The Proposed Equal Rights Amendment: Contemporary Ratification Issues

The Proposed Equal Rights Amendment:

Contemporary Ratification Issues

Updated December 23, 2019

Congressional Research Service

https://crsreports.congress.gov

R42979

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service

Summary

The proposed Equal Rights Amendment to the U.S. Constitution (ERA) declares that “equality of

rights under the law shall not be denied or abridged by the United States or any State on account

of sex….” The ERA was approved by Congress for ratification by the states in 1972; the

amendment included a customary, but not constitutionally mandated, seven-year deadline for

ratification. Between 1972 and 1977, 35 state legislatures, of the 38 required by the Constitution,

voted to ratify the ERA. Despite a congressional extension of the deadline from 1979 to 1982, no

additional states approved the amendment during the extended period, at which time the

amendment was widely considered to have expired.

After 23 years in which no additional state voted to ratify the ERA, the situation changed when

Nevada and Illinois approved the amendment, in March 2017 and May 2018, respectively. In

addition, a change in party control of the Virginia legislature in the 2019 elections raised hopes

among ERA supporters that this state might also vote to ratify, which would bring the number of

approvals to 38, the requirement set by Article V for validation of a proposed amendment as part

of the Constitution.

In the context of these developments, ERA proponents have renewed efforts to restart the

ratification process. These actions center on the assertion that because the amendment did not

include a ratification deadline within the amendment text, it remains potentially viable and

eligible for ratification indefinitely. This proposal was originally known as the “Three State

Solution,” for the number of state ratifications then necessary to reach the constitutional

requirement that it be approved by three-fourths of the states. Supporters of this approach

maintain that Congress has the authority both to repeal the original 1979 ratification deadline and

its 1982 extension, and to restart the ratification clock at the current 37-state level—including the

Nevada and Illinois ratifications—with or without a future ratification deadline. They assert that

the broad authority over the amendment process provided to Congress by Article V of the

Constitution includes this right. They further claim that the Supreme Court’s decision in Coleman

v. Miller favors their position. They also note the precedent of the Twenty-Seventh

“Madison”

Amendment, which was ratified in 1992, 203 years after Congress proposed it to the states.

Opponents of reopening the amendment process may argue that attempting to revive the ERA

would be politically divisive, and contrary to the spirit, and perhaps the letter, of Article V and

Congress’s earlier intentions. They might also reject the example of the Twenty-Seventh

Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they

might claim that efforts to revive the ERA ignore the possibility that state ratifications may have

expired with the 1982 deadline, and that ERA proponents fail to consider the issue of state

withdrawals from the amendment, known as rescissions, a question that has not been specifically

decided in any U.S. court.

In addition to proposals for the Three State Solution, the Equal Rights Amendment has also been

introduced as new “fresh start” resolutions in each Congress since 1982.

In the 116

Congress, resolutions have been introduced in the House of Representatives and the

Senate that embrace both approaches. H.J.Res. 35, introduced by Representative Carolyn

Maloney, and S.J.Res. 15, introduced by Senator Robert Menendez, propose “fresh start” equal

rights amendments. H.J.Res. 38 and H.J.Res. 79, both introduced by Representative Jackie Speier,

and S.J.Res. 6, introduced by Senator Benjamin Cardin, would restart the ratification process by

removing the deadlines for ratification of the ERA set in 1972 and extended in 1979. On April 30,

2019, the House Judiciary Committee held a hearing on the ERA. On November 13, the

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service

committee held a markup session on H.J.Res. 79 and ordered that measure be reported favorably

to the full House. This report will be updated to reflect further developments.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues 
 
Congressional Research Service 
Contents 
Introduction ..................................................................................................................................... 1 
Most Recent Developments ............................................................................................................. 2 
116
th
 Congress Proposals........................................................................................................... 2 
An ERA “Fresh Start:” Proposals in the 116
th
 Congress ..................................................... 2 
Reopening the ERA Ratification Process: Proposals in the 116
th
 Congress ....................... 4 
Recent Activity in the State Legislatures: Nevada and Illinois ................................................. 6 
Contemporary Public Attitudes Toward the Equal Rights Amendment .................................... 8 
Equal Rights Amendment Perspectives: Legislative and Ratification History, 1923-1972............. 9 
Five Decades of Effort: Building Support for an Equal Rights Amendment in 
Congress, 1923-1970 ............................................................................................................. 9 
Congress Approves and Proposes the Equal Rights Amendment, 1970-1972 ........................ 12 
First Vote in the House, 91
st
 Congress—1970 .................................................................. 13 
Passage and Proposal by Congress, 92
nd
 Congress—1971-1972 ...................................... 14 
Congress Sets a Seven-Year Ratification Deadline ........................................................... 15 
Ratification Efforts in the States ............................................................................................. 16 
Ratification Is Extended in 1978, but Expires in 1982............................................................ 16 
Rescission: A Legal Challenge to the Ratification Process ..................................................... 18 
Renewed Legislative and Constitutional Proposals, 1982 to the Present ...................................... 18 
“Fresh Start” Proposals ........................................................................................................... 18 
“Three-State” Proposals .......................................................................................................... 19 
Contemporary Viability of the Equal Rights Amendment ............................................................. 20 
Article V: Congressional Authority over the Amendment Process ......................................... 20 
The Madison Amendment (the Twenty-Seventh Amendment): A Dormant Proposal 
Revived and Ratified ............................................................................................................ 22 
Ratification of the Madison Amendment: A Model for the Proposed Equal Rights 
Amendment? ........................................................................................................................ 24 
The Role of the Supreme Court Decisions in Dillon v. Gloss and Coleman v. Miller ............ 26 
Ancillary Issues ....................................................................................................................... 28 
Origins of the Seven-Year Ratification Deadline .............................................................. 28 
Rescission ......................................................................................................................... 28 
Congressional Promulgation of Amendments................................................................... 29 
The Proposed District of Columbia Voting Rights (Congressional Representation) 
Amendment—Congress Places a Ratification Deadline in the Body of the 
Amendment .................................................................................................................... 30 
Concluding Observations .............................................................................................................. 32 
 
Contacts 
Author Information ........................................................................................................................ 33 
 

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Introduction

On July 20, 1923, the National Woman’s Party (NWP) met in Seneca Falls, New York, to

commemorate the 75

anniversary of the historic Seneca Falls Convention and celebrate the 1920

ratification of the Nineteenth Amendment, by which women won the right to vote. At the

meeting, NWP leader Alice Paul announced her next project would be to develop and promote a

new constitutional amendment, guaranteeing equal rights and equality under the law in the United

States to women and men. Paul, a prominent suffragist, noted the recent ratification of the

Nineteenth Amendment, which established the right of women to vote. She characterized an

“equal rights” amendment as the next logical step for the women’s movement.

The proposed

amendment was first introduced six months later, in December 1923, in the 68

Congress.

Originally named “the Lucretia Mott Amendment,” in honor of the prominent 19

century

abolitionist, women’s rights activist, and social reformer, the draft amendment stated that, “men

and women shall have equal rights throughout the United States and every place subject to its

jurisdiction.”

Nearly half a century passed before the Mott Amendment, as amended and ultimately renamed

the Alice Paul Amendment, was approved by Congress and proposed to the states for ratification

in 1972.

In common with the Eighteenth and Twentieth through Twenty-Sixth Amendments, the

proposed ERA included a seven-year deadline for ratification; in this case the deadline was

included in the proposing clause, or preamble, that preceded the text of the amendment. After

considerable early progress in the states, ratifications slowed, and the process ultimately stalled at

35 states in 1977, 3 short of the 38 approvals (three-fourths of the states) required by the

Constitution. As the 1979 deadline approached, however, ERA supporters capitalized on the fact

that the seven-year time limit was incorporated in the amendment’s proposing clause, rather than

in the body of the amendment. Concluding that the amendment itself was, therefore, not time-

limited, Congress extended the ratification period by 38 months, through 1982. No further states

added their approval during the extension, however, and the proposed ERA appeared to expire in

1982.

Since the proposed ERA’s extended ratification period expired in 1982, Senators and

Representatives have continued to introduce new versions of the amendment, beginning in the

Congress.

More recently, new analyses emerged that led ERA supporters to assert that the

amendment remains viable, and that the period for its ratification could be extended indefinitely

by congressional action. Resolutions embracing this thesis have been introduced beginning in the

112

Congress.

Their stated purpose is that of “[r]emoving the deadline for ratification of the

Equal Rights Amendment.” If enacted, these measures would eliminate the 1979 and 1982

deadlines; reopen the proposed ERA for state ratification at the present count of 37 states;

and

extend the period for state ratification indefinitely.

This report examines the legislative history of the various proposals that ultimately emerged as

the proposed Equal Rights Amendment. It identifies and provides an analysis of current

“Alice Paul, Feminist, Suffragist, and Political Strategist,” The Alice Paul Institute, at http://www.alicepaul.org/

alicepaul.htm.

S.J. Res 21 and H.J. Res. 75, 68

Congress, 1

session.

The amendment is referred to hereinafter as “the proposed Equal Rights Amendment,” or “the proposed ERA.”

See H.J. Res. 192 and S.J. Res. 213, 92

Congress.

See H.J.Res. 47 and S.J.Res. 39, 112

Congress.

Nevada became the 36

state to ratify the ERA when its legislature voted to ratify the amendment on March 22, 2017,

and Illinois became the 37

, when its legislature ratified on May 30, 2018.

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legislative proposals and reviews contemporary factors that may bear on its present and future

viability.

Most Recent Developments

116

Congress Proposals

As the 116

Congress convened, resolutions were introduced in the House of Representatives and

the Senate that embraced two approaches to the Equal Rights Amendment. These include “fresh

start” proposals that proposed a new constitutional amendment, separate from the amendment

proposed by Congress in 1972 (H.J. Res. 208, 92

Congress), and proposals that would reopen

the ratification process by removing the deadline included in the resolution proposing the original

ERA.

An ERA “Fresh Start:” Proposals in the 116

Congress

One response to the issue of reviving the Equal Rights Amendment has been the introduction of a

new joint resolution, a “fresh start.” This alternative was advanced in the 97

Congress in 1982,

when resolutions proposing a new equal rights amendment were introduced even before the

extended ratification deadline for the proposed ERA expired. New versions of the ERA have

continued to be introduced in the House and Senate in each succeeding Congress. All have shared

language identical or similar to the original proposed by Congress in 1982. Two fresh start

amendments have been introduced to date in the 116

Congress, H.J.Res. 35 and S.J.Res. 15, as

detailed below.

H.J.Res. 35

The first fresh start ERA proposal to be offered in the 116

Congress was H.J.Res. 35, introduced

on January 29, 2019, by Representative Carolyn Maloney of New York. To date, Representative

Maloney has been joined by 179 cosponsors.

The resolution’s text states the following:

Section 1. Women shall have equal rights in the United States and every place subject to

its jurisdiction. 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. Congress and the several States 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.

The language of this version of the amendment differs from the version of the ERA proposed by

Congress in 1972. The new wording appeared initially in H.J.Res. 56 in the 113

Congress.

Specifically, Section 1 was amended by the addition of the following clause at its beginning:

“Women shall have equal rights in the United States and every place subject to its jurisdiction.” In

a press release issued at the time, Representative Maloney described this as a

... new and improved Equal Rights Amendment.... Today’s ERA would prohibit gender

discrimination and for the first time, would explicitly mandate equal rights for women....

A list of cosponsors for H.J.Res. 35 is available from Congress.gov at https://www.congress.gov/bill/116th-congress/

house-joint-resolution/35/cosponsors?r=34&s=2.

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This ERA is different ... it’s designed for the 21

Century. This ERA expressly puts women

in the Constitution for the first time.

Section 1 of the amendment evokes the language of the first version of the ERA, introduced in the

Congress in 1923. Arguably, it also pays tribute to the memory of its author, suffragist Alice

Paul.

Men and women shall have equal rights throughout the United States and every place

subject to its jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

Further, the resolution expands enforcement authority for the amendment “by appropriate

legislation,” extending it from Congress to include “the several States.”

H.J.Res. 35 has been referred to the Subcommittee on the Constitution, Civil Rights and Civil

Liberties of the House Committee on the Judiciary.

S.J.Res. 15

A second fresh start ERA proposal introduced in the 116

Congress is S.J.Res. 15, offered by

Senator Bob Menendez of New Jersey on March 27, 2019. To date, Senator Menendez has been

joined by 21 cosponsors.

Senator Menendez’s proposal incorporates the language of the original

ERA, as proposed in the 92

Congress.

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 article shall take effect 2 years after the date of ratification.

S.J.Res. 15 was referred to the Senate Committee on the Judiciary on March 27, 2019.

Discussion

As joint resolutions proposing an amendment to the Constitution, H.J.Res. 35 and S.J.Res. 15

would require approval in identical form by two-thirds of the Members present and voting in both

chambers of Congress. Unlike a standard joint resolution that has the force of law, the President’s

approval is not necessary for joint resolutions that propose amendments.

Both resolutions also

contain within their proposing clause (or preamble) standard language concerning ratification by

Rep. Carolyn B. Maloney, Press Release, “Rep. Maloney, Speaker Quinn, and Council Members Lappin, Brewer,

James, and Chin Join Women Leaders to Announce New, Improved Equal Rights Amendment,” August 13, 2013, at

https://maloney.house.gov/media-center/press-releases/rep-maloney-speaker-quinn-and-council-members-lappin-

brewer-james-and-chin-join-women.

S.J.Res. 21, 68

Congress, 1

session, introduced on December 10, 1923, by Sen. Charles Curtis of Kansas, and H.J.

