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Given that it took the 27th Amendment to the United States Constitution over 200 years to be ratified, would the Equal Rights Amendment that is currently three states short of the required 38 states need to start the entire process over again given that the deadline written into the initial law has been exceeded?

Obviously, the proposed amendment would need amended again to be passed, but since Congress did extend the deadline once, could they not do that again? As Congress has the power to administer the ratification process in the Constitution, it seems to me like anything Congress says would go.

Is the 3 state strategy constitutionally viable?

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Unlike the ERA and most modern amendments, when the 27th was proposed (one of the original 12 in the Bill of Rights) and sent to the states, there was no ratification period specified. The ERA, on the other hand, was given 7 years from the time it was sent to the states. As such, Congress could, if it chose, resubmit the amendment to the states, but it would start back at zero, and would need 38 states to ratify it in order to become valid.

Were Congress to amend the bill sent to the states for ratification, extending the deadline after it passed, it is likely that someone would claim the law was passed ex post facto, something prohibited by the Constitution itself.

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    History has already shown that the answer is not quite that simple. In 1978, before the original expiration date, Congress acted to extend the deadline on the Amendment. So extending the deadline is possible. Are you suggesting they cannot extend it now that the deadline has expired? If so, what is the difference legally? – Michael Kingsmill Dec 13 '12 at 2:05
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    I am not sure we can count on the original 35 states again either as 5 of them took the extra step of rescinding their original ratification. Which itself complicates the issue further. – Michael Kingsmill Dec 13 '12 at 2:07
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    And that extension was called into question. At very least, there would be a court challenge before it would be adopted. – Affable Geek Dec 13 '12 at 2:07
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    Answer revised in light of good comments. Thank you! – Affable Geek Dec 13 '12 at 2:11
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    It was a moot point: No state ratified the ERA during the controversial extension period. – dan04 Jun 22 '13 at 15:16
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According to Idaho v Freeman, the old extension of the ratification deadline of the ERA was invalid:

Therefore, the Court is persuaded that the congressional act of extending the time period for ratification was an improper exercise of Congress' authority under article V. While Congress is not required to set a time period in advance of the requisite number of states acting to ratify, if it chooses to do so to remove uncertainty regarding the question, it cannot thereafter remove that certainty by changing the time period.

And in case that wasn't clear, the court says the following in its order:

The Court further declares that Congress' attempted extension of the time for the ratification of the twenty-seventh amendment was null and void.

The court also said:

the Court declares 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 ratification by three-fourths of the states of the United States properly certified to the General Services Administration;

which would affect the count of states needed, as several have indeed voted to rescind.

This was a federal district court that made the ruling. The Supreme Court eventually dismissed the case as moot, since the purported extension had already expired by then. They also vacated the district court ruling. Nobody can say for sure how the Supreme Court would rule if Congress decided again to extend the deadline, but they might or might not find this case persuasive.

  • That's interesting information to add. I feel like you need an intro sentence so it can stand on it's own instead of assuming the other answer, though. Something like "Since the deadline passed, Congress would have to extend the deadline again. However, according to..." – Bobson Sep 20 '17 at 19:17
  • @Bobson "Obviously, the proposed amendment would need amended again to be passed, but since Congress did extend the deadline once..." is already in the question, though. – D M Sep 20 '17 at 20:51
  • The ruling being vacated means the ruling means essentially nothing. And there is existing precedent that rescission is invalid, as it happened during the ratification of the 14th and was ignored. Though to be fair, in that case there were enough extra ratifications in short order to make any dispute over the validity moot beyond asserting exactly when it became a part of the constitution. – zibadawa timmy Feb 20 at 21:18
  • @zibadawatimmy I'll agree the ruling means essentially nothing, but it's the only court ruling I'm aware of that addresses these questions. Sometimes the answer to a legal question is "we don't know". And even though it was vacated, it's probably more relevant than a 150 year old decision by a Secretary of State which nobody really had standing to challenge. – D M Feb 21 at 3:59

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