Problem with Zombie Constitutional Amendments

Spurred by a reenergized feminist movement in the wake of Hillary Clinton’s surprising loss in the 2016 presidential election and the #MeToo movement against sexual harassment, the Illinois state legislature reached into the past and attempted to revivify the Equal Rights Amendment (ERA). Observers were quick to declare that a ratification vote by only one more state would be needed to add the ERA to the U.S. Constitution. Even those favorably disposed to the substantive goals of the ERA should not be so quick to uncork the champagne.

The ERA in the 1970s

The proposed Equal Rights Amendment—”Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” along with a grant of congressional enforcement authority—has a long history, but finally won the support of Congress in the spring of 1972 in the midst of the second-wave feminist movement and a new bipartisan interest in women’s rights. As had become conventional in the twentieth century, Congress sent the amendment to the states for ratification with a deadline for action. The joint resolution passed by the two chambers of Congress declared that the proposed amendment “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.”

With fifty states in the union, the ERA needed thirty-eight states to ratify by 1979. This initially seemed like an easy goal and twenty-two states ratified the amendment within a year. New opposition led by conservative activist Phyllis Schlafly stalled that momentum, however. Indiana provided the thirty-fifth ratification vote in 1977, but support had plateaued three states shy of the necessary three-quarters majority. In 1978, a much more divided Congress extended the ratification deadline by three years, but no more states came on board. Meanwhile, four states voted to rescind their ratification of the amendment, and South Dakota resolved that its own ratification vote was valid only until the expiration of the original 1979 deadline.

In 1982, the Equal Rights Amendment that had been sent by Congress to the states a decade earlier was assumed to be dead. Proponents of the amendment began to regularly reintroduce a new version of the amendment into Congress, but by then the Republican Party had turned against the amendment and the U.S. Supreme Court had interpreted the unamended U.S. Constitution to already require heightened scrutiny for laws that discriminate on account of sex. The Equal Rights Amendment has not been able to again secure two-thirds support in Congress in the more than three decades since the ratification deadline expired.

The Congressional Pay Amendment

The situation changed in 1992. The Congressional Pay Amendment had been part of the original package of constitutional amendments that were ushered through the First Congress, but it did not receive enough votes for ratification to be included in the Bill of Rights. The Congressional Pay Amendment was widely assumed to be dead, until public dissatisfaction with Congress spurred a new movement to ratify the amendment in the 1980s and it snuck across the finish line when the thirty-eighth state legislature voted to ratify it in 1992. With Congress wracked by scandal, a push for congressional term limits gaining steam, and the Democrats on the verge of a historic loss of control of the House of Representatives, national politicians were in no mood to push back when state legislators proclaimed that James Madison’s constitutional limitation on the ability of members of Congress to raise their own pay had been successfully brought back from the dead. The national archivist accepted the validity of the Twenty-Seventh Amendment and the Justice Department’s Office of Legal Counsel produced an opinion justifying that decision.

In light of the Twenty-Seventh Amendment, suddenly a “three-state strategy” for the Equal Rights Amendment seemed to be on the table. Rather than pushing through an entirely new ERA, proponents of the amendment argued that it was possible to simply get three more states to ratify the amendment that had been passed by Congress in 1972. The legislatures of Nevada and Illinois have now provided two more votes for ratification. Arguably, the ERA is only one state short of the needed thirty-eight for ratification.

The Trouble with Zombie Amendments

The case is complicated, however. There is, of course, the unresolved problem of whether states can be counted as having ratified if they have subsequently rescinded their vote or had tied their own ratification vote to a deadline. There remains as well the unresolved problem of whether Congress has the authority to extend the deadline for ratification that was laid out in its initial joint resolution passing the amendment – or whether Congress has the authority to impose a deadline on ratification in the first place (For what it is worth, the Supreme Court has said that Congress can impose a ratification deadline; in 1982, the Court was set to review a district court’s decisions on these issues but dismissed the case as moot when the deadline expired.). Assume away those problems. We should still be skeptical of the effort to reanimate the Equal Rights Amendment of 1972.

The critical question is whether the acceptance of the valid ratification of the Twenty-Seventh Amendment should be regarded as an authoritative precedent to be followed or whether it should be regarded as an unfortunate blunder to be ignored. I think the latter is the more reasonable course of action going forward.

The structure of Article V of the U.S. Constitution is designed to ensure that changes to the constitutional text are deliberate and have the broad and deep support of the sovereign people who have the authority to engage in higher lawmaking and set down the fundamental law to control government officials. The process by which the Twenty-Seventh Amendment was adopted makes a mockery of that goal. There is no single constitutional moment in which the American people can be said to have considered the Congressional Pay Amendment and embraced it. The consideration of the amendment was spread across more than two centuries. James Madison’s Congress proposed the amendment, but George H.W. Bush’s administration certified it. The states that provided the bulk of the votes to ratify the amendment were not represented in the Congress that voted to propose the amendment, because they did not yet exist.

If a thirty-eighth state voted to ratify the ERA in 2018, then the ratification process would have taken nearly half a century. Prior to Congress adopting the now conventional seven-year deadline for ratification with its adoption of the Eighteenth Amendment in 1917, only a single amendment took much more than two years to be ratified and that one (the Sixteenth) was ratified within four years of its being proposed. Since the Eighteenth, no amendment pushed against the congressionally imposed deadline for ratification, and only the Twenty-Second took an unusually long time to be ratified (nearly four years). Both the Congressional Pay Amendment and the Equal Rights Amendment would be dramatic outliers from the historical norm of a contemporaneous proposal and ratification process in which Congress and the states act in concert during a single political season.