Res. 75, introduced on December 13 by Rep. Daniel Read Anthony, also of Kansas. Rep. Anthony was a nephew of

women’s rights pioneer Susan B. Anthony.

A list of cosponsors for S.J.Res. 15 is available from Congress.gov at https://www.congress.gov/bill/116th-congress/

senate-joint-resolution/15/cosponsors?q=%7B%22search%22%3A%22equal+rights+amendment%22%7D&s=1&r=6&

overview=closed#tabs.

U.S. Senate website, “Legislation, Laws, and Acts,” at https://www.senate.gov/legislative/common/briefing/

leg_laws_acts.htm#2.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

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the states, that they 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.”

Neither H.J.Res. 35 nor S.J.Res. 15 includes a time limit for ratification, either in their preamble,

or in the body of the amendment. While a ratification deadline has been included in either the

preamble or the text of the 18

and 20

through 26

Amendments, this practice is a tradition

dating to the early 20

century, rather than a constitutional requirement. If Congress were to

propose either of these resolutions to the states as a constitutional amendment, they would

arguably be eligible for ratification indefinitely because no deadline is included in either the

preamble or the text of the amendment. In not setting a ratification deadline, these measures avoid

the expiration issues associated with the original proposed Equal Rights Amendment. They also

arguably embrace the assumption under which the 27

Amendment was ratified in 1992, some

203 years after Congress sent it to the states for approval. According to this school, proposed

amendments remain constitutionally valid and eligible for ratification unless a deadline is

specifically prescribed when the amendment is proposed.

Opponents, however, might argue that

the seven-year ratification deadline first included in the 18

Amendment should not be lightly

discarded. The inclusion of a “sunset” provision on proposed amendments, they could assert, is

necessary to ensure that a contemporaneous majority of the people, acting through their state

legislatures, favors the measure. This issue is examined at greater length later in this report.

Reopening the ERA Ratification Process: Proposals in the 116

Congress

Three resolutions to reopen the ERA approval process in the states by superseding the original

ratification deadline have been introduced to date in the 116

Congress. They include S.J.Res. 6,

introduced in the Senate by Senator Ben Cardin of Maryland on January 25, 2019; H.J.Res. 38,

introduced in the House of Representatives on January 30, 2019 by Representative Jackie Speier

of California; and the identical H.J.Res. 79 introduced on November 8, 2019, also by

Representative Speier. These resolutions would reopen the ERA’s ratification process by

declaring that the amendment proposed by H.J. Res. 208 in the 92

Congress would be valid

whenever ratified, “notwithstanding any time limit contained” in the resolution as proposed. They

are based on what was originally known as the “three-state” argument,

which maintains that

 Congress has the constitutional authority to propose, alter, or terminate any limits

on the ratification of amendments pending before the states;

 all existing ratifications remain in effect and viable; and

 rescissions of ratification passed by some states are invalid. The three-state

argument is examined in detail later in this report.

S.J.Res. 6

This resolution, designed to reopen the ERA ratification process, was introduced by Senator Ben

Cardin of Maryland on January 25, 2019. To date, Senator Cardin has been joined by 19

Article V of the Constitution authorizes Congress to choose the mode of ratification, by either the legislatures of the

several states, or by conventions called for the purpose of considering the proposed amendment.

The 27

Amendment (the Madison Amendment) is examined later in this report.

Although the Equal Rights Amendment has now been ratified by 37 states, this report will generally refer to

proposals to repeal the ERA ratification deadline by its original name, the “three state” process or solution.

See under “Three-State” Proposals.”

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cosponsors.

The purpose of the resolution, as stated in its title, is “[r]emoving the deadline for

ratification of the equal rights amendment.” The text of the resolution states the following:

Resolved by the Senate and House of Representatives of the United States of America in

Congress assembled, That notwithstanding any time limit contained in House Joint

Resolution 208, 92

Congress, as agreed to in the Senate on March 22, 1972, the article of

amendment proposed to the States in that joint resolution shall be valid to all intents and

purposes as part of the Constitution whenever ratified by the legislatures of three-fourths

of the several States.

In common with H.J.Res. 79, the resolving clause of S.J.Res. 6 does not require a two-thirds

majority for passage. It has been referred to the Senate Judiciary Committee.

H.J.Res. 38 and H.J.Res. 79

Two resolutions that would reopen the ERA ratification process have been introduced by

Representative Jackie Speier of California in the 116

Congress, H.J.Res. 38, and H.J.Res. 79,

introduced on January 30, 2019, and November 8, 2019, respectively. The latter measure has been

selected as the legislative vehicle for action in the House.

At the time of this writing,

Representative Speier has been joined by 218 cosponsors for H.J.Res. 79.

The text of the

resolution is identical to that of S.J.Res. 6, reading as follows, including the resolving clause:

Resolved by the Senate and House of Representatives of the United States of America in

Congress assembled, That notwithstanding any time limit contained in House Joint

Resolution 208, 92

Congress, as agreed to in the Senate on March 22, 1972, the article of

amendment proposed to the States in that joint resolution shall be valid to all intents and

purposes as part of the Constitution whenever ratified by the legislatures of three-fourths

of the several States.

H.J.Res. 38 and H.J.Res. 79 were referred to the Subcommittee on the Constitution, Civil Rights

and Civil Liberties of the House Committee on the Judiciary. A hearing was held before the full

Committee on the Judiciary on April 30, 2019;

on November 13, the committee voted to report

an amendment in the nature of a substitute to H.J.Res. 79 to the full House.

Discussion

Proponents of the ERA maintain that because the amendment as originally proposed by Congress

in 1972 did not include a ratification deadline within the amendment text, it remains potentially

viable and eligible for ratification indefinitely. They maintain that Congress possesses the

A list of cosponsors for S.J.Res. 6 is available at Congress.gov at https://www.congress.gov/bill/116th-congress/

senate-joint-resolution/6/cosponsors?q=%7B%22search%22%3A%5B%22sj+res+6%22%5D%7D&r=1&s=1.

The reason H.J.Res. 79 was selected as the legislative vehicle may be the result of language included in H.J.Res. 38.

In its resolving clause, the resolution stated that the concurrence of both houses of Congress would be necessary for

passage, a requirement for proposed constitutional amendments. As the resolution does not propose a constitutional

amendment, it does not require the two-thirds supermajority to pass. By comparison, both H.J.Res. 35 and S.J.Res. 15

require concurrence of two-thirds of the Members of both chambers because they are proposing new “fresh start”

versions of the ERA.

A list of cosponsors for H.J.Res. 79 is available at Congress.gov at https://www.congress.gov/bill/116th-

congress/house-joint-

resolution/79/cosponsors?q=%7B%22search%22%3A%22equal+rights+amendment%22%7D&r=4&s=1.

See House Judiciary Committee website at https://judiciary.house.gov/legislation/hearings/equal-rights-amendment.

See House Judiciary Committee website at https://judiciary.house.gov/legislation/markups/h-j-res-79-removing-

deadline-ratification-equal-rights-amendment.

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authority both to remove the original 1979 ratification deadline and its 1982 extension, and to

restart the ratification clock at the current level, with or without a future ratification deadline.

ERA supporters assert that Article V of the Constitution gives Congress broad authority over the

amendment process. As Judiciary Committee Chairman Representative Jerrold Nadler maintained

in his markup session statement,

As to Congress’s authority to change or eliminate the ratification deadline, Article V of the

Constitution, which governs the constitutional amendment process, does not provide for a

ratification deadline of any kind. Article V also contemplates that Congress alone is

responsible for managing the constitutional amendment process, given that it assigns only

to Congress an explicit role in the amendment process and does not mention any role for

the Executive or Judicial Branches.

Proponents of the amendment further cite the Supreme Court’s decision in Coleman v. Miller in

support of their position. They also note the precedent of the Twenty-Seventh

“Madison”

Amendment, which was ratified in 1992, 203 years after Congress proposed it to the states.

Ranking Member Representative Doug Collins disputed these assertions, noting in his statement

on the markup that

[t]he so-called “Equal Rights Amendment” failed to be ratified by three-quarters of the

states under a congressionally-mandated deadline. The states relied on that deadline during

the ratification debates. That deadline expired in 1979, and Congress lacks any power to

retroactively revive a failed constitutional amendment.

The U.S. Supreme Court recognized just that in 1982, when it stated the issue was moot

since the deadline for ERA ratification expired before the requisite number of states

approved it.

These and other questions associated with ERA ratification issues are examined in greater detail

later in this report, under “Contemporary Viability of the Equal Rights Amendment.”

Recent Activity in the State Legislatures: Nevada and Illinois

Although the ratification deadline for the proposed ERA expired in 1982, its proponents have

continued to press for action in the legislatures of states that either failed to ratify it, or had

previously rejected the amendment. Recent notable developments in the states include action by

Nevada in 2017 and Illinois in 2018 to ratify the amendment. Also in 2018, however, proposals to

U.S. Congress, House, Committee on the Judiciary, “Chairman Nadler Statement for the Markup of H.J.Res. 79,

‘Removing the Deadline for Ratification of the Equal Rights Amendment,’” November 13, 2019, at

https://judiciary.house.gov/news/press-releases/chairman-nadler-statement-markup-hjres-79-removing-deadline-

ratification-equal.

These issues are examined in detail later in this report, at “Contemporary Viability of the Equal Rights Amendment.”

U.S. Congress, House, Committee on the Judiciary, “Collins Statement on H.J.Res. 79 Markup,” November 13,

2019, at https://republicans-judiciary.house.gov/press-release/collins-statement-on-h-j-res-79-markup/.

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ratify the ERA failed to reach the floor of state legislatures in Arizona,

Virginia,

and North

Carolina.

Nevada and Illinois Ratify the Equal Rights Amendment

The most widely publicized recent ERA developments in the states occurred in March 2017 and

May 2018, when Nevada and Illinois ratified the proposed amendment. Their actions raised the

number of state ratifications to 37.

On March 22, 2017, the Nevada legislature completed action on a resolution approving the ERA

as proposed by H.J.Res. 208 in the 92

Congress. With this action, Nevada became the 36

state

to ratify the ERA, and the first state to do so since 1977. The ratification measure, introduced on

February 17 as Senate Joint Resolution 2 (SJR2), passed the Nevada Senate on March 1 and the

Nevada House of Representatives on March 20. The Senate’s concurrence with a House

amendment on March 22 completed the ratification process.

The choice of dates had historical

significance: H.J.Res. 208 was proposed by Congress on March 22, 1972, exactly 45 years

earlier.

Press accounts of the action noted that the ratification marked a reversal of earlier

actions in Nevada. Efforts to secure ERA ratification in the legislature failed three times in the

1970s and failed once when placed on the ballot as an advisory ballot issue in 1978.

With

Nevada’s ratification, the three-state strategy arguably changed to a “two-state strategy,” and the

legislature’s action was reported as “being read by [ERA] supporters as an encouraging sign,”

while the Eagle Forum, an advocacy group historically opposed to the ERA,

restated its

criticism of the amendment, noting the deadline for ratification had been passed in 1982.

Dustin Gardiner, “On Equal Pay Day Arizona Republicans Block Vote on Equal Rights Amendment,” The

Republic/AZCentral.com, April 10, 2018, at https://www.azcentral.com/story/news/politics/arizona/2018/04/10/equal-

rights-amendment-vote-fails-arizona-legislature/504763002/.

Patricia Sullivan, “Virginia’s Hopes of ERA Ratification Go Down in Flames This Year,” Washington Post,

February 9, 2018, at https://www.washingtonpost.com/local/virginia-politics/virginias-hopes-of-era-ratification-go-

down-in-flames-this-year/2018/02/09/7acfbf80-0dab-11e8-8890-372e2047c935_story.html?utm_term=.c4e112eebca7.

North Carolina’s General Assembly adjourned on October 28, 2019, without acting on proposals to ratify the ERA—

HB 271 in the House and SB 184 in the Senate—which were referred to committee but not scheduled for floor

consideration in the 2019 session. See North Carolina General Assembly website at https://www.ncleg.gov/

BillLookUp/2019/hb%20271, for HB 2271, and https://www.ncleg.gov/BillLookUp/2019/sb%20184, for SB 184.

Nevada Legislature website, SJR 2, at https://www.leg.state.nv.us/Session/79th2017/Reports/history.cfm?ID=319.

The governor’s approval is not required for ratification of a constitutional amendment. The vote in favor of ratification

was 13-8 in the Senate and 28-14 in the Assembly, at https://www.leg.state.nv.us/Session/79th2017/Reports/

history.cfm?DocumentType=8&BillNo=2.

Sandra Cherb, “Nevada Ratifies Equal Rights Amendment on 45

Anniversary of Passage by Congress,” Las Vegas

Review Journal, March 22, 2017, at https://www.reviewjournal.com/news/politics-and-government/nevada/nevada-

ratifies-equal-rights-amendment-on-45th-anniversary-of-passage-by-congress//.

“Nevada Ratifies Equal Rights Amendment on 45

Anniversary of Passage by Congress,” Las Vegas Review

Journal, March 22, 2017, at https://www.reviewjournal.com/news/politics-and-government/nevada/nevada-ratifies-

equal-rights-amendment-on-45th-anniversary-of-passage-by-congress//.

“Pumping Life into the Equal Rights Amendment,” New York Times, March 25, 2017, at https://www.nytimes.com/

2017/03/25/opinion/sunday/pumping-life-into-the-equal-rights-amendment.html?_r=0.

The Eagle Forum was an early opponent of ERA. Its self-described mission is “to enable conservative and pro-family

men and women to participate in the process of self-government and public policy making.... ” Eagle Forum, “Our

Mission,” at http://eagleforum.org/misc/descript.html.

