Buried Alive: The Reboot of the Equal Rights Amendment

Abstract

This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982. The paper argues that Congress can waive the expired ratification deadline but should not do so until there is no doubt that 38 states have voted for ratification. There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition. Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision — in accord with a precedent established by the Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.