Supporters of the Equal Rights Amendment have an unequaled gift for generating publicity, but they have prudently let pass unnoticed an embarrassing milestone. ERA was proposed by Congress to the states in March 1972. Four years and 10 months later (January 1977), Indiana ratified it. No state has ratified it since then. That was four years and 10 months ago. So ERA has this unprecedented distinction: it has gone as long without a ratification as it took to get all the ratifications it has.
The last gasp of the ERA campaign is expensive, but has raised considerable funds, aided by press coverage absurdly disproportionate to ERA's chances of success, which are negligible. The fund-raising is fueled by a manufactured sense of melodrama, the fiction that the campaign is a cliffhanger because ERA needs ratifications by "just" three more states.
Actually, not one of the 15 states that has for nine years refused to ratify it is apt to do so before the deadline next June. And the notion that three more ratifications would be sufficient ignores the fact that five states (Tennessee, Kentucky, Idaho, Nebraska, South Dakota) have voted to rescind their ratifications. So ERA is probably eight states short. If, before June, God schedules three quick miracles in state legislatures (more than He --or She--generally budgets for state legislatures), there will be an interesting constitutional controversy about the right of a state to change its mind.
The fact that the Constitution's amending provision does not discuss the right to rescind does not weigh against the right. In the absence of textual limitation on state legislatures' rights, legislatures should be presumed to retain the general right to rescind their own actions as long as a proposed amendment remains a live controversy --remains, that is, merely a proposal.
ERA extremists insist that proponents of an amendment can keep submitting it no matter how often a state rejects it, but that a state's vote to ratify is irrevocable, no matter how long the issue remains open in the country. This suggests that a state's vote to ratify is (in the words of Grover Rees of the University of Texas Law School) "a sort of sacramental act."
Alexander Hamilton explained (in Federalist Paper 85) that the amending procedure is designed to guarantee that the republic's fundamental law shall not be changed easily. Thus three-quarters of the states must be "united in the desire" for an amendment. The Supreme Court has emphasized that the consensus must be "contemporaneous," meaning that the requisite number of states must ratify within a reasonable period.
Obviously, at least 20 states (the 15 that have repeatedly refused to ratify, and the five that have voted to rescind ratifications) cannot be counted as part of the ERA "consensus." It is anti-constitutional to create a fraudulent illusion of consensus by suppressing the right to rescind. And it is doubly cynical to do so after having begged Congress for an unprecedented dispensation--an anti-constitutional (it was not unconstitutional, just unintelligent) extension of the original, traditional seven-year deadline.
Some ERA supporters, bowing to the patent irrationality of denying a state's right to rescind, say only that the existence of the right is a "political question" to be answered by Congress. They probably are hoping that Congress would deny the right. That is, they are counting on Congress to display the kind of cowardice or gallantry (if ERA supporters can abide the thought) that caused Congress to extend the original deadline for the convenience of (so the extension implied) the weaker sex.
But the idea that the right of a state to rescind is a "political question" depends on the implausible notion that the Constitution grants Congress unlimited freedom to shape or adjudicate the ratification process. In fact, all that Article V explicitly empowers Congress to do is propose amendments and choose between ratification by state legislatures or state conventions. The sense of the Constitution strongly suggests that the right of states to rescind ratifications is a question--and an easy one--for the Supreme Court.
ERA is a device for empowering courts to write the nation's code of conduct regarding women, a task properly belonging to the political branches of government. So it would be amusing to watch ERA supporters try to keep straight faces while arguing that Congress, not the Supreme Court, should adjudicate the constitutional rights of states in the amending process.