TOP LEGAL NEWS OF THE WEEK

Virginia election sparks new effort to revive the ERA

The Equal Rights Amendment, which has been languishing since Congress’ deadline for ratification expired in 1982, is experiencing a resurrection.

On Nov. 13, the U.S. House Judiciary Committee approved a resolution eliminating any ERA deadline, about a week after a Virginia state election gave Democrats control of both the House of Delegates and the Senate in 2020. This shift raises prospects that the state could become the necessary 38th state to ratify the ERA, which would add the guarantee of equality of the sexes into the U.S. Constitution.

The 27th Amendment was approved by Congress in 1972.

The 27th Amendment was approved by Congress in 1972.

American Bar Association graphic

“If we eliminate the (ratification) deadline, Virginia will ratify and become the 38th state, and then the ERA can go into effect as a constitutional amendment,” House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., predicted.

But as a new ABA Legal Fact Check posted on Nov. 22 indicates, several constitutional and legal challenges might have to be overcome for the ERA to become part of the Constitution. This includes legal issues related to a federal judge’s decision in Idaho in 1981 that a state could be allowed to rescind its ratification within the 1982 deadline. Altogether, five states rescinded prior ratifications.

The Founding Fathers extensively debated the process to change the U.S. Constitution, before making it difficult to do so. Since the first 10 amendments, known as the Bill of Rights, were added to the Constitution in 1791, the sacred document has been amended only 17 times, with the last being the 27th Amendment in 1992.

While the proposal to eliminate the ERA deadline is expected to pass the House, its fate in the Republican-controlled Senate is uncertain. Among other issues the ABA Legal Fact Check raises are whether Congress or the courts have the last say on constitutional amendment matters, such as the ERA.

And over two centuries, the U.S. Supreme Court has offered limited guidance on how to interpret the 143 words of Article V, which details the process for amending the U.S. Constitution. Under it, both chambers of Congress would need to approve any amendment by two-thirds vote and three-quarters of the states would have to ratify any specific addition. 

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