“Didn't the ratification deadline already pass?”

  • The arbitrary and unilateral deadline that was not included in the wording of the 28th Amendment (Equal Rights), ratified by 38 states, should not keep gender equality out of our Constitution.
    • Although the Constitution references many time limits (lengths of terms, age to run for office, number of years as a citizen) it never references a time limit for amendments. In fact, the 27th Amendment was added in the 1990s after a 200+ year ratification period.
    • Article V of the Constitution, which outlines the amending process, does not provide Congress the unilateral ability to impose a time limit on a state’s ratification.
    • During the 20th Century, beginning with the prohibition amendment, Congress included ratification deadlines in the text of some constitutional amendments. Every state that ratified such an amendment affirmed the deadline as a part of the text they ratified. Thus, Congress’ action was not unilateral.
    • When the  28th Amendment was passed in 1972, Congress added a deadline in the resolution that proposed the amendment, but not inside the text of the amendment itself. This distinction is important. The 38 states that ratified the 28th Amendment did not approve, consent, nor include the deadline from Congress’ resolution in their ratifications.
    • Until now, no fully ratified amendment has ever been kept out of the Constitution.
  • If a court were to determine that Congress could arbitrarily limit a state’s right to ratify an amendment with a unilateral ratification deadline (not in the wording of the amendment), then Congress would also have the authority to extend or remove that same deadline.
    • Congress has extended the deadline on the 28th Amendment once previously, from the original 1979 deadline to 1982. 
    • Since 1982, legislation to revive consideration of the ERA has been frequently introduced. Interest in the amendment has continued in the 118th Congress.
      • The Senate introduced SJ 4 on January 24, 2023 for the removal of the amendment’s orginal ratification deadline and the continued vitality of state ratifications completed before the dealine.
      • Rep. Pressley, Ayanna with 213 cosponsors filed HJ Res 25 on January 31, 2023. The resolution provides that the Equal Rights Amendment was ratified by three-fourths of the states and is therefore a valid constitutional amendment, regardless of any time limit that was in the original proposal. (source, Congress)

    Resources: The nonpartisan Congressional Research Service updated a white paper for Congress in July 2023 which covers the deadline topic in detail.



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