U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned witnesses at the Senate Judiciary Committee hearing entitled, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” At today’s hearing, the witnesses testified to the necessity of enshrining gender equality into law and Congress’ role in ERA ratification.
Durbin first asked Kathleen Sullivan, Senior Counsel at Quinn Emanuel Urquhart & Sullivan, about the fact that the March 1972 joint resolution proposing the addition of the Equal Rights Amendment to the Constitution included a seven-year deadline for states to ratify the amendment, but that the deadline was placed above and apart from the proposed text of the actual amendment in a part of the resolution that has been referred to as the “preamble.” Congress later extended the deadline in the preamble by three more years.
In her opening statement, Ms. Sullivan reiterated that the deadlines were not part of the text of the proposed ERA as Congress sent it out to the States for ratification, but rather only part of the preamble. As part of the preamble, the arbitrary deadlines were thus not part of the proposed constitutional text that States voted to ratify.
“I want to go to this ‘preamble’ question,” Durbin said. “The argument that this [seven-year deadline for states to ratify the amendment] is in the preamble and should be treated differently than other places, you’ve stated already. But what is your comment on the preamble to the Constitution and that it hasn’t been a driving force?”
Ms. Sullivan, who has also served as a professor at Harvard Law School and as a professor and Dean at Stanford Law School, responded that “Preambles can have eloquent power… but preambles do not drive the interpretation of Article V Joint Resolutions, and they never did and no court has ever declared it.” She noted that it is an important distinction, because the States are not ratifying the preamble, they are ratifying the text.
Durbin then asked Ms. Sullivan about the legal significance of five state legislatures voting to rescind their ratifications of the ERA—Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, South Dakota in 1979. North Dakota also recently voted to rescind its ratification in 2021.
“Since Congress sent the resolution proposing inclusion of the ERA in the Constitution to the states in March 1972, as we know, 38 states have ratified the amendment. However, five of those states have subsequently sought to rescind their ratification,” Durbin said. “What is the legal significance, Ms. Sullivan, of these state legislatures voting to rescind their ratifications?”
Ms. Sullivan responded that “a state rescission has no force under the text of Article V, which speaks of ratification and not of rescission.” She also noted that when two states tried to rescind their ratification of the Fourteenth Amendment after it was proposed and adopted, the Senate rejected that. “We wouldn’t have the Fourteenth Amendment today if we had listened to rescissions,” Ms. Sullivan stated.
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