On January 15, Virginia became the 38th state to ratify the Equal Rights Amendment. According to the US Constitution, that makes the ERA part of “the supreme law of the land.”
But, say others, not so fast: When Congress proposed the amendment to the states in 1971, it set a 1979 deadline (later extended to 1982) for ratification. It ended up taking nearly 50 years to reach the ratification threshold, and the US Department of Justice has advised the Archivist of the United States against recognizing the ERA as a new addition to the Constitution.
I personally don’t have a strong opinion either way on the Equal Rights Amendment itself. On one hand, we seem to be making good progress toward equality of the sexes without it. On the other hand, what could it hurt?
What I do have a strong opinion on is holding governments to their own supposed rules.
In the case of the government of the United States, those rules are set forth in the Constitution, Article V of which provides Congress with no power to set ratification deadlines on constitutional amendments.
Congress gets to decide (requiring a 2/3 vote of both houses) to propose amendments to the states.
Congress gets to decide how the states ratify those amendments (by votes of their legislatures, or by conventions called to consider ratification).
But Congress doesn’t get to tell the states how long they can consider the matter.
The states took 202 years to mull the 27th Amendment before ratifying it (it says that changes to congressional salaries don’t take effect until after the next election).
They get as long as they care to take.
Congress doesn’t have to like it. That’s how it is whether Congress likes it or not.
Supreme Court Justice Ruth Bader Ginsburg — an ERA supporter — disagrees, saying “there is too much controversy about late comers.” That’s discouraging, since settling such controversies in accordance with the Constitution, instead of just rubber-stamping whatever whim happens to take the legislative branch, is her job description.
Next time Congress proposes a constitutional amendment, will it include a clause requiring state legislators to vote while riding unicycles and strumming ukuleles? It has as much authority — that is, none at all — to do that as it has to set ratification deadlines.
Virginia did its part. Now David Ferriero, Archivist of the United States, should do his job and proclaim ratification of the 28th Amendment to the Constitution.