What Congress Should Do on the ERA

When it comes to the ERA, constitutional law scholars say Congress has the authority to amend the Constitution and that the ERA is not subject to the filibuster. Your move, Congress.

A marcher holds a sign that says, “ERA Yes” during the Woman’s March in Manhattan on Jan. 18, 2020. (Ira L. Black / Corbis via Getty Images)

On Tuesday, Feb. 28, the Senate Judiciary Committee will hold a hearing on the Equal Rights Amendment at 10 a.m. ET in the Dirksen Senate Office Building in Washington, D.C.—the first Senate committee hearing on the ERA since 1984. The hearing, titled “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution,” will focus on how Congress can recognize ratification of the ERA and enshrine equality in the U.S. Constitution.

“More than 70 percent of Americans think we already have sex equality in our Constitution—but even after 100 years of struggle, we don’t,” said Zakiya Thomas, president and CEO of the ERA Coalition and Fund for Women’s Equality. “It has never been more clear that we need those protections to prevent further roll back of our rights; it’s past time that we acknowledge that the Equal Rights Amendment is valid and enforceable today.”

On Jan. 31, 2023, Senator Ben Cardin (D-Md.) and Senator Lisa Murkowski (R-Alaska) introduced a bipartisan joint resolution S.J. Res. 4 in the Senate declaring the Equal Rights Amendment fully ratified as the 28th Amendment to the U.S. Constitution. On the same day, Rep. Ayanna Pressley (D-Mass.) introduced a similar joint resolution H.J. Res. 25 in the House of Representatives.

At the Feb. 28 hearing, constitutional law scholars from the ERA Project at Columbia Law School will testify that Congress has full authority over Article V procedures and disputes to amend the Constitution, and that action related to constitutional amendments is valid if undertaken by both houses in one or consecutive sessions.

They will also argue that the Senate majority should treat Article V matters as not subject to the filibuster.

These scholars include Katherine Franke of Columbia Law School, Laurence H. Tribe of Harvard University, Geoffrey R. Stone of University of Chicago School of Law, Melissa Murray of New York University School of Law, and Michael Dorf of Cornell Law School.

The filibuster is … the most anti-democratic tool in Congress, one that weaponizes minority rule. Its use is all the more problematic when deployed to defeat a constitutional amendment that has already satisfied all of the requirements.

ERA Project at Columbia Law School

The Constitution’s Article V sets out the procedures for amending the Constitution, which requires a two-thirds vote of the House and Senate and ratification of three-quarters of the states. Article V does not give the courts or the executive branch any role in amending the Constitution.

According to Columbia’s ERA Project, Congress could assert that it possesses “sole authority and power to set the terms and procedures” to amend the Constitution, “including clarifying procedural questions unaddressed by Article V (such as the legality of a Congressionally created time limit for ratification, or the permissibility of state rescission of an earlier ratification of a proposed amendment), resolve disputes related to the process for ratification of a proposed amendment, and declare an amendment fully ratified. The measure could also divest both lower federal courts and the U.S. Supreme Court of jurisdiction to adjudicate questions related to the validity of amendments to the U.S. Constitution.”

Article V also does not require joint resolutions on constitutional amendments to pass in the same legislative session. According to the ERA Project, Article V leaves to Congress the power to determine “whether congressional action must take place in both houses in the same congressional session, consecutive sessions, or at any time.” The 13th Amendment banning slavery was ratified by the House and Senate in different legislative sessions, they note—as was the 17th Amendment, which established direct election of U.S. senators.

Finally, the filibuster should not apply to constitutional amendments, say the ERA Project scholars: “The project of constitutional amendment is among the most quintessentially democratic exercises of self-government, and as such, the process should be left to the most representative bodies. The filibuster is widely understood to be the most anti-democratic tool in Congress, one that weaponizes minority rule. Its use is all the more problematic when deployed to defeat a constitutional amendment that has already satisfied all of the requirements proscribed by Article V.”

These groundbreaking arguments have given new hope to lawmakers and ERA advocates that the amendment will finally be recognized.

“We as women have done our job, the states have done their job, and now it’s time for Congress to do its job and pass this resolution,” said Pressley. “Our resolution will help address centuries of gender disparities in America by removing the unnecessary barriers that have prevented us from enshrining the dignity, humanity, and equality of all people into our Constitution.”

Your move, Congress.

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.