“Nevada’s Assembly Passed the So-Called Equal Rights Amendment for Final Passage Today,” Eagle Forum, March

20, 2017, at http://eagleforum.org/state-news/nevada/nevada-passed-era.html.

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On May 30, 2018, the Illinois legislature completed action on a resolution approving the ERA as

proposed by H.J.Res. 208 in the 92

Congress. With this action Illinois became the 37

state to

ratify the amendment. The ratification measure, introduced as SJRCA (Senate Joint Resolution

Constitutional Amendment 0004) on February 7, 2018, was adopted by the Senate as originally

introduced on April 11 and in its final form by the Senate and House of Representatives on May

30.

The governor’s approval was not required.

Prospects for Action in Virginia, 2020

In 2019, measures proposing ratification of the Equal Rights Amendment failed to gain floor

consideration in the Virginia Assembly. The elections of 2019, however, resulted in a change of

party control in both houses of the legislature. Given the broad support enjoyed by the ERA

among legislators of the new majority, the change may result in early votes on the floor of both

chambers to approve ratification of the proposed amendment. Ratification by Virginia in 2020

would arguably carry significant symbolic meaning in the 48-year campaign for approval of the

amendment in the states, as it would mark the 38

state vote in favor of the ERA, thus arguably

meeting the requirement that three-fourths of the states must ratify proposed amendments before

they can be incorporated as “valid to all Intents and Purposes, as Part of this Constitution ….”

According to press accounts, Virginia legislators began on November 18, 2019, to file bills

addressing various policy issues, including ratification of the ERA, which will be considered

when the General Assembly convenes on January 8, 2020.

Contemporary Public Attitudes Toward the Equal Rights

Amendment

Public opinion polls showed support through the 1990s for an equal rights amendment. The first

recorded survey on support for the proposal was a CBS News telephone poll conducted in

September 1970, in which 56% of respondents approved of an equal rights amendment.

Favorable attitudes remained steady in the 1970s and throughout the subsequent ratification

period, during which time levels of support as reported by the Gallup Poll never dropped below

57%. A later ERA-specific survey conducted by CBS News in 1999 reported that 74% of

respondents supported the proposed ERA, while 10% were opposed.

Illinois General Assembly website, 100

General Assembly, Bill Status of SJRCA0004, at http://www.ilga.gov/

legislation/billstatus.asp?DocNum=4&GAID=14&GA=100&DocTypeID=SJRCA&LegID=99262&SessionID=91.

Rick Pearson and Bill Lukitch, “Illinois Approves Equal Rights Amendment 36 Years after Deadline,” Chicago

Tribune, May 31, 2018, at http://www.chicagotribune.com/news/local/politics/ct-met-equal-rights-amendment-illinois-

20180530-story.html.

Gregory S. Schneider, “Virginia Democrats Out of the Gate Quickly with Bills for Next Year: ERA, Gun Control,

Voting Access,” Washington Post, November 18, 2019, at https://www.washingtonpost.com/local/virginia-politics/

virginia-democrats-out-of-the-gate-quickly-with-bills-for-next-year-era-gun-control-voting-access/2019/11/18/

ec1ccec2-0a24-11ea-bd9d-c628fd48b3a0_story.html.

CBS News Survey, September 8-10, 1970. Source: Jane J. Mansbridge, Why We Lost the ERA (Chicago: U. of

Chicago Press, 1986), pp. 206-209.

Major survey research firms regularly conducted surveys of public attitudes toward the Equal Rights Amendment

between the 1970s and the 1990s. Their findings reflected consistent support for the proposed amendment throughout

the ratification period. For instance, an early Gallup Poll, conducted in March 1975, showed 58% of respondents

favored the proposed ERA, while 24% opposed it, and 18% expressed no opinion. These levels of support changed

little during the period when the ERA was pending before the states, never dropping below a 57% approval rate.

Source: The Gallup Poll, Public Opinion, 1982 (Wilmington, DE: Scholarly Resources Inc., 1982), p. 140. In ensuing

years, public support rose. One later survey, conducted by the CBS News Poll in 1999, reported that 74% of

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The ERA’s expiration as a pending constitutional amendment was eventually followed by

corresponding fall-off in related polling; there is little evidence of related activity by major survey

research organizations after 1999, a development that is arguably due to the fact that the ERA was

presumed to be a closed issue.

More recently, in 2017, the Harris Survey conducted a poll on women’s status in American

society. While it did not include a specific question concerning the ERA, the Harris Survey

included the following query: “There has been much talk recently about changing women’s status

in society today. On the whole, do you favor or oppose most of the efforts to strengthen and

change women’s status in society?” Sixty-six percent of respondents favored strengthening and

changing women’s status in society, 7% were opposed, and 27% were not sure.

Equal Rights Amendment Perspectives: Legislative

and Ratification History, 1923-1972

Despite the efforts of women’s rights advocates in every Congress, nearly 50 years passed

between the time when the Mott Amendment was first introduced in 1923 and the Equal Rights

Amendment was approved by Congress and proposed to the states in 1972.

Five Decades of Effort: Building Support for an Equal Rights

Amendment in Congress, 1923-1970

The first proposal for an equal rights amendment, drafted by Alice Paul, was introduced in the

Congress in 1923.

In its original form, the text of the amendment read as follows:

Men and women shall have equal rights throughout the United States and every place

subject to its jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

Although Alice Paul characterized the then-Lucretia Mott Amendment as a logical and necessary

next step in the campaign for women’s rights following the Nineteenth Amendment, the proposal

made little progress in Congress over the course of more than two decades. During the years

following its first introduction, an equal rights amendment was the subject of hearings in either

the House or Senate in almost every Congress. According to one study, the proposal was the

subject of committee action, primarily hearings, on 32 occasions between 1923 and 1946, but it

came to the floor for the first time—in the Senate—only in the latter year.

During this period,

however, the proposal continued to evolve. In 1943, for instance, the Senate Judiciary Committee

respondents supported the proposed ERA, while 10% were opposed. Source: CBS News Poll, “Slow Progress for

Women,” conducted December 13-16, 1999, at http://www.cbsnews.com/news/poll-slow-progress-for-women/.

“Two in Three Americans Favor Enhancing Women’s Status in Society,” The Harris Survey, March 10, 2017, at

https://theharrispoll.com/as-americans-took-part-in-international-womens-day-a-collective-day-of-global-celebration-

and-a-call-for-gender-parity-a-new-harris-poll-finds-that-two-in-three-americans-66-say-they-favo/.

S.J. Res. 21, 68

Congress, 1

session, introduced on December 10, 1923, by Sen. Charles Curtis of Kansas, and H.J.

Res. 75, introduced on December 13 by Rep. Daniel Read Anthony, also of Kansas. Rep. Anthony was a nephew of

women’s rights pioneer Susan B. Anthony.

S.J. Res. 21, and H.J. Res. 75, 68

Congress, 1

session.

Amelia Fry, “Alice Paul and the ERA,” in Joan Hoff Wilson, ed., Rights of Passage, The Past and Future of the ERA

(Bloomington, IN: Indiana U. Press, 1986), pp. 13-16.

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reported a version of an equal rights amendment incorporating revised language that remained

unchanged until 1971:

Equality of rights under the law shall not be denied or abridged by the United States or by

any State on account of sex.

Congress and the several states shall have power, within their respective jurisdictions, to

enforce this article by appropriate legislation.

Throughout this period, amendment proponents faced opposition from traditionalists, organized

labor, and some leaders of the women’s movement. According to one study of the amendment’s

long pendency in Congress, “[t]he most persistent and most compelling trouble that crippled

prospects for an ERA from its introduction in 1923 until a year after Congress initially passed it

on to the states was opposition from most of organized labor during a period of ascending labor

strength.”

A principal objection raised by organized labor and women’s organizations that

opposed the amendment was concern that the ERA might lead to the loss of protective legislation

for women, particularly with respect to wages, hours, and working conditions.

One historian

notes the following:

Through the years of the New Deal and the Truman administration, however, protective

legislation for women held a firm place in organized labor’s list of policy favorites. Since

an ERA threatened protective laws, it and its supporters qualified as the enemy.

The nature of opposition from women’s groups was illustrated by a 1946 statement issued by 10

prominent figures, including former Secretary of Labor Frances Perkins and former First Lady

Eleanor Roosevelt, which asserted that an equal rights amendment would “make it possible to

wipe out the legislation which has been enacted in many states for the special needs of women in

industry.”

These attitudes toward the proposal persisted, even as women in great numbers entered the

civilian workforce and the uniformed services during the four years of U.S. involvement in World

War II (1941-1945), taking jobs in government, industry, and the service sector that had

previously been filled largely by men. Congressional support for an equal rights amendment grew

slowly in the late 1940s, but a proposal eventually came to the Senate floor, where it was the

subject of debate and a vote in July 1946. Although the 39-35 vote to approve fell short of the

two-thirds of Senators present and voting required by the Constitution, it was a symbolic first

step.

The so-called Hayden rider, named for its author, Senator Carl Hayden of Arizona, was perhaps

emblematic of the arguments ERA advocates faced during the early post-war era. First introduced

during the Senate’s 1950 debate, this proposal stated the following:

S.J. Res. 25, 78

Congress, introduced by Sen. Guy Gillette of Iowa.

Gilbert Y. Steiner, Constitutional Inequality: The Political Fortunes of the Equal Rights Amendment (Washington,

DC: Brookings Institution, 1985), p. 7.

Kathryn Kish Sklar, “Why Were Most Politically Active Women Opposed to the ERA in the 1920s?” in Rights of

Passage, pp. 25-28. Opponents included the League of Women Voters and the General Federation of Women’s Clubs.

Steiner, Constitutional Inequality, pp. 7-10.

Steiner, Constitutional Inequality, p. 10.

Steiner, Constitutional Inequality, p. 52.

“Equal Rights Amendment,” Congressional Quarterly Almanac, 81

Congress, Second Session, 1950, vol. V

(Washington, DC: Congressional Quarterly News Features, 1951), p. 419.

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The provisions of this article shall not be construed to impair any rights, benefits, or

exemptions conferred by law upon persons of the female sex.

Although the rider’s ostensible purpose was to safeguard protective legislation, one source

suggested an ulterior motive: “Hayden deliberately added the riders in order to divide the

amendment’s supporters, and these tactics delayed serious consideration of the unamended

version of the Equal Rights Amendment.”

Whatever the rider’s intent, it was not welcomed by

ERA supporters,

and was opposed on the floor by Senator Margaret Chase Smith of Maine, at

that time the only woman Senator.

The Senate ultimately passed an equal rights amendment resolution that included the Hayden

rider twice in the 1950s. In the 81

Congress, S.J. Res. 25, introduced by Senator Guy Gillette of

Iowa and numerous co-sponsors, was approved by a vote of 63-19 on January 25, 1950, a margin

that comfortably surpassed the two-thirds of Members present and voting required by the

Constitution.

An amendment came before the Senate again in the 83

Congress, when Senator

John M. Butler of Maryland and co-sponsors introduced S.J. Res. 49. The resolution, as amended

by the Hayden rider, passed by a vote of 73-11 on July 16, 1953.

Over the next 16 years, the

Senate considered various equal rights amendment resolutions in committee in almost every

session, but no proposal was considered on the floor during this period. By 1964, however, the

Hayden rider had lost support in the Senate as perceptions of the equal rights amendment concept

continued to evolve. In the 88

Congress, the Senate Judiciary Committee effectively removed it

from future consideration when it stated in its report:

Your committee has considered carefully the amendment which was added to this proposal

on the floor of the Senate.... Its effect was to preserve “rights, benefits, or exemptions”

conferred by law upon persons of the female sex. This qualification is not acceptable to

women who want equal rights under the law. It is under the guise of so-called “rights” or

“benefits” that women have been treated unequally and denied opportunities which are

available to men.

Between 1948 and 1970, however, the House of Representatives took no action on an equal rights

amendment. Throughout this period, Representative Emanuel Celler of New York had blocked

consideration of the amendment in the Judiciary Committee, which he chaired from 1949 to 1953

and again from 1955 to 1973. A Member of the House since 1923, Chairman Celler had been a

champion of New Deal social legislation, immigration reform, civil rights legislation, and related

See S.J. Res. 25, as amended, 81

Congress.

Mary Frances Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution

(Bloomington, IN: Indiana U. Press, 1986), p. 60.

In oral history interviews conducted between November 1972 and March 1973, Alice Paul recalled that Sen.

Hayden’s intentions in introducing the rider were sincere, and that he was dismayed when she told him it made the

amendment unacceptable to many ERA activists. See “Conversations with Alice Paul: Women’s Suffrage and the

Equal Rights Amendment,” Suffragists Oral History Project, U. of California, Calisphere, c. 1976, at

http://content.cdlib.org/view?docId=kt6f59n89c&brand=calisphere&doc.view=entire_text.

While she voted against the rider, Sen. Smith voted yes on final passage of the resolution as amended, which

included the rider. Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), p. 870. See also,

Congressional Quarterly Almanac, 1950, p. 420.

Senate debate, Congressional Record, vol. 96, pt. 1 (January 25, 1950), pp. 870-873. For an analysis of the vote, see

Congressional Quarterly Almanac, 1950, pp. 419-422.

As with her vote in 1950, Sen. Smith opposed the rider, but voted yes on final passage of the resolution in 1953.

Senate debate, Congressional Record, vol. 99, pt. 7 (July 16, 1953), p. 8974.

U.S. Congress, Senate, Committee on the Judiciary, Equal Rights for Men and Women, report to accompany S.J. Res.

45, S. Rept. 1558, 88

Congress, 2

session (Washington, DC: GPO, 1964), p. 2.

