Mr. SEIBERLING. Well, what it comes down to in my mind is that, while the Congress cannot shorten the period once it has set forth the period in the amendment resolution because the States are entitled to rely on that, there had been no reliance by anyone outside of the Congress on a longer period, on the fact that the period of 7 years, instead of a longer period. And because one Congress cannot bind a subsequent Congress, if a subsequent Congress wants to extend it, that is their business and nobody else's. So I just feel that your position, while it may have merit as a matter of policy, to me does not really add up as a matter of law.

Professor BLACK. Well, sir

Mr. SEIBERLING. And if that is wrong and you want to write us a subsequent statement or write me and tell me why it is wrong other than what we have already heard, I

Professor BLACK. I don't believe I can now conceive of anything I could further say. The positions are clear on one side or the other of the question.

Mr. WIGGINS. Would the gentleman yield?

Mr. SEIBERLING. I don't have the time.

Mr. WIGGINS. Excuse me, only on the issue of reliance.

It seems to me that we need not have included a time limit at all. And from the gentleman's argument, the States may have relied upon an indefinite time within which to consider the amendment.

But any such justifiable reliance has to be considered in light of the Supreme Court decision which says that the sitting Congress can at some point determine that that amendment is no longer viable, that it is stale. And I think that represents the case law now.

If that is the case, then I can't understand the reliance argument unless one conditions the reliance upon the fact that a subsequent Congress may change the rule. And if it can change the rule, I believe the gentleman has to concede that he can change it either way, up or down.

Now, I think it would be unseemly to put a 30-day statute limitation on this. And I don't believe Congress could do so. But if no action were taken on an amendment for the last five years of its consideration, I am not certain that Congress need even be bound by the 7 years if Dillon v. Gloss means anything.

Mr. EDWARDS. Would the gentleman yield at that point?

Mr. WIGGINS. Yes.

Mr. EDWARDS. Professor Black's thesis, and certainly presented in the most responsible, lawyer-like manner, seems to me, however, to support the proposition that you can't change it by majority vote. You can't change anything by majority vote.

I am afraid that your thesis falls down as far as I personally concerned when you say yes, it can be changed by a two-thirds vote, eliminating the reliance that Mr. Wiggins speaks of in the legislatures. It is either to me, if you are right, we ought to just have to start over again.

Professor BLACK. Well, it seems to me it is very difficult for me to imagine, and I think this is what is so troubling about that. And I may push a No. 2 pencil over a yellow pad on that some time soon. It is very difficult for me to imagine the materiality of a possible reliance by State legislatures one way or another on this. That is not the kind

of reliance in any case I have been talking about. It has nothing to do with this.

First of all, let me reiterate that I am not projecting a mere psychological fact of reliance. I start with the clear language of this text and what it says. And nobody ever voted for anything other than this with the condition attached of 7 years.

What I am saying as to reliance is that it is to me an impermissible assumption that no Member or Members of either House voted for this package, which is the only package which sent this amendment to the country, in reliance upon the 7-year limitation which was carefully inserted on a motion as an amendment and which is stated in this document as a condition precedent, perfectly clear to the validity of the amendment.

I find the concept of reliance by the State legislatures relatively cloudy. I don't quite see what difference it would make to them.

Mr. EDWARDS. Well, if there are no burning questions by any of the Members, I think that we should adjourn at this time. However, I would like to thank the witnesses both very, very much for making an immense contribution to our deliberations.

It is a thorny, sticky, constitutional problem that we face. And you have both made major contributions.

[Whereupon, at 12 noon, the meeting was adjourned.]

EQUAL RIGHTS AMENDMENT EXTENSION

TUESDAY, NOVEMBER 8, 1977

U.S. HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met at 9:40 a.m. in room 2141 of the Rayburn House Office Building; the Honorable Don Edwards (chairman of the subcommittee) presiding.

Present: Representatives Edwards, Drinan, Volkmer, Beilenson, McClory, and Wiggins.

Also present: Thomas P. Breen, counsel; Catherine LeRoy, assistant counsel; and Roscoe B. Starek III, associate counsel.

Mr. EDWARDS. The subcommittee will come to order.

