Article 38 – The Un-ratified Amendment Proposed on March 22, 1972 – Equal Rights
About Our Constitution, a Series
Article 38 – The Un-ratified Amendment Proposed on March 22, 1972 – Equal Rights
By David Robert Wood
July 15, 2012
This proposed Amendment to the Constitution would have specifically provided for equal rights under the law for both men and women. Following is the original text of this proposed Amendment — “Article—”:
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.
This March 22, 1972, proposed Amendment on “Equal Rights” has not been ratified by the requisite number of States. It expired on March 23, 1979, as prescribed in the Congressional Joint Resolution proposing the Amendment and is no longer subject to State ratification.
This Amendment was proposed in the second session of the ninety-second Congress, by a Joint Resolution (H. J. Res. 208) on March 22, 1972, when it passed the Senate, by a vote of 84 to 8. It had previously passed the House of Representatives on October 12, 1971, by a vote of 354 to 24. It was originally introduced in the House of Representatives on January 26, 1971, by Martha W. Griffiths from Michigan.
Following its passage, this Amendment was certified as proposed on March 24, 1972, by the Director of the Federal Register, Fred J. Emery. It was then transmitted to the fifty States for ratification consideration by Acting Administrator of General Services, Rod Kreger, on March 24, 1972.
In the Congressional resolution proposing it, and not in the main text of this proposed Amendment, Congress prescribed a seven-year time limit, or drop-dead provision, in which full ratification was to be completed. Such drop-dead provision read as follows — “That the 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 [to the States] by the Congress.” This proposed Amendment did not receive the requisite number of State approvals and expired at the end of the seven-year time limit on March 23, 1979.
Notwithstanding this and on October 20, 1978, during the second session of the ninety-fifth Congress, Congress passed and the President approved and signed a Joint Resolution (H. J. Res. 638) extending the ratification period from March 23, 1979, to June 30, 1982. This Resolution first passed the House of Representatives on August 15, 1978, by a vote of 233 to 189, which was followed by passage in the Senate by a vote of 60 to 36 on October 6, 1978.
This Joint Resolution was subsequently disputed and adjudicated in the United States District Court for the District of Idaho in the case of Idaho v. Freeman. Filed by the State of Idaho against Rear Admiral Rowland G. Freeman, III, then the Administrator of the General Services Administration of the United States, this case involved the constitutionality of the Joint Resolution extending the ratification period for this proposed Amendment. Further, the validity of the Idaho Legislature’s February 8, 1977, rescission of its previous ratification of this proposed Amendment of March 22, 1972, was also of issue.
The Court ruled on December 23, 1981, and relative to the ratification time frame extension, Judge Marion Jones Callister declared, “that Congress’ attempted extension of the time for the ratification” of the proposed “Equal Rights” Amendment “was null and void.” Congress has specific Power to propose Amendments to the Constitution and to select from two methods of ratification. This is specified in Article V of the Constitution which provision is all-inclusive with respect to amending the Constitution. As specified in Article V, a two-thirds or greater vote is required to propose an amendment to the Constitution, by each of the Senate and the House of Representatives. The passage of this Joint Resolution by the Senate and House was clearly by less than the two-thirds minimum requirement.
With respect to Idaho’s rescission of its prior ratification, the Court found that it was proper and declared “that a state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded [sic] ratification by three-fourths of the States of the United States.” Judge Callister noted that “it seems clear from the statements of the founding fathers and from most courts in considering the amendment process that a ratification is linked to the great wellspring of legitimate constitutional power — the will of the people.” Also, “considering that an amendment cannot become part of the Constitution until a proper consensus of the people has been reached and it is the exclusive role of the states to determine what the local sentiment is, it logically follows that the subsequent act of rescission would promote the democratic ideal by giving a truer picture of the people’s wills as of the time three-fourths of the states have acted in affirming” a proposed Amendment.
This opinion was appealed to the United States Supreme Court and the original judgment was stayed on January 25, 1982. Before the appellate review process was completed, the disputed extension expired by its own terms on June 30, 1982, without Final Ratification by the requisite three-fourths States. As such, on October 4, 1982, and as suggested by the Administrator of General Services (the defendant) on July 9, 1982, the District Court judgment was vacated by the Supreme Court and dismissed as being moot. The mootness doctrine being used herein was based upon a date after the June 30, 1982 extension, because before such date, the mootness doctrine would not have applied.
Notwithstanding the dismissal on the grounds of mootness, the District Court, by careful reasoning and analysis, determined that the issue was not a “political question,” a somewhat subjective position used all too often, but rather was subject to reasonable Court justiciability. In pursuing such, the District Court’s analysis and ruling was ostensibly reasonable and objective, and is guidance for the future. In interpreting Article V, reasonable implications were considered along with the expressed language in the Clause. This multifarious consideration approach was very adequately described by Justice Willis Van Devanter in the 1921 Supreme Court decision in Dillon v. Gloss, when he stated that “for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.”
Through March 23, 1979, the end of the original seven-year period for full ratification, and as best determined, this proposed Amendment had been ratified by the following thirty States, thirty-eight States then being necessary for Final Ratification — Hawaii, March 22, 1972; Delaware, March 23, 1972; New Hampshire, March 23, 1972; Iowa, March 24, 1972; Kansas, March 28, 1972; Texas, March 30, 1972; Alaska, April 5, 1972, Rhode Island, April 14, 1972; New Jersey, April 17, 1972; Colorado, April 21, 1972; West Virginia, April 22, 1972; Wisconsin, April 26, 1972; New York, May 18, 1972; Michigan, May 22, 1972; Maryland, May 26, 1972; Massachusetts, June 21, 1972, Pennsylvania, September 26, 1972, California, November 13, 1972; Wyoming, January 26, 1973, Minnesota, February 8, 1973, Oregon, February 8, 1973; New Mexico, February 28, 1973; Vermont, March 1, 1973; Connecticut, March 15, 1973; Washington, March 22, 1973; Maine, January 18, 1974; Montana, January 25, 1974; Ohio, February 7, 1974; North Dakota, February 3, 1975; and Indiana on January 24, 1977.