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measures throughout his career, but his strong connections with organized labor, which, as noted

earlier, opposed an equal rights amendment during this period, may have influenced his attitudes

toward the proposal.

Congress Approves and Proposes the Equal Rights Amendment,

1970-1972

Although proposals for an equal rights constitutional amendment continued to be introduced in

every Congress, there was no floor consideration of any proposal by either chamber for almost

two decades following the Senate’s 1953 action. By the early 1970s, however, the concept had

gained increasing visibility as one of the signature issues of the emerging women’s movement in

the United States. As one eyewitness participant later recounted:

The 1960s brought a revival of the women’s rights movement and more insistence on

changed social and legal rights and responsibilities. The fact of women’s involvement in

the civil rights movement and the anti-war movement and their changed role in the

economy created a social context in which many women became active supporters of

enhanced legislation for themselves.

By the time the concept of an equal rights amendment emerged as a national issue, it had also

won popular support, as measured by public opinion polling. As noted earlier in this report, the

first recorded survey on support for the proposal was a CBS News telephone poll conducted in

September 1970, in which 56% of respondents favored an equal rights amendment.

Favorable

attitudes remained consistent during the 1970s and throughout the subsequent ratification

period.

Labor opposition also began to fade, and in April 1970, one of the nation’s largest and

most influential unions, the United Auto Workers, voted to endorse the concept of an equal rights

amendment.

In actions that perhaps reflected changing public attitudes, Congress had also moved during the

1960s on several related fronts to address women’s equality issues. The Equal Pay Act of 1963

“prohibited discrimination on account of sex in payment of wages,”

while the Civil Rights Act

of 1964 banned discrimination in employment on the basis of race, color, religion, sex, or national

origin [emphasis added].

Although it remained pending, but unacted upon in Congress,

proposals for an equal rights amendment had gained support in other areas. The Republican Party

had endorsed an earlier version of the amendment in its presidential platform as early as 1940,

followed by the Democratic Party in 1944.

Both parties continued to include endorsements in

their subsequent quadrennial platforms, and, by 1970, Presidents Eisenhower, Kennedy, Lyndon

Johnson, and Nixon were all on record as having endorsed an equal rights amendment.

Steiner, Constitutional Inequality, pp. 14-15.

Berry, Why ERA Failed, Politics, Women’s Rights, and the Amending Process of the Constitution, p. 60.

CBS News Survey, September 8-10, 1970. Source: Jane J. Mansbridge, Why We Lost the ERA (Chicago: U. of

Chicago Press, 1986), pp. 206-209.

See above at “Contemporary Public Attitudes Toward the Equal Rights Amendment.”

Mansbridge, Why We Lost the ERA, p. 12.

Equal Pay Act of 1963, 77 Stat. 56.

Title VII, Civil Rights Act of 1964, 78 Stat. 241.

Donald Bruce Johnson, comp., National Party Platforms, vol. I, 1840-1956 (Urbana, IL: U. of Illinois Press, 1978),

pp. 393, 403.

U.S. President’s Task Force on Women’s Rights and Responsibilities, A Matter of Simple Justice (Washington, DC:

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First Vote in the House, 91

Congress—1970

Representative Martha Griffiths of Michigan is widely credited with breaking the legislative

stalemate that had blocked congressional action on a series of equal rights amendment proposals

for more than two decades.

Against the background of incremental change outside Congress,

Representative Griffiths moved to end the impasse in House consideration of the amendment. On

January 16, 1969, she introduced H.J. Res. 264, proposing an equal rights amendment, in the

House of Representatives. The resolution was referred to the Judiciary Committee where, as had

been expected, no further action was taken.

On June 11, 1970, however, Representative Griffiths

took the unusual step of filing a discharge petition to bring the proposed amendment to the floor.

A discharge petition “allows a measure to come to the floor for consideration, even if the

committee of referral does not report it and the leadership does not schedule it.”

In order for a

House committee to be discharged from further consideration of a measure, a majority of

Representatives (218, if there are no vacancies) must sign the petition. As reported at the time, the

use of the discharge petition had seldom been invoked successfully, having gained the necessary

support only 24 times since the procedure had been established by the House of Representatives

in 1910, and Representative Griffiths’ filing in 1970.

By June 20, Representative Griffiths

announced that she had obtained the necessary 218 Member signatures for the petition.

Although the Judiciary Committee had neither scheduled hearings nor issued a report, the

resolution was brought to the House floor on August 10. The House approved the motion to

discharge by a vote of 332 to 22, and approved the amendment itself by a vote of 334 to 26.

The Senate had begun to act on a resolution proposing an equal rights amendment in the 91

Congress in 1970, before the amendment came to the House floor. In May, the Judiciary

Committee’s Subcommittee on Constitutional Amendments held hearings on S.J.Res. 61, the

Senate version of an amendment. These hearings were followed by hearings in the full committee

in September, and consideration on the Senate floor in early October. Floor debate was dominated

by consideration and adoption of two amendments that would have (1) exempted women from

compulsory military service, and (2) permitted nondenominational prayer in public schools; and a

final amendment that provided alternative language for the resolution. Thus encumbered, the

Senate resolution was unacceptable to ERA supporters, but, in any event, the Senate adjourned on

October 14 without a vote on the resolution as amended, and failed to bring it to the floor for final

action in the subsequent lame-duck session.

GPO, 1970), p. 5.

“Martha Griffiths and the Equal Rights Amendment,” National Archives, Center for Legislative Archives, at

http://www.archives.gov/legislative/features/griffiths.

Congressional Record, vol. 115, pt. 1 (January 16, 1969), p. 1144.

CRS Report 97-552, The Discharge Rule in the House: Principal Features and Uses, by Richard S. Beth, p. 3.

“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 91

Congress, 2

Session—1970,

vol. XXVI (26) (Washington, DC: Congressional Quarterly, Inc., 1970), p. 707.

“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 91

Congress, 2

Session—1970,

vol. XXVI (26), p. 707.

For debate and vote on the amendment, see Congressional Record, vol. 116, pt. 21 (August 10, 1970), pp. 28004-

28037.

“Equal Rights for Women Dropped in Senate,” Congressional Quarterly Almanac, 1970, pp. 708-709.

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Passage and Proposal by Congress, 92

Congress—1971-1972

In the 92

Congress, Representative Griffiths began the process anew in the House of

Representatives when she introduced H.J.Res. 208, proposing an equal rights amendment.

Chairman Celler continued to oppose it, but no longer blocked committee action. After

subcommittee and full committee hearings, the House Judiciary Committee reported an

amendment on July 14, but the resolution as reported included amendments concerning

citizenship, labor standards, and the exemption of women from selective service that were

unacceptable to ERA supporters. When H.J.Res. 208 came to the floor in early October, however,

the House stripped out the committee amendments, and, on October 12, it approved the resolution

by a bipartisan vote of 354 to 24.

The Senate took up the House-passed amendment during the second session of the 92

Congress,

in March 1972. On March 14, the Judiciary Committee reported a clean version of H.J. Res. 208

after rejecting several amendments, including one adopted by the Subcommittee on the

Constitution, and several others offered in the full committee. The resolution was called up on

March 15, and immediately set aside. The Senate began debate on the amendment on March 17,

with Senator Birch Bayh of Indiana, a longtime ERA supporter, as floor manager. On the same

day, President Richard Nixon released a letter to Senate Republican Leader Hugh Scott of

Pennsylvania reaffirming his endorsement of the Equal Rights Amendment.

After two days in

which the Members debated the proposal, Senator Sam Ervin of North Carolina offered a series

of amendments that, among other things, would have exempted women from compulsory military

service and service in combat units in the U.S. Armed Forces, and preserved existing gender-

specific state and federal legislation that extended special exemptions or protections to women.

Over the course of two days, Senator Ervin’s amendments were serially considered and rejected,

generally by wide margins. On March 22, the Senate approved the House version of the

amendment, H.J. Res. 208, by a vote of 84 to 8, with strong bipartisan support.

The text of H.J. Res. 208—the Equal Rights Amendment as proposed by the 92

Congress—

follows:

House Joint Resolution 208

Proposing an amendment to the Constitution of the United States relative to equal rights

for men and women.

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 vote in the House was 217 Democrats and 137 Republicans in favor, 12 Democrats and 12 Republicans opposed.

Congressional Record, vol. 117, pt. 27 (October 12, 1971), p. 35815. See also “House Passes Equal Rights

Constitutional Amendment,” Congressional Quarterly Almanac, 92

Congress, 1

Session, 1971, vol. XXVII (27)

(Washington, DC: Congressional Quarterly Inc. 1972), pp. 656-658.

In his letter, President Nixon noted that he had co-sponsored the ERA as a freshman Senator in 1951, and that he

remained committed to the amendment. “Letter to the Senate Minority Leader About the Proposed Constitutional

Amendment on Equal Rights for Men and Women,” U.S. President, Public Papers of the Presidents of the United

States, Richard Nixon, 1972 (Washington, DC: GPO, 1972), p. 444.

The Senate vote was 47 Democrats and 37 Republicans in favor; two Democrats and six Republicans opposed.

Congressional Record, vol. 118, pt. 8 (March 22, 1972), p. 9598. See also “Equal Rights: Amendment Passed over

Ervin Opposition,” Congressional Quarterly Almanac, 92

Congress, 2

session, 1972, vol. XVIII (18) (Washington,

DC: Congressional Quarterly Inc. 1973), pp. 199-204.

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the legislatures of three-fourths of the several States within seven years of its submission

by the Congress:

“Section 1. Equality of rights under the law shall not be denied or abridged by the United

States or 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.”

The action of the two chambers in approving H.J. Res. 208 by two-thirds majorities of Members

present and voting (91.3% in the Senate and 93.4% in the House) had the effect of formally

proposing the amendment to the states for ratification.

Congress Sets a Seven-Year Ratification Deadline

When it proposed the Equal Rights Amendment, Congress stipulated in the preamble of the joint

resolution that the ERA was to be ratified by the constitutionally requisite number of state

legislatures (38 then as now) within seven years of the time it was proposed, in order to become a

valid part of the Constitution. A time limit for ratification was first instituted with the Eighteenth

Amendment,

proposed in 1917, and, with the exception of the Nineteenth Amendment and the

Child Labor Amendment, all subsequent proposed amendments have included a ratification

deadline of seven years.

With respect to the Child Labor Amendment, Congress did not incorporate a ratification deadline

when it proposed the amendment in 1924. It was ultimately ratified by 28 states through 1937, 8

short of the 36 required by the Constitution at that time, the Union then comprising 48 states.

Although the amendment arguably remains technically viable because it lacked a deadline when

proposed, the Supreme Court in 1941 upheld federal authority to regulate child labor as

incorporated in the Fair Labor Standards Act of 1938 (52 Stat. 1060) in the case of United States

v. Darby Lumber Company (312 U.S. 100 (1941)). In this case, the Court reversed its earlier

decision in Hammer v. Dagenhart (24 U.S. 251 (1918)), which ruled that the Keating-Owen Child

Labor Act of 1916 (39 Stat. 675) was unconstitutional. The amendment is thus widely regarded as

having been rendered moot by the Court’s 1941 decision.

In the case of the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments, the

“sunset” ratification provision was incorporated in the body of the amendment itself. For

subsequent amendments, however, Congress determined that inclusion of the time limit within its

body “cluttered up” the proposal. Consequently, all but one of the subsequently proposed

amendments

—the Twenty-Third, Twenty-Fourth, Twenty-Fifth and Twenty-Sixth,

and the

ERA—placed the limit in the preamble or authorizing resolution, rather than in the body of the

amendment itself.

This decision, seemingly uncontroversial at the time, was later to have

profound implications for the question of extending the ratification window for the ERA.

The origins of and rationale for the seven-year ratification deadline are examined in greater detail later in this report.

John R. Vile, “Child Labor Amendment,” in Encyclopedia of Constitutional Amendments, Proposed Amendments,

and Amending Issues, 1789-2010, 3

edition (Santa Barbara, CA: ABC-CLIO, 2010), vol. 2, p. 65.

Only the proposed District of Columbia Voting Rights (Congressional Representation) Amendment included a

ratification deadline within the body of the amendment. This exception is examined later in this report.

Constitution Annotated, Analysis and Interpretation of the U.S. Constitution, “Article V1.2, Proposing an

Amendment,” at https://constitution.congress.gov/browse/essay/artV_1_2/; hereafter, Constitution Annotated.

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Ratification Efforts in the States

States initially responded quickly once Congress proposed the Equal Rights Amendment for their

consideration. Hawaii was the first state to ratify, on March 22, 1972, the same day the Senate

completed action on H.J. Res. 208. By the end of 1972, 22 states had ratified the amendment, and

it seemed well on its way to adoption. Opposition to the amendment, however, began to coalesce

around organizations like “STOP ERA,” which revived many of the arguments addressed during

congressional debate.

Opponents also broadly asserted that ratification of the amendment would

set aside existing state and local laws providing workplace and other protections for women and

would lead to other, unanticipated negative social and economic effects.

In 1976, ERA

supporters established a counter-organization, “ERAmerica,” as an umbrella association to

coordinate the efforts of pro-amendment groups and serve as a high-profile national advocate for

the amendment.

Opposition to the proposed Equal Rights Amendment continued to gain strength, although, as

noted earlier in this report, public approval of the amendment never dropped below 54% during

the ratification period.

Following the first 22 state approvals, 8 additional states ratified in 1973,

3 more in 1974, and 1 each in 1975 and 1977, for an ultimate total of 35, 3 short of the

constitutional requirement of 38 state ratifications.

