The Person Who Changes the Constitution

Earlier this week, Virginia’s legislature voted to ratify the Equal Rights Amendment (ERA), clearing the 38-state threshold to place the amendment in the U. S. Constitution. That may not happen, however: Virginia’s ratification comes 37 years after Congress’s ratification deadline, and the Department of Justice’s Office of Legal Counsel recently issued an opinion that the amendment is no longer valid. Yet the department’s memo does not bind the United States archivist—only a vote by Congress can likely do that. So who will decide?

There is one person whose job it is to certify new amendments to the Constitution—the keeper of the Constitution, if you will—and that person is the United States archivist, the civil servant and career librarian whose day job is to oversee the National Archives and Records Administration. This is no small task: As James Madison explained, ratification of a constitutional provision is irreversible, made “in toto and forever.” (Though, of course, new amendments can void prior ones, as is the case with the Twenty-First Amendment, which repealed Prohibition.) What goes in the Constitution—and what doesn’t—shapes this country’s laws in the deepest of ways. But the real question is, given all the conflicting views on whether the amendment has been ratified, to whom will the archivist turn for a final say?

First, some background: In 1972, Congress passed the current ERA, forbidding the denial of equal rights on the basis of sex, to protect women from workplace, education, and jury-service discrimination. The amendment fell three states short of ratification by the original 1979 deadline, which Congress extended to 1982. The ERA then expired with no additional ratifications. But a 1997 law-review article noted that Congress, defying the usual process for amendments passed since the introduction of ratification deadlines, had failed to include the deadline in the ERA text sent to the states. Because the states did not ratify Congress’s deadline, the article argued they were not bound by it, and three states went on to ratify it: Nevada in 2017, Illinois in 2018, and now Virginia in 2020.

Read: Did Virginia just amend the Constitution?

Now that Virginia has voted to ratify, the state can transmit the ratification to the United States archivist, who can then certify the amendment and publish a list of ratifying states. Typically, amendments pass without procedural disputes, so certification is normally a ceremonial, apolitical process—and a rare one, given the infrequency of amendment passage. But Virginia’s ratification has forced the office of the current archivist, David Ferriero, to decide whether to certify. For now, Ferriero’s office has promised to follow the Justice Department opinion in lieu of a court order for certification.

That may be the best Ferriero can do for now; certifying a new amendment to the Constitution is no small thing, and Ferriero is wise not to jump the gun. But ultimately, Congress—not the Justice Department—should have the final word on the ERA’s certification.

There are a few reasons for this. First, Congress can void the ratification deadline, forcing certification. Article V of the Constitution (in which the process for amendments is spelled out) empowers Congress to propose and pass amendments and, according to the Supreme Court rulings Dillon v. Gloss and Coleman v. Miller, to set and refuse ratification deadlines. In Coleman, the Court noted that the text of Article V limits the amendment process to Congress and the state legislatures, making ratification “a question for the political departments, with the ultimate authority in the Congress.” Empowered by Article V and the Court’s Coleman decision, members of Congress have interpreted their Article V powers to include the modification and lifting of amendment deadlines.

Congress successfully exercised this power when voiding the 1979 ERA deadline. In 1978, Congress resolved that a simple-majority vote in the House and in the Senate was sufficient to reject the original 1979 ERA deadline and impose a new 1982 deadline—even though 35 states had already ratified it with the old deadline. Lifting the 1982 deadline, it follows, would also require a simple-majority vote in both chambers of Congress—and would result in affirming Virginia’s ratification and adding the ERA to the Constitution.

