The Curious Case of the Twenty-Eighth Amendment, Part I: Scenario

How many amendments does our Constitution have?

You would think this should not be a difficult question! And yet.

You may have seen headlines recently to the effect that certain liberal activists are asking President Biden to declare that the Equal Rights Amendment has been duly adopted as the Twenty-Eighth Amendment before Trump takes office in twelve days. It's easy enough to dismiss this, but I think the constitutional questions about whether the ERA is already part of the Constitution are actually fascinating. This series of posts has been rattling around my head ever since Virginia ratified the ERA back in January of 2020 (or purported to, anyway), and since the issue is back in the news I thought I would take this occasion to finally write out my analysis of the question(s).

This first post will just sketch out the basic facts of the ERA, and will frame the legal questions about its validity. The second post will then address the central substantive legal issue: the Deadline Question. Then the third and final post will address a question that, I think, seems to fly under the radar in this discussion: who the hell is supposed to decide this, anyway? (The third question, whether a state can rescind its ratification, is not interesting enough for a full post.)

The essential facts are these. Congress proposed the Equal Rights Amendment on March 22nd, 1972. The ERA had been proposed regularly since 1923, shortly after women's suffrage, but did not get serious traction in Congress until the 1960s and the rise of the women's lib movement. The final vote in 1972 was not close: 354-24 in the House and 84-8 in the Senate. The text of the proposed amendment reads as follows:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

The third section is plainly not of legal interest.

The second section is the same basic enforcement language that many amendments since Reconstruction have featured. Akhil Amar persuasively argues that all of these enforcement provisions, notwithstanding their subtle differences in language, should be read as adopting the capacious McCulloch v. Maryland standard for congressional power:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

In other words, Congress has a broad choice of means by which it will enforce the amendment.

The operative language, then, is the first section. I'll have a little more to say about this shortly. But the basic context is that, during the 1950s and '60s, the Supreme Court's decisions had created a relatively robust Equal Protection jurisprudence as to race, but not as to sex discrimination. There was moreover a serious argument that the original intent of the Fourteenth Amendment was only to deal with race, not other forms of discrimination. Broadly speaking, the ERA was meant to remedy this constitutional shortcoming.

Oh, there's one other point that's pretty important here: Rep. Martha Griffith's ultimately-successful joint resolution proposing the ERA read as follows:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress

The underline there is my emphasis.

Again, there is a history here. If you read through the Constitution you'll see that the Eighteenth, Twentieth, Twenty-First, and Twenty-Second Amendments all contain, within the actual text of the amendment itself, a provision saying something like, "this article shall be inoperative unless it shall have been ratified within seven years of the date of its submission." Why exactly this became common practice is neither here nor there, for present purposes.

The key is that at a certain point, people grew displeased with this practice, essentially because it is inelegant. It results in all this meaningless trinket text gunking up our fundamental law. So instead, beginning with the Twenty-Third Amendment (proposed in 1960, thirteen years after the Twenty-Second), Congress started putting the ratification deadline in the text of the proposing resolution instead of in the amendment itself. It seems pretty clear that, when this shift was made, nobody thought it had any practical significance, or that it would work any differently from putting the deadline in the actual amendment.

Whether they were right about that was, for a while, never tested, as every amendment proposed this way just was adopted within seven years. And at first it looked as though the ERA might well join them. Thirty-three out of fifty states ratified the ERA by February 1974, less than two years into the seven-year window. Only five more were needed for ratification to be complete. But at this point the momentum began to shift. Partly this was because Phyllis Schlafly, and other leading antifeminists, began to mobilize public opinion against the ERA, charging that it would – gasp! – lead to gay marriage. The horror.

Partly it was because the Supreme Court's jurisprudence on sex discrimination began to evolve. The major sequence of cases establishing that the Constitution cares about sex discrimination is Reed v. Reed (1971), Frontiero v. Richardson (1973), and finally Craig v. Boren (1976). To understand these cases, you need to know a little something about the dialectic of equal protection law.

For generations after the Fourteenth Amendment was adopted, the Equal Protection Clause was almost entirely neglected. It was held, in Strauder v. West Virginia (1880), to prohibit laws expressly and asymmetrically discriminating against African-Americans, in that case a law excluding black people from jury service. But of course Plessy v. Ferguson (1896) upheld Jim Crow segregation, on the risible theory that it was symmetrical in its application.