Although more compressed in time, the situation with the Equal Rights Amendment is in some ways worse than the situation with the Congressional Pay Amendment. The constitutional rule embodied in the Congressional Pay Amendment is particularly straightforward. There could readily be a meeting of the minds between the members of the First Congress and the members of the Michigan legislature, because the rule under consideration was a simple one. By contrast, the legal rule proposed by Congress in 1972 was a more complex, and ambiguous, one. Over the intervening decades, ideas about the legal equality of women have evolved dramatically.

Moreover, the legal backdrop against which the ERA is being considered has been transformed. It is not evident that those seeking to enact a constitutional rule with their votes in 2018 are contemplating the same constitutional rule as those who cast their votes in 1972. It is not simply that the expected applications of the underlying constitutional principle have likely changed over the course of those decades, though they undoubtedly have, but that the constitutional principle itself has shifted during this period of rapid social, political and legal change. Now, several decades removed from the landmark cases giving heightened scrutiny to legal discrimination on the basis of sex, the implications of adopting new constitutional text are much less clear. The presuppositions of the national debate of the early 1970s no longer hold. The ideals associated with sexual equality have evolved. The normatively freighted text proposed in 1972 has held constant, but the norms surrounding that text have not. It is not merely that the country’s commitments to the ideals embodied in the 1972 text have deepened, though they have. It is also the case that our understanding of the ideals that might be embodied in that text have shifted, and in doing so have become contested in different ways. Have the people of 1972 and 2018 agreed to affirm what the Court has done in the interim and provide a textual stamp of approval on judicial doctrine, or have they somehow agreed to a constitutional rule that requires more—and, if the new amendment is not to be mere surplusage, the justices are now obliged to construct new, more ambitious doctrine?

Of course, under some theories of constitutional interpretation, this question of what those adopting the constitutional rule might mean by saying it hardly matters and judges should do what they will with any newly enacted constitutional text. But we should be wary of embracing a process of constitutional amendment that makes it difficult as a matter of constitutional ontology to believe that the sovereign people had agreed to bind themselves to an identifiable constitutional rule. If the entirety of the Bill of Rights had languished alongside the Congressional Pay Amendment only to be resuscitated and pushed across the finish line in the early twenty-first century, we would be hard-pressed to think that the current state legislators casting their votes for “freedom of speech,” “free exercise of religion,” and “due process” had the same set of constitutional understandings of what they were doing as did the state legislators who began the process under the presidency of George Washington. We might have followed the formalities of popular deliberation and consent to a constitutional rule, but we would have stripped those formalities of any substance. If we recognized such a zombie text as a part of our constitutional law and gave it authoritative force, the theory on which we would be acting would not have much basis in a theory of higher lawmaking by the people — or at least not higher lawmaking by the people as constituted by Article V.

One way to solve the dilemma would be to focus our attention on the rule contemplated by the last actor in the process. But if so, then we have effectively ceded the ability to amend the Constitution to a handful of contemporary states who are empowered to take up language drafted by their distant forefathers, breathe new content into it, and declare it supreme law without the need for agreement by a contemporary supermajority of the people.

We do not pass laws that way, and we should not want to pass constitutional amendments that way. The Senate cannot take up a bill passed by the House forty years ago and vote it into law. The president cannot pick up a bill passed by the two chambers of Congress a century ago and sign it into law. We understand as a matter of legislative practice and constitutional rule that such cobbled-together statutes should not have the force of law. Enacted laws have an intergenerational life; proposed laws do not.

If the Equal Rights Amendment enjoyed the current support of a supermajority of Congress and the states, then it would be a simple matter to propose a new version of the amendment and usher it through ratification. The fact that this is not the strategy being pursued by proponents of the amendment admits to the political reality that there is nothing like that kind of wide and deep support for the amendment at this time. Nevada and Illinois are not joining in with a national movement to alter the constitutional text; they are trying to foist constitutional change on an unwilling nation. If the Equal Rights Amendment – or any other amendment – were to be adopted in this way, it would not reflect the deliberate will of the American people to bind themselves to a new constitutional rule but merely the willingness of some political activists and legislators to find an artifice to impose a new constitutional rule that they believe the people should want but apparently do not.

If a sudden enthusiasm for all things related to emoluments led 26 states to add their votes for ratification of the Titles of Nobility Amendment, should the remaining 24 states be persuaded that Article V had been satisfied? The amendment to strip citizenship from anyone who, among other things, accepted a “present” from a foreign power without the consent of Congress found some support as the War Hawks were pushing the United States toward a second conflict with Great Britain during the presidency of James Madison. Would a coalition of nineteenth-century War Hawks and twenty-first century Never Trumpers be sufficient to ratify the Titles of Nobility Amendment, or could twenty-first century Americans reasonably expect that the agreement of two-thirds of a twenty-first century Congress and three-fourths of twenty-first century states would be necessary to put in place a new constitutional rule affecting the citizenship status of their fellow Americans?

Accepting such a contrived ratification process would raise the dead hand problem in stark form. When proposed constitutional amendments die from lack of popular support, we should allow them to rest in peace.

About: Shawn

Shawn Shah is an expert legal analyst, lawyer, and journalist.


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