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How long can it take to get ratified by the States an amendment to the U.S. Constitution proposed by Congress?

We’re about to find out.

In 1972 the House and the Senate, pursuant to Article V of the federal constitution, submitted a proposed Equal Rights Amendment for ratification by the states. The proposed amendment states that equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. Under Article V, once Congress approves the amendment, it is submitted to the legislatures of the states and becomes effective upon passage by 3 / 4ths of the states (now, 38 out of 50).

Guess what? Last month the 38th state, Virginia, ratified it after it languished for 43 years following a quick 35-state approval. Illinois, Virginia and Nevada filed suit last month in federal court in Washington D.C. to get the amendment now declared as law. This was in response to POTUS instructing the national archivist to not enter the amendment as ratified.

Alabama, Louisiana and South Dakota in December filed their own federal suits seeking a declaration that the Equal Rights Amendment cannot be law because it is untimely ratified. The original congressional legislation approving it for submission to the states had a provision that it must be ratified by 1978. Congress voted extensions but the last had a deadline of 1983.

Must a congressionally proposed amendment be ratified within the window of time imposed by Congress in its authorizing legislation? The constitution is silent on this question.

To top it off, five red states assert they have “withdrawn” their ratification by subsequent legislation. They say only 33 state approvals are now on the books.

Again, the constitution is silent on whether a state can un-ratify its vote.

However, the 14th Amendment granting due process and equal protection rights to an individual against state authority was recognized by Congress in spite of two states attempting to rescind their ratifications. Congress did not recognize the “rescissions.”

In 1992 Congress accepted ratification of the 27th amendment providing that pay raises to congress passed in congress only go in effect after the following election. The original amendment legislation was submitted in 1789.

In 1939 the U.S. Supreme Court noted that the reasonableness of time for amendment ratification is solely up to Congress and can’t be ruled upon by a court. American courts have long refused to immerse themselves into making rulings in matters termed “a political question.”

It’s up to a court to decide what “a political question” is.

In the ERA cases, the federal courts may make the same ruling meaning they make no ruling because it is “a political question” and not a legal one.

Military theorist Clausewitz once wrote that war was politics by other means. Some might suggest that laws passed by politicians are politics by other means. If a legal issue and a political issue are two sides of the same coin, a court refusing to do its job because of the one side might in effect be pitching the entire coin into the trash bin.

It sure would be a shame to throw away good money.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.