Delayed Ratifications

On his final Friday in office, President Joe Biden issued a statement about the Equal Rights Amendment, better known as the ERA, and in doing so registered his public disagreement with the Archivist of the United States.

The President now says the ERA amendment is part of the Constitution and “the law of the land,” a position that senior Democrats and advocacy groups had long been pressing him to take. But the nation’s archivist Dr. Colleen Shogan (whose office is responsible for certifying and publishing constitutional amendments) still maintains that it is not.

The problem is that when Congress passed the ERA and sent it to the states for ratification in 1972, it also gave the states a deadline. And even though the deadline was later extended by a few years, it came and went in 1982 without the 38 ratifying states required for adoption. On this view, endorsed most recently in 2022 by the Department of Justice, it does not matter that Virginia arguably became the last of the 38 states needed to approve the ERA when it ratified the amendment in 2020, because the necessary votes happened too late.

It has been more than 30 years since the last amendment to the Constitution was certified, and 50 years since the amendment before that. So all of this raises questions that most American citizens are not accustomed to thinking much about. How does an amendment become the law of the land? What does the archivist of the United States have to do with it? And can we learn anything from other cases in which a state’s decision to ratify has been long delayed?

All of those questions got me thinking about the ratification history of another crucial amendment—the Thirteenth Amendment abolishing slavery after the Civil War—and especially about the three states that waited until the twentieth century to ratify it by vote: Delaware in 1901, Kentucky in 1976, and finally—finally—Mississippi in 1995. (Or was it 2013? More on that below.)

None of these delayed votes affected the abolition amendment’s actual adoption. The Thirteenth was officially certified as part of the Constitution in 1865.¹ Yet each of the twentieth-century votes on the Thirteenth Amendment has a history worth telling. Two of them—in Kentucky and Mississippi—show the power of ordinary people to advance constitutional reform. Both even have some connections to the debate over the ERA. But the case that is probably least known today may offer the closest parallel to President Biden’s eleventh-hour announcement: the 1901 ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments in his own home state, Delaware.

In this post, I’ll try to explain why by starting at the end of the story.

Mississippi

It took until the twenty-first century to confirm the ratification of the Thirteenth Amendment in the state of Mississippi. That’s where, in late 2012, a neurobiologist at the University of Mississippi went to see Steven Spielberg’s movie Lincoln. Dr. Ranjan Batra, an immigrant who was born in India and had become a U.S. citizen in 2008, was so moved by Daniel Day Lewis’s Oscar-winning portrayal of Abraham Lincoln and the fight for the Thirteenth Amendment that he wanted to learn more about the amendment’s history in his own state.

Online, Batra was appalled to discover that Mississippi had not only opposed the amendment in 1865, but had only voted to ratify the Thirteenth in 1995. Even more perplexing, however, was a footnote he found suggesting that “because the State never officially notified the U.S. Archivist, the ratification is not official.”²

Of course, Mississippi’s long refusal to ratify the Constitutional abolition of slavery would have surprised no historian of the Civil War and Reconstruction. It took Lincoln’s Emancipation Proclamation of January 1, 1863, the fall of Vicksburg that July, the success of Union arms, and the self-liberating actions of countless Black freedom-seekers to destroy slavery in Mississippi, whose Confederate planter class was loathe from the very beginning to accept that result.

In August 1865, Mississippi did incorporate the language of the Thirteenth amendment into its first postwar state constitution as Article VIII, but only with a curious preamble:

The institution of slavery having been destroyed in the State of Mississippi, neither slavery nor involuntary servitude otherwise than in the punishment of crimes, whereof the party shall have been duly convicted, shall hereafter exist in this state …

With its use of passive voice, this preamble openly shifted responsibility for slavery’s end away from the state. And an earlier version of the preamble considered by the 1865 convention made the intentions of reactionary Mississippians even clearer. It read: “Slavery having been abolished in this state by the action of the Government of the United States …” (emphasis added).

As opponents of that preamble pointed out at the time, this construction deliberately obfuscated the facts. Although enslaved people in Mississippi had been declared free by Lincoln’s Emancipation Proclamation in 1863, slavery as a legal institution had not been legally abolished in the state and would not be until the Constitution, state or federal, made it so. That was precisely what the new state constitution’s framers needed to decide.

