End of an ERA?

Professor Saikrishna Prakash Examines History, Theory of Amendment Ratification in New Paper
Saikrishna Prakash

Saikrishna Prakash is the James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law. Photo by Ian Bradshaw

April 1, 2019

The 1970s Equal Rights Amendment is likely constitutionally moot because the ratification deadline has lapsed, argues Professor Saikrishna Prakash of the University of Virginia School of Law in a new paper.

The amendment, designed to guarantee equal legal rights for all American citizens regardless of sex, has picked up steam in recent years and is only one state’s vote away from being ratified — at least, that was the theory.

Prakash’s new article, “Of Synchronicity and Supreme Law,” published in the Harvard Law Review, argues that the Constitution imposes a requirement of “synchronicity” across the three forms of federal lawmaking: constitutional amendments, laws and treaties.

Though Prakash notes in the article that he favors the ERA, the historical record, doctrine and practice do not support passing amendments so late after they are proposed.

Prakash, who is among the scholars most cited by the U.S. Supreme Court, is the author of the book “Imperial from the Beginning: The Constitution of the Original Executive.”

He talked about his paper, the constitutional and historical questions about the timing of ratification, and whether the ERA could survive.

Does the Constitution impose time constraints on the making of federal lawmaking?

The Constitution does not explicitly provide any deadlines. Nonetheless, my paper argues that the Constitution imposes implicit timeframes for making federal law. The basic idea is that the manifestation of democratic preferences must occur within a relatively compressed period of time or we don’t have a proper majoritarian or super-majoritarian process.

With respect to federal laws, the paper argues that the founding generation believed that a legislative session was the unit of lawmaking time. A session ordinarily lasted weeks or months. Sometimes a session might last years, as some did in England. Any bill not made into law within a single session had to begin at square one in the next. That meant that bicameral passage, presentment and any override had to occur in one session.

Regarding treaties, I argue that a treaty must be made a reasonable time after the Senate consents, otherwise the Senate’s consent becomes stale. For instance, the Senate’s consent to a bilateral treaty with Russia in 1992 is now stale, I argue, because the treaty was not made, due to Russian inaction, and the Senate’s consent should no longer be regarded as having any continuing force.

Finally, the paper argues that the process of amendment making must occur within a reasonable period of time. In other words, ratification should follow close on the heels of proposal to the states. By close on the heels, I mean years. Contrary to some scholars, I don’t believe the Constitution permits the ratification of amendments centuries after Congress first proposed them.  

Can you give examples of times politicians used these guidelines to their political advantage?

In the past, presidents acted as if all bills had to be perfected into law within one session. They did not use this rule strategically but followed it scrupulously. The rule now seems to be that a bill may be perfected over a two-year Congress. That, too, is now treated as a rule. But again, I don’t know of any president that has attempted to use it to their political advantage.

The 27th Amendment, which prohibits any law increasing or decreasing the salary of members of Congress from taking effect until a new term, took 200 years to be ratified. Can you explain its history?

The pay amendment was proposed in 1789 and sent with 11 others to the states. Ten of those amendments were quickly ratified and became what we call our Bill of Rights. Two others were ratified by only a handful of states at the time. I argue that these other two were taken to be dead due to the lack of sufficient ratifications. Much later, in the late 19th century, Ohio belatedly ratified the amendment. But some commentators noted that the amendment was no longer viable. Supporting this notion, many legislatures and legislators proposed the same amendment throughout the 19th century. These proposals don’t make sense if one supposed that 1789 proposal was still viable. After all, why would state legislatures and federal legislators propose an amendment that was already before the states. They reproposed precisely because the 1789 amendment was stale and thus incapable of being acted upon. Hence if they wanted a pay amendment, they had to convince Congress to begin the process anew.

In the mid-1970s, a student discovered the amendment and concluded that it was still viable. He urged state legislatures to ratify it and gradually many did. Eventually a total of 38 states purported to ratify, raising the question of whether the amendment was properly ratified, as it had been ratified over centuries. Congress and the executive concluded that the amendment had been properly ratified. My article criticizes this conclusion, particularly the Office of Legal Counsel’s opinion on the matter. The opinion is remarkably one-sided and blind to a good deal of doctrine and practice.

Can Congress impose deadlines on ratification, such as with the ERA?

The Supreme Court has held that Congress may impose a deadline. So I think the doctrinal answer is “yes.” Congress either imposes a deadline in the text of the actual amendment or in the resolution that accompanies it. When the deadline is in the text of the amendment, failure to satisfy the deadline makes the amendment inert or ineffectual. When it is in the accompanying resolution, however, the actual proposed amendment does not contain the constraint. This makes it easier for someone to ignore the deadline. That happened with the ERA. Congress originally imposed a ratification period of a little over seven years. When it seemed that the amendment would fail, they extended the period by a little more than three years. The amendment still failed to secure the votes. This caused many advocates to bemoan the “failure” of the ERA. Everyone who addressed the issue considered it dead.

But the belated passage of the 27th Amendment has resuscitated hopes that the ERA is still viable. I think advocates of the ERA will argue either that Congress cannot impose a deadline or that its attempt to do so is a nullity because it is not in the amendment itself. Opponents of the ERA will argue that Congress can impose a deadline and that it has long passed. Interestingly enough, they will be able to cite former professor Ruth Bader Ginsburg on that point. Opponents will also argue that the consent given by the states was given in a context where the ratifications were understood to be limited. After all, each state ratified in the face of congressional resolutions that limited how long the amendment would be viable. Some states will say that their consents have expired independent of whether the Constitution itself makes those consents from decades ago stale.

What will happen if 38 states purport to ratify the ERA?

A battle royale. One can imagine the political branches splitting, with the chambers of Congress disagreeing amongst themselves and with the executive. The Constitution does not say who decides whether an amendment is properly ratified. Given the lack of clarity, there may be a charged political dispute about ratification. It may prove quite interesting and exhilarating.

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