Some Thoughts on the 28th Amendment
Congress (probably) can extend the deadline for ratification by simple majority vote. But if it does that, it should allow already-ratifying states to rescind
For now, the Constitution has only 27 amendments. But at the end of last month, the Illinois General Assembly voted to ratify the Equal Rights Amendment, which provides that “[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.” Illinois’s action brings the number of states that have ratified the ERA to 37, one shy of the three-quarters threshold established by the Constitution’s Article V. (If you’re doing the arithmetic, remember that constitutional law rounds up.)
It’s not implausible that the 38-state threshold will soon be cleared. Among the states that haven’t yet ratified are increasingly blue Virginia, purple Florida and North Carolina, and the ever less red Arizona and Georgia. With a majority vote of the legislature of one of those states, we might have the first addition to the Constitution in more than a quarter century.
But there are lots and lots of legal questions that a 38th state’s ratification would raise.
— (1) When Congress approved the ERA in 1972, it provided that states would have until 1979 to ratify the amendment. It later extended the timeframe to 1982. That deadline has long since passed. Would an out-of-time ratification of a constitutional amendment still “count”?
— (2) Would the answer to (1) change if Congress votes to extend the deadline for ratification to, say, 2020 or beyond?
— (3) If Congress can extend the ratification deadline, does it need a simple majority vote to do so, or must it muster the same two-thirds of the House and Senate that’s required to propose a constitutional amendment in the first place?
— (4) If the House and Senate extend the deadline by simple majority vote, is the President’s signature necessary too?
— (5) Can states that already have ratified the ERA rescind their approval before the three-quarters threshold is reached? (Legislatures of five states — Idaho, Kentucky, Nebraska, South Dakota, and Tennessee — voted initially to ratify and subsequently to rescind.)
Taking each of these questions in turn:
(1) Can Congress impose time limits on ratification?
A suddenly-timely student comment published in the University of Chicago Law Review in 1999 argues that deadlines on the ratification of constitutional amendments violate Article V and are therefore nugatory. On the author’s view, states still can ratify the ERA, and those ratifications still count toward the three-quarters threshold.
Before delving into the author’s argument, it’s worth noting an important distinction between two types of ratification time limits. Sometimes, Congress incorporates a ratification time limit into an amendment’s text. Examples include the 18th, 20th, 21st, and 22nd Amendments, all of which expressly provide that they are inoperative unless ratified by three-quarters of the states within seven years. In other cases, Congress includes the time limit in a proposing clause of the joint resolution setting forth the amendment. This strategy was apparently suggested by a Columbia Law School professor, Noel Dowling, who cautioned in 1955 that time limits in amendments themselves would clutter up the Constitution. In any event, Congress adopted this latter approach when it put forward the ERA in 1972.
No one today, as far as I know, thinks that time limits incorporated in the text of constitutional amendments are unconstitutional. The ratification of the amendment itself constitutionalizes those clauses. But what about time limits in proposing clauses?
The text of Article V says nothing on the subject. It reads, in relevant part:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, 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, as the one or the other mode of ratification may be proposed by the Congress . . . .
Article V neither explicitly grants nor explicitly denies Congress the power to place limits on the timeframe for ratification. While Article V allows Congress to choose between two modes of ratification (by states legislatures or by state constitutional conventions), it’s not crystal-clear from the article’s text that the power to choose the mode of ratification includes the power to regulate the ratification process beyond that.
The author of the University of Chicago Law Review comment interprets Article V’s silence to suggest that Congress lacks the latter power. Yet the Necessary and Proper Clause of Article I, Section 8 seems to suggest otherwise. That clause, recall, gives Congress the authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The power to fill in the details of the ratification process, it would seem, is incidental to the power to propose amendments — a power that the Constitution vests in Congress.
Text aside, precedent supports the claim that Congress has the power to place time limits on ratification. As the Supreme Court said in 1921:
Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule. Whether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.
Dillon v. Gloss, 256 U.S. 368, 375–76 (1921); accord Coleman v. Miller, 307 U.S. 433, 456 (1939) (opinion of Hughes, C.J., joined by Stone and Reed, J.J.) (“Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications”); id. at 459 (opinion of Black, J., joined by Roberts, Frankfurter, and Douglas, J.J.) (“Congress . . . possess[es] exclusive power over the amending process”). Moreover, Congress has followed the practice of placing time limits in proposing clauses for more than a half-century: the 23rd, 24th, 25th, and 26th Amendments all were ratified within the seven-year timeframe set forth by Congress in the proposing resolution but not in the amendment’s text. That practice provides further support for the claim that Congress has the power to limit the time for ratification. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era”).
