CBA Record May-June 2022

Ultimately, the founders allowed both Congress and the states to play a role, as co-equal parties in the amendment pro cess, which, as noted, is a two-step process, not a negotiation. Neither party has a uni lateral right to amend the Constitution or otherwise infringe on the other party’s role. Pursuant to the text of Article V, an amendment is valid “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 Con gress.” In its political opinion issued in anticipation of Virginia’s ratification, the DOJ under the Trump administration asserted that this “mode of ratification”

of Congress and ratification by the leg islatures of three-fourths of the states. For a time limit to be effective, it would have to be within the four corners of the amendment text, where it can be agreed upon by both parties to the amend ment process, Congress and the states, and not contained solely in one party’s internal resolutions. States do not ratify Congressional resolutions. States ratify amendments. The states did not approve the ratification time limit in the resolu tion Congress used to adopt the ERA. Also noteworthy is that a resolution for the sole purpose of proposing an amendment under Article V is different from other resolutions passed in order

the date of its submission by the Con gress.” Significantly, the language does not say that the amendment is invalid – or, in more legalistic language, “null and void” – if ratified after seven years. In 1917, Congress passed the 18th Amendment, known as Prohibition, which was the first amendment that had a time limit. That time limit is in the text of the amendment – completely unlike the ERA – and was ruled as con stitutional in Dillon v. Gloss , 256 U.S. 368 (1921). The language is also definite. Section 3 of the 18th Amendment says, “This article shall be inoperative unless … ratified … within seven years …” Many years later, in 1978, after days

language bestowed on Congress constitutional authority to limit states’ time for ratification. The text clearly does not say that. The phrase “one or the other” refers to a particular set of options, from which the Congress can choose, and has nothing to do with being able to limit the ratification time for states. Congress picking between the two modes of state ratifica tion is a practical matter, so that there is a uniformity of ratifica tion from state to state. These two modes were specifically discussed at the Constitutional

of hearings, Congress passed a resolution extending its intended ERA state ratification timeframe until June 30, 1982. Also in 1978, around the same time as these hearings, Congress passed the District of Columbia Voting Rights Amendment. Congress put the time limit within the text of that amendment and used the same definite language as was in the 18thAmendment. They knew that the ERA state ratification timeframe was unenforceable. The most recent amendment to the Constitution is the 27th, which was added in 1992. Con

to make law. Article I, Section 7 of the Constitution requires that for ordinary resolutions passed by Congress to have the effect of law, those resolutions must be presented to the President for signa ture. Even assuming Congress somehow had authority to set a time limit on the states via a resolution - which it does not - for that time limit to be enforceable as law against the states, the resolution would have to have been presented to the President. The ERA proposing resolution passed by Congress was not presented to President Richard Nixon for his signature. It is also salient that the language in the congressional proposing resolution for the ERA is open-ended. The resolution says the amendment “shall be valid … when ratified … within seven years from

Convention. Setting a time limit is a sub stantive change to the Constitution and that change cannot be made unilaterally by Congress. Such Congressional over reach was certainly not contemplated by the constitutional drafters, who were tempering the power of the national government and its varied branches with the preservation of states’ rights. Therefore, since Article V neither sets a time limit on state ratifications nor gives Congress the constitutional authority to set a time limit on the states, adding a time limit is itself an amend ment to the Constitution. That time limit must follow the Article V amend ment process, which means passage by at least a two-thirds vote in each house

gress had passed the “Congressional Pay Amendment,” drafted by Madison, 203 years earlier in 1789, along with the amendments that became our Bill of Rights. The Congressional Pay Amend ment did not have a timeframe either in its text or in a unilateral Congressional resolution. What a remarkable contrast to add this ancient amendment on the basis that it meets the strict requirements of Article V, yet to block a 48-year-old amendment – the ERA – that also meets the strict requirements of Article V. Of course, the ERA does include a timeframe that is valid. Section 3 pro vides that the amendment will take effect two years after it is fully ratified, allowing governmental bodies time to

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