Can the Virginia General Assembly ratify the Equal Rights Amendment after the ratification deadline has passed?

Plain-English summary

Senator Black asked whether the Virginia General Assembly's ratification of the Equal Rights Amendment would "have any legal effect." Congress proposed the ERA to the States in 1972 with a seven-year ratification deadline in the proposing resolution (not in the text of the amendment itself). Between 1972 and 1979, 35 states ratified, three short of the three-fourths needed. In 1978, Congress extended the deadline to June 30, 1982, but no additional states ratified during the extension. Nevada became the 36th state to ratify in March 2017. As of the opinion's issuance (May 11, 2018), 14 states (including Virginia) had never ratified, and five had purported to rescind earlier ratifications.

The Attorney General concluded that the General Assembly may still pass a ratifying resolution and that resolution could have legal effect for purposes of determining whether the ERA has been ratified, if Congress acts. The reasoning rests on Article V of the U.S. Constitution and Supreme Court precedent in Dillon v. Gloss (1921) and Coleman v. Miller (1939). Dillon held that the time period for ratification must be "within reasonable limits" and that whether to fix a term of years is a matter for Congress "as an incident of its power to designate the mode of ratification." Coleman extended that analysis, holding that determining a reasonable ratification period is a matter for Congress alone, requiring "an appraisal of a great variety of relevant conditions, political, social, and economic" that "are appropriate for the consideration of the political departments of the Government." A concurring opinion went further: Congress has "sole and complete control over the amending process, subject to no judicial review."

The AG concluded that Congress had authority to extend the deadline to 1982, and would have authority to extend or remove the deadline going forward. Resolutions then pending in both houses of Congress proposed to do exactly that. The AG also noted that the Twenty-seventh Amendment took 203 years to ratify (first proposed in 1789, ratified in 1992), serving as a notable example of an amendment ratified well after the period when its "contemporaneous consensus" question might have seemed insurmountable.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The ERA situation has continued to develop since this opinion was issued (including Virginia's own ratification in 2020 and subsequent federal litigation), and any present-day question about ERA ratification status requires consulting current authorities.

Background and statutory framework

Article V of the U.S. Constitution governs how the Constitution can be amended. Congress, by two-thirds vote of both houses, proposes an amendment, which becomes part of the Constitution "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 Congress." Article V does not by its terms set time limits on ratification.

The ERA was first introduced in Congress in 1923 (as the "Lucretia Mott Amendment") and the version submitted to the States in 1972 has three sections: equality of rights under the law cannot be denied by the United States or any State on account of sex; Congress can enforce the article by legislation; the amendment takes effect two years after ratification. The proposing resolution included a seven-year ratification deadline. Between 1972 and 1979, 35 states ratified. In 1978, after extensive committee hearings, Congress extended the deadline by about three years and three months. The legal justification for the extension rested in part on the location of the time limit in the proposing resolution (not in the text of the amendment), which gave Congress more flexibility.

Two Supreme Court decisions shape the doctrine. In Dillon v. Gloss (1921), the Court upheld Congress's authority to set a ratification period and emphasized that the question of what is reasonable lies with Congress. In Coleman v. Miller (1939), the Court reached further: questions about the reasonableness of a ratification period and whether time has destroyed the amendment's vitality are political questions for Congress, not the courts. Four Justices concurred to declare that Congress has "sole and complete control" over the amending process. The AG noted that no Supreme Court case has questioned Congress's authority since.

The Twenty-seventh Amendment is the empirical counterexample to a strict "contemporaneous consensus" requirement. First proposed in 1789, it was not ratified until 1992. The Archivist of the United States certified its adoption, and both houses of Congress passed resolutions confirming its legitimacy. The Twenty-seventh shows that Congress can recognize a state's ratification long after the original proposal, when the political will exists.

Common questions

Did the Virginia AG say the ERA is currently in the Constitution?
No. The AG said only that the Virginia General Assembly could pass a ratifying resolution and that resolution could have legal effect for ratification-counting purposes if Congress also acts. Whether the ERA becomes part of the Constitution depends on action by Congress to extend or remove the deadline and recognize the post-1982 ratifications.

