ERA, 28th Amendment Possibly Ratified, now part of constitution

[Tintrlvr]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then Congress by joint resolution could remove the deadline, because the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Now this would require both the Senate and House to agree on this.

I still have to think rescissions though should be deemed legal.

The other argument is that joint resolutions don't have any legal significance whatsoever, which I think is a fairly common view among scholars, and that Congress in fact cannot establish law through joint resolutions, which would include an inability to set a deadline on an amendment (by contrast to putting the time limit directly in the amendment itself, which becomes law upon ratification and then invalidates its own ratification if outside of the deadline).

[Tintrlvr]

Wikipedia:

https://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Proposing_amendments

The practice of limiting the time available to the states to ratify proposed amendments began in 1917 with the Eighteenth Amendment. All amendments proposed since then, with the exception of the Nineteenth Amendment and the (still pending) Child Labor Amendment, have included a deadline, either in the body of the proposed amendment, or in the joint resolution transmitting it to the states.[e] The ratification deadline "clock" begins running on the day final action is completed in Congress. An amendment may be ratified at any time after final congressional action, even if the states have not yet been officially notified.[17]

In Dillon v. Gloss (1921), the Supreme Court upheld Congress's power to prescribe time limitations for state ratifications and intimated that clearly out of date proposals were no longer open for ratification. Granting that it found nothing express in Article V relating to time constraints, the Court yet allowed that it found intimated in the amending process a "strongly suggest[ive]" argument that proposed amendments are not open to ratification for all time or by States acting at widely separate times.[20] The court subsequently, in Coleman v. Miller (1939), modified its opinion considerably. In that case, related to the proposed Child Labor Amendment, it held that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment.

You can see the punting on timelines just by upholding Coleman vs. Miller from 1939.

Postscript e says the following:

Congress incorporated the ratification deadline for the Eighteenth, Twentieth, Twenty-first, and Twenty-second amendments into the body of the amendment, so these amendments' deadlines are now part of the Constitution. The failed District of Columbia Voting Rights Amendment also contained a ratification deadline clause. Congress inserted the ratification deadline for the Twenty-third, Twenty-fourth, Twenty-fifth and Twenty-sixth amendments into the joint resolutions transmitting them to the state legislatures in order to avoid including extraneous language in the Constitution. This practice was also followed for the failed Equal Rights Amendment.

I see an out here for ERA advocates. In theory you can say since the amendment did not have a timeline in its text, but did in the joint resolution transmitting it to the states, then Congress by joint resolution could remove the deadline, because the state legislatures did not approve a constitutional amendment that had a specific timeline in it, that content was separated from the amendment.

Now this would require both the Senate and House to agree on this.

I still have to think rescissions though should be deemed legal.

The other argument is that joint resolutions don't have any legal significance whatsoever, which I think is a fairly common view among scholars, and that Congress in fact cannot establish law through joint resolutions, which would include an inability to set a deadline on an amendment (by contrast to putting the time limit directly in the amendment itself, which becomes law upon ratification and then invalidates its own ratification if outside of the deadline).

I can't think the Court would be so brazen as to state that. They have to worry about everything and precedent, not focus on this one narrow case.

I revised my text after you posted, since the state legislatures are not approving a constitutional amendment that has in its text a deadline (as the 18th, 20th, 21st, and 22nd Amendments did) but instead that content was separated into a joint resolution, then I think the time deadline of the resolution would not have standing in this instance, because the states are not approving the joint resolution.

Again though, this says nothing for rescissions. And if rescissions are not legal, then we have decades ago passed the threshold for an Article V Convention to be called by Congress and held.

I think the court would be inclined to say that Congress can't act in a legally binding manner by joint resolution generally (if asked in a context totally unrelated to amending the Constitution), so this doesn't seem like an issue. Congressional resolutions are not typically binding law (although usually that's in part because they're not subject to Presidential veto, while the President doesn't have any involvement in Constitutional amendments).

The rescissions point is separate, I agree, although I think it's plausible that a ratification can't be rescinded but a call for a convention can be (a ratification being a one-time approval of an action of Congress to amend the Constitution that, once approved, can't be taken back (unless maybe the text of the amendment says it can be), but a call for a convention is not an approval of something specifically authorized by Congress but rather an action sua sponte by the state for which solely state law would determine whether it can be rescinded).

[Tintrlvr]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

[Tintrlvr]

It's much more apt to just debate whether or not the deadline is valid, given the bizarre and extendable nature of it which was ruled unconstitutional.

If it isn't valid, I think it would actually be an invalid proposal to the States regardless.

Not under judicial minimalism; since constitutional amendments clearly can have no deadline (we have one that was ratified after 200 years!), the imposition of a deadline being found to be unconstitutional or otherwise non-functional shouldn't invalidate the proposal.

You need to actually read about how a deadline works and not just go "Huh, we ratified the 27th!" The 27th never had a deadline because Congress proposed it without assigning a deadline. The ERA had a deadline set by Congress when it was proposed, and that deadline has passed. Even if an amendment is actually passed after its passage, then that simply means that it doesn't have any effect.

I’m not saying this is the case, but I am saying there could be, if this were litigated, a reasonable judicial interpretation that the deadline in the resolution was always unenforceable non-law because it was contained in a joint resolution, which plausibly a court could rule cannot by itself establish law. That hypothetical ruling would not invalidate the amendment itself, only the portion of the resolution that set a deadline. Read my other posts on the topic.