At the same time, however, ERA opponents

in the states promoted measures in a number of legislatures to repeal or rescind their previous

ratifications. Although the constitutionality of such actions has long been questioned, by 1979,

five states had passed rescission measures.

The question of rescission will be addressed in detail

later in this report.

Ratification Is Extended in 1978, but Expires in 1982

By the late 1970s, the ratification process had clearly stalled, and the deadline for ratification as

specified in the preamble to H.J. Res. 208 was approaching. Reacting to the impending “sunset”

date of March 22, 1979, ERA supporters developed a novel strategy to extend the deadline by

congressional resolution. The vehicle chosen by congressional supporters was a House joint

resolution, H.J.Res. 638, introduced in the 95

Congress on October 26, 1977, by Representative

Founded by political activist Phyllis Schlafly, STOP ERA, which was renamed “Eagle Forum” in 1975, continued,

among other issues, to oppose the ERA in 2019. See “10 Reasons to Oppose the Equal Rights Amendment,” Eagle

Forum website, 2019, at https://eagleforum.org/topics/era/10-reasons-to-oppose-equal-rights-amendment.html.

David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence, KS: University

of Kansas Press, 1996), pp. 409-412.

Kyvig, Explicit and Authentic Acts…, pp. 409-412; Berry, Why ERA Failed, p. 69. ERAmerica drew support from

such organizations as the League of Women Voters, American Association of University Women, Federation of

Business and Professional Women’s Clubs, and other pro-ERA organizations.

Mansbridge, Why We Lost the ERA, pp. 206-209.

Ratifications by year and order of approval: 1972: Hawaii, New Hampshire, Delaware, Iowa, Kansas, Idaho,

Nebraska, Texas, Tennessee, Alaska, Rhode Island, New Jersey, Colorado, West Virginia, Wisconsin, New York,

Michigan, Maryland, Massachusetts, Kentucky, Pennsylvania, and California; 1973: Wyoming, South Dakota, Oregon,

Minnesota, New Mexico, Vermont, Connecticut, and Washington; 1974: Maine, Montana, and Ohio; 1975: North

Dakota; 1977: Indiana; 2017: Nevada; 2018: Illinois. Source: The Equal Rights

Amendment/equalrightsamendment.org, “State Ratifications of the ERA,” at https://www.equalrightsamendment.org/

era-ratification-map.

State rescissions by year: 1973: Nebraska; 1974: Tennessee; 1977: Idaho; 1978: Kentucky; 1979: South Dakota.

Source: The Equal Rights Amendment/equalrightsamendment.org, “State Ratifications of the ERA,” at

https://www.equalrightsamendment.org/era-ratification-map.

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Congressional Research Service 17

Elizabeth Holtzman

of New York and others. In its original form, the resolution proposed to

extend the deadline an additional seven years, thus doubling the original ratification period.

During hearings in the House Judiciary Committee’s Subcommittee on Civil and Constitutional

Rights, legal scholars debated questions on the authority of Congress to extend the deadline;

whether an extension vote should be by a simple majority or a supermajority of two-thirds of the

Members present and voting; and if state rescissions of their ratifications were lawful. The full

Judiciary Committee also addressed these issues during its deliberations in 1978.

Continuing

controversy in the committee and opposition to extending the ratification period a full seven years

led to a compromise amendment to the resolution that reduced the proposed extension to three

years, three months, and eight days. ERA supporters accepted the shorter period as necessary to

assure committee approval of the extension. Two other changes, one that would have recognized

the right of states to rescind their ratifications, and a second requiring passage of the extension in

the full House by a two-thirds super majority, were both rejected by the committee when it

reported the resolution to the House on July 30.

The full House debated the resolution during summer 1978, rejecting an amendment that

proposed to recognize states’ efforts to rescind their instruments of ratification. Another

amendment rejected on the floor would have required votes on the ERA deadline extension to

pass by the same two-thirds vote necessary for original actions proposing constitutional

amendments. The House adopted the resolution by a vote of 233 to 189 on August 15, 1978.

The Senate took up H.J.Res. 638 in October; during its deliberations it rejected amendments

similar to those offered in the House and joined the House in adopting the resolution, in this case

by a vote of 60 to 36 on October 6.

In an unusual expression of support, President Jimmy Carter

signed the joint resolution on October 20, even though the procedure of proposing an amendment

to the states is solely a congressional prerogative under the Constitution.

During the extended ratification period, ERA supporters sought unsuccessfully to secure the three

necessary ratifications for the amendment, while opponents pursued rescission in the states with

similarly unsuccessful results. A Gallup Poll reported in August 1981 that 63% of respondents

supported the amendment, a higher percentage than in any previous survey, but, as one observer

noted, “The positive poll results were really negative, because additional ratifications needed to

come from the states in which support was identified as weakest.”

On June 30, 1982, the Equal

Rights Amendment deadline expired with the number of state ratifications at 35, not counting

rescissions.

Rep. Holtzman had defeated Rep. Emanuel Celler (q.v.) for renomination in the Democratic primary in 1992.

“ERA Deadline Extended,” Congressional Quarterly Almanac, 95

Congress, 2

Session, 1978, vol. XXIV (34)

(Washington, DC: Congressional Quarterly Inc., 1979).

“ERA Deadline Extended,” Congressional Quarterly Almanac, 95

Congress, 2

Session, 1978, pp. 773-775.

“ERA Deadline Extended,” Congressional Quarterly Almanac, 95

Congress, 2

Session, 1978, pp. 775-776.

“ERA Deadline Extended,” Congressional Quarterly Almanac, 95

Congress, 2

Session, 1978, p. 773.

“ERA Deadline Extension,” Congress and the Nation, vol. V, 1977-1980 (Washington, DC: Congressional Quarterly

Inc., 1981), pp. 798-800. For President Carter’s explanation of his signing of the extension joint resolution, see “Equal

Rights Amendment, Remarks on Signing H.J.Res. 638,” in U.S. President, Public Papers of the Presidents of the

United States, Jimmy Carter, 1978 (Washington, DC: GPO, 1979), pp. 1800-1801.

Berry, Why ERA Failed, p. 79.

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Congressional Research Service 18

Rescission: A Legal Challenge to the Ratification Process

As noted earlier, while ratification of the proposed Equal Rights Amendment was pending, a

number of states passed resolutions that sought to rescind their earlier ratifications. By the time

the amendment’s extended ratification deadline expired in 1982, the legislatures of more than 17

states had considered rescission, and 5 of these passed resolutions to repeal their earlier

ratifications.

Throughout the period, however, legal opinion as to the constitutionality of

rescission remained divided.

On May 9, 1979, the state of Idaho, joined by the state of Arizona and individual members of the

Washington legislature, brought legal action in the U.S. District Court for the District of Idaho,

asserting that states did have the right to rescind their instruments of ratification.

The plaintiffs

further asked that the extension enacted by Congress be declared null and void.

On December 23, 1981, District Court Judge Marion Callister ruled (1) that Congress had

exceeded its power by extending the deadline from March 22, 1979, to June 30, 1982; and (2) that

states had the authority to rescind their instruments of ratification, provided they took this action

before an amendment was declared to be an operative part of the Constitution.

The National

Organization for Women (NOW), the largest ERA advocacy organization, and the General

Services Administration (GSA)

appealed this decision directly to the Supreme Court, which, on

January 25, 1982, consolidated four appeals and agreed to hear the cases. In its order, the High

Court also stayed the judgment of the Idaho District Court. On June 30, as noted earlier, the

extended ratification deadline expired, so that when the Supreme Court convened for its term on

October 4, it dismissed the appeals as moot, and vacated the district court decision.

Renewed Legislative and Constitutional Proposals,

1982 to the Present

Interest in the proposed Equal Rights Amendment did not end when its extended ratification

deadline expired on June 30, 1982. Since that time, there have been regular efforts to introduce

the concept as a “fresh start” in Congress, while additional approaches have emerged that would

revive H.J.Res. 208, the amendment as originally proposed by the 92

Congress.

“Fresh Start” Proposals

One potential means of restarting an equal rights amendment would be by introduction of a new

joint resolution, a “fresh start.” Even as the June 30, 1982, extended ratification deadline

approached, resolutions proposing an equal rights amendment were introduced in the 97

Congress. New versions of an ERA have continued to be introduced in the House and Senate in

Kyvig, Explicit and Authentic Acts, p. 415. For state rescissions, see above at footnote 82.

However, neither the Idaho nor the Arizona legislature had passed a resolution of rescission.

State of Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981).

John F. Carroll, “Constitutional Law: Constitutional Amendment, Rescission of Ratification, Extension of

Ratification Period, State of Idaho v. Freeman,” Akron Law Review, vol. 16, no. 1 (summer 1982), pp. 151-161.

GSA became involved in 1982 because it was at that time the parent agency of the National Archives and Records

Service, now the National Archives and Records Administration, which, then, as now, received and recorded state

ratifications for proposed constitutional amendments.

Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and

remanded to dismiss, 459 U.S. 809 (1982).

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 19

each succeeding Congress. For many years, Senator Edward Kennedy of Massachusetts

customarily introduced an equal rights amendment early in the first session of a newly convened

Congress; since the 111

Congress, Senator Robert Menendez of New Jersey has introduced

Senate fresh start proposals. In the House of Representatives, Representative Carolyn Maloney of

New York introduced a fresh start equal rights amendment in the 105

and all succeeding

Congresses. Fresh start amendments introduced in the 116

Congress, S.J.Res. 15 and H.J.Res.

35, were discussed earlier in this report, under “Most Recent Developments.”

“Three-State” Proposals

In addition to “fresh start” proposals, alternative approaches to the ratification question have also

emerged over the years. In 1994, Representative Robert E. Andrews of New Jersey introduced

H.Res. 432 in the 103

Congress. His proposal sought to require the House of Representatives to

“take any legislative action necessary to verify the ratification of the Equal Rights Amendment as

part of the Constitution when the legislatures of an additional 3 states ratify the Equal Rights

Amendment.” This resolution was a response to the three-state strategy

proposed by a pro-ERA

volunteer organization “ERA Summit” in the 1990s,

which was called following adoption of the

Twenty-Seventh Amendment, the Madison Amendment, in 1992. The rationale for H.Res. 432,

and a succession of identical resolutions offered by Representative Andrews in subsequent

Congresses,

was that, following the precedent of the Madison Amendment, the ERA remained a

valid proposal and the ratification process was still open. Representative Andrews further asserted

that the action of Congress in extending the ERA deadline in 1978 provided a precedent by which

“subsequent sessions of Congress may adjust time limits placed in proposing clauses by their

predecessors. These adjustments may include extensions of time, reductions, or elimination of the

deadline altogether.”

100

The influence of the Madison Amendment is examined at greater length

later in this report.

The year 2012 marked the 30

anniversary of the expiration of the proposed Equal Rights

Amendment’s extended ratification deadline. During that period, new analyses emerged that

examined the question of whether the amendment proposed in 1972 remained constitutionally

viable. As noted later in this report, one of the most influential developments opening new lines

of analysis occurred when the Twenty-Seventh Amendment, originally proposed in 1789 as part

of a package that included the Bill of Rights, was taken up in the states after more than two

centuries and ultimately ratified in 1992. This action, and Congress’s subsequent

acknowledgment of the amendment’s viability, arguably bear directly on the issue of the current

status of the proposed Equal Rights Amendment, and are examined later in this report.

In the 112

Congress, for the first time since the proposed ERA’s deadline expired, resolutions

were introduced in both the House and Senate

101

that sought specifically to (1) repeal, or

eliminate entirely, the deadlines set in 1972 and 1978; (2) reopen the proposed ERA for state

As noted elsewhere in this report, the “three-state” argument maintains that (1) Congress has the constitutional

authority to propose, alter, or terminate any limits on the ratification of amendments pending before the states; (2) all

existing ratifications remain in effect and viable; and (3) rescissions of ratification passed by some states are invalid.

The Equal Rights Amendment website, a project of the Alice Paul Institute, in collaboration with the ERA Task

Force of the National Council of Women’s Organizations, at http://www.equalrightsamendment.org.

Most recently, H.Res. 794 in the 112

Congress.

100

Rep. Robert E. Andrews, “Applauding the Recent Actions Taken by the Illinois State Legislature Regarding the

Equal Rights Amendment,” Extension of Remarks in the House, Congressional Record, vol. 149, pt. 10 (June 5, 2003),

pp. 14039-14040.

101

H.J.Res. 47, Rep. Baldwin and others; S.J.Res. 38, Sen. Cardin and others. Aside from routine committee referral,

no action was taken on these resolutions.

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Congressional Research Service 20

ratification at the then-current count of 35 states; and (3) extend the period for state ratification

indefinitely. Current legislation proposing the three-state/two-state strategy in the 116

Congress—S.J.Res. 6, H.J.Res. 38, H.J.Res. 79—was discussed earlier in this report, under “Most

Recent Developments.”

Contemporary Viability of the Equal Rights

Amendment

Supporters of the ERA, and particularly the three-state strategy—now, arguably, the one-state

strategy, assuming ratifications by Nevada and Illinois are found to be valid—identify a number

of sources that they claim support their contention that the proposed Equal Rights Amendment

remains constitutionally viable. Other scholars and observers, however, have raised concerns

about, or objections to, these assertions.

Article V: Congressional Authority over the Amendment Process

Proponents of the proposed Equal Rights Amendment cite the exceptionally broad authority over

the constitutional amendment process granted to Congress by Article V of the Constitution as a

principal argument for their case. The article’s language states that “[t]he Congress, whenever

two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution

... which ... 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....