What did Congress do about the deadline in 1978?
Congress passed a joint resolution extending the original 1979 deadline to June 30, 1982. The House Judiciary Committee's report concluded that "the period for an amendment's ratification lies exclusively within congressional control," and the full House and Senate approved the extension. The extension's legal justification rested on Congress's plenary power over the amending process and on the fact that the original seven-year limit was in the proposing resolution rather than in the text of the amendment.

What is the "contemporaneous consensus" requirement?
The Supreme Court in Dillon suggested that ratification "scattered through a long series of years would not do." The idea is that an amendment should reflect "the sufficiently contemporaneous ... will of the people." But what counts as "contemporaneous" is hard to define. Coleman later put the question into Congress's hands rather than the courts'. And the Twenty-seventh Amendment's 203-year ratification timeline suggests the requirement is more flexible than a strict reading of Dillon would suggest.

Why was the original ratification deadline in the proposing resolution rather than the amendment text?
For the Eighteenth, Twentieth, Twenty-first, and Twenty-second Amendments, the time limit was included in the text of the amendments themselves. Congress changed practice starting with the Twenty-third Amendment because text-embedded limits "cluttered up" the Constitution. Putting the limit in the proposing resolution kept the text clean and (as the 1978 extension showed) preserved Congress's flexibility to amend its own deadline.

Why does Virginia's ratification matter if the deadline has lapsed?
Because if Congress later extends or removes the deadline (as proposed resolutions in 2018 contemplated), a Virginia ratification on the books would count toward the three-fourths threshold. Without Virginia's ratification beforehand, the state would have to act after any extension.

Has the Virginia Senate previously passed ERA ratification?
Yes. The opinion notes that the Senate passed a ratifying resolution at least five times before 2018, most recently in 2016. House bills had been introduced repeatedly but not advanced out of committee. The political dynamic, not the legal authority, was the obstacle.

Did the AG opine on whether to ratify, as a matter of policy?
No. The opinion is limited to whether ratification would have legal effect. The AG explicitly declined to opine on the General Assembly's exercise of discretion, citing separation-of-powers principles.

Citations

• U.S. Const. art. V
• H.R.J. Res. 208, 92d Cong., 86 Stat. 1523-1524 (1972) (proposing the ERA)
• H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978) (extending deadline to 1982)
• Dillon v. Gloss, 256 U.S. 368 (1921)
• Coleman v. Miller, 307 U.S. 433 (1939)
• Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated as moot, 459 U.S. 809 (1982)
• Archivist of the U.S., Certification of Adoption of Twenty-seventh Amendment, 57 Fed. Reg. 21187 (May 19, 1992)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2018/18-006-Black---ERA-opinion-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 11, 2018

The Honorable Richard H. Black
Member, Senate of Virginia
Post Office Box 3026
Leesburg, Virginia 20177

Dear Senator Black:
Issue Presented

You have requested that I "render a formal opinion on the following question: Would ratification
of the ERA [Equal Rights Amendment] by the Virginia General Assembly have any legal effect?"

Background

Article V of the U.S. Constitution governs the process by which the Constitution can be amended.
It provides, in relevant part:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or, on the application of the legislatures of two thirds of
the several States, shall call a convention for proposing amendments, which, in either
case, 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, as the one or the other mode of ratification may be proposed by the
Congress ...[1]

The Equal Rights Amendment ("ERA") was first introduced in Congress in 1923,[2] but it was not
until March 22, 1972 that two-thirds of Congress agreed to the proposal and submitted it to the States for
their consideration.[3] Although the text had changed over the years,[4] the version submitted to the States
read 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 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.[5]

The proposing resolution to the amendment prescribed a seven-year period for ratification: "[T]he
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."[6] By
placing the seven-year limit in the proposing resolution rather than in the text of the amendment itself,
Congress followed its practice for the Twenty-third through Twenty-sixth Amendments, all of which had
been ratified within seven years.[7]

Between 1972 and March 22, 1979, thirty-five States ratified the ERA, three States short of the
requisite three-fourths needed for adoption.[8] In 1978, following extensive debate and committee
testimony, Congress extended the ratification deadline by approximately three years and three months.[9]
Its legal justification for doing so relied in part on the location of the time limitation in the text of the
proposing resolution, rather than the text of the amendment itself.[10] On June 30, 1982, the extended
ratification period elapsed, without any additional State having ratified the amendment. On March 22,
2017, Nevada became the 36th State to ratify the ERA, the only other State to do so since 1982.[11]

