2023 House Concurrent Resolution 3

Whereas, The text of the Equal Rights Amendment, as proposed by Congress in 1972, reads as follows:

SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

SEC. 3. This amendment shall take effect two years after the date of ratification.

; and

Whereas, While similar amendments had been introduced in Congress since 1923, the Equal Rights Amendment achieved the necessary two-thirds vote in each chamber of Congress on March 22, 1972. The joint resolution passed with 354 yeas in the House of Representatives and 84 yeas in the Senate. It was thereupon submitted to the states, with approval by 38 needed to ratify the amendment and render it part of the Constitution; and

Whereas, The Equal Rights Amendment has achieved the support of the requisite three-quarters of the states. Only two months after it was sent to the states for consideration, Michigan ratified the Equal Rights Amendment on May 22, 1972. The Virginia General Assembly voted for ratification in 2020, becoming the thirty-eighth state to do so; and

Whereas, While a limited number of states have purported to rescind their ratification of the Equal Rights Amendment, the text of Article V and historical practice clearly indicate that they cannot do so. Article V provides that amendments become part of the Constitution when “ratified” by the states; it does not grant states the power to rescind their ratification. Attempts to amend Article V to create this power have been unsuccessful. In the past, both Congress and the executive branch officer responsible for certifying amendments to the Constitution have disregarded states’ attempts to rescind ratification. In 1868, when the executive branch was uncertain about whether rescission was possible, Congress adopted a concurrent resolution declaring that the Fourteenth Amendment had been ratified and included two states that had voted to rescind ratification in their list of ratifying states; Congress did not seem to think that their rescissions were legally effective. In 1870, the executive branch officer responsible for certifying amendments followed this example and disregarded a supposed rescission when listing ratifying states in his official certification of the Fifteenth Amendment; and

Whereas, The Archivist of the United States is the officer who currently has the statutory duty to certify and publish amendments to the Constitution. This duty is conferred by 1 USC § 106b, which states:

Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

; and

Whereas, The Archivist’s statutory duty is illuminated by the history of 1 USC § 106b, case law, and past practice. Early in our nation’s history, there was widespread confusion about whether certain amendments had been adopted, because there was not a standardized process for states to notify the federal government that they had voted for ratification and there was not an official process for publishing amendments that were properly ratified. To alleviate this confusion, Congress imposed on an officer in the executive branch the duty to certify and publish new amendments to the Constitution. This duty has been transferred to different officials over time and is now a duty of the Archivist of the United States. The United States Court of Appeals for the District of Columbia Circuit wrote in 1920 that the executive officer’s role in the amendment process is “purely ministerial” and that the officer has “no authority” to examine whether it was proper for the states to send their notices of ratification. This has historically been the practice, where certain states claimed to have rescinded their ratification of proposed constitutional amendments. The executive officer did not assert authority over the process by refusing outright to certify the amendments; and

Whereas, The 2023 decision of the D.C. Circuit Court in Illinois v. Ferriero does not bar the Archivist from certifying the Equal Rights Amendment. Although the court held that it could not order the Archivist to certify the Equal Rights Amendment, this was due to the nature of the legal action and the remedy sought, not because the amendment could not and should not be lawfully certified. On the contrary, throughout the opinion, the court indicated that the states arguing for the certification of the Equal Rights Amendment presented plausible interpretations of the law; and

Whereas, While the Archivist’s certification of the Equal Rights Amendment is not required to make it legally effective as part of the Constitution, it would send a powerful signal that the amendment should be recognized as having been adopted. Under Article V, the executive branch plays no role in the constitutional amendment process, and Congress did not and could not alter this fact by creating the statutory duty of certification and publication. However, this process is important for resolving confusion about the state of the law. For example, after Michigan became the thirty-eighth state to ratify the Twenty-Seventh Amendment to the Constitution in 1992, over two hundred years after it was proposed by Congress, scholars and even the Speaker of the House of Representatives doubted whether the amendment had become effective. These doubts were dispelled when the Archivist certified the amendment, and Congress subsequently recognized the amendment’s validity. The Archivist could help create a consensus about the legal effectiveness of the Equal Rights Amendment by officially certifying and publishing it as part of the Constitution; and

Whereas, The Archivist should not delay the express recognition of equality by refusing to certify the Equal Rights Amendment as part of the highest law of the land. While case law has developed under the Equal Protection Clause of the Fourteenth Amendment to limit sex-based discrimination, case law can change far more easily than the text of the Constitution itself, as has been demonstrated all too clearly by recent actions of the Supreme Court of the United States. The principle that the government may not deny or abridge equality of rights on account of sex is of such paramount importance that it deserves to be enshrined in the United States Constitution. Congress and the states have done their part to make our imperfect founding document a little more perfect, just as contemplated by Article V. The Equal Rights Amendment has been ratified by three-fourths of the states. Now, the Archivist’s only role is to certify and publish it, as statutorily required; now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That we call upon the Archivist of the United States to certify and publish the Equal Rights Amendment as the Twenty-Eighth Amendment to the United States Constitution; and be it further

Resolved, That we call upon the United States Congress to declare the Equal Rights Amendment ratified; and be it further

Resolved, That copies of this resolution be transmitted to the Archivist of the United States and the members of the Michigan congressional delegation.