid., pp. 5272-5273.
121
“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 4 (March 2, 1978), p.
5263.
122
Ibid., pp. 5272-5273.
123
“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 20 (August 22, 1978), p.
27260.
123124
Ratifications by year: 1978: Michigan, New Jersey, Ohio; 1979: Connecticut, Massachusetts, Minnesota, Wisconsin;
1980: Hawaii, Maryland; 1989: Maine, Oregon, Rhode Island, West Virginia; 1984: Delaware, Louisiana, Iowa.
122
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The Proposed Equal Rights Amendment: Contemporary Ratification Issues
encumbered by two expired ratification deadlines. Moreover, Congress has
generally ignored its provisions since ratification.
•
Even though the proposed Equal Rights Amendment received an extension,
supporters were unable to gain approval by three-fourths of the states. Opponents
suggest that a “third bite of the apple” is arguably unfair and, if not
unconstitutional, at least contrary to the founders’ intentions.
•
Revivification opponents caution ERA supporters against an overly broad
interpretation of Coleman v. Miller, which, they argue, may have been be a
politically influenced decision.
•
Congress implicitly recognized its misjudgment on the ratification deadline for
the proposed Equal Rights Amendment when it incorporated such a requirement
in the text of the proposed District of Columbia Voting Rights (Congressional
Representation) Amendment.
•
The rescission issue was not decided in the 1980s and remains potentially open to
congressional or judicial action if the proposed Equal Rights Amendment is
reopened for further ratifications.
Congress could revisit the contending points raised by different analysts if it considers legislation
that would seek specifically to revive the proposed Equal Rights Amendment, or to accede the
additional state ratifications.
Alternatively, Congress could propose a “fresh start” equal rights amendment; such proposals
have been introduced regularly since the original ERA time limit expired in 1982. This approach
might avoid the controversies that have been associated with repeal of the deadlines for the 1972
ERA, but starting over would present a fresh constitutional amendment with the stringent
requirements provided in Article V: approval by two-thirds majorities in both houses of Congress,
and ratification by three-fourths of the states. It would, however, be possible to draft the proposal
without a time limit, as is the case with S.J.Res. 10 in the 113th Congress. If approved by
Congress in this form, the proposed amendment would, as was the case with the Madison
Amendment, remain current, viable, and thus eligible for ratification, for an indefinite period.
Author Contact Information
Thomas H. Neale
Specialist in American National Government
tneale@crs.loc.gov, 7-7883
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