The E.R.A. Ended in the 80s
The Equal Rights Amendment (ERA) and its ratification deadline have become subjects of renewed debate in recent years, particularly as several states have attempted to ratify the amendment decades after its original deadline. While popular media, such as the streaming of the 2006 ABC television series Commander-in-Chief that starred Geena Davis as the on screen POTUS, and its episode “Unfinished Business”, have dramatized the possibility of late ratification, the constitutional reality presents a much clearer picture regarding the validity of Congressionally mandated ratification deadlines.
The question has been whether Congress can impose a deadline on the ratification of an Amendment. The question seems up in the air or one that would require the Supreme Court to decide it. It is actually much simpler and SCOTUS does not get a say, and as is the normal practice if a ratification deadline is part of the text it becomes self-enforcing because such text would itself be added to the Constitution if ratified which would invalidate the force of the text preceding the deadline, meaning the law itself.
The failed ERA legislative resolution was worded irregularly, and the bill itself was too simplistically clever which proved to be its core weakness. But, for clarity here is the text of the 1972 resolution:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:
"ARTICLE —
"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."
So there you have it, the resolution includes a timeline, and the “Amendment” does not. That’s confusing because of how it has been done in the past. However, the constitutional basis for ratification deadlines was firmly established through precedents set by two Progressive Era amendments to the Constitution. The first precedent came with the 18th Amendment, aka alcohol Prohibition, which introduced the concept of a ratification deadline. Although this amendment was later repealed by the 21st Amendment—cheers on New Years, mate. More definitively, the 20th Amendment, ratified in 1933 and which moved the Presidential Inauguration Day to Jan 20, incorporated its deadline directly into Article VI of its text, thereby embedding the concept of ratification deadlines into the Constitution itself.
For example the 18th Amendment read:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
This constitutional framework effectively settles the question of Congress's authority to impose ratification deadlines. When Congress proposed the ERA in 1972, it included a seven-year ratification deadline, later extended to 1982. This deadline wasn't merely a procedural suggestion but rather a binding constitutional requirement, consistent with established precedent. The deadline's expiration in 1982 therefore marked the legal termination of that specific version of the ERA. And it has been more effectively argued that an extension of a deadline without the required two-thirds vote in the House and Senate is itself unconstitutional.
Some advocates argue that because Article V of the Constitution doesn't explicitly mention ratification deadlines, they should be considered optional or even unconstitutional. However, this interpretation overlooks the evolution of constitutional practice and the Supreme Court's recognition of Congress's power to manage the ratification process. In Coleman v. Miller (1939), the Court acknowledged Congress's authority to determine questions of ratification timeliness, further strengthening the legal foundation for ratification deadlines. In reality the opinion of the Court was irrelevant as only Congress and the state legislatures are involved in the Constitutional amendment process, neither the executive nor the judiciary have a role, the Founders made the most representative institutions the heart of the Constitutional order. The Court itself determined that this was a political question and therefore non-justiciable which means beyond the authority of the Court to decide.
The implications of this legal reality are important to understand the ERA's current status. Recent ratifications by Nevada (2017), Illinois (2018), and Virginia (2020) cannot resurrect an amendment whose ratification period has expired. These actions were legally meaningless. The Department of Justice's Office of Legal Counsel confirmed this interpretation in a 2020 opinion, stating that the ERA's ratification deadline had expired and could not be revived retroactively by state simply because they wished to do so. And once again it was a statement on a settled question by part of the government who, even if they had decided otherwise, their opinion would have had no lawful effect. As the Supreme Court decided in the 1930s, if the United States Congress sets a deadline, United States Congress knows that it is setting a deadline and what deadline means.
For the ERA to become part of the Constitution, it would need to be reintroduced and passed by a new Congress, then ratified by three-fourths of the states within whatever time frame Congress establishes. Alternatively, it could be proposed through a Constitutional Convention, though this route has never been successfully used for any amendment since 1787. Either path would require the amendment to be considered anew, and judged on its merits, allowing for a 21st century debate about sex equality and its constitutional protection.
Some supporters of the ERA are trying to avoid democracy, they want to evade the fact that with the current composition of Congress, and more importantly, the American people, there isn’t sufficient interest to pass the amendment that they want. So some of them are willing to pretend that the Equal Rights Amendment, which is itself too nondescript and imprecise, is still alive and could be made part of the Constitution, but that’s not good politics. They have to win the argument today that they have lost in the 1980s. In a democracy the focus has to be on winning the argument, not avoiding the electorate. And it likely they would lose again if they stick with text that forms a panoramic of unintended and unknown consequences.
With all respect, I believe you are overlooking an important point. The wording of a resolution to consider the ERA is not as important as the wording of the proposed Amendment itself. It's unfortunate that the seven year mention appears in the resolution, because it appears that is where the opponents of the ERA are desperately hanging their reasoning to not provide the equal rights for all people without regard to sex. Nothing in the Amendment itself, as you observed, has such a time limitation, just a mention of a two year period between states' ratification and effectiveness. So the relatively recent action of Nevada, Illinois, and Virginia is not a factor to inhibit ratification. The American Bar Association (ABA) itself has something to say about any time limit to ratification saying that Article V of the Constitution includes no time limit of any sort. They go on to say that Congress lacks the power to amend the Constitution by adding a third requirement (time limitation) in addition to the two requirements already defined in Article V. And the only way a time limitation could be added would be by a NEW change to Article V that would have to go before Congress and the states anew. In the light of that, on August 6, 2024, the ABA pronounced that since Virginia voted to ratify the ERA in January, 2020, the nearly 600 member House of Delegates of the ABA adopted Resolution 601 that essentially says that, "as of January 27, 2020, the ERA automatically and instantaneously became the 28th Amendment to the Constitution." I was a small participant working with Sarah Weddington, my representative when I lived in Austin, in demonstrating for the ratification of the ERA in Texas. We were successful in that work despite the appearance of Phyllis Schafly and other Birch Society members in fighting against the ERA at the time. I was even privileged to be present on the floor (not in the gallery) during much of the proceedings for ratification next to Ms. Weddington's desk. There's nothing dangerous in the wording of the ERA. All we had to do was to convince Texans that their daughters would not be drafted to join the armed forces and fight on the front lines in Vietnam. That was the top argument by the Birch Society all bundled up with the tradition of keeping the girls in the kitchen and out of the board rooms. All in all, the ERA is simple and straightforward. It deserves ratification. Like the 15th Amendment, it's only fair.