And throughout the so-called Lochner Era, when the Court was using the Due Process Clause to strike down all sorts of progressive economic regulations, it largely rejected efforts to use the Equal Protection Clause for the same end. The idea behind these challenges would be that some new law unjustly discriminated between people based on their economic activities. The Court (rightly) rejected this argument on the ground that all laws treat some people differently from other people: that alone cannot be the essence of an Equal Protection violation. It would only be a problem, these decisions said, if the distinction drawn were irrational. This is the logic that gave rise to what we now know as the "rational basis test," which, famously, is not a demanding standard for the government to meet. It need only show that the challenged law is "rationally related to a legitimate government interest."

One of the key cases establishing this general standard is called United States v. Carolene Products Co. (1938). But a footnote in that case, the infamous "Footnote Four," alluded to several areas where a "more demanding judicial scrutiny" might be appropriate. The relevant area for our purposes is laws that discriminate against so-called "discrete and insular minorities." This is a rather unfortunate turn of phrase and seems to have been pretty clearly reverse-engineered from the racial context.

Regardless, it foreshadowed what would become the Court's dominant analytical framework for racial discrimination cases. Laws that expressly treat people differently because of their race, we are told, are presumptively irrational, and therefore must be subject to what we now call "strict scrutiny." This means that, for the law to be upheld, it must be shown to be "narrowly tailored" to achieving a "compelling government interest." In practice, where the rational basis test basically always upholds the law under review, strict scrutiny basically always strikes it down.

This was not, I should say, the only course that racial discrimination law could have taken. As my grandfather Charles Black argued in a 1960 law review article, the basic logic of Strauder was entirely sufficient to strike down Jim Crow segregation in all its forms, once it was appreciated that, as a matter of fact, segregation was a massive system of intentional oppression of African-Americans. This was more or less the language that Brown v. Board itself used; if you go read that (rather underrated) opinion, you will not find the language of strict scrutiny anywhere within it. No, that analytical framework comes from Korematsu, the case that upheld Japanese internment. I am not making this up.

But this is mostly a story for another day. The key point for the story of the ERA is that, when Rep. Griffiths introduced the ERA in early 1971, the state of equal protection jurisprudence was that racial discrimination got strict scrutiny, which essentially, though not formally, meant that racial discrimination was considered flatly unconstitutional. Everything else, meanwhile, got rational basis scrutiny, which essentially, though not formally, meant "get this nonsense out of my courtroom." It would not be implausible, then, to read the ERA as a command that sex discrimination should be treated like race discrimination, i.e. that sex discrimination cases should be analyzed using strict scrutiny.

Reed v. Reed was decided that same year, and began to complicate the picture. The case arose out of an Idaho law stating that, when choosing the executor of an estate, as between two otherwise similarly-situated candidates, a man ought to be preferred to a woman. The Court struck this law down, on the ground that it was irrational. No kind of heightened scrutiny was involved, not expressly anyway. Nonetheless, as the first time that any kind of sex discrimination had ever been held unconstitutional, Reed was a sea change.

Two years later, in Frontiero, four out of nine Justices (Brennan, Marshall, Douglas, and White) went further and said precisely that sex discrimination should get strict scrutiny the same as race discrimination. But only four. Four others (Powell, Burger, Blackmun, and Stewart) said that the logic of Reed v. Reed was enough to decide the case, which dealt with a rule making it easier for male members of the military to claim dependents than for female ones. Then-Associate Justice William Rehnquist simply dissented; he thought the Fourteenth Amendment said nothing about sex discrimination at all.

The really interesting thing is what Lewis Powell said in his concurring opinion (joined by Burger and Blackmun). He expressly pointed to the pending Equal Rights Amendment as a reason not to adopt heightened scrutiny for sex discrimination cases. Essentially, Powell thought, the question of whether or not to make that doctrinal shift was immediately being debated by the People themselves, and the Court should not move while that debate was underway. What this created, I think, was a bizarre kind of inhibition loop. The fact that the Court was beginning to address sex discrimination under the existing Constitution made it less urgent to pass the ERA, but meanwhile the failure to pass the ERA discouraged the Court from going even further in combatting sex discrimination.

The final settlement came in Craig v. Boren, about an Oklahoma law allowing women, but not men, between the ages of 18 to 21 to drink half-strength beer. The case could not be resolved simply by applying Reed, because Oklahoma adduced a fair amount of evidence that young men were more dangerous when drunk than young women. The rational basis test, in other words, seemed to be satisfied. But the Court struck the law down anyway – not by adopting strict scrutiny for sex discrimination cases, but by inventing a new, "intermediate" tier of scrutiny. This test requires that the challenged law be "substantially related" to achieving an "important" government interest. Broadly speaking this is where the law stands today.

