The three-state solution

LAST WEEK, a quarter of a century after its demise, the Equal Rights Amendment suddenly reappeared on Capitol Hill. Like Jacob Marley’s ghost, the ERA came to Congress dragging a heavy load: the 35 states that voted to ratify the amendment decades ago. By counting these past votes as still valid, its sponsors claim that they can make the ERA part of the Constitution with passage in just three more states -- rather than the constitutionally mandated 38. This novel argument would not only deny the right of current citizens to vote on the amendment, it would count states that later rescinded their ratification votes.

The inevitable court challenge to this theory will focus on Article V of the Constitution, which requires that any constitutional amendment be approved by two-thirds of each house of Congress and three-fourths of the state legislatures. The article was designed to make it difficult for politicians to clutter the Constitution with impulsive amendments designed to appease constituents. The vote of the two houses and the states was meant to ensure that there was an overwhelming consensus before the Constitution was changed.

Yet the article’s language does not contain an explicit time limit for ratification. Nor is there any discussion of a time frame in the constitutional debates. On the face of it, there’s nothing to say that if a state approved the ERA in the late 1970s, its approval is not still valid today (especially because the text of the amendment introduced last week is identical).

The Supreme Court and many scholars, however, have insisted that there is an implied time limit to guarantee that any amendment, in the words of the court, is ratified by a “sufficiently contemporaneous” vote. Congress has long honored this rule by setting a seven-year period for ratification. If a measure could not pass in seven years, it clearly was not a consensus matter worthy of adding to the Constitution.

In the past, proposed amendments have had little difficulty in obtaining a contemporaneous consensus. The first 10 amendments were enacted within 27 months, and only one amendment took more than four years.

In contrast, the ERA, first introduced in 1923, was not approved by Congress until March 22, 1972. At that point, Congress put a seven-year limitation on the ratification process. When the amendment failed to attract approval from the required 38 states within this time period, Congress extended the deadline three more years. In an extremely questionable move, Congress also prohibited states from reconsidering the amendment if they previously ratified it, to avoid states rescinding their approval. (Five states did vote to rescind their votes.)

Yet even with this extension and the bar on rescission, the ERA could not secure enough states by 1982, and the Supreme Court (and various ERA supporters) treated it as dead.

Supporters of the new ERA, now called the Women’s Equality Amendment, are likely to base their case for a three-state strategy on the history of the 27th Amendment, which lays out the conditions for congressional pay raises. James Madison first proposed that this amendment be part of the original Bill of Rights, but it failed to meet the three-quarters requirement. Nevertheless, legislatures kept approving it through the years, and after a congressional pay raise scandal, five states spontaneously ratified the amendment in 1992 -- 202 years after its original submission.

The ratifications were spread over two centuries, but because there had been no time limit placed on the process, members of Congress treated the new amendment (and their ability to raise their salaries) as an accomplished fact. Many academics objected to the amendment as untimely, but to no avail.

The most obvious problem with the three-state strategy is that it is presumptively unconstitutional. The Supreme Court held in 1921 that there must be “contemporaneous consensus” and that the votes of state legislatures be part of “succeeding steps in a single endeavor.” A delay of decades is hardly a good showing of a “contemporaneous consensus,” and the votes of three states cannot be successive steps to a process that the court and Congress treated as expired in 1982. Although the court has held that any time limits should be left to Congress, it has never stated that a proposed amendment can live eternally in constitutional amber, like some Jurassic fossil.

There are other constitutional problems. Congress twice limited the period for the ERA’s ratification -- first March 22, 1979, then June 30, 1982 -- and both deadlines expired. A retroactive extension made decades later would defeat the obvious intent of Congress and alter the conditions under which the states originally cast their ratification votes. There is also the not-so-small matter that five states rescinded their ratification, which Congress conveniently chose to ignore. The ERA failed in 1982 by eight, not three, states.

Then there are the five other “dormant” proposed constitutional amendments that share the ERA’s status. There is the 218-year-old House reapportionment amendment, a 197-year-old amendment depriving people of citizenship for accepting titles of nobility, a 186-year-old amendment that would bar the prohibition of slavery by constitutional amendment, an 83-year-old child labor amendment and a 29-year-old amendment to make the District of Columbia a state.

All were passed by Congress, but their sponsors agreed to play by the rules and accepted defeat when time expired. Indeed, under the three-state logic of the ERA sponsors, the amendment making the District of Columbia a state would need only a few more states to be retroactively declared ratified.

Perhaps most important, this opportunistic new strategy would do great harm to our constitutional traditions and the amendment process. The framers wanted Americans in consensus by a supermajority before amending the Constitution. They clearly did not mean consensus of voters spread across decades. Indeed, I believe Madison would have objected to his own amendment passing 202 years later because it lacked a contemporaneous vote of Congress and the states.

Our country was a very different place when Congress approved the ERA in 1972. It was before Roe vs. Wade and before the widespread enforcement of anti-discrimination laws. Because of statutory protections and cultural changes, women have made huge strides and currently count the speaker of the House, the leading Democratic candidate for president, the secretary of State and many other powerful leaders among their numbers.

The fact is that many Americans may no longer see the need for the ERA given the great advances of women since the 1970s. No doubt there are many others who disagree and would fight hard for ratification.

It is a fight that we should welcome. It is through that difficult process that a nation can reach consensus on issues that divide us. In the end, to sneak in an amendment through clever legal maneuvers does an injustice to both the cause and the country.

If the ERA is right for the nation, then we should ratify it in the right way. The sponsors should reject the three-state strategy and let the debate begin.