” While the Constitution is economical with words when spelling out the authority extended to

the three branches of the federal government, it does speak specifically when it places limits on

these powers. In this instance, the founders placed no time limits or other conditions on

congressional authority to propose amendments, so long as they are approved by the requisite

two-thirds majority of Senators and Representatives present and voting.

In a 1992 opinion for the Counsel to the President concerning ratification of the Twenty-Seventh

Amendment, Acting Assistant Attorney General Timothy Flanigan took note of the absence of

time limits in Article V, and drew a comparison with their presence in other parts of the

Constitution:

... [t]he rest of the Constitution strengthens the presumption that when time periods are part

of a constitutional rule, they are specified. For example, Representatives are elected every

second year ... and a census must be taken within every ten year period following the first

census, which was required to be taken within three years of the first meeting of

Congress..... Neither House of Congress may adjourn for more than three days without the

consent of the other ... and the President has ten days (Sundays excepted) within which to

sign or veto a bill that has been presented to him.... The Twentieth Amendment refers to

certain specific dates, January 3

and 20

. Again, if the Framers had intended there to be

a time limit for the ratification process, we would expect that they would have so provided

in Article V.

102

Further, Article V empowers Congress to specify either of two modes of ratification: by the state

legislatures, or by ad hoc state conventions. Neither the President nor the federal judiciary is

102

U.S. Department of Justice, Office of Legal Counsel, Congressional Pay Amendment, Memorandum Opinion for the

Counsel to the President, by Timothy E. Flanigan, Acting Assistant Attorney General, Washington, November 2, 1992,

Medical and Public Health Law Site, LSU Law Center, Louisiana State University, at https://biotech.law.lsu.edu/blaw/

olc/congress.17.htm.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 21

allocated any obvious constitutional role in the amendment process. To those who might suggest

the Constitutional Convention did not intend to grant such wide authority to Congress, ERA

supporters can counter by noting that the founders provided a second mode of amendment,

through a convention summoned by Congress at the request of the legislatures of two-thirds of

the states.

103

The suggestion here is that the founders deliberately provided Congress with plenary

authority over the amendment process, while simultaneously checking it through the

supermajority requirement, and balancing it with the Article V Convention alternative.

104

In the

case of the proposed Equal Rights Amendment, it has been inferred by ERA supporters that since

neither ratification deadlines nor contemporaneity requirements for amendments appear anywhere

in Article V, Congress is free to propose, alter, or terminate such ratification provisions at its

discretion.

105

Advocates of congressional authority over the amendment process might also note the fact that

Congress has acted on several occasions in the course of, or after, the ratification process by the

states to assert its preeminent authority under Article V in determining ratification procedures.

106

For instance, on July 21, 1868, Congress passed a resolution that declared the Fourteenth

Amendment to have been duly ratified and directed Secretary of State William Seward to

promulgate it as such. Congress had previously received a message from the Secretary reporting

that 28 of 37 states then in the Union had ratified the amendment, but that 2 of the 28 ratifying

states had subsequently passed resolutions purporting to rescind their ratifications, and the

legislatures of 3 others had approved the amendment only after previously rejecting earlier

ratification resolutions. Congress considered these issues but proceeded to declare the ratification

process complete.

107

Congress similarly exercised its authority over the process less than two

years later when it confirmed the ratification of the Fifteenth Amendment by resolution passed on

March 30, 1870.

108

Congress exercised its authority over the amendment process again in 1992

103

The founders were concerned that Congress might resist the proposal of necessary amendments. As a result, they

included the Article V Convention process as an alternative to congressional proposal of amendments. Alexander

Hamilton explained the origins of the Article V Convention process in The Federalist: “The intrinsic difficulty of

governing thirteen states ... will, in my opinion, constantly impose on the national rulers the necessity of a spirit of

accommodation to the reasonable expectations of their constituents. But there is yet a further consideration.... It is this,

that the national rulers, whenever nine States concur, will have no option on the subject. By the first article of the plan,

the Congress will be obliged to call a convention for proposing amendments.... The words of this article are

peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body.” See

Alexander Hamilton, “Conclusion,” in The Federalist, Number 85 (Cambridge, MA: The Belknap Press of the Harvard

University Press, 1961), p. 546.

104

For further information on the “Article V Convention” alternative method for the proposal of constitutional

amendments, see CRS Report R42589, The Article V Convention to Propose Constitutional Amendments:

Contemporary Issues for Congress, by Thomas H. Neale; and CRS Report R42592, The Article V Convention for

Proposing Constitutional Amendments: Historical Perspectives for Congress, by Thomas H. Neale.

105

Mason Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” University

of Chicago Law Review, vol. 66, no. 2 (spring, 1999), pp. 451-453.

106

While these are precedents that Congress could follow, or at least look to for guidance, it should be recalled that one

Congress may not bind succeeding Congresses in expression of their decision making. See, for example, William

Holmes Brown, Charles W. Johnson, and John V. Sullivan, House Practice: A Guide to the Rules, Precedents, and

Procedures of the House (Washington, DC: GPO, 2011), p. 158: “The Constitution gives each House the power to

determine the rules of its proceedings.... This power cannot be restricted by the rules or statutory enactments of a

preceding House.”

107

15 Stat. 709. The reconstructed legislatures of North Carolina, South Carolina, and Georgia reversed rejections by

earlier unreconstructed state legislatures. Ohio and New Jersey had passed resolutions purporting to rescind their earlier

ratifications of the amendment. For further information, see Constitution Annotated, “Article V1.2, Proposing an

Amendment,” at https://constitution.congress.gov/browse/essay/artV_1_2/.

108

16 Stat. 1131. Here again, Congress refused to acknowledge the act of the New York legislature purporting to

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 22

when it declared the Twenty-Seventh Amendment, the so-called “Madison Amendment,” to have

been ratified, an event examined in the next section of this report.

Opponents of ERA extension, while not questioning the plenary authority of Congress over the

amending process, raise questions on general grounds of constitutional restraint and fair play.

Some reject it on fundamental principle; Grover Rees III, writing in The Texas Law Review,

asserted that

... extension is unconstitutional insofar as it rests on the unsubstantiated assumption that

states which ratified the ERA with a seven-year time limit also would have ratified with a

longer time limit, and insofar as it attempts to force those states into an artificial consensus

regardless of their actual intentions.

109

ERA supporter Mary Frances Berry noted a similar argument raised by the amendment’s

opponents:

... some scholars pointed out that legally an offer and agreed-upon terms is required before

any contract is valid. ERA ratification, according to this view, was a contract. Therefore,

states could not be regarded as contracting not in the agreed upon terms. The agreed upon

terms included a seven-year time limit. When seven years passed, all pre-existing

ratifications expired.

110

Writing in Constitutional Commentary, authors Brannon P. Denning and John R. Vile offered

additional criticisms of efforts to revive the proposed Equal Rights Amendment, noting that

ample time had been provided for ratification between 1972 and 1982. They further suggested

that elimination of ratification deadlines would reopen the question of purported state rescissions

of acts of ratification; that progress in women’s equality in law and society may have “seemed to

render ERA superfluous”; and that allowing the proposed amendment “a third bite at the apple

would suggest that no amendment to the U.S. Constitution ever proposed ... could ever be

regarded as rejected.”

111

The Madison Amendment (the Twenty-Seventh Amendment): A

Dormant Proposal Revived and Ratified

Supporters of the proposed Equal Rights Amendment cite another source in support of their

argument for the proposed amendment’s viability: the Twenty-Seventh Amendment to the

Constitution, also known as the Madison Amendment, which originated during the first year of

government under the Constitution, but fell into obscurity, and became the object of renewed

public interest only in the late 20

century. In 1789, Congress proposed a group of 12

amendments to the states for ratification. Articles III through XII of the proposals became the Bill

of Rights, the first 10 amendments to the Constitution. They were ratified quickly, and were

declared adopted on December 15, 1791. Articles I and II, however, were not ratified along with

the Bill of Rights; Article II, which required that no change in Members’ pay could take effect

rescind its previous instrument of ratification.

109

Grover Rees III, “Throwing Away the Key: The Unconstitutionality of the Equal Rights Amendment Extension,”

Texas Law Review, vol. 58, no. 5, (May 1980), p. 930.

110

Berry, Why ERA Failed, p. 71.

111

Brannon P. Denning and John R. Vile, “Necromancing the Equal Rights Amendment,” Constitutional Commentary

(University of Minnesota), vol. 17, winter, 2000, issue 3, p. 598. See also the discussion of the unique circumstances of

the 27

Amendment in Constitution Annotated, “Article V1.2, Proposing an Amendment,” at

https://constitution.congress.gov/browse/essay/artV_1_2/.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 23

until after an election for the House of Representatives had taken place, was ratified by six states

between 1789 and 1791 (the ratification threshold was 10 states in 1789), after which it was

largely forgotten.

112

After nearly two centuries, the Madison Amendment was rediscovered in 1978, when the

Wyoming legislature was informed that as no deadline for ratification had been established, the

measure was arguably still viable. Seizing on the opportunity to signal its disapproval of a March

3, 1978, vote by Congress to increase compensation for Representatives and Senators, the

legislature passed a resolution approving the proposed amendment. In its resolution of

ratification, the legislature cited the congressional vote to increase Member compensation, noting

that

... the percentage increase in direct compensation and benefits [to Members of Congress]

was at such a high level, as to set a bad example to the general population at a time when

there is a prospect of a renewal of double-digit inflation; and ... increases in compensation

and benefits to most citizens of the United States are far behind these increases to their

elected Representatives.... ”

113

The Wyoming legislature’s action went almost unreported, however, until 1983, when Gregory D.

Watson, a University of Texas undergraduate student, studied the amendment and concluded that

it was still viable and eligible for ratification. Watson began a one-person campaign, circulating

letters that drew attention to the proposal to state legislatures across the country.

114

This

grassroots effort developed into a nationwide movement, leading ultimately to 31 additional state

ratifications of the amendment between 1983 and 1992.

In 1991, as the number of state ratifications of the Madison Amendment neared the requisite

threshold of 38, Representative John Boehner of Ohio introduced H.Con.Res. 194 in the 102

Congress. The resolution noted that, “this amendment to the Constitution was proposed without a

deadline for ratification and is therefore still pending before the States.” The resolution went on to

state “the sense of the Congress that at least 3 of the remaining 15 States should ratify the

proposed 2

amendment to the Constitution, which would delay the effect of any law which

varies the compensation of Members of Congress until after the next election of

Representatives.”

115

Although no further action was taken on the resolution, its findings

anticipated Congress’s response to the amendment.

On May 7, 1992, the Michigan and New Jersey legislatures both voted to ratify the “Madison

Amendment,” becoming the 38

and 39

states to approve it. As required by law,

116

the Archivist

of the United States certified the ratification on May 18, and the following day an announcement

that the amendment had become part of the Constitution was published in the Federal Register.

117

Although the Archivist was specifically authorized by the U.S. Code to publish the act of

adoption and issue a certificate declaring the amendment to be adopted, many in Congress

112

In 1873, Ohio provided the only additional ratification to the pay amendment. For the record, Article I proposed

regulating the size of the House of Representatives so that it eventually would include “not less than two hundred

Representatives, nor more than one Representative for every fifty thousand persons.”

113

Wyoming legislature, H.J. Res. 6 (March 3, 1978), quoted in Richard B. Bernstein, “The Sleeper Wakes: The

History and Legacy of the Twenty-Seventh Amendment,” Fordham Law Review, vol. 61, issue 3, (December 1992), p.

537.

114

Kyvig, Explicit and Authentic Acts, p. 465.

115

H.Con.Res. 194, 102

Congress, introduced August 1, 1991.

116

1 U.S.C. §106.

117

Archivist of the U.S., “U.S. Constitution, Amendment 27,” Federal Register, vol. 567, no. 97, (May 19, 1992), pp.

21187-21188.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 24

believed that, in light of the unusual circumstances surrounding the ratification, positive action by

both houses was necessary to confirm the Madison Amendment’s legitimacy.

118

In response, the

House adopted H.Con.Res. 320

119

on May 20, and the Senate adopted S.Con.Res. 120

120

and

S.Res. 298

121

on the same day. All three resolutions declared the amendment to be duly ratified

and part of the Constitution.

122

By providing a recent example of a proposed amendment that had been inactive for more than a

century, the Twenty-Seventh Amendment suggests to ERA supporters an attainable model for

renewed consideration of the proposed Equal Rights Amendment.

Ratification of the Madison Amendment: A Model for the Proposed

Equal Rights Amendment?

The example of the Madison Amendment contributed to the emergence of a body of advocacy

scholarship that asserts the proposed Equal Rights Amendment has never lost its constitutional

viability. One of the earliest expressions of this viewpoint was offered in an article that appeared

in the William and Mary Journal of Women and the Law in 1997. The authors reasoned that

adoption of the Twenty-Seventh Amendment challenged many of the assumptions about

ratification generated during the 20

century. Acceptance of the Madison Amendment by the

Archivist and the Administrator of General Services, as advised by the Justice Department

123

and

ultimately validated by Congress, was said to confirm that there is no requirement that

ratifications of proposed amendments must be roughly contemporaneous.

124

The authors went on

to examine the history of the seven-year time limit, concluding after a review of legal scholarship

on the subject that this device was a matter of procedure, rather than of substance (i.e., part of the

body of the amendment itself). As such it was “separate from the amendment itself, and therefore,

it can be treated as flexible.” By extending the original ERA deadline, Congress based its action

on the broad authority over the amendment process conferred on it by Article V.