But proponents of the preamble pressed the issue. “We are all satisfied that slavery is abolished. It has been abolished by some power,” said one delegate, refusing to say exactly what that power was. In a dodge reminiscent of 2020 election deniers who refuse to admit that Joe Biden won that election and will say only that he somehow became president, supporters of Mississippi’s preamble to its 1865 abolition clause would not say how slavery had ended or why. They wanted the preamble because, as the same delegate put it, it would make clear to “the civilized world” that “this was not a voluntary act on the part of the State of Mississippi.” It was only right, this delegate concluded, for the preamble “to inquire into” how abolition had happened, much like those today who cast doubt on the Fourteenth Amendment’s guarantee of birthright citizenship just by suggesting that it be studied.³

In the end, the language that the framers of Mississippi’s 1865 constitution settled on represented a compromise of sorts: it stated that slavery at least had “been destroyed,” if not abolished, by the war. But it made clear the reluctance of former Confederates to admit defeat, and it disavowed the state’s responsibility for the formal abolition of slavery. Given all that followed—the violent overthrow of Reconstruction, the disfranchisement of Black voters through Mississippi’s 1890 Constitution, the brutal reign of Jim Crow, and the murderous, massive resistance to the Second Reconstruction of the Civil Rights era—it is telling that it took more than a century and a quarter for state legislators finally to vote for the Thirteenth Amendment.

More surprising to Dr. Batra in 2012 was the discovery that the 1995 decision had somehow never been officially recorded with the Archivist of the United States, the office whose act of certification would also be needed to confirm the ERA today. Of course, the stakes of this oversight, if such it was, were much lower than in the case of the ERA. The Thirteenth Amendment had long before received the necessary votes to be ratified. Still, after enlisting a friend and colleague at the University of Mississippi’s Medical Center to help, Dr. Batra ensured that the open loop he discovered would finally be closed. Word of the 1995 vote was filed with the United States Archivist.

And so, in February 2013, Mississippi became the last state to officially ratify the abolition of slavery in the United States.

Kentucky

Prior to 1995, the dubious distinction of being the latest state to vote to ratify the Thirteenth Amendment had belonged to Kentucky.

The Bluegrass State was one of the loyal border slave states that never officially joined the Confederacy. But as in the Deep South, the refusal of white Kentuckians to support the Reconstruction amendments bespoke their deep-seated opposition to emancipation and Black citizenship. Not until 1976, the nation’s bicentennial year, would Kentucky’s state legislature vote to ratify the Thirteenth Amendment.⁴

Before setting out to understand why it happened then, let’s first take a brief detour to the state of Nevada and the latter-day history of the ERA.

In November 2012, around the time Dr. Batra went to see Lincoln in the theater in Mississippi, Pat Spearman, an African American veteran in the U.S. Army, was celebrating her historic election as the first openly lesbian member of the Nevada state legislature. There, Spearman would soon lead a campaign to make Nevada the first state since Congress’s 1979 deadline to ratify the Equal Rights Amendment. That effort succeeded with a vote taken in 2017, making Nevada (by some reckonings) the 36th state to ratify the ERA. Nevada’s delayed ratification, held forty years after the 35th (Indiana), set the stage for subsequent votes in Illinois and Virginia that have now brought the ERA back into the spotlight once again.

But notice I said Nevada was 36th of the required 38 by some reckonings. That’s because of another wrinkle in the ERA’s history. By the time of the original 1979 deadline set by Congress for ratification, five of the states that initially ratified the ERA had subsequently voted to rescind that ratification. Though debate continues on whether the states that withdrew their support had the power to do so (President Jimmy Carter, for one, believed they did not), the rescissions signaled the growing power of anti-feminist forces and the STOP ERA movement. Led nationally by conservative activist Phyllis Schlafly, STOP ERA warned that the Equal Rights Amendment would upset traditional gender roles, and its success augured the rightward turn in American politics and culture that swept Ronald Reagan into the White House and Jimmy Carter out.

