The Equal Rights Amendment, which was passed by Congress in 1972, would have become the 27th Amendment to the Constitution if three-fourths of the states had ratified it by June 30, 1982. However, that date passed with only 35 of the necessary 38 state ratifications.

Instead, the "Madison Amendment" concerning Congressional pay raises, which was sent to the states for ratification in 1789, reached the three-fourths mark and became the 27th Amendment in 1992.

This evidence that a 203-year ratification period can be accepted as valid had led ERA supporters to propose that Congress has the power to maintain the legal viability of the ERA and the existing 35 state ratifications. In such a case, only three more state ratifications would be needed to make the ERA part of the Constitution.

The legal rationale for this position was developed in a 1995 paper by Allison Held, Sheryl Herndon, and Danielle Stager, then third-year law students at the T.C. Williams School of Law in Richmond, Virginia.

Their issue paper is soon to appear in the William and Mary Law Journal. A summary as prepared for the analysis in 1995 is as follows:

Article V of the U.S. Constitution gives Congress the power to propose an amendment and to determine the mode of ratification.

A 1921 Supreme Court decision (Dillon v. Gloss) said that Congress may fix a time limit for ratification, that an amendment is part of the Constitution once ratified by the state constituting a three-fourths majority and that ratification should be within a "reasonable" and "sufficiently contemporaneous" time frame with respect to the "necessity" of the amendment.

A 1939 Supreme Court decision (Coleman v. Miller) held that Congress, upon receiving notification of an amendment's ratification by three-fourths of the states, may determine whether the amendment is valid or whether it "has lost its vitality through lapse of time." Congressional promulgation of an amendment is not required, however, and has occurred only with the 14th and 27th Amendments.

Time limits have been imposed on the ratification period only since 1917 (with the 18th Amendment, Prohibition). The 19th Amendment (Woman Suffrage) had no time limit. Seven-year time limits were placed in the text of Amendments 20-22, but were moved to the proposing clause of Amendments 23-26. The ERA was passed with a seven-year time limit in the proposing clause, not in the text.

In 1978, Congress demonstrated its belief that it may alter a time limit in a proposing clause when it extended the original ERA ratification deadline from March 1979 to June 1982. A challenge to the constitutionality of the extension was dismissed by the Supreme Court as moot after the deadline expired, and no lower-court precedent stands.

All precedents regarding state rescissions of ratifications indicate that such actions are not valid. In promulgating the 14th Amendment in 1868, Congress listed as ratifying states both states which had rescinded their ratifications and states which had first rejected and then ratified the amendment.

THEREFORE, UNDER THE PRINCIPLES OF the 1921 and 1939 Supreme Court decisions (Dillon and Coleman), and based on the fact that Congress voted to extend the ERA time limit and to accept the 203-year ratification period of the Madison Amendment as "sufficiently contemporaneous," it is likely that Congress has the power to legislatively adjust or repeal the time limit constraint on the ERA if it chooses, to determine whether or not state ratifications which occur after the expiration of a time limit in a proposing clause are valid, and to promulgate the ERA after the 38th state ratifies. H.R. 39 in the 104th Congress addressed this issue by requiring the House of Representatives to take any necessary legislative action to verify ratification of the ERA when a additional three states ratify.

SEE THE ISSUE PAPER IN THE WILLIAM AND MARY LAW JOURNAL.