Back in March, the state of Nevada became the 36th state to ratify the Equal Rights Amendment … 35 Years After The Deadline:
[T]he state Senate approved the long-dormant ERA, which among other things guarantees that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The senators passed a measure sent to them by the state Assembly, which had already approved it earlier this week.
It has been a long, twisty path for the ERA, which was first passed by Congress in 1972 and last approved by a state (Indiana) in 1977. The amendment teetered just three states short of the threshold necessary to see it adopted into law nationwide — a threshold it failed to achieve by the time Congress’ deadline came and went.
But for ERA supporters such as Democratic state Sen. Pat Spearman, that deadline is little more than a paper tiger.
“It was in the resolving clause, but it wasn’t a part of the amendment that was proposed by Congress,” she tells KNPR. “That’s why the time limit is irrelevant.”
After all, Spearman and others argue, Congress’ original ratification deadline was 1979, and national lawmakers already bumped that forward to 1982 — so what’s stopping them from bumping it forward again?
“The Equal Rights Amendment is about equality, period,” says Spearman, the Nevada bill’s chief sponsor.
This afternoon, SJRCA4, the Equal Rights Amendment, is scheduled for a hearing in the Senate Executive Committee of the Illinois General Assembly. In 2014, the Illinois Senate voted 39-11 – by more than the necessary three-fifths margin of elected senators, as required by state law – to ratify the Equal Rights Amendment, but it was not put to a vote in the House, where there was not sufficient support.
UPDATE: SJRCA4 was approved by the Senate Executive Committee on a a 12-3 vote (2 voting present).
State Representative Pamela Powers-Hannley (D-Tucson) posted here last month about her efforts to pass the Equal Rights Amendment in the Arizona legislature. Nevada Becomes 36th State to Ratify ERA. Is Arizona Next? (video). Rep. Powers’ bill is HCR2012 and Sen. Martin Quesada’s companion bill in the Senate is SCR1003. Both have been 1st and 2nd read and were assigned to committee: Kavanagh in the Senate (Government) and Farnsworth in the House (Judiciary and Public Safety). As you may have surmised, no action was taken by these committees.
Senator Kavanagh has previously sniffed that “the deadline is past,” so too bad for you. But the legal issue is not as simple as our blog troll senator.
The deadline issue actually is an interesting legal argument that is the premise of the “Three-State Strategy” (excerpt):
The traditional constitutional amendment process is described in Article V of the Constitution. . . . Article V makes no mention of a time limit for the ratification of a constitutional amendment, and no amendment before the 20th century had a time limit attached to it. The first amendment with a time limit was the 18th Amendment (Prohibition), proposed in 1917. For political reasons, Congress included an arbitrarily chosen seven-year deadline in Section 3. The amendment was also the first to include a time delay before it would take effect, in that case one year after the date of ratification.
The next two proposed amendments, the 19th Amendment (Woman Suffrage) and the never-ratified Child Labor Amendment, had no time limit attached. However, beginning with the 20th Amendment, Congress has attached a time limit to the ratification of all proposed amendments. Some of these deadlines were in the language of the amendment itself, thus ratified by the states and not able to be changed. However, some of these deadlines, including the time limit for ratification of the Equal Rights Amendment, were in the proposing clause of the amendment, not in the language ratified by the state legislatures. In 1978, Congress acted on the premise that it could change a deadline in a proposing clause and passed by majority vote a bill to extend the ERA’s ratification deadline from March 22, 1979 to June 30, 1982.
The “three-state strategy” for ERA ratification was originally developed through the work of the ERA Summit, a volunteer coalition organized in Washington, DC in 1992. U.S. Representative Robert Andrews (D-NJ), Barbara Irvine (Alice Paul Centennial Foundation, NJ), Flora Crater (Virginia Equal Rights Amendment Ratification Council), and Allie Hixson (Kentucky ERA Alliance, ERA Summit Founding Chair) played a key role in the early implementation of this strategy.
The three-state strategy for ERA ratification was developed following the 1992 ratification of the “Madison Amendment” as the 27th Amendment to the Constitution after a ratification period of 203 years.* Given that acceptance, some ERA advocates contended that the ERA’s ratification period of just over two decades would surely meet the “reasonable” and “sufficiently contemporaneous” standards required by Supreme Court decisions in 1921 and 1939. Time limits were not attached to proposed amendments until 1917, and Congress demonstrated its belief that it may alter a time limit in a proposing clause by extending the original ERA deadline. Precedent regarding a state’s ability to withdraw its ratification by a rescission vote shows that such actions have not been accepted as valid. Thus, supporters argued, the 35 existing ratifications should still be legally viable, and Congress likely has the power to adjust or repeal the previous time limit on the ERA, determine whether state ratifications subsequent to 1982 are valid, and recognize the ERA as part of the Constitution after three more states ratify.
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Despite arguments by proponents that the Equal Rights Amendment should go to the states without a time limit in the tradition of the 19th Amendment, the ERA passed Congress in 1972 with a seven-year time limit in its proposing clause. If the time limit had been placed in the text of the amendment itself, that restriction would not be subject to alteration by Congress after any state legislature had ratified. However, the ERA language ratified by 35 states between 1972 and 1982 did not contain a time limit for ratification.
By transferring time limits from the text of an amendment to the proposing clause, Congress retained for itself the authority to review the time limit and to amend its own previous legislative action regarding it. In 1978, Congress clearly demonstrated its belief that it may alter a time limit in the proposing clause when it passed a bill moving the deadline from March 22, 1979, to June 30, 1982. A challenge to the constitutionality of the extension was dismissed by the Supreme Court as moot after the deadline expired, and no lower-court precedent stands regarding that point.
You should read the entire summary linked above.
The legal rationale for the three-state strategy is more fully explained in “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” by Allison Held, Sheryl Herndon, and Danielle Stager, published in the Spring 1997 issue of William & Mary Journal of Women and the Law. (Read the full article.)
An additional scholarly law review article to review is “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” by Mason Kalfus, published in the University of Chicago Law Review: Vol. 66: Iss. 2, Article 3 (1999). (Read the full article.)
* Every American school child can recite to you that the first ten Amendments to the U.S. Constitution are known as the “Bill of Rights.” But few Americans today are aware that there were actually twelve Amendments submitted by Congress to the states for ratification on September 25, 1789.
What is colloquially known as the “Madison Amendment” (above), which prohibits any law that increases or decreases the salary of members of Congress from taking effect until the start of the next set of terms of office for Representatives, became the 27th Amendment:
The proposed congressional pay amendment was largely forgotten until 1982 when Gregory Watson researched it as a student at the University of Texas at Austin and began a new campaign for its ratification. The amendment eventually became part of the United States Constitution on May 5, 1992, completing a record-setting ratification period of 202 years, 7 months, and 10 days.
And the other Amendment in the original twelve submitted by Congress to the states in 1791 for ratification, but not (yet) ratified by the states? That would the Congressional Apportionment Amendment:
The Congressional Apportionment Amendment (originally titled Article the First) … would establish a formula for determining the appropriate size of the House of Representatives following each constitutionally mandated decennial census. It is the only one of the twelve that has not been adopted, as it has not been ratified by enough states for it to become part of the Constitution.
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As Congress did not set a time limit for its ratification, the Congressional Apportionment Amendment is still technically pending before the states. Ratification by an additional 27 states is necessary for this amendment to be adopted.
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Congress currently regulates apportionment of congressional districts. The one per 50,000 persons standard would dramatically increase the size of Congress, and would be impracticable.