Constitutional Chaos: Potential New Amendments?
February 5, 2025
I am working on a separate post about birthright citizenship, but that probably will not be ready until next week (by which time there might be further news about the litigation surrounding it). Today, I want to focus on two proposed amendments to the Constitution. One that may or may not have been ratified in 2020 and one that is being proposed by one of Trump’s criminal sycophants in the House. First, we’ll start with the Equal Rights Amendment, which was arguably ratified in 2020 when Virginia approved it.
Is the Equal Rights Amendment part of the Constitution?
The ERA says in total:
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.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
Here is the timeline of action on the ERA:
1972: Congress passed the ERA and sent it to the states for ratification and set a deadline of March 22, 1979 for ratification.
1979: Congress extended the deadline to June 30, 1982.
1982: By June 30, 1982, 35 of the necessary 38 states had ratified the ERA.
2017: Nevada became the 36th state to ratify the ERA.
2018: Illinois became the 37th state to ratify the ERA.
2020: Virginia became the 38th and final state to ratify the ERA.
Some states have rescinded ratification, but this is almost certainly not constitutional. Once approved, an amendment is approved. Several former Confederate states rescinded their adoption of the 14th and 15th amendments once they were accepted back into the union, but the federal government refused to recognize the actions. There is no Constitutional authority for a state to rescind ratification of an amendment. Likewise, there is no such authority for Congress to set a deadline for ratification by the states.
So, is the ERA the 28th Amendment to the US Constitution? Maybe. Maybe not.
The question here is whether Congress can place a time limit for ratification of constitutional amendments. If it can, then the amendment was not ratified. If it cannot, then the amendment is part of the Constitution. (The issue of rescission could certainly become a consideration considering the ideological make-up of the Supreme Court, but it really should be a settled one.)
Here is how the process of amending the Constitution works. A constitutional amendment can be proposed in one of two ways. First, Congress can propose one by a 2/3 vote in each house. Second, 2/3 of the states can call a constitutional convention which can then propose an amendment. The second method has never been used, although a lot of states have currently called for one. Either way, this step merely proposes the amendment for ratification by the states. To be adopted, a proposed constitutional amendment must be ratified by 3/4 of the states. Currently, 3/4 of the states is 38 states. The president has no formal role or vote in the adoption of a constitutional amendment.
The Constitution says nothing about time limits. In fact, the First Congress proposed 12 amendments - referred to as the Bill of Rights, immediately upon being seated. This was part of an agreement with some notable Anti-Federalists in exchange for their support for the Constitution. Ten of the 12 amendments were ratified quickly. Another was ratified in 1992, 203 years after Congress proposed it! The twelfth - dealing with ratio of population to representatives - has yet to be ratified and presumably still can be (and should - see discussion here).
Considering how fond the current majority on the Supreme Court are of using historical practice at the time of adoption as an interpretative frame for decision-making, perhaps we should believe that since the First Congress - composed of many who drafted the original Constitution - understood that there was no constitutional time limit on amendments. If this is correct, then the ERA was ratified in 2020 when Virginia approved it.
However, the 1992 ratification of the 27th Amendment (one of the original 12 proposed by the First Congress) was disputed by several members of Congress on the basis that something like laches, a common law type of limitation, applies (see here for a discussion of laches) for constitutional amendments. An 1921 Supreme Court decision declared that Congress may set reasonable time limits, but this is likely dicta (not binding) because there was no need to reach that decision in the particular case because the amendment in question was ratified within the time period set by Congress.1 The defendant (this was a criminal case) argued that the Prohibition amendment was unconstitutional simply because Congress set a time limit. A later Court held that a determination that an amendment was ratified was a political question for Congress, not the judiciary.2 The controversy over the ratification of the 27th Amendment ended when both houses of Congress adopted resolutions declaring it had been properly ratified.
The argument in favor of ratification of the ERA may not succeed in court. If the previous decisions are followed, it is more likely that the courts will determine that the decision of whether the ERA is ratified is up to Congress. If Congress had passed a resolution declaring the ERA was ratified, that would be a very tricky question for the courts. Which is controlling? Congress can set a time limit or Congress has the final decision over whether an amendment is ratified? It can’t be a political question no matter the facts. It seems obvious that a simple majority, or even a super majority, of both houses of Congress could not just declare new amendments to the Constitution without submitting them to the states and getting at least the requisite 38 states to ratify it. But that is not the case here. Congress has not - and the current Congress definitely will not - agree that the ERA is law.
During the Obama years, Democrats had four years in which they could have extended or eliminated the date for ratification of the ERA. Since Virginia ratified, Democrats controlled Congress for two years and could have resolved that the amendment was passed. The strategy of just relying on the courts to save the day has been, and continues to be, a flawed one.
At the very least, I think it would have been better for Biden to have ordered the National Archivist to certify the ERA (and better still, if he had done it in January 2021 when he took office). Instead, he left it up to her and she has held that the ERA has not been ratified. The argument supporters of ERA ratification are making is that the Archivist’s role is ministerial, so it doesn’t matter whether she certifies it or not. And they are correct; but if the role is ministerial, then why wouldn’t the president order her to do her job?
Perhaps it doesn’t matter as a legal matter. It seems likely that someone is going to bring a case based on the ERA and courts are going to have to rule on whether or not the amendment was legally ratified. My guess is they will say it is a political question for Congress. But it is not out of the question to simply refer to the 1921 case as binding precedent3 - that Congress can create a limit, and that the deadline passed before the amendment was ratified.
Is Trump going to get a chance at a third term in 2028?