Kentucky (which initially ratified the ERA in 1972) was one of the states where the effort to roll back the ratification of the ERA succeeded, though for reasons that were local and regional as well as reflective of national trends. In the Bluegrass, as historian Nancy Baker has argued, “the women involved in the anti-ERA movement, while arguably quite socially conservative, did not consider themselves to be part of a traditionalistic political culture so much as an antifederal one,” though antifederalism has itself been quite traditional in Kentucky’s political culture since the Civil War. But in so casting the debate over the ERA as about “federalism” as much as “feminism,” Kentucky women on both sides entangled consideration of the ERA with the state’s ongoing reckoning with the results of Reconstruction and the Civil Rights Movement.⁵

Given this context, it is not surprising (though seldom remarked) that Kentucky’s decision to ratify the Thirteenth Amendment came in the middle of a floor debate in the state house over the ERA, or that it happened during the state’s 1976 biennial legislative session, a tumultuous session marked both by the effort to rescind the ERA and by debates over the use of busing to end racial segregation in public schools.

Indeed, according to the Associated Press, it was in March 1976, while the state House of Representatives was in the middle of debating a resolution over whether to rescind its 1972 ratification of the ERA, that State Rep. Mae Street Kidd (D-Louisville) rose to file a resolution calling for Kentucky to ratify the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Kidd, elected to the statehouse in 1968, was only “one of three blacks in the Kentucky legislature,” the AP continued. But her resolution reportedly sparked surprise in the legislative chamber. “You mean we haven’t ratified those?” asked Sen. John Lackey, a fellow Democrat from Richmond.⁶

Kentucky had not. In fact, it had explicitly rejected the amendments during the Reconstruction era. Fortunately, Kidd’s resolution fared better in 1976: it passed the House unanimously and was approved in the Senate by voice vote.

One wonders, however, whether all of the legislators appreciated the irony that Kidd may well have had in mind. In a debate over the ERA that pitted opponents of the federal government against ERA supporters, Kidd’s resolution reminded the state of its long opposition to federally mandated and enforced protections of equal rights—a tradition whose weight fell most heavily on citizens like Kidd, or Pat Spearman, whose racialized and gendered identities made them historically doubly vulnerable to discrimination.

Either way, the anti-ERA forces in Kentucky would prevail two years later. In March 1978, voting through a highly irregular process, the state legislature elected to rescind the Equal Rights Amendment, two years after it had finally ratified the Thirteenth, Fourteenth, and Fifteenth amendments to the Constitution. In the final debate on that fateful resolution, Mae Street Kidd delivered an “impassioned” speech in favor of the ERA, to applause from the gallery. Then she joined with the defeated minority by voting against rescission.⁷

Delaware

As we have seen, the delayed ratifications of the Thirteenth Amendment in Mississippi and Kentucky sometimes intersected, chronologically and thematically, with the history of the ERA. But the first twentieth-century state to ratify the Thirteenth Amendment—Delaware, in 1901—also has some lessons to teach about Biden’s 2025 announcement, even though it occurred before the original ERA had even been conceived by suffragist Alice Paul in 1923.

Like Kentucky, Delaware had remained in the Union during the Civil War despite its own long history of slavery and racism; like Kentucky, its white postwar elites warmed to the memory of the Confederacy, resisted Reconstruction, and refused to ratify the Thirteenth Amendment.⁸ What, then, could have led legislators there to ratify Reconstruction, at last, in 1901?

The answer is that they could agree on very little else. And that’s because in 1901, the normal functions of the state legislature had been paralyzed by the long campaign of a wealthy industrialist—a mustachioed forebear of today’s tech capitalists—to buy himself a seat in the U. S. Senate.

The name of the industrialist was J. Edward Addicks. He wasn’t really from Delaware. Born in Philadelphia in 1841, by the end of the century Addicks had amassed a huge fortune in the gas lighting industry that was transforming American cities. What he coveted most, however, was what he never got: status and power in Washington, D. C., as a United States Senator.

At that time, Senators were selected by state lawmakers, not by popular vote, and after buying a home in Dover, Addicks began angling for a Delaware seat in the 1890s, using his wealth to secure loyal Republican votes in the statehouse. The industrial titan soon learned that money could not buy everything. But the mere effort could and did bring some normal legislative functions to a halt.

