Following its ratification by the 38th state (Virginia), supporters of the ERA argued that if Congress were to adopt legislation rescinding the 1982 deadline, the ERA would become the 28th Amendment to the Constitution.
This is a shaky Constitutional argument.
To back up, the processes of amending the Constitution are laid out in Article V which states:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Note that this Article does not contemplate ratification deadlines at all.
Thus, IMHO, the strongest argument in favor of the ERA is that deadlines are simply invalid because the Constitution does not provide for them. In that case, no Congressional action is necessary at all because the deadline is ineffective and consequently the ERA which HAS been ratified by 38 states which meets the Constitutional requirement quoted above that it shall be valid when ratified by three fourths of state Legislatures (50*.75=37.5). There are, however, several problems with this argument:
First, the ERA, as proposed by Congress contained a ratification deadline of March 22, 1979. Congress subsequently voted to extend that deadline to June 30, 1982. The extension, however, was passed by simple majorities in both Houses whereas the proposal of an Amendment requires a two thirds majority. This legal question was rendered moot by the fact that no states ratified the amendment between March 22, 1979 and June 30, 1982.
Second, five states (ID, TN, NE, KY, SD) have voted to recind their ratifications. These recissions are also Constitutionally questionable because Article V also does not mention Recission.
Next, a second argument against the validity of the ratification deadline is that apparently it was included in the preamble to the ERA, not in the ERA itself. Thus, the argument is that the States were voting only on the ERA and that the preamble lacks the force of law.
So I would rank the arguments in favor (strongest to weakest) as follows:
- Ratification deadlines are null and void because they are not contemplated by Article V of the Constitution.
- This particular ratification deadline is null and void because it was not included within the text of the Amendment itself.
- Congress can extend the deadline.
Conversely, I would rank the arguments against (strongest to weakest) as follows:
- The original ratification deadline was valid has expired, and cannot be extended.
- Recissions of Ratification are valid and thus the Amendment has never been ratified by three fourths of the States. It got to 35, then five recinded, then three more ratified (35-5+3=33).
There is some case law that proponents argue creates a precedent against Recision.
Above I've tried to be even-handed. Now my opinion:
First, I think that Congress' power to impose a Ratification deadline is implied by the fact that the Constitution grants Congress the power to propose Amendments.
Second, IMHO, the argument that the deadline can be extended at all, let alone by a simple majority, is ludicrous. If it takes a two thirds majority to propose an Amendment then it should take a two thirds majority to alter a proposed amendment if alteration is even permitted.
Third, if the Ratification deadline was valid then all Ratifications were passed subject to the deadline and it cannot be altered.
Finally, Recission must be permissible. Really, the argument for this position is best made br proponents of the ERA. One such proponent argued that ratification us a one-way ratchet. Ok, then ask yourself if you think the founders intended to create such a ridiculous system? Of course not.