In addition, this proposed Amendment was ratified by Idaho on March 24, 1972, then rescinded on February 8, 1977; by Nebraska on March 29, 1972, then rescinded on March 15, 1973; by Tennessee on April 4, 1972, then rescinded on April 23, 1974; by Kentucky on June 27, 1972, then rescinded on March 20, 1978; and by South Dakota on February 5, 1973, then rescinded on March 5, 1979 and effective on March 23, 1979. This proposed Amendment was repeatedly rejected by the Arizona legislature from 1973 to 1978 and was rejected by the Utah legislature on February 5, 1979.
Background
Although the “Equal Rights” Amendment was proposed in 1972, its actual beginning was during the Progressive Era in the early part of the twentieth century, when societal reforms were high profile. Such reforms included, among others, the prohibition of alcohol, restricting child labor, the direct election of Senators and women’s right to vote, all of which were subjects of constitutional Amendments proposed from 1912 to 1924.
Article of Amendment XIX, proposed in 1919 and ratified in 1920, provided women with the right to vote; and the proposed “Equal Rights” Amendment was a continuation of these efforts by specifically recognizing the equality of men and women. This first constitutional amendment on equal rights was introduced in Congress in 1923 at the seventy-fifth anniversary of the Woman’s Rights Convention of 1848. It was entitled the “Lucretia Mott Amendment” for an early leader in women’s rights who was also a vocal abolitionist. This original proposal, authored by Alice Paul, a founder of the National Woman’s Party, was that “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” For the next fifty years, an “Equal Rights’ amendment was introduced in every session of Congress in one or the other houses; and each was usually assign to a Congressional committee where they died.
The political and social environment culminating in the 1972 congressional passage and this Amendment’s proposal was spawned in the civil rights movement of the 1960s. The 1920’s “radical” ideas of women’s equality and rights had become more mainstream in the 1960’s and 1970’s; and equal rights advocates were numerous, vocal and effective. Passage of an “Equal Rights” Amendment was also supported by numerous organizations including the Democratic Party, Republican Party and labor unions such as the AFL-CIO.
Upon the proposal of the “Equal Rights” Amendment on March 22, 1972, Congress specified a seven-year timeframe in which to achieve Final Ratification, and in the first year, twenty-nine of the necessary thirty-eight States had ratified it. Thereafter ratification was slow with only five States ratifying it, and two States rescinding their prior ratifications from 1974 to 1977.
Approaching the March 23, 1979, deadline for Final Ratification, only thirty States had ratified the proposed Amendment, which was eight shy of the necessary three-fourths of the States. In October 1978, as previously discussed, the deadline for ratification was inappropriately extended to June 30, 1982. This extension was due to political pressures on Congress by women’s rights organizations. Significantly influential was a large march in Washington D.C. in July 1978, which was organized by the National Organization for Women (“NOW”). Nonetheless and during this three-year extension, opposition to the Amendment gained support and momentum, and no additional States ratified the proposed Amendment.
Present Day Status
As previously discussed, upon proposal of this Amendment by Congress on March 22, 1972, Congress prescribed a seven-year time limit, or drop-dead provision, for Final Ratification. In accordance thereto, and notwithstanding the ineffective Congressional extension, this proposed Amendment expired on March 23, 1979, and is no longer subject to any further ratification consideration. Since 1982, continued efforts have been undertaken to adopt a new equal rights amendment without any proposal by Congress.
Following the Final Ratification of Article of Amendment XXVII in 1992, originally proposed over two hundred years earlier, some have argued and rationalized that the expired “Equal Rights” Amendment is still viable. Further, they argue that Final Ratification will occur upon obtaining three additional State ratifications, known as the “Three State Strategy.” Their view that only three additional ratifications are necessary, instead of eight, is based upon the argument that the previous rescissions by the five States are invalid.
Although this is contrary to general legal and scholarly thought, they postulate that Congress has an all-inclusive power to reinstate the proposed Amendment as if it had not expired, to consider the prior State ratifications as still valid, and to disallow rescissions. They argue that this power is based upon the 1939 ruling in the Supreme Court case of Coleman v. Miller, where it was ruled that such issues were “Political Questions,” subject to the discretion of Congress and not otherwise subject to judicial review.
They further argue that Congress’ power to reinstate the proposed Amendment’s viability is in accordance with the 1921 Supreme Court case of Dillon v. Gloss. In this court case, it was ruled that it is within the power of Congress, in proposing an Amendment, to specify a timeframe in which ratification must occur and that the “reasonableness” of such timeframe, or lack thereof, was a “Political Question” and not subject to judicial review. It is contended that the two hundred and three years taken to ratify Article of Amendment XXVII, and its acceptance by Congress, sets a precedent and implies that two hundred plus years to ratify an Amendment may be “reasonable.” It should be noted, however, that the 1789 proposed Amendment, to be ratified in 1992 as Article of Amendment XXVII, did not include a time limit for Final Ratification.
Although some of the arguments are somewhat provocative, they are not necessarily persuasive. It is unlikely that any Congress will act to reinstate the vitality of this proposed Amendment. Instead, if deemed necessary, Congress would likely propose a new amendment.
