Why the old Equal Rights Amendment is not viable

Why the old Equal Rights Amendment is not viable
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Equal Rights Amendment resolutions have been introduced in nearly every Congress since 1923. This session of Congress is no different. There was a hearing on the Equal Rights Amendment in the House today. Some will try to tell you that ratification is just around the corner. However, the Equal Rights Amendment they are talking about no longer exists. That has not stopped the Alice Paul Institute, for example, from talking up its own “three state strategy” for ratifying the 1972 Equal Rights Amendment.

It was put before the states and approved by 35 of the 38 states necessary for ratification. Nearly four decades later, activists persuaded Nevada and Illinois to ratify it, leaving the amendment just one state shy of being added to the Constitution. Or so the Equal Rights Amendment activists would like you to believe. But it just is not so. Here are five reasons why the Equal Rights Amendment sent to the states in 1972 is no longer viable.

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First, it left Congress with a deadline of seven years for state ratification. The clock ran out on the 1972 Equal Rights Amendment with 35 states on board. The activists want you to ignore that fact. Second, Congress later passed and President Carter signed in 1978 an extension to 1982. The activists want you to ignore that deadline too. The Congressional Research Service notes that this extension actually “suggests that an unending ratification period may not be permissible.”In other words, the extension that Equal Rights Amendment supporters sought in 1978 undercuts their position today that both ratification deadlines are invalid. Moreover, no additional states ratified the Equal Rights Amendment between 1979 and the end of the extended ratification deadline in 1982.

Third, five states that initially ratified the Equal Rights Amendment wound up rescinding their approval before the original deadline of seven years. Activists claim the rescissions are invalid and should be ignored, but it is not that simple. Article V of the Constitution provides that amendments may be proposed by a convention called by Congress “on the application of the legislatures to two thirds of the several states.” It has been debated whether a state may make and then rescind a convention application.

Many of the same groups endorsing the Equal Rights Amendment signed a letter last month urging state legislatures to “rescind any application”for an Article V convention. Three of the five states that had rescinded their Equal Rights Amendment ratification in the 1970s later rescinded their applications for an Article V convention. It is hard to argue that states may change their minds about convention but not a proposed amendment.

Fourth, Equal Rights Amendment activists like to point out that the 27th Amendment, the most recent addition to the Constitution, was proposed in 1789 but not finally ratified until May 1992. What is the 47 years since Congress sent the Equal Rights Amendment to the states, they ask, as compared to the 203 years between proposal and ratification of the 27th Amendment? On this issue, however, there is a distinction with a very big difference in that the 27th Amendment had no ratification deadline.

Fifth, several court decisions undermine the notion that the Equal Rights Amendment sent to the states in 1972 is still alive. The Supreme Court decided Dillon versus Gloss in 1921, two years before the first Equal Rights Amendment was proposed. As the Congressional Research Service had summarized it, the justices held that the “ratification of a constitutional amendment should occur within a reasonable time after the amendment is proposed.” That case involved the 18th Amendment which, like the 1972 Equal Rights Amendment, had a ratification deadline of seven years.

In the 1939 decision in Coleman versus Miller, the Supreme Court held that a variety of factors help determine a “reasonable time”to ratify an amendment to the Constitution. Most importantly, though, the justices said that Congress, not the courts, should make that decision. Congress did just that in 1972 and 1978, determining that a maximum of 10 years was enough to establish that three fourths of the states wanted the Equal Rights Amendment in the Constitution. The reality is that they did not.

In the 1982 decision in Idaho versus Freeman, a district court held that the original Equal Rights Amendment ratification deadline was constitutional. The deadline extension itself was unconstitutional, and the ratifications rescissions are valid. The Supreme Court vacated this decision when the 1982 ratification deadline passed and rendered the case moot. But the justices did not address the merits of the conclusions of the lower court.

Perhaps the activists will have better luck with the number of Equal Rights Amendment resolutions introduced this year. But it is simply fiction that the Equal Rights Amendment proposed during the 92nd Congress is still on the confirmation track today. It has been dead for at least 37 years.

Thomas Jipping is a senior legal fellow and deputy director of the Edwin Meese Center for Legal and Judicial Studies at the Heritage Foundation.