(2) Can Congress extend the timeframe for ratification?
If Congress has the power to set the deadline for ratification, then it would seem to follow from the general anti-entrenchment principle that a subsequent Congress can change its mind and extend the deadline. Concededly, the Court in Dillon said that congressionally imposed limits on ratification must be “reasonable,” and a nearly-half-century period for ratification might strike some as exceeding reason’s limits. But as the Court in Coleman recognized, Dillon’s “reasonable limits” language was dictum, and the reasonableness of the ratification timeframe is a question for Congress rather than the courts. See Coleman, 307 U.S. at 452–53 (opinion of Hughes, C.J.); id. at 458 (opinion of Black, J.). The Justice Department under the first Bush administration reached a similar conclusion: Dillon’s dictum is not binding, and Congress can even decide “that there is no time limit at all.” Congressional Pay Amendment, 16 O.L.C. 85, 92–93 (1992).
One might argue that extension of the timeframe for ratification upends the expectations of states that approved the amendment on the assumption that the deadline to do so was 1979 (or 1982). See, e.g., Letter from Jules B. Gerard, Professor of Law, Washington University in St. Louis, to Peter W. Rodino Jr., Chair, House Judiciary Committee (June 14, 1978), rptd. in 124 Cong. Rec. 19,737 (June 29, 1978). I don’t find that argument to be compelling. First, if a state legislature voted to ratify the ERA, then presumably it wanted the ERA to become a permanent part of the Constitution. It makes little sense, then, that that its ratification would be conditional upon other states doing the same within a specific timeframe. Second, and more importantly, Article V makes no provision for conditional ratification — and for good reason: the already difficult amendment process would be even more so if states could attach strings to their votes. If indeed Congress has the power to extend the timeframe for ratification (as I think it does), then a state’s attempt to condition its ratification upon congressional nonextension should be considered null and void.
(3) Can Congress extend the timeframe for ratification by simple majority vote?
A somewhat harder question is whether the threshold for extension is a simple majority vote in both houses or two-thirds. Recall that Article V requires a two-thirds vote of both houses to propose a constitutional amendment, but it does not say that the two-thirds threshold applies to choosing the mode of ratification. As a general rule, when the Constitution does not specify a supermajority threshold, a simple majority is enough. For example, we assume that it takes a simple majority for the House to impeach an officer because the Constitution doesn’t say otherwise; we assume that it takes a simple majority of the Senate to confirm an officer because the Constitution doesn’t say otherwise; and we assume that it takes a simple majority of each chamber to pass a law because the Constitution doesn’t say otherwise. In Article V itself, we assume that a state legislature can ratify an amendment by simple majority vote because there is nothing indicating a higher threshold. And so too with respect to congressional control over the mode of ratification.
Aside from the text, there is a strong prudential argument for a simple majority threshold. There are lots of questions about the ratification process that the Constitution doesn’t answer (e.g., how must states transmit notice of their ratification?; can they rescind their approval afterwards?; what if the state legislature votes by simple majority but the governor tries to veto?). In theory, the Supreme Court could conjure up answers to these questions, but it has sensibly left it to Congress to umpire these sorts of disputes. While a simple majority threshold still leaves the possibility that the House and Senate will disagree, it reduces the risk of deadlock relative to a two-thirds bar. And reaching a resolution is especially imperative in this context: after all, a constitution doesn’t do us much good if we can’t agree on what’s in and what’s out.
(4) Is the President’s signature necessary?
Article V itself says nothing about a presidential role in the amendment process. And in 1798, Justice Chase said that “[t]he negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.” Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 n.2 (1798). The Court has continued to cite that conclusion with approval. See Hawke v. Smith, 253 U.S. 221, 230 (1920); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983).
Yet as the majority in Chadha emphasized, “the Court’s holding in Hollingsworth . . . that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections”: (1) that “a constitutional amendment must command the votes of two-thirds of each House”; and (2) that “three-fourths of the states must ratify any amendment.” If indeed a simple majority of each house can extend the deadline for ratification, then the “alternative protections” emphasized in Chadha would seem to be absent with respect to that decision.