The fourteen States that have never ratified the ERA are Alabama, Arizona, Arkansas, Florida,
Georgia, Illinois, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and
Virginia. Five other States have purported to rescind their votes ratifying the ERA: Nebraska (1973),
Tennessee (1974), Idaho (1977), Kentucky (1978), and South Dakota (1979).[12] Although the Virginia
General Assembly has never ratified the Equal Rights Amendment, the Senate of Virginia has passed a
ratifying resolution at least five times, most recently in 2016.[13] Similar measures have been introduced in
the House of Delegates,[14] but have not been considered.[15]

Applicable Law and Discussion

You ask whether ratification of the ERA by the General Assembly would have "any legal effect."
In responding to your inquiry, I will assume that you do not question the General Assembly's power to
vote on or pass joint resolutions expressing its sentiment on a variety of issues, including about whether a
proposed amendment to the U.S. Constitution should be ratified.[16] Historically, the General Assembly
has passed ratifying resolutions even after an amendment had become part of the Constitution, having
already been ratified by the requisite number of States[17], and after the ratification period prescribed for a
proposed amendment had lapsed.[18] To the extent you question whether those resolutions have legal effect
as official expressions of the will of the General Assembly, I cannot agree.

Rather, I take your question to be whether the General Assembly's passage of a resolution
ratifying the ERA at this point could ever be treated as legally effective for purposes of determining
whether the ERA has been ratified by the requisite number of States, given that the ERA's original
ratification deadline lapsed in 1979 and an extended deadline lapsed in 1982. In light of Congress's
significant control over the amendment process, I cannot conclude that it lacks the power to extend the
period in which an amendment can be ratified and recognize a State's intervening ratifying resolution as
legally effective for purposes of determining whether the ERA has been ratified.

Although the precise issue you raise has not been conclusively resolved, the historical evidence
and case law demonstrate Congress's significant, even plenary, power over the amending process. In
1978, when Congress was debating and ultimately approved extending the original ERA deadline, the
House Judiciary Committee found that the power-to-extend question was a matter of "first impression."[19]
But after reviewing the limited historical and legal precedent and taking extensive testimony from
numerous constitutional experts, the House Judiciary Committee concluded that "the period for an
amendment's ratification lies exclusively within congressional control."[20] Both the full House and Senate
debated Congress's power to extend the ERA's ratification deadline, but effectively resolved that issue
when they agreed to a joint resolution setting a new deadline of June 30, 1982.[21]

As recognized by the constitutional scholars who testified before Congress and in the report of
the House Judiciary Committee recommending extension, the limited Supreme Court precedent in this
area suggests that Congress has authority to extend a ratification deadline. Two cases chiefly support that
conclusion. In Dillon v. Gloss,[22] the Court turned away a challenge to the Eighteenth Amendment based
on the fact that the text of the proposed amendment prescribed a time period of seven years for ratification
by the States, the first amendment to contain such a limitation.[23] In ruling that Congress could set a
definite period for ratification, the Court in Dillon emphasized two points: that the time period for
ratification must be "within reasonable limits" so that ratification expresses the "sufficiently
contemporaneous ... will of the people," and that it was within Congress's authority to determine what
period is reasonable.[24] It underscored that the "general terms" of Article V "leav[e] Congress to deal with
subsidiary matters of detail as the public interests and changing conditions may require."[25] Thus, in the
Court's opinion, whether to fix a term of years for ratification was a matter for Congress, "as an incident
of its power to designate the mode of ratification."[26]

Two decades after Dillon, in Coleman v. Miller,[27] the Court extended Dillon's analysis and
concluded that the reasonableness of the ratification period at issue there was a matter for Congress alone
to decide. In 1924, Congress had submitted an amendment to the States, without a prescribed time limit,
that prohibited the use of child labor. The Kansas legislature rejected the amendment in 1925 but when it
reconsidered and passed the amendment in 1937, opponents sued, arguing that the time period had lapsed.
The Court rejected the contention that "in the absence of a limitation by the Congress, the Court can and
should decide what is a reasonable period within which ratification may be had."[28] Rather, "Congress in
controlling the promulgation of the adoption of a constitutional amendment has the final determination of
the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the
required ratifications."[29] The Court reasoned that the task of determining reasonableness would require
an "appraisal of a great variety of relevant conditions, political, social, and economic," conditions that
"can hardly be said to be within the appropriate range of evidence receivable in a court of justice" but that
are "appropriate for the consideration of the political departments of the Government."[30] Four justices
signed a concurring opinion to express, in strong language, the even broader view that Congress has "sole
and complete control over the amending process, subject to no judicial review."[31]

