'An Atrocious Way to Run a Constitution': The Destabilizing Effects of Constitutional Amendment Rescissions
59 Duq. L. Rev. 12 (2021)
43 Pages Posted: 29 Jul 2021 Last revised: 15 Sep 2021
Date Written: 2021
On January 27, 2020, Virginia became the thirty-eighth state to ratify the Equal Rights Amendment (ERA). Yet despite having met the amending requirements of Article V, the Twenty-Eighth Amendment has not been promulgated by the National Archivist, as required by federal statute. The ERA remains in legitimacy limbo as we await judicial resolution of a number of legal questions. And while we wait, the two-year window continues to wind down for federal, state, and local governments to implement the equality mandate of equal rights on the basis of sex. Whether the Supreme Court will grant certiorari, or will decide the issues in favor of equality, are questions that only the nine unelected justices can answer. But the future implications of any decision the Court makes will likely stretch far beyond the Twenty-Eighth Amendment, as the ERA has landed in a vortex of constitutional indeterminacy. For nearly two-and-a-half centuries, numerous substantive and procedural questions have arisen, been dismissed or narrowed, lingered in the shadows, become moot, or otherwise left unresolved, apparently awaiting the perfect test case. Virtually all of these unresolved issues are implicated by the century-long passage of the ERA.
The ERA was first proposed in 1923 at the urging of suffragette Alice Paul. But it did not receive Congressional approval until forty-nine years later, in 1972. But when submitted to the states for ratification, it was saddled with a seven-year deadline in its preamble. Only thirty-five states had ratified by the end of the seven-year deadline and five states had purported to rescind their ratifications. In 1978, Congress extended the deadline by three years and three months, until June 22, 1982; however, no states ratified or rescinded during the extension period. When the ratification period expired, the proposal was lacking either three or eight ratifications to reach the thirty-eight required by Article V. In 2017, however, Nevada ratified the ERA, Illinois did so in 2018, and Virginia did in 2020, forty-eight years after it was sent to the states. After ninety-seven years, the legal issues underlying the ERA are no longer mere abstractions, but present direct, unresolved constitutional questions about the scope and interpretation of the Article V process. In this article, I focus exclusively on the narrow issue of whether states may change their minds, whether they may ratify after having rejected an amendment, and whether they may rescind after having ratified. The Supreme Court has held that a state may ratify after rejection, but it has not provided any clear precedent on whether states may rescind, and Article V does not provide any explicit power to do so. Any implied powers seem inconsistent with the text and historical understanding of Article V, and prior precedents have denied states the power to rescind. Moreover, legislation and amendments proposed by Congress to expressly permit states to rescind up until the ratification by three-fourths of the states have all failed. In this article, I explore the complex process underlying the rescission question and the evidence a court is likely to examine in its effort to settle this intriguing question.
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