The Twelfth Amendment and the ERA
As promised, my new paper on the Equal Rights Amendment, “The Twelfth Amendment and the ERA,” is now available on SSRN. The paper lays out new historical evidence on prior Article V amendments, to show that Congress can and has placed legally operative language in its proposing resolutions, and not just in the proposed article text. The implication is that the ERA’s seven-year time limit is valid—and that the article the ERA proposed to add is not.
Here’s the abstract:
Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden’s statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis.
But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append.
This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any valid change to the Constitution’s text. The recent lobbying efforts on its behalf, including President Biden’s statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost. The National Archives is the wrong place to play with fire.
And from the introduction:
If there’s one thing that Americans are entitled to expect from their law professors, to paraphrase Justice Robert Jackson, it’s rules of law that let them tell whether the Constitution has
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