Constitutionality of ERA Revival

At National Review Online, Ramesh Ponnuru analyzes the constitutionality of modern efforts to revive the Equal Rights Amendment:

In recent years, though, advocates of the ERA have reached the liberating conclusion that they do not need to start over. They can bank all the previous ratifications, ignore the states that rescinded their ratifications, and get three additional states to put the ERA over the top. Over the last three years, Nevada, Illinois, and Virginia purported to provide those last three ratifications. In mid February, a simple majority of the House passed a bill purporting to remove the deadline. The qualifiers are there because the legitimacy of these acts is so dubious.

There are now, inevitably, dueling lawsuits over the issue. The three states that just tried to ratify the ERA are in court demanding that the National Archives recognize that the amendment is now part of the Constitution. Three other states—Alabama and Louisiana, which never ratified it, as well as South Dakota—sued to stop what they characterize as an unconstitutional ratification process.

The second group of states is surely correct about both the letter and the spirit of the law. Article V is designed as it is to ensure that any constitutional amendment reflects a broad social consensus. Congress, in proposing the ERA, reasonably specified a deliberative moment during which that consensus could be attained. It wasn’t. To deny this point requires constitutional contortions. One of the arguments behind the recent pro-ERA moves holds, for example, that the original 1972 time limit was unconstitutional but that the proposal to which the time limit was attached was nevertheless valid. The claim that the ERA is now part of the Constitution must also insist that there is a no-takebacks clause hiding in the penumbra of Article V.

Read the entire piece: "The ERA is a Zombie Amendment".