This morning we are going to continue hearings on the constitutional implications of the proposal to extend the ratification period for the equal rights amendment. We will be hearing from three distinguished lawyers: Erwin Griswold, former Solicitor General of the United States and former dean of the Harvard Law School, who is currently in private practice here in Washington; William W. Van Alstyne, who is at Duke Law School, currently visiting professor at the Marshall-Wythe School of Law at William and Mary; and Ruth Bader Ginsburg, professor at Columbia Law School.

I want to take this opportunity to welcome all three of you and thank you very much for taking the time from your busy schedules to be of assistance to us in this interesting and sometimes perplexing constitutional problem that we have. All of the witnesses have been very helpful and we are looking forward to hearing from you and to having a dialog with each of you.

Now if the witnesses approve, we are going to ask each of you to present his or her opening remarks. And then all three of you can remain at the witness table to respond to questions from the subcommittee.

Without objection, all of the witnesses' written statements will be made a part of the record.

Does any member wish any time at this point?
Mr. McCLORY. Mr. Chairman.

Mr. EDWARDS. Mr. McClory.

Mr. McCLORY. Mr. Chairman, I want to join you in welcoming the witnesses here. I think that we are having a very interesting academic exercise. However, as I indicated at the opening session, strategically I think that the legislation, the proposed legislation to extend the time

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and with the various other ramifications that might be involved in such a legislative proposal, are ill-advised and I say that being the principal sponsor of the equal rights amendment on the Republican side of the aisle in 1972, when we adopted the resolution which is now for ratification in the States.

up

Thank you, Mr. Chairman.

Mr. EDWARDS. Thank you, Mr. McClory.
Mr. Drinan.

Mr. DRINAN. Thank you, Mr. Chairman.

I just want to welcome all three witnesses, but particularly former law school dean, Erwin Griswold, from the great city of Boston and Cambridge, and I look forward to the testimony of all three of these great legal scholars.

Mr. EDWARDS. Mr. Beilenson.

Mr. BEILENSON. No, thank you, Mr. Chairman.

Mr. EDWARDS. Dean Griswold, you may proceed.

[The prepared statement of Mr. Griswold follows:]

STATEMENT BY ERWIN N. GRISWOLD

Chairman Rodino has asked me to appear before the Subcommittee to give my views on the question of extending the ratification period for the Equal Rights Amendment.

The length of time during which a proposed Amendment remains open for ratification has long been a troublesome matter. Over the past sixty years, Congress has generally endeavored to fix a time in advance. In some cases, it has included a seven-year provision within the Amendment itself. This was done, for example, in the Eighteenth. Twentieth, Twenty-First, and Twenty-Second Amendments. In the case of the Nineteenth Amendment, there was no time limitation within the Amendment or in the proposing legislation. 41 Stat. 362 (1919). This was also the case with respect to the Child Labor Amendment, which was proposed in 1924. 43 Stat. 670 (1924).

In the more recent amendments, beginning with 1960, Congress has included a seven-year provision in the resolution proposing the Amendment, rather than inserting it in the Amendment itself. This was done, for example, with respect to the Twenty-Third Amendment (74 Stat. 1057), the Twenty-Fourth Amendment (76 Stat. 1259), the Twenty-Fifth Amendment (79 Stat. 1327), and the TwentySixth Amendment (85 Stat. 825).

In the case of the proposed Equal Rights Amendment, the more recent practice was followed. 86 Stat. 1523. There is no time limitation in the proposed Amendment itself, but the Joint Resolution proposing the Amendment reads as follows:

That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the Legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.

As indicated. the first time a specific period of years was included in the resolution was in the Joint Resolution proposing the Twenty-Third Amendment. This is the Amendment which allocated Presidential Electors to the District of Columbia. Examination of the legislative history of this Joint Resolution does not disclose that there was any expressed purpose or reason for this change in form. Presumably, this method was adopted because the inclusion of the time limit in the Amendment is cumbersome, and it is redundant to have to continue it as a part of the Constitution for all time. There is nothing to indicate that Congress meant more than this when, in 1960, it changed the form in which this question was dealt with, and put the time limit in the proposing resolution. The provision which became the Twenty-Third Amendment began as S.J. Res. 39, in the 86th Congress, First Session. The Senate Report relating to S.J. Res. 39 was Senate Report No. 561, 85th Cong., 1st Sess. At that stage, the Joint Resolution dealt with a number of subjects, and did not include any time