At Concurring Opinions, some interesting questions from Gerard Magliocca. First: The Ratification of the ERA. From the introduction:
A few months ago, Nevada ratified the Equal Rights Amendment proposed by Congress in 1972. I have no idea if this was done for symbolic reasons or from a genuine desire to see the ERA ratified. Nevada’s action, though, raises an interesting constitutional problem about ratification deadlines.
In some constitutional amendments, the amendment’s text says that the proposal is not ratified unless enough states approve within seven years. In other amendments, the deadline is in the resolution proposing the amendment rather than in the amendment itself. The ERA falls into the later category. Not enough states ratified the ERA in the seven year period, and not enough have done so now even with Nevada’s yes vote.
Suppose, though, that a few more states ratify the ERA. Enough that there is no doubt that there are 38 yes votes. Can Congress then repeal the original time limit and declare the amendment valid?
And further: The Original Understanding of the ERA. From the introduction:
Following up on my last post, suppose that the Equal Rights Amendment is somehow ratified. How should we interpret a text proposed in 1972 and ratified, say, 50 years later?
The 27th Amendment presents this issue in an even more acute way (proposed in 1789 and ratified in 1992). That amendment, though, is so specific and so rarely litigated that the 200-year-span is not a practical problem.
Not so for our hypothetical 28th amendment. So what should we say here?
Posted at 6:23 AM