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The ABA is Wrong on the ERA
The American Bar Association first endorsed adding the Equal Rights Amendment to the Constitution in 1972, the year that Congress proposed and sent it to the states for ratification.
At its Aug. 6 annual convention, the ABA went further and now claims that the 1972 ERA is already part of the Constitution. The ABA is dead wrong.
Congress proposed the ERA in March 1972 with a seven-year ratification deadline. With that deadline looming, and fewer than the necessary 38 states ratifying, Congress passed a controversial resolution in 1978 purporting to extend the deadline by 39 months. No additional states ratified the 1972 ERA and five that already had subsequently withdrew their support. As the Congressional Research Service has repeatedly observed, the 1972 ERA “formally died on June 30, 1982.”
Because Congress will likely never propose another one, supporters are desperate to maintain the fiction that the 1972 ERA is, as Miracle Max would say, “only mostly dead” rather than “all dead.” It remained pending before the states, and available for ratification, because Congress did not put the deadline in the right place in its proposing resolution. Or so they contend.
Congress proposes a constitutional amendment by passing, by at least two-thirds of both houses, a joint resolution that has two parts: a proposing clause with procedural rules for state consideration, and the text of the amendment.
The states have ratified eight constitutional amendments under a ratification deadline, four of them with the deadline in the proposing clause and four in the amendment text.
If the location really does make all the difference, it was a very well-kept secret in 1972.
Joint resolutions to propose the ERA with a ratification deadline began in the 1940s; 93 percent of time the deadline was placed in the proposing clause. That’s where Rep. Martha Griffiths, D-Mich., the 1972 ERA’s prime sponsor, placed it in House Joint Resolution 208.
Congress discussed the most appropriate placement of a ratification deadline in a 1932 House hearing on what would become the 20th Amendment. The reason to do so was purely practical; it would avoid “unnecessary cluttering up of the Constitution.” No one suggested that moving the deadline from one place to the other within the same joint resolution had any legal significance.
The House actually made that shift in 1960 with consideration of the future 23rd Amendment. The House Judiciary Committee report did not even note that, for the first time, its ratification deadline appeared in the joint resolution’s proposing clause. No one in either the House or Senate or in any state legislature ever said anything about the fact that the ratification deadline for the 23rd, 24th, 25th, or 26th Amendments appeared in the proposing clause.
Nor did anyone raise that question about the 1972 ERA. The ABA’s claim that its joint resolution’s proposing clause “was never even submitted to the states” and that they “voted only on the text of the actual amendment” is embarrassingly wrong on the facts.
The National Archives explains that, when Congress passes a joint resolution to propose a constitutional amendment, the Archivist transmits that entire resolution, not simply the proposed amendment text, to the states. At least 25 of the states ratifying the 1972 ERA did so by adopting a resolution that quoted Resolution 208 in its entirety, including the ratification deadline.
The ABA report never mentions that the Department of Justice’s Office of Legal Counsel in 1977 opined that the 1972 ERA “must be approved within 7 years after its submission to the States.” Or that a 1977 U.S. Commission on Civil Rights report, co-authored by then-Professor Ruth Bader Ginsburg, concluded that ratification of the ERA by the requisite number of states “must occur within 7 years.” Or that President Jimmy Carter’s Advisory Committee for Women’ 1980 report stated that the requisite number of the states “must ratify the ERA by [the deadline] if it is to become an amendment to the Constitution.”
Women’s groups backing the 1972 ERA supported Griffith’s decision to add a ratification deadline, the Women’s Equity Action League calling a “minor nonsubstantive” addition and other groups saying it would “prevent indefinite procrastination” in ratifying it. None of them raised any question about Griffith’s decision to place the deadline in the joint resolution’s proposing clause.
Everyone, including feminist leaders, agreed that the 1972 ERA’s ratification was binding and that it expired when the deadline passed with insufficient state support.
The National Organization for Women, the Washington Post reported in 1982, “concede[d] defeat” and “officially ended its…battle to win ratification of the [ERA]” when the deadline passed. When asked about the 1972 ERA’s status on the “Oprah Winfrey Show” in January 1986, feminist Gloria Steinem explained that, because it was not ratified in the nine years allotted to it, it now has to start the process over again, and…be passed by the House and the Senate and go through all of the states’ ratification process.”
The Biden-Harris administration also disagrees with the ABA. In 2022, the Justice Department defended the Archivist against a lawsuit seeking to force certification and publication of the 1972 ERA as officially part of the Constitution. Its appellate brief argued that “the validity of a ratification deadline does not turn on its precise location within the joint resolution.”
The “most telling clue” from the Supreme Court on this question, the DOJ brief asserted, is its dismissal of litigation over the validity of the 1972 ERA’s extended deadline “upon consideration of the [Acting Solicitor General’s memorandum] suggesting mootness.” The case was moot because the ratification deadline, though placed in the proposing clause, was valid and had passed without sufficient state support. The 1972 ERA had expired.
In that case, Illinois v. Ferriero, in a unanimous ruling by the U.S. Court of Appeals for the D.C. Circuit, with two of the judges on the three-judge panel appointed by Democratic presidents, the court affirmed dismissal of the lawsuit.
The states suing the Archivist, Judge Robert Wilkins wrote, had cited “no persuasive authority” that Congress may not specify the mode of state ratification, that is, by legislature or convention, in the joint resolution’s proposing clause. Congress has, in fact, done so for every constitutional amendment the states have ratified since 1789.
If Congress may do that, Wilkins asked, “why not also the ratification deadline?”
To have any chance at credibility, the ABA must show why thousands of federal and state legislators, dozens of women’s groups, scores of other ERA advocates, the Justice Department under presidents of both parties, the U.S. Civil Rights Commission, the Congressional Research Service, the Supreme Court, and a host of others all got it wrong. Every single one of them.
They all missed what the ABA now claims is the most crucial point – that Congress has authority to set a ratification deadline only when it appears in one place in the proposing resolution, but not when it appears a few inches higher on the page.
Ginsburg and Steinem got this one right. The ABA is wrong on the ERA.
The post The ABA is Wrong on the ERA appeared first on The Daily Signal.
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