C. Other Congressional Precedents Support The Ratification By The States Currently, 1 U.S.c. §106(b) provides that the General Services Administration shall receive notice of state ratifications of a proposed Constitional amendment and shall certify and publish the amendment when the requisite number of states have submitted ratifications. This statute, delegating authority to the GSA, was passed as a part of an ordinary bill, requiring only a majority vote of the members present of each House. 65 Stat. 710. 19/ In 1967, former Senator Sam Ervin introduced a bill to establish a procedure for states to call for a convention for 20/ the purpose of proposing constitutional amendments. S.2307, 90th Cong., 1st Sess. (1967). Four years later, the bill (then S.215, 92d Cong., 1st Sess.) was passed by the Senate but it died in the House Judiciary Committee. The bill set forth a detailed procedure for states to request a convention, the mechanics of such a convention and the actions of Congress in the overall process. Section 215 of S.215 is relevant here because it would have established a specific time period for the states to act in requesting the convention and for the convention to present its amendments to the states. $215, S.215, 92d Cong., 1st Sess. (1971). As noted, this bill was simple, statutory legislation. Although the Senate 18/ Formerly, this responsibility was delegated to the Secretary of State. 3 Stat. 439. 19/ All previous amendment proposals have been initiated by the Congress rather than by a convention. ! passed the bill by a wide margin, the Senate treated it as ordinary legislation which required only a simple majority for passage. 20/ This treatment is consistent with the implied view of the Supreme Court, in Coleman v. Miller, 307 U.S. 433, 450 (1937), that Congress can deal with the issues of prior rejections or attempted recisions by enacting an ordinary statute. If Congress can, by majority vote, limit the period within which states may request a constitutional convention or deal with the issue of rejection or rescission by the states, it follows that Congress can, by majority vote, enlarge the period of time within which the states may effectively ratify a proposed amendment. Conclusion The foregoing discussion shows that Congress has the unreviewable discretion, under Article V of the Constitution, as interpreted by the Supreme Court, to determine in advance the time within which a proposed amendment must be ratified, to determine (in the absence of any advance prescription) whether a proposed amendment has lost its vitality through lapse of time, and to extend the period within which ratification may occur if it deems that such extension. is warranted in view of relevant 22/ political, social, and economic conditions. Congress' authority to determine the time within which ratification may take place is not reviewable by the Courts because it is an 21/ This proposed legislation was severely criticized by scholars. See "Amending the Constitution", 85 Harv. L. Rev. 1612; 72 Yale L. J. 957. It is important to note, however, that no one challenged the authority of Congress to set, by simple majority vote, the time limits for state action. 22/ In other words, Congress could determine that the issues addressed by the proposed constitutional amendment are still "live". Coleman v. Miller, 307 U.S. at 453. incident of Congress' power to designate the mode of ratifica- Submitted by the National Organization for Women to the House J My name is Eleanor Cutri Smeal; I am President of the National Organization for Women, Inc. (NOW). On behalf of NOW, the largest feminist organization in the United States, with members and chapters throughout the nation dedicated to achieving equality between women and men, I am testifying in support of H.J. Res. 638, to extend the date for ratification of the Equal Rights Amendment to the Constitution. We are grateful for this opportunity to address the Subcommittee on the ERA Extension Resolution. We believe that NOW, which has been a leader in the ERA ratification drive and a major supporter of the proposed extension, is in a unique position to testify on this matter, especially in light of our leadership in the movement to eliminate sex discrimination in all spheres of our society. With the Subcommittee's permission, NOW would like to submit a comprehensive legal memorandum for the record on the proposed extension. We are authorized to state that the following distinguished scholars of Constitutional law have studied the memorandum and concur with its conclusions: Jerome A. Barrop. Professor of Law, George Washington University Paul Brest, Professor of Daw, Stanford University Norman Dorsen, Professor of Law, New York University Thomas Emerson, Professor of Law, Yale Law School Ruth Bader Ginsburg, Professor of Law, Columbia University Kenneth L. Karst, Professor of Law, Universy of California Laurence Tribe, Professor of Law, Harvard University. |