An effort by Senate Democrats to remove the long-passed 1982 deadline for ratification of the Equal Rights Amendment to the Constitution withered and died in a divided Congress Thursday, April 27. GOP senators Lisa Murkowski of Alaska and Susan Collins of Maine joined the full set of Democrats in support of the measure, but the final vote was 51-47 – nine shy of the 60 required for passage.
A Century-Long Battle
The Equal Rights Amendment was first proposed a century ago, in 1923, but it didn’t pass Congress until 1972. The original amendment bill included a seven-year deadline, which would have expired in 1979 had it not been extended to 1982. So why is this an issue now, decades later? In the last five years, three states ratified the amendment, bringing the total up to the required 38.
But there’s that pesky detail of the deadline.
Nevada’s ratification was recorded in 2017, and Illinois a year later in 2018. Virginia, state #38, submitted its ratification in 2020. If the deadline holds, however, then only the first 35 that made it before 1982 are valid. Not all amendments include deadlines – and the Constitution itself doesn’t mention them at all in the amendment section. However, many of the enacted amendments did come with deadlines, and were all ratified and certified within those limited time frames.
The full text of the Equal Rights Amendment reads:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
One might notice the similarity between what seems to be the straightforward wording of this article and that of the first section of the 14th Amendment. Proponents of the Equal Rights Amendment have argued that both amendments grant protections for unlimited abortion access. Many also foresee it drastically changing the landscape of the LGBTQ rights debate, as well as potentially requiring women to register for selective service. And how do congressional Democrats see it? Senate Majority Leader Chuck Schumer (D-NY) said leading up to the vote: “In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as today. Recent events like the Supreme Court’s horrible Dobbs decision, uncertainty with critical care drugs like mifepristone and a slew of proposed state actions have women in this country facing an uncertain future.”
Democrats Want It Both Ways
Democrats argue that since the Constitution doesn’t mention a time limit for states to ratify an amendment, the 1982 deadline should be removed and the Equal Rights Amendment should be officially added to the Constitution. That’s an interesting interpretation for a group of people who infer a right to abortion as naturally following the right to privacy that’s inferred from the text of the 14th Amendment. Progressives are well known for trying to take a mile for every inch given – in fact, the term “progressive” itself should be a dead giveaway to that tendency. It was Democrats, after all, who framed this amendment as necessary to protect a woman’s right to abort – despite the very simple text, which mentions abortion explicitly precisely as many times as the 14th did: zero.
The real problem with this argument is that while the Constitution doesn’t establish a time limit, it also doesn’t prohibit one. Numerous amendments have been passed with deadlines for ratification, and those deadlines have been honored in all other cases, thus far. But if the Equal Rights Amendment has to begin the process all over again, it won’t be ratified either. It would require a two-thirds majority in both houses of Congress – which wouldn’t happen today in the House any more than it did in the Senate – and 38 states would, once again, have to then ratify it.
Five states, however, attempted to withdraw their approval, and all before the extended deadline of 1982. Idaho, Kentucky, Nebraska, Tennessee, and South Dakota all rescinded their ratification, though the right for a state to pull approval has never been officially recognized as valid. A sixth state – North Dakota – passed a resolution in 2021 saying that its ratification expired with the original 1979 deadline. For some reason, however, states have been allowed to ratify amendments after previously voting not to – but no right to rescind that ratification has ever been recognized. All states that ratify an amendment at any point are still listed with the Federal Register as approving, even if they later vote to pull their support.
Interestingly enough, the same argument used to attack the deadline is used to stop states from revoking a ratification: The Constitution doesn’t provide a mechanism for rescinding support. Of course, just as is the case with deadlines, there’s no language prohibiting it, either.
Is the Equal Rights Amendment Inevitable?
Ultimately, no congressional action is necessary for the Equal Rights Amendment to be added to the Federal Register as the 28th Amendment. Once 38 states have ratified (if we ignore or remove the long-expired deadline), the Archivist of the United States simply records it as such. Without a deadline, the amendment could have been official once Virginia became the 38th state to ratify in 2020, 41 years after the original deadline, and 38 years after even the extension ended. Former Archivist David Ferriero declined to publish and certify the Equal Rights Amendment, but he retired in the spring of 2022.
Colleen Shogan, Biden’s nominee to replace Ferriero, has yet to be confirmed by the Senate. That confirmation, however, is a much easier hurdle to jump. With a simple majority, Shogan can become the Archivists and carry out what Democrats argue is the ministerial duty of publishing and certifying the Equal Rights Amendment as part of the Constitution. Far easier than gaining enough votes to remove the deadline.
Does that make the Equal Rights Amendment – and all the progressive baggage that seems sure to come along with it – inevitable? It quite likely does, though legal challenges will follow either way. It may well fall to the Supreme Court to decide, at that point, whether the latest ratifications are valid so long after the best by date has passed.
All opinions expressed are those of the author and do not necessarily represent those of Liberty Nation.
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