III 

118TH CONGRESS 

1ST SESSION S. RES. 107 

Recognizing the expiration of the Equal Rights Amendment proposed by 

Congress in March 1972, and observing that Congress has no authority 

to modify a resolution proposing a constitutional amendment after the 

amendment has been submitted to the States or after the amendment 

has expired. 

IN THE SENATE OF THE UNITED STATES 

MARCH 15, 2023 

Mrs. HYDE-SMITH (for herself, Mr. LANKFORD, Mr. CRUZ, Mr. COTTON, Mr. 

MULLIN, Mr. VANCE, Mr. CASSIDY, Mr. RICKETTS, Mr. RUBIO, Mr. 

BOOZMAN, Mr. KENNEDY, and Mr. LEE) submitted the following resolution; which was referred to the Committee on the Judiciary 

RESOLUTION 

Recognizing the expiration of the Equal Rights Amendment 

proposed by Congress in March 1972, and observing 

that Congress has no authority to modify a resolution 

proposing a constitutional amendment after the amendment has been submitted to the States or after the 

amendment has expired. 

Whereas article V of the Constitution of the United States 

gives two-thirds of the Senate and two-thirds of the 

House of Representatives the power to propose constitutional amendments and their mode of ratification by the 

States; 


DMWilson on DSKJM0X7X2PROD with BILLS
2 

•SRES 107 IS 

Whereas the Supreme Court of the United States in Dillon 

v. Gloss, 256 U.S. 368 (1921) unanimously held that 

Congress may, in proposing a constitutional amendment, 

incorporate ‘‘a definite period for ratification [that] shall 

be fixed, so that all may know what it is and speculation 

on what is a reasonable time may be avoided . . .’’; 

Whereas the Supreme Court in the Dillon v. Gloss decision 

held that whether Congress uses its power to include 

such a ‘‘definite’’ deadline was ‘‘a matter of detail which 

Congress may determine as an incident of its power to 

designate the mode of ratification’’ of an amendment, 

which mode Congress has always dictated in the proposing clause of a resolution; 

Whereas House Joint Resolution 208, 92nd Congress, referred to in this resolution as the ‘‘Equal Rights Amendment Resolution’’ contained a ratification deadline of 7 

years in the proposing clause of the resolution, as has 

every constitutional amendment submitted by Congress to 

the States since 1960, and proposed an amendment referred to in this resolution as the ‘‘Equal Rights Amendment’’; 

Whereas, in Illinois v. Ferriero, No. 21–5096 (D.C. Cir. 

2023), a unanimous ruling issued on February 28, 2023, 

the United States Court of Appeals for the District of 

Columbia Circuit rejected the claim of the Attorneys 

General of Illinois and Nevada that a deadline in a proposing clause is not effective, with the court calling that 

claim ‘‘unpersuasive’’ and observing that ‘‘if that were 

the case, then the specification of the mode of ratification 

in every amendment in our Nation’s history would also 

be inoperative’’; 


DMWilson on DSKJM0X7X2PROD with BILLS
3 

•SRES 107 IS 

Whereas, in the same unanimous ruling, the United States 

Court of Appeals for the District of Columbia Circuit 

noted that the Supreme Court has affirmed the authority 

of Congress to set a binding ratification deadline, and the 

court of appeals refused to order the Archivist to certify 

the Equal Rights Amendment as part of the Constitution 

and dismissed the lawsuit brought by Illinois and Nevada; 

Whereas Representative Martha Griffiths, the sponsor of the 

Equal Rights Amendment Resolution, said in 1971, 

speaking of the deadline for the Equal Rights Amendment, ‘‘I think it is perfectly proper to have the 7-year 

statute so that it should not be hanging over our heads 

forever.’’; 

Whereas, under article V of the Constitution, a proposed 

amendment does not become part of the Constitution unless it is either ‘‘ratified by the Legislatures of three 

fourths of the several States, or by Conventions in three 

fourths thereof’’ with one or the other mode of ratification being dictated by Congress in the proposing clause 

of a resolution; 

Whereas only 35 States ratified the Equal Rights Amendment before its 7-year deadline, resulting in fewer than 

the 38 State ratifications necessary for adoption under 

article V of the Constitution; 

Whereas, before the original deadline for the Equal Rights 

Amendment expired, 4 of the 35 States that voted to ratify voted to rescind their ratifications; 

Whereas Justice Ruth Bader Ginsburg in 2020 observed, 

when explaining why she thought the Equal Rights 

Amendment needed to start over, ‘‘If you count a lateVerDate Sep 11 2014 01:42 Mar 16, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6300 E:\BILLS\SR107.IS SR107