Congress has already begun this process. The House bill to lift the deadline, House Joint Resolution 79, has won widespread Democratic support and the 218 co-sponsors required for passage. Assuming Senate Democrats also uniformly support the matching Senate Joint Resolution 6, Senate passage would require only four Republicans to cross party lines. The Senate resolution already has two Republican backers, senators Susan Collins of Maine and Lisa Murkowski of Alaska, who recently announced they believe that their resolution would override the Justice Department opinion. And even if an initial Senate vote fails, leaving the deadline in place, a later, successful vote could lift the deadline and affirm the amendment; again, thanks to Dillon and Coleman, Congress sets the rules on modifying deadlines, and so can take additional shots at repeal. On passage, the resolutions will make the ERA “valid to all intents and purposes as part of the Constitution.”

If Congress votes to affirm the ERA’s ratification, the archivist ought to be bound to certify the ERA. The Constitution does not mention certification; rather, a 1984 congressional statute delegates Congress’s certification power to the archivist, who certifies on behalf of Congress. The archivist does not have independent authority to defy Congress’s vote, and therefore must certify once both houses of Congress vote to approve the deadline adjustment. As the Supreme Court explained, Article V places “ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.”

Historical precedent affirms that final authority over certification lies with Congress. Congress held this power long before creating the office of the archivist, first exercising it in 1868, when Congress certified the Fourteenth Amendment despite New Jersey’s and Ohio’s votes to rescind their ratification. Congress again exercised final authority over certification in rejecting states’ attempts to rescind their ratification of the Fifteenth Amendment in 1870 and of the Nineteenth Amendment in 1920. Congress thus can also reject five states’ attempts to rescind ERA ratification, as noted in a Congressional Research Service report.

Congress has also used this power to reject unilateral decisions on certification by the United States archivist. One archivist attempted to unilaterally certify an amendment without asking Congress. On May 7, 1992, Michigan ratified the Twenty-Seventh Amendment, which, largely forgotten, had been pending before the states since 1789. A week later, the archivist at the time, Don Wilson, counted the requisite 38 state ratifications, including Michigan’s, and certified the amendment. Backlash was swift. Senators Robert Byrd and Chuck Grassley censured Wilson, and both chambers affirmed that certification was void in the absence of bicameral congressional approval, which followed on May 20. This reaffirmed that final authority to certify lies not with the archivist, but with Congress.

Second, the text of Article V does not grant the executive, including the Justice Department, explicit authority to rule on deadlines or certification. Historical example also supports this interpretation. While President Jimmy Carter signed Congress’s 1978 resolutions to void the ERA deadline, a Congressional Research Service report determined that his opposition to the ERA deadline was entirely symbolic, because deciding “the procedure of proposing an amendment to the states is solely a congressional prerogative under the Constitution.” Similarly, the Justice Department’s recent opinion on the ERA deadline is merely an advisory interpretation and does not bind the archivist, which is why it’s fine that he’s following it for now.

Third, an action by the archivist or Congress would invite a court challenge. The pro-ERA group Equal Means Equal has sued to invalidate the 1982 deadline, and attorneys general in Alabama, Louisiana, and South Dakota recently sued to block the archivist from certifying the amendment, citing a lower-court decision, Idaho v. Freeman, to argue that sometimes federal courts can rule on political questions, including on Article V procedure. If this is true, the attorneys general are hoping that federal courts would interpret Congress’s Article V authority so narrowly as to overturn not only the archivist’s certification, but also Congress’s vote to affirm the ERA.

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This is a stretch. To reject a congressional vote affirming the ERA, the federal courts would need to overturn a century of precedent, including Dillon and Coleman, the two primary precedents on amendment procedure. Further, if a congressional vote makes the archivist certify, the amendment will become part of the Constitution. Federal courts can interpret parts of the Constitution, but they cannot invalidate them. That is, a judge cannot declare a part of the Constitution unconstitutional. Once Congress and the archivist move to certify the ERA, the question is settled.

That’s why the question of to whom the archivist should turn is so delicate. The Constitution is not normal law, but the law that shapes all other laws, and the law to which judges must defer. Looking to Congress for approval minimizes the risk of doubts over the amendment’s legitimacy, and ensures that the archivist will have both the rule of law and the rule of the people on his side.