These cases figured prominently in the 1977 and 1978 congressional hearings on the proposed extension to the ERA deadline.[32] A number of scholars testified before the House Judiciary Committee's Subcommittee on Civil and Constitutional Rights on the various issues raised by the proposed extension, including the extent of congressional control over the amendment process in general. With a few exceptions, there was general consensus among the scholars that extending the ratification period was within Congress's power.[33] A representative of the Office of Legal Counsel agreed, reasoning that "the power of extension is reserved to the Congress, and reconsideration of the extension period is within the power of the Congress."[34] The scholars gave several reasons for that conclusion, including the location of the time limit in the proposing resolution rather than in the text of the amendment.[35] Later testimony by these and other scholars before the Senate Judiciary Committee's Subcommittee on the Constitution similarly supported Congress's power to extend the deadline.[36] Since then, no Supreme Court case has questioned Congress's authority over the amending process, including whether it can extend a ratification period and whether the lapse of the ratification period would make a difference.[37]

In light of the foregoing, I cannot conclude that Congress lacked the authority to extend the
ratification deadline from 1979 to 1982, or, critical to your opinion request, that it would lack the
authority to extend the deadline further if it chose to do so. Indeed, resolutions currently pending in both
houses of Congress seek to accomplish just that; the proposed resolutions would remove the deadline for
ratification of the ERA and treat States' ratifications as valid "whenever" they occur.[38]

Assuming that the ERA ratification deadline were again extended, the ratification of the
Amendment may still be subject to a congressional judgment regarding whether it met the requirement of
"contemporaneous consensus."[39] While some constitutional scholars who testified before the House of
Representatives prior to the first extension of the ERA's ratification deadline doubted whether even
fourteen years would satisfy that requirement,[40] the intervening ratification of the Twenty-seventh
Amendment, governing congressional pay raises, serves as a notable counterexample. First proposed in
1789, that amendment was not ratified until 1992.[41]

