Virginia Ratifying ERA Doesn’t Mean Much
If you had been cheering after Virginia ratified the Equal Rights Amendment last week, forget it!
Virginia was the last state needed to reach the magic number required (3/4 of them) to enact an amendment to the Constitution. But when the ERA was sent to the states in 1972, Congress gave them 10 years to ratify (they didn’t quite make it), and then another three (still no luck).
In the meantime, a handful of states (Nebraska was the first to say, “oops!”) rescinded, further fouling the waters.
Nebraska, by the way, was the second to ratify and a year later the Unicameral succumbed to Speaker Richard Proud of Omaha who said women would have to go into combat and they’d lose the right to alimony support in a divorce (for example) and changed its mind.
What is the constitutional impact of missing a congressionally mandated deadline to ratify an amendment? The Supreme Court has never ruled directly on the question, but on January 6 of this year the Office of Legal Counsel of the Department of Justice wrote a memo to the National Archives (which has the job of promulgating official documents) stating that deadlines are to be obeyed.
The 30-page opinion, written by Steven A. Engel, the head of OLC, makes an exhaustive examination of the history and interpretation of ratification deadlines. He concludes that, under Art. V of the Constitution, Congress may add language to the measure forcing a deadline.
In effect, Engel says, if the deadline is missed, proponents have to start over.
Engel adds that states may change their minds before the amendment is finally ratified. Thus, Nebraska and the four other states rescinding (Tennessee, Idaho, Kentucky and South Dakota) were perfectly within their right to do so.
An Equal Rights Amendment was first proposed a half century before the one that just failed. That was just three years after the Women’s Suffrage amendment was ratified in 1920. Some scholars say an ERA is not needed since the Fifth and Fourteenth Amendments and much legislation (e.g., Tit. IX of the Education Amendments of 1972, 20 USC 1681-1688) accomplish everything a Constitutional amendment could do.
But you know full well that courts change their minds and legislatures go on amending sprees.
User login
Omaha Daily Record
The Daily Record
222 South 72nd Street, Suite 302
Omaha, Nebraska
68114
United States
Tele (402) 345-1303
Fax (402) 345-2351