DMWilson on DSKJM0X7X2PROD with BILLS
4 

•SRES 107 IS 

comer on the plus side, how can you disregard States 

that said we’ve changed our minds?’’; 

Whereas, in Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 

1981), Judge Marion Callister of the United States District Court for the District of Idaho held that article V 

of the Constitution did not permit Congress to extend a 

ratification deadline, writing, ‘‘Once the proposal has 

been formulated and sent to the States, the time period 

could not be changed any more than the entity designated to ratify could be changed from the State legislature to a State convention or vice versa. Once the proposal is made, Congress is not at liberty to change it.’’; 

Whereas, on March 5, 2021, Judge Rudolph Contreras of the 

United States District Court for the District of Columbia 

held in Virginia v. Ferriero, 525 F. Supp. 3d 36 (2021) 

that the deadline contained in the Equal Rights Amendment Resolution was constitutionally valid and that the 

legislative actions of 3 State legislatures in 2017 through 

2020, purporting to ratify the Equal Rights Amendment, 

‘‘came too late to count’’; 

Whereas Judge Contreras noted, ‘‘Inclusion of a deadline was 

a compromise that helped Congress successfully propose 

the ERA where previous attempts to pass a proposal had 

failed.’’; 

Whereas, while Judge Contreras found it unnecessary to 

reach the question of whether Congress could retroactively alter a deadline, he did observe that ‘‘the effect 

of a ratification deadline is not the kind of question that 

ought to vary from political moment to political moment 

. . . Yet leaving the efficacy of ratification deadlines up 

to the political branches would do just that.’’; 


DMWilson on DSKJM0X7X2PROD with BILLS
5 

•SRES 107 IS 

Whereas, on January 6, 2020, the Department of Justice Office of Legal Counsel issued a legal opinion stating, ‘‘We 

do not believe, however, that Congress in 2020 may 

change the terms upon which the 1972 Congress proposed the ERA for the States’ consideration. Article V 

does not expressly or implicitly grant Congress such authority. To the contrary, the text contemplates no role for 

Congress in the ratification process after it proposes an 

amendment. Moreover, such a congressional power finds 

no support in Supreme Court precedent.’’; 

Whereas the 2020 Office of Legal Counsel opinion also observed, ‘‘Because Congress and the State legislatures are 

distinct actors in the constitutional amendment process, 

the 116th Congress may not revise the terms under 

which two-thirds of both Houses proposed the ERA Resolution and under which 35 State legislatures initially ratified it. Such an action by this Congress would seem tantamount to asking the 116th Congress to override a veto 

that President Carter had returned during the 92nd Congress, a power this Congress plainly does not have.’’; and 

Whereas in oral argument before the United States Court of 

Appeals for the District of Columbia Circuit in the Virginia v. Ferriero case on September 28, 2022, Judge 

Robert Wilkins of that Court asked Deputy Assistant Attorney General Sarah Harrington, ‘‘Why shouldn’t the 

Archivist just certify and publish [the Equal Rights 

Amendment] and let Congress decide whether the deadline should be enforced . . .?’’, and Ms. Harrington answered, ‘‘The Constitution doesn’t contemplate any role 

for Congress at the back end. Congress proposes the 

amendment, it goes out into the world, and the States do 

what they’re going to do’’: Now, therefore, be it 


DMWilson on DSKJM0X7X2PROD with BILLS
6 

•SRES 107 IS 

1 Resolved, That the Senate— 

2 (1) recognizes that, under article V of the Con3 stitution, the legitimate constitutional role of Con4 gress in the constitutional amendment process for 

5 the Equal Rights Amendment ended when Congress 

6 proposed and submitted the Equal Rights Amend7 ment to the States on March 22, 1972; 

8 (2) recognizes that the Equal Rights Amend9 ment expired when its ratification deadline passed 

10 with fewer than three-fourths of the States ratifying; 

11 (3) recognizes that Congress has no power to 

12 modify a resolution proposing a constitutional 

13 amendment after the amendment has been sub14 mitted to the States, or after the amendment has ex15 pired; and 

16 (4) recognizes that the only legitimate way for 

17 the Equal Rights Amendment to become part of the 

18 Constitution is provided in article V of the Constitu19 tion, and requires reintroduction of the same or 

20 modified language addressing the same subject, 

21 through approval of a new joint resolution by the re22 quired two-thirds votes in each house of Congress. 

Æ 


DMWilson on DSKJM0X7X2PROD with BILLS