Conclusion
It is my opinion that the lapse of the ERA's original and extended ratification periods has not
disempowered the General Assembly from passing a ratifying resolution. Given Congress's substantial
power over the amending process, I cannot conclude that Congress would be powerless to extend or
remove the ERA's ratification deadline and recognize as valid a State's intervening act of ratification.
Indeed, legislation currently pending in Congress seeks to exercise that very power.
With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. U.S. CONST. art. V.
2. See S.J. Res. 21, 68th Cong., 65 CONG. REC. 150 (1923) (known at that time as the "Lucretia Mott Amendment").
3. See H.R.J. Res. 208, 92d Cong., 86 Stat. 1523-1524 (1972). For a history of the ERA, see THOMAS H. NEALE, CONG. RESEARCH SERV., R42979, THE PROPOSED EQUAL RIGHTS AMENDMENT: CONTEMPORARY RATIFICATION ISSUES 2-11 (2014).
4. NEALE, supra note 3, at 2.
5. H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972).
6. Id.
7. NEALE, supra note 3, at 8-9. Previously, for the Eighteenth, Twentieth, Twenty-first, and Twenty-second Amendments, Congress had included time limitations in the text of the amendments themselves, but then changed its practice because including the limits in the text "cluttered up" the Constitution. Id. at 8.
8. Id. at 9.
9. See H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978) ("[N]otwithstanding any provision of House Joint Resolution 208 of the Ninety-second Congress, second session, to the contrary, the article of amendment proposed to the States in such joint resolution 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 not later than June 30, 1982.").
10. See 124 CONG. REC. 29,134 (1978) (incorporating the text of House Report No. 95-1405-Proposed Equal Rights Amendment Extension); 124 CONG. REC. 34,312 (1978) (statement of Sen. Harrison A. Williams Jr.).
11. See S.J.R. 2, 79th Sess. (Nev. 2017).
12. NEALE, supra note 3, at 9 n.47.
13. See S.J. Res. 1, 2016 Reg. Sess. (Va. 2016); S.J. Res. 216, 2015 Reg. Sess. (Va. 2015); S.J. Res. 78, 2014 Reg. Sess. (Va. 2014); S.J. Res. 130, 2012 Reg. Sess. (Va. 2012); S.J. Res. 357, 2011 Reg. Sess. (Va. 2011). In 2017 and 2018, the Senate failed to pass legislation. See S.J. Res. 4, 2018 Reg. Sess. (Va. 2018); S.J. Res. 221, 2017 Reg. Sess. (Va. 2017).
14. See H.D.J. Res. 2, 2018 Reg. Sess. (Va. 2018); H.D.J. Res. 4, 2018 Reg. Sess. (Va. 2018); H.D.J. Res. 129, 2018 Reg. Sess. (Va. 2018); H.D.J. Res. 136, 2016 Reg. Sess. (Va. 2016); H.D.J. Res. 495, 2015 Reg. Sess. (Va. 2015); H.D.J. Res. 12, 2014 Reg. Sess. (Va. 2014); H.D.J. Res. 667, 2013 Reg. Sess. (Va. 2013); H.D.J. Res. 115, 2012 Reg. Sess. (Va. 2012); H.D.J. Res. 640, 2011 Reg. Sess. (Va. 2011).
15. See Patricia Sullivan, Virginia's hopes of ERA ratification go down in flames this year, WASHINGTON POST, Feb. 9, 2018, https://www.washingtonpost.com/local/virginia-politics/virginias-hopes-of-era-ratification-go-down-in-flames-this-year/2018/02/09/7acfbf80-0dab-11e8-8890-372e2047c935_story.html?utm_term=.496774d9460c; Roberta W. Francis, NAT'L COUNCIL OF WOMEN'S ORGANIZATIONS, The Equal Rights Amendment: Frequently Asked Questions (May 2017) at 3 (indicating that "[i]n five of the six years between 2011 and 2016, the Virginia Senate passed a bill ratifying the Equal Rights Amendment, but the House of Delegates did not allow a companion bill to be released from committee"), http://www.equalrightsamendment.org/misc/faq.pdf; Markus Schmidt, House panel refuses to ratify 1972 ERA; Va. remains 1 of 15 states that never accepted proposal, RICHMOND TIMES-DISPATCH, Feb. 28, 2014, at A-09 ("Del. Mark L. Cole, R-Spotsylvania, chairman of the House Privileges and Elections Committee, ... did not allow a similar House resolution ... to be heard before his committee.").
16. Separation-of-powers principles in the Constitution of Virginia prevent me from opining on the General Assembly's use of discretion or observance of its own rules in whether to exercise its power: "such a matter must be left to the judgment of the General Assembly alone." See 1977-1978 Op. Va. Att'y Gen. 31, 32.
17. See H.D.J. Res. 44, 1952 Va. Acts ch. 173, at 183-84 (making Virginia the forty-first State to ratify the Nineteenth Amendment, thirty-two years after having rejected it and the Amendment having become part of the Constitution); S.J. Res. 32, 1971 Va. Acts, at 559-60 (making Virginia the fortieth State to ratify the Twenty-sixth Amendment).
18. See S.J. Res. 140, 1977 Va. Acts, at 1609-10 (ratifying the Twenty-fourth Amendment despite the expiration of the seven-year limitation on consideration stipulated in the proposing resolution to the Amendment, which was also restated in the General Assembly's ratifying resolution). The Amendment had been submitted to the States in 1962 and ratified in 1964, and the ratification period had lapsed in 1969-eight years before the General Assembly passed a ratifying resolution. See id.
19. 124 CONG. REC. 29,133 (1978) (incorporating House Report No. 95-1405-Proposed Equal Rights Amendment Extension).