Moreover, the text of the Presentment Clause seems to cut in favor of a presidential role. It says that “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives.” The decision to extend the timeframe for ratification is a matter to which the concurrence of both houses is necessary.
Yet the Presentment Clause probably shouldn’t be read to extend to the Article V process. The two-thirds vote to propose a constitutional amendment in the first place is a “Vote to which the Concurrence of the Senate and House of Representatives may be necessary,” and we know — from Hollingsworth and from two centuries of subsequent practice — that the President’s signature is not necessary for a constitutional amendment. Moreover, the prudential argument in favor of a simple-majority standard applies here too: we don’t want deadlock regarding the content of the Constitution, and including the President in the process would increase the probability of an impasse. Still, it might be wise for the President to sign an extension resolution — as President Carter did in 1978 — simply as a matter of dotting i’s and crossing t’s.
(5) Can states that already have ratified the amendment rescind their approval?
The question has come up before. New Jersey (in 1866) and Ohio (in 1867) ratified the 14th Amendment. In 1868, the legislatures of both states sought to rescind their approval. Secretary of State William Seward transmitted a message to Congress stating that the three-quarters requirement would be satisfied if New Jersey and Ohio were counted. Congress responded with a concurrent resolution that declared the 14th Amendment to be ratified and included New Jersey and Ohio on the list of ratifying states. (The legislature of New York ratified the 15th Amendment in 1869 and then sought to rescind its ratification in 1870; its approval turned out to be unnecessary to the three-fourths threshold, and in any event, New York re-ratified the amendment shortly thereafter.)
The 14th Amendment precedent might be read to suggest that once a state has ratified an amendment, it can’t reverse its decision. I think a more plausible interpretation is that the permissibility of rescission is — like other aspects of the amendment process — up to Congress to determine. The fact that Congress disregarded rescission attempts in 1868 doesn’t bind it to follow the same course today.
My own view is that while Congress could adopt what amounts to a no-backsies rule with respect to the ERA, such a rule would be difficult to defend normatively. If we’re going to give nonratifying states an opportunity to change their positions, what possible reason is there to establish a one-way ratchet? While I very much hope that the ERA becomes part of the Constitution (belated though its inclusion might be), it’s also important that the country accept the amendment as procedurally legitimate. A ratification process that seems rigged in favor of the proponents would potentially undermine that objective.
Lurking in the background is a larger question: What would ratification of the ERA accomplish today? Since Congress first passed the ERA, the Supreme Court has held that any gender-based classification is subject to intermediate scrutiny: the discriminatory classification must “serve[] important governmental objectives” and the discriminatory means must be “substantially related to the achievement of those objectives.” See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); United States v. Virginia, 518 U.S. 515, 524 (1996). In other words, case law already has brought us close to a constitutional prohibition on gender-based discrimination on the part of the federal government and the states.
There are, to be sure, a few cases in which the difference between intermediate scrutiny and strict scrutiny might matter. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981) (upholding California statutory rape law that differentiated between male and female victims). Note, though, that all 50 states now have statutory rape laws that treat males and females equally. And while perhaps there are still some areas where the difference between intermediate scrutiny and strict scrutiny will be outcome-determinative, I expect that those will be few and far between.
Probably the most significant impact of ERA ratification would be symbolic. We would finally have a Constitution that reflects a collective commitment to gender equality — albeit 230 years too late. That statement is not in any way meant as a criticism of the ERA ratification effort: the expressive function of the Constitution matters enormously. But it does underscore the importance of achieving ratification through a process that is widely perceived to be legitimate. I think that an extension of the ratification timeframe would be consistent with that aim — but only if it goes both ways.
For much more on these and related questions, see:
— “ERA: No Time Limit on Equality for Men and Women,” 124 Cong. Rec. 29,434–43 (Sept. 14, 1978) (statements by Laurence H. Tribe, Ruth Bader Ginsburg, Thomas I. Emerson, and Ronald D. Rotunda).
— Charles Black, Correspondence, On Article I, Section 7, Clause 3 — and the Amendment of the Constitution, 87 Yale L.J. 896 (1978).
Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386 (1983).
— Thomas H. Neale, Congressional Research Service, CRS 7–5700, The Proposed Equal Rights Amendment: Contemporary Ratification Issues (May 9, 2013).
