As President Joe Biden prepares to announce his pick to put the first black woman on the Supreme Court, one question is sure to arise in her confirmation hearings: How many amendments are there to the Constitution?
It may seem like a question better suited for a high school government class, but the answer isn’t as obvious as it seems.
Last week, Biden urged Congress “to pass a resolution recognizing ratification of the ERA” as the 28th Amendment to the Constitution. The Equal Rights Amendment, he argued, would “definitively enshrine the principle of gender equality in the Constitution.”
The ERA was drafted by women’s rights activist Alice Paul in 1943:
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 the 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.
In 1972, the draft amendment got the constitutionally required two-thirds vote in both the House and the Senate and was sent to the states for ratification with a seven-year deadline, which Congress, with only a simple majority, then extended by an additional 3 years to June 30, 1982. When the day arrived, only 35 states had ratified the amendment—three short of the three-fourths of states required by Article V of the Constitution.
Then Nevada in 2017, Illinois in 2018 and Virginia in 2020 each ratified the ERA.* Voila, the ERA hit magic number 38—but a few decades past the deadline set by Congress.
So do we have a 28th Amendment or not?
Article V of the Constitution states that a proposed amendment “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.” And it requires Congress to specify which “mode of ratification” it is proposing.
First, there is nothing in the Constitution that requires amendments to be ratified in any set amount of time. In fact, the 27th Amendment took 202 years and seven months to make it into the Constitution. Supporters of the ERA, however, go further and argue that Congress can’t set a deadline for states to ratify an amendment—at least not the way it tried to here.
In this case, Congress included the deadline in the preamble—a kind of legislative post-it note—when it sent the ERA to the states. Supporters argue that states ratified a text with no deadline and that Article V doesn’t allow Congress to attach its own, extra conditions.
Under this argument, Congress could have included a Section 4 in the ERA to read, “If this amendment is not ratified within seven years of transmittal, it will be considered void.” In this alternative history, when Virginia ratified the amendment in 2020, the ERA would have become the 28th Amendment but it would have no effect by its own text. A constitutional gallbladder of sorts—it’s still in the body but it doesn’t serve any meaningful purpose. But since there was no such text in the amendment that Virginia ratified, supporters argue, there was no deadline and therefore 38 states have validly ratified the ERA.
Opponents of the ERA, of course, disagree. They argue that this in-text versus preamble argument is formalistic and ahistorical. By the text of the Constitution, Congress may set the “mode of ratification,” and a deadline is just that—process. Muddying up the Constitution with various self-referential amendment clauses that are only about ratification would serve no purpose other than to help the ERA—an amendment that nobody believes could come anywhere close to 38 states if it were reintroduced today—limp across the finish line in this one instance.
History is muddled. For more than 100 years, Congress did not include any deadlines with proposed amendments, but it did specify by which “mode of ratification”—state legislatures or state conventions—it was sending an amendment in the preamble to the text. Then the 18th, 20th, 21st, and 22nd amendments all included deadlines in the text of the amendments themselves. But starting with the 23rdAmendment, Congress has put any deadlines into the introductory clauses along with the legislature or convention language.
The Supreme Court has yet to weigh in fully on the subject. In 1921, the Supreme Court held that “of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt” and that such power was “incident of its power to designate the mode of ratification.” In 1939, the court wrote about the amendment at issue that “no limitation of time for ratification is provided in the instant case either in the proposed amendment or in the resolution of submission,” at least implying that including a ratification deadline in either the text or the preamble would have been effective. Interestingly, the ERA deadline did make it to the Supreme Court, but before it could rule, the extended 1982 deadline passed with no additional ratifications, so the court held that the question was moot and dismissed the case. Of course, it is worth remembering that the only way the case could be moot is if a lawful deadline had expired.
Opponents have another argument as well. Before the initial 1979 deadline, four states officially rescinded their ratification, and South Dakota’s legislature “expressly provided that its ratification would be formally withdrawn if the ERA were not adopted within the seven-year deadline.” And so opponents argue that Virginia was, in fact, the 33rd state—not the 38th—to get on board.
The rescission question has been hotly debated since 1979. Even Ruth Bader Ginsberg, before she was Justice Ginsberg, referred to it as “the most debatable issue” concerning the ERA’s ratification. On the one hand, it may seem obvious that a state should be able to change its mind within the ratification period and that any amendment must have “a contemporaneous consensus of the people of the United States,” as one federal judge put it. On the other hand, the Constitution simply says an amendment “shall” become part of the Constitution when it is ratified by 38 states—a condition that would be met regardless of whether states also rescinded that ratification. And, as the 1979 Department of Justice explained it, there are good practical reasons not to recognize rescissions also in that “when a State ratifies an amendment, it induces like action by other States.”
And so where does that leave us?
Last year, an Obama-appointed federal judge held that the ERA could not be considered part of the Constitution because “a ratification deadline in a proposing resolution’s introduction is just as effective as one in the text of a proposed amendment.” Notably, however, he also wrote that “Congress has not tried to revive the ERA despite both deadlines’ expirations, so the Court is not confronted with that difficult issue.” That case is currently on appeal to the D.C. Circuit and could be appealed to the Supreme Court later this year.
In the meantime, two House members have proposed a concurrent resolution that would recognize the ERA as the 28th Amendment. To be passed, the resolution would need support from a majority of the House and 60 votes in the Senate, which is unlikely. But more bizarrely, it would have no real effect. A federal judge has said that the amendment was not validly ratified—and it is up to the courts to say “what the law is,” not Congress.
Oddly, Congress could try to pass a more meaningful resolution—to once again extend the deadline. It’s not clear, of course, that Congress can change a deadline by a simple majority when the ratification process requires two-thirds of Congress to propose an amendment. And it’s not clear whether the three states in question would need to re-ratify or whether Congress could extend the deadline backward as well. And none of that would answer the question about whether the five states which withdrew their consent should still be counted. But still.
Lastly, there is the question of what effect the ERA would actually have on the law. It is not clear—even to lawyers in favor of the ERA’s passage—what its full ramifications might be. Federal courts already recognized sex as protected class under the 14th Amendment, which holds that the government cannot “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has also recently recognized that the word “sex” can apply to gender and sexual orientation.
It’s not even clear whether the amendment would even help women anymore. After all, the future is looking a bit grim for men:
Women now account for 59.5 percent of college students in the United States. They also earn 58.5 percent of master’s degrees and 52.9 percent of Ph.D.s. Women have been earning the majority of doctorates for 13 straight years. In the 2020-21 academic year, a million more women than men applied to college…Seventy percent of high school valedictorians are girls.
And so it is very possible that the ERA—which states “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex”—will do more to help men in the coming decades.
It is also possible the ERA could undermine efforts by transgender athletes, for example, to compete on women’s teams. If the purpose of the ERA is to protect women as a sex classification, then the argument would go that people born as women are being disadvantaged under the law when they are forced to compete against people born as men.
Of course, the most likely outcome is that we will never know what effect the ERA would have had. Because the next justice to the Supreme Court will respond that there are only 27 recognized amendments to the Constitution.
Correction, February 7, 2022: This piece initially included an incorrect date for the ratification of the ERA in Illinois. It came in 2018, not 2014.