This is not a question about whether or not the Equal Rights Amendment is needed, or a good idea, etc. The following is a discussion about the process and whether or not it should be considered ratified as the 28th Amendment to the Constitution.
It appears that the following arguments have been put forth on both sides.
1. The deadline for the ratification has passed.
a. Opposing views - Either the deadline is unenforceable or Congress has the authority to extend or remove the deadline by a simple majority.
2. Five states have revoked their ratification.
a. Opposing view - Once a state has ratified an amendment that ratification is final, it cannot be revoked.
QUESTIONS FOR DISCUSSION -
1. Is the deadline a barrier to ratification as the amendment was originally proposed?
2. Should states be able to revoke their ratification prior to an amendment being certified?
3. What changes, if any, would you make to the amendment process?
To keep this post simple I will post my thoughts to these questions below.
In my opinion the Equal Rights Amendment as it currently stands is dead.
First of all the deadline has passed. When a process is defined a person, or state, acts based on the information defined. If that information were different it might result in different actions on the part of the person or state. For example South Dakota did not revoke their ratification when the Congress voted to extend the deadline, they simply voted to explain that their ratification was only valid under the original terms. If three more states had voted to ratify the amendment after South Dakota's vote but before the original deadline of March 22, 1979, the amendment would have be ratified with South Dakota's approval.
Second aside from South Dakota's expired ratification, four other states have rescinded their ratification. Some have argued that a State is not allowed to change it ratification. Once you vote yes you are done. However this ignores the fact that some state's have changed their ratification vote from No to Yes on other Amendments. If you can change from No to Yes, you should be able to change from Yes to No.
To throw out another example, the so-called Corwin Amendment. It is one of the four remaining pending amendments without a deadline.
"The Corwin Amendment is a proposed amendment to the United States Constitution that would shield "domestic institutions" of the states from the federal constitutional amendment process and from abolition or interference by Congress. Although the Corwin Amendment does not explicitly mention slavery, it is designed specifically to protect slavery from federal power."The chances of this amendment passing are so vanishingly small as to render it effectively dead. However, let's say that this proposed amendment had fallen one state short at the time at 24 voting Yes. Do you think we should prevent those states, include the 5 states that actually did ratify it, from rescinding their ratification, including two of those who actually have rescinded their ratification?
I think that allowing a deadline and the ability to rescind a ratification are good things. It is especially important in the case of the ability to rescind a ratification (prior to the amendment being certified). That in particular allows the people to get involved. If the state legislature is not on the same page as popular sentiment, it allows the people to elect new representation who can then correct the states ratification.
What changes would I make?I would set a 7 year deadline on all proposed amendments and remove the automatic certification that currently takes place immediately upon the 38th state ratification. All amendments would only be certified if 2/3rds of the states were currently ratifying the amendment on the deadline, allowing the people of each state more say in the process.