Debunking the Madison argument, that ratification deadlines do not apply

James Madison’s original 12-amendments were proposed in 1789, and 10 were ratified and are known as our Bill of Rights. Congress did not include a deadline for ratification, and the first 2 were not ratified at that time.

In 1921, SCOTUS ruled that Congress can establish a deadline for the ratification of an Article V amendment to the U.S. Constitution, as part of the mode of ratification.

In that Congress did not include a deadline in the mode of ratification in 1789, Madison’s second amendment became the 27th (and most recent) amendment to the U.S. Constitution in 1992, 203 years after it was proposed. The 27th amendment delays a congressional pay raise enacted by Congress until the next Congressional session.

In the 1982 STATE OF IDAHO v. FREEMAN case [529 Federal Supplement 1107 (1981), Civ. No. 79-109], the Idaho U.S. District Court considered Congress’ simple majority vote in 1978 to extend the deadline for the ratification of the 1972 ERA from 7 years to 10 years. In IDAHO v. FREEMAN, the Federal court ruled that Congress does not have the authority to change the mode of ratification after it has been established, including a deadline. IDAHO v. FREEMAN is still cited as an important Constitutional decision.

The 1972 ERA was ratified by only 35 or the required 38 States, and the 7-year deadline for ratification expired in 1979. In order to enact the ERA, the process would have to start over, where either 2/3s of Congress or the States would need to propose it again, and 38 States would need to ratify it.

Madison’s first amendment, that could still be ratified today, would have restricted one U.S. House member for each congressional district, not to exceed a population of 50,000 citizens. If the ratification process was completed today, the total number of U.S. Representatives could possibly increase to about 6,500 instead of the current 435. Similar to the proposed goals of ERA, this increase could certainly help women’s rights by increasing the number and thus representation of women serving in Congress.