Addicks first presented himself as a candidate for U.S. Senator from Delaware in 1895, when Republican Anthony Higgins’s term was up. Addicks failed to secure the seat, but he did prevent Henry A. du Pont (himself the scion of a monied family) from winning it, too. The seat remained vacant until filled by Democrat Richard R. Kenney in 1897. Addicks tried again in 1899 when the other Senate seat for Delaware opened, but warring Republican factions of pro- and anti-Addicks supporters could never fill the seat, which remained empty for four years. In early 1901, in the midst of that ongoing vacancy, the other Delaware Senate seat (the Democrat Kenney’s) was also due to open in March. Yet throughout the first two months of 1901, nearly daily votes on resolutions to appoint a Senator remained deadlocked in the legislature.⁹

The crisis quickly gained national media attention and rumbles about likely intervention by national GOP leaders and the White House. But headlines from the New York Times in those months demonstrate that Addicks’s money was all too successful in lashing his lawmakers to the mast of a sinking ship:

• “No Change in Delaware” (January 18, 1901)
• “Delaware Legislature Casts Senatorial Ballots Without Result” (January 20, 1901)
• “Another Ballot in Delaware” (January 22, 1901)
• “Another Ballot in Delaware” (January 24, 1901)
• “Delaware Dead-Lock Continues” (January 25, 1901)

The gridlock was so seemingly impervious to change, that any switch in a vote away from or to Addicks earned headline coverage in the succeeding weeks, especially as the term of Delaware’s only sitting U.S. Senator was drawing to a close. In the end, however, as the Times reported on March 9, 1901, there would be “NO CHOICE IN DELAWARE; Legislature Adjourns Without Electing the Two Senators. The State is Without Representation.” There were “Scenes of Great Excitement” when the join session ended, and no wonder.

For the next two years, Delaware would be completely unrepresented in the United States Senate.

It was in this context, during this same legislative session, that Republican state senator J. Frank Allee, the leader of the Addicks faction in Delaware, thought to himself, why don’t we finally get around to ratifying the Reconstruction amendments?

On January 30, 1901, Allee presented the Delaware Senate Joint Resolution No. 13, entitled, “Joint resolution ratifying certain amendments to the Constitution of the United States,” and the next day, after another round of voting on the U.S. Senate seat that “was productive of no results,” Delaware’s “House concurred in the Senate’s ratification of the thirteenth, fourteenth, and fifteenth articles of the United States Constitution.”¹⁰

Perhaps Allee hoped that concurring in the ratification of the Reconstruction amendments would rally the state Republican Party together around a reminder of their party’s purpose. Or perhaps the move was a more cynical effort to cloak the Addicks forces in the moral authority of abolition and equal rights. But either way, the vote was clearly a symbolic afterthought in the legislative session.

And after Allee’s resolution easily passed both chambers, the seemingly interminable struggle over Addicks’s bid to buy a seat in the U.S. Senate wore on.

As for the current moment in American history, it may be too soon to tell whether President Biden’s late embrace of the theory that the ERA is already part of the Constitution will do anything to aid its practical adoption. Media reports about his announcement have predicted that it will lay the groundwork for legal challenges designed to advance the cause. If those efforts succeed, perhaps Biden’s announcement will be seen as a pivotal turning point in the currently century-old campaign to enshrine the protection of equal rights, irrespective of sex, in the nation’s Constitution.

In the present, however, it is hard not to draw more dispiriting lessons from Biden’s parting announcement. Today, parts of the Reconstruction amendments are newly under attack, and an election that could have elevated the first Black woman president in our history to the White House instead returned Donald Trump to power.

Meanwhile, as President Biden warned in his farewell address two days before his ERA statement, “an oligarchy is taking shape in America of extreme wealth, power, and influence that literally threatens our entire democracy.” Yet the major political parties are as internally divided as turn-of-the-century Delaware Republicans and seem unprepared or unwilling to face such existential threats.

In the midst of this quagmire, deepened by the power of Addicks-like titans seeking to purchase political influence, we seem to be standing on the precipice of what some have called a golden age of grift. Given all that, statements endorsing the ERA or declaring the bald eagle the national bird seem less like democratic triumphs than symbolic monuments to democratic paralysis and dysfunction, much like Delaware’s delayed ratification of the Reconstruction Amendments in 1901.

This is not to say, in conclusion, that all hope for the ERA is lost. But if its fraught history is ever to end in delayed gratification, the history of the Thirteenth Amendment’s late adopters suggests how it will be done: less through the pronouncements of the powerful or rich, and more through the vigilance of ordinary citizens and lawmakers. People, in other words, like Dr. Ranjan Batra and the late Mae Street Kidd.

(Image Credit: Joint Resolution Submitting 13th Amendment to the States; signed by Abraham Lincoln and Congress, February 1, 1865, Library of Congress)

Notes