The Senate Judiciary Committee will hold an unusual hearing on February 28 titled, “The Equal Rights Amendment: How Congress Can Recognize Ratification and Enshrine Equality in Our Constitution.” It’s unusual because it focuses on a power that Congress doesn’t possess and a proposed amendment that doesn’t exist.

Article V of the Constitution gives Congress the power, “whenever two thirds of both Houses shall deem it necessary,” to propose constitutional amendments and to require that states ratify them either through their legislatures or by conventions. The Supreme Court has held that the power to propose amendments includes setting a “reasonable” ratification deadline. A proposed amendment becomes part of the Constitution “when ratified by . . . three fourths of the several States,” which today means 38 states.

A proposed constitutional amendment without a ratification deadline, therefore, is pending until it is ratified by three-fourths of the states in the manner Congress has prescribed. The states ratified 19 of the 23 amendments that Congress proposed without a deadline, and the other four remain pending.

A proposed amendment with a deadline is pending until it is ratified by three-fourths of the states or its ratification deadline passes with insufficient state support, whichever comes first. The states ratified eight of the ten amendments that Congress proposed with a deadline, and the other two have expired. The Congressional Research Service’s extensive treatise on the Constitution includes the ERA in its section on “Proposed Amendments Not Ratified by the States,” noting that it “formally died” when its deadline passed with fewer than 38 ratifying states.

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The Justice Department, during administrations of both parties, has confirmed this fact. A February 1977 opinion by the Office of Legal Counsel (OLC) stated that, “The Equal Rights Amendment must be approved within 7 years after its submission to the States.” That, of course, did not happen. A January 2020 OLC opinion concluded that, “Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the [1972 ERA] is no longer pending before the States.”

In Idaho v. Freeman, the only court to address the issue found Congress’s attempt to extend the 1972 ERA’s ratification deadline to be unconstitutional. While ERA supporters are quick to point out that the Supreme Court vacated the decision in Freeman, they avoid the basis for the court’s decision. In July 1982, several months after the ruling, acting solicitor general Lawrence G. Wallace wrote a memo for the head of the General Services Administration explaining that the Freeman case was moot because the 1972 ERA had “expired” and “failed of adoption.” The Supreme Court agreed, vacating the district court’s decision as moot “[u]pon consideration of the memorandum for the Administrator of General Services.”

Which brings us to the February 28 Judiciary Committee hearing. The committee will hear from Senators Ben Cardin (D., Md.) and Lisa Murkowski (R., Ark.), sponsors of Senate Joint Resolution 4, which purports to remove the 1972 ERA’s ratification deadline and to declare that it has been ratified by the necessary 38 states. Since Congress has no power or role in the constitutional-amendment process after proposing an amendment, however, nothing it does—including passing a measure such as this one—can have any effect whatsoever on whether a proposed amendment actually becomes part of the Constitution.

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Even if it could, this is funny math even for Congress. Five of the 35 states that ratified the 1972 ERA rescinded their approval before the March 1979 deadline: Thirty-five minus five equals 30, which is fewer than 38. Three of the states that ERA supporters want to count passed ratification resolutions more than 40 years after the ratification deadline. Even if you were to count them, despite the untimeliness of their approval, 30 plus three equals 33, and 33 is still less than 38.

The late justice Ruth Bader Ginsburg was one of the ERA’s strongest supporters. In 2020 remarks, however, she asked whether, “If you count a latecomer [state] on the plus side, how can you disregard states that said ‘we’ve changed our minds’?”

No matter how you cut it, the 1972 ERA is long dead, and Congress has no power to revive it. Supporters should, as Ginsburg urged them, “start over.”