Congress might respond to changing conditions indicating there is no longer a need for the amendment. But Congress may not act to deny the States a fair opportunity to consider and decide. That is, Congress may not cut back the time because Congress has changed its mind about the desirability of the amendment and therefore does not want the States to have the opportunity to determine whether they I wish to have the amendment.

Extension, of course, does not raise that question. It does not take away from the States a full and fair opportunity to ratify.

Mr. VOLKMER. Mr. Chairman, could I follow up on that just for a moment?

Mr. EDWARDS. Mr. Volkmer.

Mr. VOLKMER. But eliminating the 7 years-forget that. Let's not talk about equal rights now. Let's talk about a constitutional amendment.

Surely a subsequent Congress could put no limitation on an amendment and therefore the only time limit would be a "reasonable" time. Now, Congress surely can say 7 years or 10 years has been a reasonable time and we are passing this resolution and saying that is the end of it. Isn't that correct?

Mr. VAN ALSTYNE. They could do so. I think that is a justiciable issue. A fair way of testing the proposition, Congressman, is to suppose that the amendment has been proposed without any deadlinethat was true of the first 17, after all-and the subsequent Congress brings it to a halt, granted the hypothetical that they cut it off after 2 years. A fair way of testing it is to suppose that an additional State presumes to ratify and the Administrator of General Services declines to list, in deference to the new act of Congress. A class action is brought by the State legislature to test their authority under article V. My belief is the Supreme Court would regard it as justiciable, and they would raise the question, as Professor Ginsburg has propounded it, as to whether Congress-a Congress having propounded or proposed the amendment by the requisite two-thirds a subsequent Ĉongress has, in essence, tried to foreclose the efficacy of State entitlement to ratify within a reasonable time.

Mr. VOLKMER. And what is a reasonable time? It comes down to that.

Mr. VAN ALSTYNE. It does, in two steps: first, what Congress says about it; and second, in sober judicial light, the view of the court is that the subsequent Congress has been so preemptory, but one conclusion can follow. That is to say that it is essentially an attempt to foreclose a reasonable opportunity to ratify.

Mr. VOLKMER. But you're not precluding a Congress power to cut it off or reduce it.

Mr. VAN ALSTYNE. Well, I'm saying they can presume to exercise the power; but depending on the reasonableness of the exercise, in my view, under those circumstances, it would or would not be sustained.

Mr. VOLKMER. I agree with that. But that disagrees with Professor Ginsburg.

Ms. GINSBURG. No; I don't think so.

Mr. VOLKMER. Then, your point was that 7 years is a reasonable time, and we'd not be giving them a reasonable time by cutting it shorter, but not denying the power to Congress to do so.

Ms. GINSBURG. I'm not sure I follow the question. I did not intend to suggest that under no circumstances could Congress shorten a statute of limitations on an amendment, which is essentially what this is. I did intend to say Congress could do so only when not acting on the basis of its change of mind about the merits of the amendment. Congress might well decide, in light of conditions, changing conditions, there is no longer a felt need for an amendment. That would amount to a judgment that the "reasonable time" has run out, or that the amendment is no longer responsive to the conception that gave birth to it. A judgment of that quality Congress may make, but I do not believe Congress has authority, to pull back an amendment based solely on its change of mind as to the merits of the proposal.

Mr. VOLKMER. Thank you, Mr. Chairman.

Mr. EDWARDS. Are there further questions?

Mr. WIGGINS. I would like to make an observation, Mr. Chairman. The notion has been expressed that the States are being denied a right to ratify, if the Congress were to shorten or even to withdraw an amendment. But the States are not without their remedy. Their political remedy is in article V itself. They may propose their amendments, and if they think that Congress has acted arbitrarily with respect to giving them an opportunity to ratify an amendment submitted by the Congress, two-thirds of the States may proceed on their own without reference to Congress and propose an equal rights amendment. Isn't that so?

Mr. VAN ALSTYNE. It is an excellent point. It overstates the case. When Congress exercises its article V discretion to elect the mode of ratification, then I would deem it in these circumstances really to be bound by the mode it elected, and it hardly answers the point as to whether Congress then has meritoriously interfered with that process because of a theoretical option of States to begin all over again and themselves to call for a convention in which an equivalent amendment could be proposed. They may always do that in any case. It is an arguable proposition, but I think respectfully-I don't think it should prevail in the system. No; not when Congress has specified the mode as its authority to elect under article V. They are bound by the mode and to see it through, at least in an objectively reasonable fashion. Mr. EDWARDS. There's also no way that Congress can be forced to certify that the resolution shall be a part of the Constituton.