125

Finally, the authors asserted, relying on the precedent of the Twenty-Seventh Amendment, that

“even if the seven-year limit was a reasonable legislative procedure, a ratification after the time

118

“Madison Amendment,” Congress and the Nation, vol. VII, 1989-1992 (Washington, DC: Congressional Quarterly

Inc., 1993), p. 972. For additional examination of the role and authority of the Archivist, see Bernstein, “The Sleeper

Awakes: The History and Legacy of the Twenty-Seventh Amendment,” pp. 540-542.

119

H.Con.Res. 320, 102

Congress, sponsored by Rep. Jack Brooks.

120

S.Con.Res. 120, 102

Congress, sponsored by Sen. Robert Byrd and others.

121

S.Res. 298, 102

Congress, sponsored by Sen. Robert Byrd and others.

122

S.Con.Res. 120 and S.Res. 298, Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 11869; H.Con.Res. 320,

Congressional Record, vol. 138, pt. 9 (May 20, 1992), p. 12051. Sen. Robert Byrd of West Virginia also introduced

S.Con.Res. 121 on May 19, 1992, to declare that the ratification periods for four other pending amendments had lapsed,

and that they were no longer viable. He did not, however, include the Equal Rights Amendment among them. The

resolution was referred to the Senate Judiciary Committee, but no further action was taken.

123

Office of Legal Counsel, U.S. Department of Justice, “Congressional Pay Amendment,” Memorandum Opinion for

the Counsel to the President, May 13, 1992, and November 2, 1992, at https://biotech.law.lsu.edu/blaw/olc/

congress.17.htm. See also Michael Stokes Paulsen, “A General Theory of Article V: The Constitutional Lessons of the

Twenty-Seventh Amendment,” Yale Law Journal, vol. 103, no. 3 (December 1992), p. 680, at footnote 7.

124

Allison L. Held, Sheryl L. Herndon, and Danielle M. Stager, “The Equal Rights Amendment: Why the ERA

Remains Legally Viable and Properly Before the States,” William and Mary Journal of Women and the Law, vol. 3 (no

issue number), 1997, p. 121.

125

Held, Herndon, and Stager, “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly

Before the States,” William and Mary Journal of Women and the Law, vol. 3 (no issue number), 1997, pp. 129-130.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 25

limit expired can still be reviewed and accepted by the current Congress.... ”

126

In their view, even

if one Congress failed to extend or remove the ratification deadline, states could still ratify, and a

later Congress could ultimately validate their ratifications.

127

Other observers question the value of the Madison Amendment as precedent. Writing in

Constitutional Commentary, Denning and Vile asserted that the Twenty-Seventh Amendment

presented a poor model for ERA supporters. Examining the amendment’s origins, they suggested

that “the courts and most members of Congress have tended to treat the 27

as a ‘demi-

amendment,’ lacking the full authority of the 26 that preceded it.”

128

Reviewing what they

characterized as unfavorable interpretations of the Madison Amendment in various legal cases,

the authors asked whether what they referred to as the “jury rigged ratification of the ERA might

result in its similar evisceration by the judiciary that will be called upon to interpret it.”

129

Similarly, a commentary in National Law Journal asserted that, by blocking its own cost of living

salary increases, Congress itself has also persistently failed to observe the Madison Amendment’s

requirements that “[n]o law, varying the compensation for the services of the Senators and

Representatives, shall take effect, until an election of Representatives shall have intervened.”

130

On the other hand, supporters of the proposed ERA might claim that such criticism of the Twenty-

Seventh Amendment refers more to what they might characterize as the flawed application of the

amendment, rather than the intrinsic integrity of the amendment itself.

Constitutional scholar Michael Stokes Paulsen further questioned use of the Twenty-Seventh

Amendment as an example in the case of the proposed Equal Rights Amendment. He returned to

the contemporaneity issue, suggesting that the amending process

... should be occasions, not long, drawn-out processes. To permit ratification over a period

of two centuries is to erode, if not erase the ideal of overwhelming popular agreement....

There is no assurance that the Twenty-seventh Amendment ever commanded, at any one

time, popular assent corresponding to the support of two-thirds of the members of both

houses of Congress and three-fourths of the state legislatures.

131

(Emphases in the original.)

It could be further argued by opponents of proposed Equal Rights Amendment extension that,

whatever the precedent set by Congress in declaring the Twenty-Seventh Amendment to have

been regularly adopted, there is no precedent for Congress promulgating an amendment based on

state ratifications adopted after two ratification deadlines have expired.

126

Held, Herndon, and Stager, “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly

Before the States,” William and Mary Journal of Women and the Law, vol. 3 (no issue number), 1997, p. 131.

127

This would arguably apply to Nevada’s 2017 ratification of ERA.

128

Denning and Vile, “Necromancing the Equal Rights Amendment,” p. 598. See also the discussion of the unique

circumstances of the 27

Amendment in Constitution Annotated, “Article V1.2, Proposing an Amendment,” at

https://constitution.congress.gov/browse/essay/artV_1_2/.

129

Constitution Annotated, “Article V1.2, Proposing an Amendment,” at https://constitution.congress.gov/browse/

essay/artV_1_2/.

130

Eric Fish and Daniel Hemel, “Congress’s Unconstitutional Pay Freeze,” National Law Journal, January 30, 2012, at

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202540170443&slreturn=1.

131

Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” p. 692.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 26

The Role of the Supreme Court Decisions in Dillon v. Gloss and

Coleman v. Miller

By some measures, the action of the Archivist of the United States in announcing ratification of

the Twenty-Seventh Amendment, followed by congressional confirmation of its viability,

superseded a body of constitutional principle that had prevailed since the 1920s and 1930s. This

body of theory and political consideration arguably originated with the Supreme Court’s 1921

decision in Dillon v. Gloss, the case in which the Court first enunciated the principle that

conditions of ratification for proposed constitutional amendments could be determined by

Congress, and that the conditions should be roughly contemporaneous.

132

The Court concluded

that, relying on the broad grant of authority contained in Article V, Congress had the power,

“keeping within reasonable limits, to fix a definite period for the ratification.... ”

133

At the same time, the Court noted that nothing in the nation’s founding documents touched on the

question of time limits for ratification of a duly proposed constitutional amendment, and asked

whether ratification would be valid at any time

... within a few years, a century or even a longer period, or that it must be had within some

reasonable period which Congress is left free to define? Neither the debates in the federal

convention which framed the Constitution nor those in the state conventions which ratified

it shed any light on the questions.

134

Ultimately, however, the Court concluded that proposal of an amendment by Congress and

ratification in the states are both steps in a single process, and that amendments

... are to be considered and disposed of presently.... [A] ratification is but the expression of

the approbation of the people and is to be effective when had in three-fourths of the states,

there is a fair implication that it must be sufficiently contemporaneous in that number of

states to reflect the will of the people in all sections at relatively the same period, which of

course ratification scattered through a long series of years would not do.

135

The need for contemporaneity was also discussed by the Court with regard to the congressional

apportionment amendment and the Madison Amendment, both of which were pending in 1921.

The Court maintained that the ratification of these amendments so long after they were first

proposed would be “untenable.”

136

Some scholars dispute the Court’s position in Dillon,

however; Mason Kalfus, writing in The University of Chicago Law Review, claimed that

132

Dillon v. Gloss, 256 U.S. 368 (1921). Dillon, arrested on a violation of the Volstead Act, asserted, among other

things, that the 18

Amendment was unconstitutional because Congress had included a ratification deadline in the body

of the amendment, an action for which no authority appeared in the Constitution.

133

Dillon v. Gloss, 256 U.S. 368 (1921).

134

Dillon v. Gloss, 256 U.S. 368 (1921).

135

Dillon v. Gloss, 256 U.S. 368 (1921).

136

Dillon v. Gloss, 256 U.S. 368 (1921). Justice Van Devanter, delivering the majority opinion, asserted, “That this is

the better conclusion [constitutional amendments lacking contemporaneousness ought to be considered waived]

becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four

amendments proposed long ago—two in 1789, one in 1810 and one in 1861—are still pending and in a situation where

their ratification in some of the States many years since by representatives of generations now largely forgotten may be

effectively supplemented in enough more States to make three-fourths by representatives of the present or some future

generation. To that view few would be able to subscribe, and in our opinion it is quite untenable.”

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 27

reference to the contemporaneity doctrine is to be found neither in the text of Article V nor in the

deliberations of the Philadelphia Convention.

137

In Coleman v. Miller,

138

the Supreme Court explicitly held that Congress had the sole power to

determine whether an amendment is sufficiently contemporaneous, and thus valid, or whether,

“the amendment ha[s] lost its vitality through the lapse of time.”

139

In Coleman, the High Court

refined its holdings in Dillon, ruling that when it proposes a constitutional amendment:

 Congress may fix a reasonable time for ratification;

 there was no provision in Article V that suggested a proposed amendment would

be open for ratification forever;

 since constitutional amendments were deemed to be prompted by some type of

necessity, they should be dealt with “presently”;

 it could be reasonably implied that ratification by the states under Article V

should be sufficiently contemporaneous so as to reflect a nationwide consensus

of public approval in relatively the same period of time; and

 ratification of a proposed amendment must occur within some reasonable time

after proposal.

140

The Court additionally ruled, however, that if Congress were not to specify a reasonable time

period for ratification of a proposed amendment, it would not be the responsibility of the Court to

decide what constitutes such a period. The Court viewed such questions as essentially political

and, hence, nonjusticiable, believing that the questions were committed to, and must be decided

by, Congress in exercise of its constitutional authority to propose an amendment or to specify the

ratification procedures for an amendment.

141

This “political question” interpretation of the contemporaneity issue is arguably an additional

element supporting the fundamental constitutional doctrine of continued viability claimed by

ERA advocates.

Another observer suggests, however, that the constitutional foundation of the Supreme Court’s

ruling in Coleman v. Miller, and hence the political question doctrine, may have been affected by

the contemporary political situation. According to this theory, the Court in 1939 may have been

influenced by, and overreacted to, the negative opinion generated by its political struggles with

President Franklin Roosevelt over the constitutionality of New Deal legislation: “A later court,

bruised by its politically unpopular New Deal rulings, retreated somewhat from a dogmatic

defense of ratification time limits (as enunciated in Dillon v. Gloss).”

142

Michael Stokes Paulsen

also questioned the Supreme Court’s decision in Coleman v. Miller, suggesting that the “political

137

Kalfus, “Why Time Limits on the Ratification of Constitutional Amendments Violate Article V,” pp. 451-453.

138

Coleman v. Miller, 307 U.S. 433 (1939). This case concerned the Child Labor Amendment, and arose from a dispute

in the Kansas Senate over ratification procedure. This amendment was examined at greater length earlier in this report,

under “Congress Sets a Seven-Year Ratification Deadline.”

139

Coleman v. Miller, 307 U.S. 433 (1939).

140

Coleman v. Miller, 307 U.S. 433 (1939).

141

Coleman v. Miller, 307 U.S. 433 (1939). Note, however, that in advising the Archivist on certifying ratification of

the 27

Amendment, the Office of Legal Counsel took the view that there was no role for Congress in promulgation of

an amendment. See Congressional Pay Amendment, Memorandum Opinion for the Counsel to the President, by

Timothy E. Flanigan, at https://biotech.law.lsu.edu/blaw/olc/congress.17.htm.

142

Kyvig, Explicit and Authentic Acts, p. 468.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 28

question” doctrine could be interpreted to assert a degree of unchecked congressional authority

over the ratification process that is arguably anti-constitutional.

143

Ancillary Issues

A range of subsidiary issues could also come under Congress’s purview should it consider revival

of the proposed Equal Rights Amendment or a signal to the states that it would consider

additional ratifications beyond the expired ratification deadline in the congressional resolutions.

Origins of the Seven-Year Ratification Deadline

One historical issue related to consideration of the proposed Equal Rights Amendment concerns

the background of the seven-year deadline for ratification that originated with the Eighteenth

Amendment (Prohibition). The amendment was proposed in 1917, proceeded rapidly through the

state ratification process, and was declared to be adopted in 1919. During Senate consideration of

the proposal, Senator, later President, Warren Harding of Ohio is claimed to have originated the

idea of a ratification deadline for the amendment as a political expedient, one that would “permit

him and others to vote for the amendment, thus avoiding the wrath of the ‘Drys’ (prohibition

advocates), yet ensure that it would fail of ratification.”

144

As it happened, the law of unintended

consequences intervened, as “[s]tate ratification proceeded at a pace that surprised even the Anti-

Saloon League, not to mention the calculating Warren Harding.”

145

Proposed on December 18,

1917, the amendment was declared to have been adopted just 13 months later, on January 29,

1919.

ERA supporters might cite this explanation of the origins of the seven-year ratification deadline in

addition to their central assertions of the amendment’s viability. They could claim that, far from

being an immutable historical element in the amendment process, bearing with it the wisdom of

the founders, the ratification time limit is actually the product of a failed political maneuver, and

is, moreover, of comparatively recent origin.

Opponents of extension might argue, however, that, whatever its origins, the seven-year

ratification deadline has become a standard element of nearly all subsequent proposed

amendments.

146

They might further note that if ratification deadlines were purely political,

Congress would not have continued to incorporate them in nine subsequent proposed

amendments.

147

In their judgment, these time limits not only ensure that proposed constitutional

amendments enjoy both broad and contemporaneous support in the states, but they also arguably

constitute an important element in the checks and balances attendant to the amendment process.

Rescission

In addition to this question, the constitutional issue of rescission would almost certainly recur in a

contemporary revival of the proposed Equal Rights Amendment. As noted earlier in this report,

143

Paulsen, “A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment,” pp.

706-707, 718-721. See also the discussion of congressional authority in The Constitution Annotated, Article V.

144

Kyvig, Explicit and Authentic Acts, p. 225.

145

Kyvig, Explicit and Authentic Acts, p. 224.

