Ark. Senate panel rejects Equal Rights Amendment

[SunSeeker]

6. It is not "breaking rules." Congress can and has extended the arbitrary deadline it imposed.

A 1921 Supreme Court decision (Dillon v. Gloss) recognized that Congress has the power to fix a definite time limit for ratification; it also pointed out that an amendment becomes part of the Constitution once ratified by the final state constituting a three-fourths majority of the states. The Dillon Court said that an amendment should be ratified within a "reasonable" and "sufficiently contemporaneous" time frame "to reflect the will of the people in all sections at relatively the same period," because the amendment process is presumably triggered by a perception of "necessity" with respect to the subject of the amendment.

A 1939 Supreme Court decision (Coleman v. Miller) reaffirmed the power of Congress to fix a reasonable time period for ratification but also determined that Congress has the power to promulgate an amendment after the final state constituting a three-fourths majority ratifies. In Coleman, the Court held that Congress, upon receiving notification of ratification by three-fourths of the states, may determine whether the amendment is valid because it has been ratified in a reasonable period of time, or whether "the amendment has lost its vitality through lapse of time." The Court called the timeliness decision a "political question" and said that Congress is uniquely equipped to make that decision because of its "full knowledge ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment."

It is important to note that Congressional promulgation is not a necessary feature of Article V. In the history of the amendment process Congress has promulgated only two amendments, the 14th and the 27th, following the final state ratification. In addition, the requirement for ratification within a "sufficiently contemporaneous" time frame and the chronological definition of "contemporaneous" are now open to question in light of the Madison Amendment experience.

The first time limit ever imposed on the ratification period of a constitutional amendment was in the text of the 18th Amendment (Prohibition) in 1917; the seven-year limit was chosen by Congress without extensive discussion about the particular length of time. The 19th Amendment (Woman Suffrage) was sent to the states in 1919 with no time limit, as was a proposed Child Labor Amendment in 1924. Seven-year time limits were placed in the text of the 20th, 21st, and 22nd Amendments, but Congress shifted the seven-year limit out of the text and into the proposing clause of the 23rd, 24th, 25th, and 26th Amendments. The 27th Amendment had no time limit.

Despite arguments by proponents that the Equal Rights Amendment should go to the states without a time limit in the tradition of the 19th Amendment, the ERA passed Congress in 1972 with a seven-year time limit in its proposing clause. If the time limit had been placed in the text of the amendment itself, that restriction would not be subject to alteration by Congress after any state legislature had ratified. However, the ERA language ratified by 35 states between 1972 and 1982 (see above) did not contain a time limit for ratification.

By transferring time limits from the text of an amendment to the proposing clause, Congress retained for itself the authority to review the limit and to amend its own previous legislative action regarding that time limit. In 1978, Congress clearly demonstrated its belief that it may alter a time limit in the proposing clause when it passed an extension of the original seven-year limit for ERA ratification and moved the deadline from March 22, 1979, to June 30, 1982. A challenge to the constitutionality of the extension was dismissed by the Supreme Court as moot after the deadline expired, and no lower-court precedent stands regarding that point.

The Coleman decision asserted that Congress may determine whether the states have ratified in a "reasonable" time or whether the amendment is "no longer responsive to the conception which inspired it." Congress therefore could determine that the time period since the ERA went to the states for ratification in 1972 is "reasonable" and "contemporaneous" (particularly in light of the fact that it deemed the Madison Amendment's 203 years to be so), and it could decide that the ERA remains "responsive to the conception which inspired it" (indisputably so, since the fact that women's equal rights are not constitutionally affirmed will remain unchanged until the Constitution is amended or interpreted to establish unequivocally that women and men have equal rights).

Therefore, under the principles of Dillon and Coleman, and based on the fact that Congress voted to extend the ERA time limit and to accept the 203-year-long ratification period of the Madison Amendment as sufficiently "contemporaneous," it is likely that Congress has the power to legislatively adjust or remove the time limit constraint on the ERA if it chooses, to determine whether or not state ratifications which occur after the expiration of a time limit in a proposing clause are valid, and to promulgate the ERA after the 38th state ratifies.

http://www.equalrightsamendment.org/strategy.htm