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The ‘Equal Rights Amendment’ Virginia Just Ratified Is A Legal Fiction


You’ve heard it asked: if a tree falls in the woods, but no one is there to hear it, does the tree actually make a sound? The Virginia legislature last week offered a variation: if a legislature ratifies a constitutional amendment, but that amendment does not exist, has the legislature actually done anything?

Activists have been trying since the 1920s to make the Equal Rights Amendment (ERA), which now states that “[e]quality of rights under the law shall not be abridged…on account of sex,” part of the U.S. Constitution. From the beginning, there’s been a vigorous debate about its likely consequences, both intended and unintended, and, more recently, whether federal and state laws, state constitutions, and federal court rulings already provide what the ERA might have.

Congress did not achieve the two-thirds support in both houses that the Constitution requires until March 22, 1972. The resolution it adopted had both a substantive and a procedural part.

The substantive part was the text of the ERA itself. The procedural part required that states ratify it through their legislatures and do so within seven years. Fearing that the necessary 38 states would not do so by the deadline, Congress in 1978 extended it to June 30, 1982. Even ignoring the five states that rescinded their support, the amendment failed.

The Congressional Research Service publishes a massive work titled “The Constitution of the United States of America: Analysis and Interpretation.” The last several editions have stated the obvious, that the 1972 ERA “formally died on June 30, 1982.” That’s what an expiration date is for. When the 1972 ERA expired, it was no longer pending before the states. It simply did not exist.

More than 25 years ago, Virginia’s deputy attorney general issued an opinion that “the ERA was not currently before the states for ratification because its original and extended time limits had expired.” So, when the Virginia legislature on January 15 claimed to have adopted a resolution to ratify the 1972 ERA, what did it actually accomplish?

For one thing, the members of the legislature treated as optional their oath to support and defend the Constitution. The Constitution gives Congress authority to propose amendments, which includes the authority to set a ratification deadline.

Seven amendments already in the Constitution have one. Nearly 60 other resolutions for proposing the ERA, introduced since the early 1970s, have the same deadline. Honoring the oath of office requires that legislators follow the Constitution’s rules, including the process for amending it.

The members of the Virginia legislature also took a step with this constitutional amendment that they would never take with their own legislation. No one would suggest, for example, that the 2020 legislative session is just a continuation of the 2019 session and that the legislature today could take up a bill that was introduced last year. Those bills that were not enacted expired when the 2019 legislative session adjourned last February. They have no more authority to ratify a constitutional amendment that has similarly expired.

Finally, members of the Virginia legislature struck another blow against the separation of powers. “No political truth,” wrote Virginian James Madison in The Federalist No.47, “is certainly of greater intrinsic value” than the separation of government power into three branches. Only the legislative branch, at the federal and state level, has a role in amending the Constitution. Yet after purporting to “ratify” a non-existent ERA, Virginia legislators of both parties said, “Taking a stand was important, let the courts sort it out.”

Parents teach their children that how you play the game is more important than whether you win or lose. Applying that simple truth to government is the meaning of the phrase “the rule of law.” We citizens must follow the rules government sets for us. Shouldn’t government have to follow the rules we set for them in the Constitution?

Whatever the Virginia legislature did by passing that “ratification” resolution, it did not move the 1972 ERA closer to becoming part of the U.S. Constitution. It couldn’t, because the 1972 ERA no longer exists.