146

The 19

Amendment, providing for women’s suffrage, and the unratified Child Labor Amendment, were the last to

be proposed by Congress without a ratification deadline.

147

The nine proposals are the 20

, 21

, 22

, 23

, 24

, 25

, and 26

Amendments, and the proposed Equal Rights and

District of Columbia Voting Rights (Congressional Representation) Amendments.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 29

five states enacted resolutions purporting to rescind their previously adopted ratifications of the

proposed amendment. The U.S. District Court for the District of Idaho ruled in 1981 that states

had the option to rescind their instruments of ratification any time in the process prior to the

promulgation or certification of the proposed amendment, a decision that was controversial at the

time.

148

The Supreme Court agreed to hear appeals from the decision, but after the extended ERA

ratification deadline expired on June 30, 1982, the High Court in its autumn term vacated the

lower court decision and remanded the decision to the District Court with instructions to dismiss

the case.

149

ERA supporters might note, however, that since the Supreme Court ruled in Coleman v. Miller

that Congress has plenary power in providing for the ratification process, it may be inferred from

this holding that Congress also possesses dispositive authority over the question as to the validity

of rescission. They might also note that Congress’s 1868 action directing Secretary of State

William Seward to declare the Fourteenth Amendment to be ratified, notwithstanding two state

rescissions, further confirms its broad authority over the amendment process.

150

Speculation on potential future court action on this question is beyond the scope of this report, but

rescission arguably remains a potentially viable constitutional issue that could arise in response to

a revival of the proposed Equal Rights Amendment.

Congressional Promulgation of Amendments

Some observers have noted that, while Congress passed resolutions declaring the Fourteenth,

Fifteenth, and Twenty-Seventh Amendments to be valid, congressional promulgation of

amendments that have been duly ratified is not necessary, and has no specific constitutional

foundation. In his 1992 Memorandum for the Counsel to the President concerning the Twenty-

Seventh Amendment, Acting Assistant Attorney General Timothy Flanigan, wrote that

Article V clearly delimits Congress’s role in the amendment process. It authorizes

Congress to propose amendments and specify their mode of ratification, and requires

Congress, on the application of the legislatures of two-thirds of the States, to call a

convention for the proposing of amendments. Nothing in Article V suggests that Congress

has any further role. Indeed, the language of Article V strongly suggests the opposite: it

provides that, once proposed, amendments “shall be valid to all Intents and Purposes, as

Part of this Constitution, when ratified by” three-fourths of the States.

151

(Emphasis original

in the memorandum, but not in Article V.)

The same viewpoint has been advanced by constitutional scholar Walter Dellinger. Addressing the

question shortly after the Twenty-Seventh Amendment was declared to have been ratified, he

noted

An amendment is valid when ratified. There is no further step. The text requires no

additional action by Congress or anyone else after ratification by the final state. The

148

Kyvig, Explicit and Authentic Acts, pp. 451-416.

149

Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho, 1981), prob. juris. noted, 455 U.S. 918 (1982), vacated and

remanded to dismiss, 459 U.S. 809 (1982). See also “ERA Dies Three States Short of Ratification,” Congressional

Quarterly Almanac, 97

Congress, 2

Session, 1992, pp. 377-378.

150

See earlier in this report under “Article V: Congressional Authority over the Amendment Process.”

151

Congressional Pay Amendment, Memorandum Opinion for the Counsel to the President, by Timothy E. Flanigan, at

https://biotech.law.lsu.edu/blaw/olc/congress.17.htm.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 30

creation of a “third step”—promulgation by Congress—has no foundation in the text of the

Constitution.

152

Supporters of the proposed Equal Rights Amendment, however, might refer again to the Supreme

Court’s ruling in Coleman v. Miller. If plenary authority over the amendment process rests with

Congress, advocates might ask, does it also presumably extend to other issues that arise,

including provision for such routine procedures as promulgation of an amendment?

The Proposed District of Columbia Voting Rights (Congressional

Representation) Amendment—Congress Places a Ratification Deadline in the

Body of the Amendment

Congress has proposed one constitutional amendment to the states since the proposed Equal

Rights Amendment began the ratification process in 1972, the District of Columbia Voting Rights

(Congressional Representation) Amendment. For this amendment, Congress returned to the

earlier practice of placing a deadline for ratification directly in the body of the proposal itself.

According to contemporary accounts, this decision was influenced by the nearly concurrent

congressional debate over the ERA deadline extension.

153

The District of Columbia is a unique jurisdiction, part of the Union, but not a state, and subject to

“exclusive Legislation in all Cases whatsoever ... by Congress.”

154

Congress has exercised its

authority over the nation’s capital with varying degrees of attention and control, and through a

succession of different governing bodies, beginning in 1800. By the 1950s, the long-

disenfranchised citizens of Washington, DC, began to acquire certain rights. The Twenty-Third

Amendment, ratified in 1961, established their right to vote in presidential elections. In 1967,

President Lyndon Johnson used his reorganization authority to establish an appointed mayor and

a city council, also presidentially appointed.

155

In 1970, Congress provided by law for a

nonvoting District of Columbia Delegate to Congress, who was seated in the House of

Representatives.

156

In 1973, President Richard Nixon signed legislation that established an elected

mayor and council, while reserving ultimate authority over legislation to Congress.

157

After more than a decade of change, proponents asserted that voting representation in Congress

proportionate to that of a state would be an important step in the progress toward full self-

government by the District of Columbia. In 1977, Representative Don Edwards of California,

chairman of the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights,

introduced H.J.Res. 554 (95

Congress). The resolution, as introduced, comprised the following

text:

Resolved by the Senate and the 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

152

Walter Dellinger, “Legitimacy of Constitutional Change: Rethinking the Amendment Process,” Harvard Law

Review, vol. 97, issue 2 (December 1983), p. 398.

153

Orrin G. Hatch, “Should the Capital Vote in Congress? A Critical Analysis of the Proposed D.C. Congressional

Representation Amendment,” Fordham Urban Law Journal, vol. 7 (issue 3), 1978, p. 483.

154

U.S. Constitution, Article I, Section 8, clause 17.

155

U.S. President, Lyndon B. Johnson, Reorganization Plan Number 3 of 1967, 81 Stat. 948.

156

The District of Columbia Delegate Act, 84 Stat. 845.

157

The District of Columbia Self Government and Government Reorganization Act, 87 Stat. 774.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 31

legislatures of three fourths of the several states within seven years of the date of its

submission by the Congress:

Article—

Section 1. For purpose of representation in the Congress, election of the President, and

Article V of this Constitution, the District constituting the seat of government of the United

States shall be treated as though it were a state.

Section 2. The exercise of the rights and powers conferred under this article shall be by the

people of the District constituting the seat of government, and as shall be provided by the

Congress.

Section 3. The twenty-third article of amendment to the Constitution of the United States

is hereby repealed.

Extensive hearings were held in the subcommittee in 1977, and on February 15, 1978, the full

Judiciary Committee reported the measure to the House. The committee, however, adopted an

amendment offered by Representative M. Caldwell Butler of Virginia that incorporated the seven-

year ratification deadline directly in the body of the resolution, rather than in the preamble.

Congressional Quarterly reported that this provision

... was intended to ensure that the deadline could not be extended by a simple majority vote

of Congress. The Justice Department has said in the case of the Equal Rights Amendment

that Congress could extend the deadline for ratification by a simple majority vote because

the time limit was contained in the resolving clause rather than in the body of that

amendment.

158

Similarly, writing in Fordham Urban Law Journal during the same period, Senator Orrin Hatch

of Utah noted the following:

Section 4 of the D.C. Amendment requires that ratification of the necessary three-fourths

of the states must occur within seven years of the date of its submission to the states. The

inclusion of this provision within the body of the resolution will avoid a similar controversy

to that which has arisen with respect to the time limit for ratification of the proposed “Equal

Rights Amendment.”

159

During consideration of H.J.Res. 554 in the full House, language setting the ratification deadline

was deleted from the authorizing resolution, and the Butler amendment was incorporated in the

body of the proposal by voice vote as a new section:

Section 4. This article shall be inoperative, unless it shall have been ratified as an

amendment to the Constitution by the legislatures of three-fourths of the States within

seven years from the date of its submission.

160

The amendment passed the House on March 2, 1978, by a margin of 289 to 127, 11 votes more

than the two-thirds constitutional requirement.

161

The Senate took up the House-passed resolution

on August 16, 1978. During four days of debate, it rejected a wide range of amendments, voting

158

“D.C. Representation,” Congressional Quarterly Almanac, 95

Congress, 2

Session, 1978, vol. XXXIV (34)

(Washington: Congressional Quarterly Inc., 1979), p. 793.

159

Hatch, “Should the Capital Vote in Congress? A Critical Analysis of the Proposed D.C. Congressional

Representation Amendment,” p. 483.

160

“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 4 (March 2, 1978), p.

5263.

161

“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 4 (March 2, 1978), pp.

5272-5273.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service 32

to adopt H.J.Res. 554 on August 22 by a margin of 67 to 32, one vote more than the constitutional

requirement.

162

The District of Columbia Congressional Representation Amendment expired on August 2, 1985,

seven years after it was proposed by Congress. It was ultimately ratified by 16 states,

163

22 short

of the constitutionally mandated requirement that it be approved by three-fourths, or 38, of the

states.

Concluding Observations

The arguments and constitutional principles relied on by ERA supporters to justify the revival of

the proposed Equal Rights Amendment include, but may not be limited to, the following:

 Article V, they assert, grants exceptionally broad discretion and authority over the

constitutional amendment process to Congress.

 In their interpretation, the example of the Twenty-Seventh Amendment suggests

that there is no requirement of contemporaneity in the ratification process for

proposed constitutional changes.

 ERA proponents claim that the Supreme Court’s decision in Coleman v. Miller

gives Congress wide discretion in setting conditions for the ratification process.

 Far from being sacrosanct and an element in the founders’ “original intent,” the

seven-year deadline for amendments has its origins in a political maneuver by

opponents of the Eighteenth Amendment authorizing Prohibition.

 The decision of one Congress in setting a deadline for ratification of an

amendment does not constrain a later Congress from rescinding the deadline and

reviving or acceding to the ratification of a proposed amendment.

Against these statements of support may be weighed the cautions of other observers who might

argue as follows:

 The Twenty-Seventh Amendment is a questionable model for efforts to revive the

proposed Equal Rights Amendment; unlike the proposed amendment, it was not

encumbered by two expired ratification deadlines. Moreover, it is argued that

Congress has generally ignored its provisions since ratification.

164

 Even though the proposed Equal Rights Amendment received an extension,

supporters were unable to gain approval by three-fourths of the states. Opponents

suggest that a “third bite of the apple” is arguably unfair and, if not

unconstitutional, at least contrary to the founders’ intentions.

 Revivification opponents caution ERA supporters against an overly broad

interpretation of Coleman v. Miller, which, they argue, may have been be a

politically-influenced decision.

162

“District of Columbia Representation in Congress,” Congressional Record, vol. 124, part 20 (August 22, 1978), p.

27260.

163

Ratifications by year: 1978: Michigan, New Jersey, Ohio; 1979: Connecticut, Massachusetts, Minnesota, Wisconsin;

1980: Hawaii, Maryland; 1989: Maine, Oregon, Rhode Island, West Virginia; 1984: Delaware, Louisiana, Iowa.

164

Eric Fish and Daniel Hemel, “Congress’ Unconstitutional Pay Freeze,” National Law Journal/law.com, January 30,

2012, at https://www.law.com/nationallawjournal/almID/1202540170443&Congress_unconstitutional_pay_freeze&

slreturn=20130022145518/?slreturn=20180602182349.

The Proposed Equal Rights Amendment: Contemporary Ratification Issues

Congressional Research Service R42979 · VERSION 17 · UPDATED 33

 Congress implicitly recognized its misjudgment on the ratification deadline for

the proposed Equal Rights Amendment when it incorporated such a requirement

in the text of the proposed District of Columbia Voting Rights (Congressional

Representation) Amendment.

 The rescission issue was not conclusively decided in the 1980s; it remains

potentially open to congressional or judicial action if the proposed Equal Rights

Amendment is reopened for further ratifications.

Congress could revisit the contending points raised by different analysts if it gives active

consideration to legislation that would seek specifically to revive the proposed Equal Rights

Amendment, or to accept the additional state ratifications.

In recent years, some supporters of the proposed ERA have embraced the three-state strategy,

which maintains that Congress has the authority to effectively repeal the ratification deadlines

provided in H.J.Res. 208, 92

Congress and H.J.Res. 638, 95

Congress. In the 116

Congress,

S.J.Res. 6 and H.J.Res. 38 and H.J.Res. 79 incorporate this approach, which could be more

accurately described as a “one-state strategy” following ratification by Nevada in 2017 and

Illinois in 2018. Alternatively, Congress could propose a “fresh start” equal rights amendment;

such proposals have been introduced regularly since the original ERA time limit expired in 1982.

This approach might avoid the controversies that have been associated with repeal of the

deadlines for the 1972 ERA, but starting over would present a fresh constitutional amendment

with the stringent requirements provided in Article V: approval by two-thirds majorities in both

houses of Congress, and ratification by three-fourths of the states. It would, however, be possible

to draft the proposal without a time limit, as is the case with S.J.Res. 15 and H.J.Res. 35 and

H.J.Res. 79 in the 116

Congress. If it were approved by Congress in this form, and if it

withstood various potential legal challenges, the proposed amendment would, like the Madison

Amendment, remain current, viable, and thus eligible for ratification, for an indefinite period.

Author Information

Thomas H. Neale

Specialist in American National Government

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