The three-state solution

LAST WEEK, a quarter of a century after its demise, the Equal Rights Amendment suddenly reappeared on Capitol Hill. Like Jacob Marley's ghost, the ERA came to Congress dragging a heavy load: the 35 states that voted to ratify the amendment decades ago. By counting these past votes as still valid, its sponsors claim that they can make the ERA part of the Constitution with passage in just three more states -- rather than the constitutionally mandated 38. This novel argument would not only deny the right of current citizens to vote on the amendment, it would count states that later rescinded their ratification votes.

The inevitable court challenge to this theory will focus on Article V of the Constitution, which requires that any constitutional amendment be approved by two-thirds of each house of Congress and three-fourths of the state legislatures. The article was designed to make it difficult for politicians to clutter the Constitution with impulsive amendments designed to appease constituents. The vote of the two houses and the states was meant to ensure that there was an overwhelming consensus before the Constitution was changed.

Yet the article's language does not contain an explicit time limit for ratification. Nor is there any discussion of a time frame in the constitutional debates. On the face of it, there's nothing to say that if a state approved the ERA in the late 1970s, its approval is not still valid today (especially because the text of the amendment introduced last week is identical).

The Supreme Court and many scholars, however, have insisted that there \o7is\f7 an implied time limit to guarantee that any amendment, in the words of the court, is ratified by a "sufficiently contemporaneous" vote. Congress has long honored this rule by setting a seven-year period for ratification. If a measure could not pass in seven years, it clearly was not a consensus matter worthy of adding to the Constitution.

In the past, proposed amendments have had little difficulty in obtaining a contemporaneous consensus. The first 10 amendments were enacted within 27 months, and only one amendment took more than four years.

In contrast, the ERA, first introduced in 1923, was not approved by Congress until March 22, 1972. At that point, Congress put a seven-year limitation on the ratification process. When the amendment failed to attract approval from the required 38 states within this time period, Congress extended the deadline three more years. In an extremely questionable move, Congress also prohibited states from reconsidering the amendment if they previously ratified it, to avoid states rescinding their approval. (Five states did vote to rescind their votes.)