Mr. VAN ALSTYNE. Well, we are mutually aware of the awkwardness. Reference was made earlier to Senator Ervin's effort to provide some coherence to that form, and I think even in retrospect, with all due credit to the bill, we may be mutually grateful that States have not seen fit to seek to amend by that technique. None of us have come to a satisfactory way of coping with it thus far.

Mr. McCLORY. Mr. Chairman, may I make one more statement of a rather technical nature? Since I have had experience in the Illinois General Assembly and the question of the free votes has come up, I would like to note that the rules of the Illinois House permit the

Speaker to lock in the electrical voting system at a time when he elects. That is the final vote, and there is no opportunity to change a vote, even if a changed vote would affect the final result.

Consequently, there are many instances when, under this theory of members casting free votes that they do not think are going to be counted where they get trapped by the Speaker who locks the device. The member is committed against what might have been his better judgment.

That is why I question this argument about free, or unintentional, or misleading votes being cast as a basis for the proposition that the States may not have ratified because of the three-fifths requirement in the Constitution. Somehow or another, the Congress is obliged to speak on this issue in order to commit States to the simple majority. The mere fact that there is that possibility-that there is that exercise of authority in the Speaker also militates against those members who voted who really may not have intended to vote for ratification.

Thank you, Mr. Chairman.

Mr. EDWARDS. There are no further hearings scheduled at this time, during the recess. I've instructed the staff to study the testimony, the law, and to solicit further opinions from other constitutional experts throughout the country and then report back to the subcommittee in mid-January as to our further course of action. I do assure the members that it will be done. All of our activity will be done within a reasonable period of time.

And again, we all are very grateful to you three splended witnesses we had today.

The subcommittee is adjourned.

Mr. McCLORY. Since the ranking minority member, Mr. Butler, is not here, but I would like to reserve the right, if the minority elects, to request other witnesses, that that right would be reserved.

Mr. EDWARDS. That reservation will always be honored.
The committee is adjourned.

[Whereupon, at 12:25 p.m., the committee was adjourned.]

EQUAL RIGHTS AMENDMENT EXTENSION

WEDNESDAY, MAY 17, 1978

U.S. HOUSE OF REPRESENTATIVES,

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

Washington, D.C.

The subcommittee met at 9:35 a.m. in room 2141 of the Rayburn House Office Building; the Hon. Don Edwards (chairman of the subcommittee) presiding.

Present: Representatives Edwards, Drinan, Volkmer, Holtzman, Butler, McClory, and Railsback.

Staff present: Thomas Breen, counsel; Catherine LeRoy and Janice Cooper, assistant counsel; and Roscoe B. Starek III, associate

counsel.

Mr. EDWARDS. The subcommittee will come to order.

Today we are continuing our consideration of H.J. Res. 638, to extend the ratification period for the proposed equal rights amendment. The equal rights amendment was first introduced in Congress in 1923. It took nearly 50 years to win final congressional approval. But when it came, that approval was overwhelming: the amendment passed the House on October 12, 1971, by a vote of 354 to 24. It passed the Senate on March 22, 1972, by a vote of 84 to 8.

Congressional approval of the amendment thus is not an issue here. That question has already been decided. The matter is now pending in the States.

Since 1972, 35 States have ratified the amendment. Three more must ratify before the amendment can become a part of our Constitution. The current deadline for ratification is March 22, 1979, less than a year away.

Last fall, this subcommittee began consideration of H.J. Res. 638, to extend the ratification period of the proposed equal rights amendment for an additional 7 years. At that time, we considered the threshold question of the authority of Congress under the Constitution to take such an unprecedented step.

The consensus that emerged from the subcommittee's deliberations last fall was that an extension is within the power of Congress. But as I pointed out at the time, that is only the first step in the process. The harder question, the one before us now, is whether such a step would be an appropriate exercise of congressional power.

Article V of the Constitution, as interpreted by the Supreme Court, seems to say that we can extend the ratification period if we think that the amendment remains a vital policy question on which public debate and State legislative consideration should be allowed to continue. Our job now is to assess the social, economic, and political factors surrounding the ERA and determine whether it would be reasonable to allow (159)