I think the best way to think about intermediate scrutiny is that it was designed to forestall exactly the kinds of dangers someone like Schlafly was warning about. Strict scrutiny, being "strict in theory, fatal in fact," might, it was thought, lead to striking down even those instances of treating men and women differently that no one really wanted to dislodge. The marriage laws loomed large here, as did sex-segregated restrooms, and yes, if you're thinking that the latter is an awfully minor issue to be a hinge-point in constitutional history, you're not wrong. Intermediate scrutiny would essentially allow the Court to pick and choose, making sex discrimination broadly illegal except where people felt it was sufficiently inoffensive.

And this took all the wind out of the ERA's sails. People liked the Craig v. Boren settlement. How could they not! It was precisely the kind of unprincipled compromise designed to make most people broadly happy. Adopting the ERA and forcing an unyielding law of sex equality would only have served to get rid of those examples of sex discrimination that people broadly liked. Indeed, only one state ratified the ERA after Craig v. Boren was decided (Indiana, in 1977). Along with North Dakota's 1975 ratification, this brought the total to thirty-five of thirty-eight required states having signed on. And there the total would remain until well after the seven-year deadline had passed. (Meanwhile, five of those thirty-five states had purported to rescind their original ratification; whether a state can do this is deeply unclear.)

As the deadline approached, however, Congress did something curious: it passed a resolution purporting to extend the deadline by three years. This resolution ended up being signed by President Carter, an oddity given that the president is not formally involved in the amendment process in any way; this was thought somehow to compensate for the fact that the resolution had not passed with two-thirds majorities in either House. The validity of this extension was hotly contested at the time; Ruth Bader Ginsburg testified before Congress in support of the extension, but a federal judge in Idaho disagreed, and held that the original 1979 deadline remained in effect, and had lapsed, and thus that the ERA was no longer pending before the states. The Supreme Court stayed this ruling, which eventually became moot, because... no new states ratified the thing during the putative three-year extension, anyway.

Basically everyone agreed, then, that by the summer of 1982 the window for ratification had passed once and for all, and the ERA (at least as proposed in 1972) was dead. Until 1997, when three feminist legal scholars – Allison Held, Sheryl Herndon, and Danielle Stager – published an article in the William & Mary Journal of Race, Gender, and Social Justice arguing that, contrary to common perception, the ERA remained "legally viable and properly before the states." If you are interested in this whole saga, I strongly recommend that you go read that article. It shapes basically everything that has happened subsequently.

It took two decades, and the election of sex predator Donald Trump as president, for this argument to gain any significant momentum. But then, in March 2017, Nevada became the first state in forty years to (purport to) ratify the ERA. Illinois followed the following year, and then in January 2020 Virginia became, maybe, the 38th state to ratify. Which would be the requisite three-fourths supermajority under Article V. Maybe.

There are three legal questions that have to be answered to assess the status of the Equal Rights Amendment, given all this history:

1. What's up with the deadline? Was the initial 1979 deadline valid to begin with? If so, did Congress have the power to extend that deadline, as it purported to do in 1978? Does it have the power to lift the deadline now, after it has passed? Or did the amendment cease to be pending for ratification as soon as the deadline (whether in 1979 or 1982) hit? Etc. There are a lot of permutations here.
2. Are the purported rescissions valid? If so, then regardless of our answer to question #1, the current total is not 38 but 33, and the ERA is not valid on any account of anything.
3. Who is responsible for resolving these questions?

If you answer each of these questions the right way, you can reach the conclusion that the ERA is already part of the Constitution, and has been for nearly five years now, ever since Virginia's ratification. Specifically, you need to hold that (1) the 1979 deadline was never valid to begin with, such that the ERA has been pending before the states this whole time; (2) the rescissions are not valid; and (3) all of this is basically self-executing and no official recognition is needed in order for the Twenty-Eighth Amendment to be "valid to all intents and purposes, as part of this Constitution."

Are those the right answers? That's what the rest of this series will tackle. I don't have much to say about the rescission question, since there is essentially no relevant historical practice or precedent to reason off of. I am inclined to think that the rescissions are not valid, and will assume as much for purposes of this series, rather than devoting any further discussion to the question. But both the first and third questions are extremely interesting, not only because of their practical significance for the ERA but because they demand from-first-principles structural reasoning rather than the more humdrum application of well-honed judicial doctrine.