There was considerable celebration — not to mention rhetorical overkill — on the floors of the Illinois House and Senate in the summer of 2018 after lopsided votes in favor of a long-simmering emotional and symbolic issue.
State Rep. Steve Andersson, a Geneva Republican who no longer serves in the General Assembly, was among the most enthusiastic to speak out.
“(This vote) is more than just the state of Illinois. It’s about the United States of America, and quite frankly, I believe it’s about the planet,” he said.
Andersson was addressing Illinois’ belated ratification of the Equal Rights Amendment nearly 50 years after it was approved by Congress and sent to the states for action.
Despite Andersson’s hyperbole, the Illinois vote has yet to shake the earth.
Illinois was the 37th state to approve the ERA. The amendment needs ratification by 38 states to become the 28th amendment to the U.S. Constitution.
But the issue will resurface again in January following state elections in Virginia that gave control of the state legislature to Democrats just itching to try to make history.
“In January, when a new Democratic majority takes over in Virginia, the Commonwealth likely will become the 38th state to ratify the Equal Rights Amendment,” writes University of Virginia law Professor Saikrishna Prakash.
Although a supporter of the proposal, Prakash said the previous legislative vote in Illinois and the prospective vote in Virginia are meaningless.
“Virginia’s ratification will be stillborn and the Equal Rights Amendment will still be dead. Under a proper reading of the Constitution, it perished decades ago,” she insists.
Former President Lyndon Johnson, speaking of politics, once said that the most important factor in achieving success is “timing, timing, timing.”
In the case of the ERA, its time has come and gone.
That doesn’t mean, of course, that there won’t be a big legal fight about it when Virginia becomes the 38th state to ratify the amendment. Nonetheless, the timing question foreshadows another disappointment for ERA fans.
The wording of the ERA is simple enough: “Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Its history is anything but clear.
When Congress passed and sent the ERA to the states in 1972, an accompanying resolution said the amendment would not be valid unless it was ratified by 38 states in seven years. As the amendment appeared on the verge of expiration in 1979, Congress created another legal issue by adding three years to the ratification deadline.
The ERA, which became the subject of huge political fights in states like Illinois, also failed to meet that deadline.
It was perceived as dead by all concerned, at least it was until 1992 when Michigan became the 38th state to ratify the 27th amendment proposed over 200 years earlier by James Madison, one of the nation’s Founding Fathers.
The measure was one of a package of amendments Madison proposed. The ones that were ratified became popularly known as the “Bill of Rights.”
What became of the 27th amendment two centuries later was an effort to prevent members of Congress from raising their salaries in the middle of their terms.
It reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
The adoption of the 27th amendment prompted ERA backers to reconsider their previous opinion that the ERA was dead.
There is, however, a big difference between the proposed ERA and the 27th amendment.
The ERA contained a time restriction that Madison’s amendment did not.
So, if the ERA is ratified, a key legal question would be whether Congress has the authority to impose time limitations on proposed amendments. Although there are conflicting views, the answer to that question appears to be an emphatic yes.
Justia U.S. Law reports that early proposed amendments did not include time deadlines. It was later determined that a reasonable time limit should be included for the amendment to accurately reflect public opinion.
That’s why, Justia contends, “seven-year periods were included in the texts of the proposals of the 18th (prohibition), 20th (federal terms of office), 21st (repeal of prohibition) and 22nd (presidential term limits) amendments.”
ERA proponents, of course, will try to pull off an end-run around the time limit question. But no less an authority than Ruth Bader Ginsburg, then opining as a law professor and now serving as a justice on the U.S. Supreme Court, said it can’t be done.
Prakash writes that Ginsburg argued on behalf of the legality of the three-year ERA ratification extension but acknowledged that it was “implicit” that state ratifications of “a proposed constitutional amendment occur within some reasonable time” after congressional proposal.
Jim Dey, a member of The News-Gazette staff, can be reached by email at firstname.lastname@example.org or by phone at 217-351-5369.