20. See 124 CONG. REC. 29,134 (1978) (incorporating House Report No. 95-1405).
21. See H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978).
22. 256 U.S. 368 (1921).
23. Id. at 371-72.
24. Id. at 375-76.
25. Id. at 376.
26. Id.
27. 307 U.S. 433 (1939).
28. Id. at 452.
29. Id. at 456.
30. Id. at 453-54.
31. Id. at 459 (Black, J., concurring, joined by Roberts, Frankfurter, and Douglas, JJ.).
32. See Equal Rights Amendment Extension: Hearings on H.R.J. Res. 638 Before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. (1978) [hereinafter House ERA Extension Hearings].
33. Compare id. at 115 (statement of William Van Alstyne, Professor, College of William & Mary, Marshall-Wythe School of Law) ("In brief, extension of the period by Congress is solely for Congress to determine ...."), and id. at 125-26 (testimony of Ruth Bader Ginsburg, then-Professor, Columbia Law School) ("Congress, as director under our constitutional scheme of the amendment process, is not locked into a 7-year period; 14, 16, 18 years would constitute a rational constitutional time period for ratification of the proposed equal rights amendment. The issue, then, is simply whether Congress may accomplish in two steps what it might have accomplished in one."), with id. at 112 (testimony of Erwin N. Griswold, former Solicitor General of the United States) ("I do not think that anyone can say with confidence that Congress has the power to make the change. It does seem to me that there are strong reasons why Congress should not undertake to exercise such a power.").
34. Id. at 28 (testimony of John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Department of Justice).
35. See, e.g., id. at 6 (testimony of John M. Harmon); id. at 63 (statement of Thomas I. Emerson, Professor, Yale Law School); id. at 119 (statement of William Van Alstyne); see also 124 CONG. REC. 29,135 (1978) (incorporating House Report No. 95-1405, which acknowledged that, in the case of a proposed amendment on Congressional representation for the District of Columbia, a deadline was included in the body of the amendment because of "a recognition on the part of the committee that unless the language appeared in the body of the proposed amendment it may not be controlling on subsequent Congresses or on the State legislatures").
36. See, e.g., Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 95th Cong. (1978), at 114 (testimony of Thomas I. Emerson, Professor, Yale Law School) ("The first issue is [the] power of Congress to extend the time for ratification of the equal rights amendment. I think there is very little doubt in the minds of most constitutional lawyers that Congress has such powers.").
37. In 1981, the federal district court in Idaho ruled that whether Congress acted beyond its authority in extending the deadline was a justiciable question, and it proceeded to find that it had acted beyond its authority, but the Supreme Court vacated that decision as moot when the ERA's extended deadline lapsed. See Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981), vacated, 459 U.S. 809 (1982).
38. See S.J. Res. 5, 115th Cong. (2017) ("That notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several States."); H.R.J. Res. 53, 115th Cong. (2017) (same). I decline to speculate on the likelihood that these resolutions will pass or that Congress would otherwise act to recognize a State's ratification of the ERA as effective.
39. See Dillon v. Gloss, 256 U.S. 368, 375 (1921) ("[R]atification scattered through a long series of years would not do."); see also JOHN ALEXANDER JAMESON, A TREATISE ON CONSTITUTIONAL CONVENTIONS; THEIR HISTORY, POWERS, AND MODES OF PROCEEDING 634 (4th ed. 1887) ("It is, therefore, possible, though hardly probable, that an amendment, once proposed, is always open to adoption by the non-acting or non-ratifying States. The better opinion would seem to be that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.").
40. See, e.g., House ERA Extension Hearings, supra note 32, at 153 (testimony of Erwin N. Griswold, former Solicitor General of the United States); see also Dillon, 256 U.S. at 375 (pronouncing as "quite untenable" the idea that amendments first proposed in 1789, 1810, and 1861 were still eligible for ratification).
41. See Archivist of the U.S., U.S. Constitution, Amendment 27, 57 Fed. Reg. 21187, 21187-88 (May 19, 1992). "Although the Archivist was specifically authorized by the U.S. Code to publish the act of adoption and issue a certificate declaring the amendment to be adopted, many in Congress believed that, in light of the unusual circumstances surrounding the ratification, positive action by both houses was necessary to confirm the [amendment's] legitimacy." NEALE, supra note 3, at 18. Accordingly, both the Senate and House passed resolutions "declar[ing] the amendment to be duly ratified and part of the Constitution." Id. at 18-19 & 19 nn. 90-91 (citing S. Con. Res. 120 and S. Res. 298, 138 CONG. REC. 11,869 (May 20, 1992); H. Con. Res. 320, 138 CONG. REC. 12,051 (May 20, 1992)).