If a legislature ratifies a constitutional amendment, but that amendment does not exist, has the legislature actually done anything?

You’ve heard it asked: if a tree falls in the woods, but no one is there to hear it, does the tree actually make a sound? The Virginia legislature last week offered a variation: if a legislature ratifies a constitutional amendment, but that amendment does not exist, has the legislature actually done anything?

Activists have been trying since the 1920s to make the Equal Rights Amendment (ERA), which now states that “[e]quality of rights under the law shall not be abridged…on account of sex,” part of the U.S. Constitution. From the beginning, there’s been a vigorous debate about its likely consequences, both intended and unintended, and, more recently, whether federal and state laws, state constitutions, and federal court rulings already provide what the ERA might have.

Congress did not achieve the two-thirds support in both houses that the Constitution requires until March 22, 1972. The resolution it adopted had both a substantive and a procedural part.

The substantive part was the text of the ERA itself. The procedural part required that states ratify it through their legislatures and do so within seven years. Fearing that the necessary 38 states would not do so by the deadline, Congress in 1978 extended it to June 30, 1982. Even ignoring the five states that rescinded their support, the amendment failed.

The Congressional Research Service publishes a massive work titled “The Constitution of the United States of America: Analysis and Interpretation.” The last several editions have stated the obvious, that the 1972 ERA “formally died on June 30, 1982.” That’s what an expiration date is for. When the 1972 ERA expired, it was no longer pending before the states. It simply did not exist. //

For one thing, the members of the legislature treated as optional their oath to support and defend the Constitution. The Constitution gives Congress authority to propose amendments, which includes the authority to set a ratification deadline.

Seven amendments already in the Constitution have one. Nearly 60 other resolutions for proposing the ERA, introduced since the early 1970s, have the same deadline. Honoring the oath of office requires that legislators follow the Constitution’s rules, including the process for amending it. //

Parents teach their children that how you play the game is more important than whether you win or lose. Applying that simple truth to government is the meaning of the phrase “the rule of law.” We citizens must follow the rules government sets for us. Shouldn’t government have to follow the rules we set for them in the Constitution?

Whatever the Virginia legislature did by passing that “ratification” resolution, it did not move the 1972 ERA closer to becoming part of the U.S. Constitution. It couldn’t, because the 1972 ERA no longer exists.