Rep. Andy Ogles (R-TN) has filed a resolution in the House to amend the Constitution to allow a president who previously was elected to just one term to serve two additional terms non-consecutive with the first. This amendment would amend the 22nd Amendment, which limits presidents to being elected to the presidency to no more than twice and caps the total amount of time any president may serve to ten years. Here is the text of the 22nd amendment:
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.
Here is the text of Ogles’ proposed amendment:
No person shall be elected to the office of the President more than three times, nor be elected to any additional term after being elected to two consecutive terms, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than twice.
Contrary to popular belief, the amendment to limit presidents to two terms was not the work of Harry Truman. In fact, the 1944 Republican presidential nominee - New York Governor Thomas Dewey - ran on a platform opposed to presidents serving more than two terms. He was, of course, facing FDR who was running for (and eventually won) a fourth term. When the Republicans won Congress after the 1946 midterm elections, they passed the amendment and it was ratified by the states. The amendment exempted Truman, who by then was the incumbent president. Truman may have agreed with the amendment, but he neither proposed it nor played a role in its passage.
As noted above, presidents play no formal role in amending the Constitution. The idea of limiting presidents to two terms is often thought to be an homage to the judgment of the first president, George Washington, who voluntarily retired after his second term. The American myth is that he is our Cincinnatus, but in truth Washington hated partisan politics and was increasingly frail and ill. As it turns out, he would have died during his third term, and that could have set a much worse precedent that presidents serve for life, a position Hamilton argued for in the Constitutional Convention. In any case, while a number of presidents in the early 19th Century claimed to follow his example (we can’t know for sure), quite a few presidents considered running for third terms and a few actually did. You might be surprised to learn that Grant ran for a third term, but lost the nomination to someone who was not even a serious candidate (Garfield) when the convention voting started.
In the 20th Century, Theodore Roosevelt ran for a non-consecutive third term as a third party candidate, although it would have been just the second time he was elected having succeeded to the presidency upon McKinley’s assassination shortly after his reelection.4 Roosevelt actually finished second, with the incumbent president finishing third. Woodrow Wilson reportedly considered a third term, but those hopes ended when he suffered a stroke so debilitating that many now believe his wife was actually running the country at the end of his presidency. FDR did not plan to run for a third term in 1940, but by then World War II was already raging in Europe and he knew that American involvement was not far behind. In fact, FDR was drafted by the Democratic convention for a third term, and he accepted the nomination. The idea that the incumbent wartime president would retire in 1944 should seem silly to you; it would never happen today. The tide of the war had turned by then. Allied victory was inevitable, but it still did not happen in Europe until mid-1945 and in the Pacific until atomic bombs were used.
By 1948, Democrats had controlled the presidency for 16 years - and one man had been president for 12 of them. FDR was elected four times, but he died so soon into his fourth term that in effect he only served three terms. By 1952, Truman was president for almost two full terms. And he did consider running again. Technically, it would have been his second run for the presidency, but it would have been his third term. Knowing he would lose - and maybe even lose the Democratic nomination - he eventually declined to run.
Nixon was known to have mused about amending the Constitution to allow him to run for a third term, but his dramatic fall from landslide victor to resignation in less than two years made that idea a dead letter. While some may have wished a third term for Reagan - and he probably would have won it - I don’t recall ever hearing that he suggested it publicly or privately. We had three consecutive two-term presidencies between 1992 and 2016. To my knowledge, there has been no serious suggestions for amending the Constitution, although Clinton has said that he sees no reason why the public should not be able to elect a president to a non-consecutive third term.
Trump was complaining that he should get a third term early in his first term, because he said the special prosecutor his AG appointed to investigate Russian collusion in the 2016 election had “taken time” from him. When he lost the 2020 election, he staged a coup attempt. Now that he has been elected to a second (non-consecutive) term, Ogles has filed a constitutional amendment to give Trump - and, for all practical purposes, only Trump - the right to run for a third term. To be fair (and there is little reason to be fair since this is just a power grab), the amendment will allow any president to serve one term and then later, non-consecutive to the first, serve two more terms. Confused? Here is how it would apply to some of our recent presidents: Carter and Biden could run for two more terms under this amendment. Clinton, Bush, and Obama could not. Since Carter has passed and Biden will never run again, this amendment is clearly designed to benefit one person: Donald Trump.
What are the chances of it passing? It has to be zero, right? Congress, which has a hard time passing non-controversial bills with a simple majority, must pass the amendment with a 2/3 vote in both houses before it is submitted to the states for ratification. It will not become law unless 38 states ratify it. It is more likely to get the 38 states than the 2/3 of Congress, but there’s no guarantee of anything anymore.
So, what gives? That’s a good question. It is probably just another attempt to soften the American public for dictatorship. Just look how much of a power grab Trump and tech oligarchs have taken in two weeks. Ogles’s amendment is likely part of a propaganda campaign to make Americans open to the idea of not holding a presidential election in 2028. Trump is likely to complain that Democratic interference (that is opposition) is thwarting the will of the people by not letting a “popular” constitutional amendment proceed to the states. In such a case, you can imagine him whining about his third term was stolen from him. Or maybe Ogles is just looking to keep his name in the news and in Trump’s favor.
Dillon v. Gloss, 256 U.S. 368 (1921).
Coleman v. Miller, 307 U.S. 433 (1939).
Even if Dillon is not binding precedent, the Court can adopt its reasoning for the current circumstances.
Roosevelt served almost two complete terms of office from 1901-1909. Under current law, he would have been ineligible to run for another term even though he was only elected president once.