EQUAL RIGHTS AMENDMENT EXTENSION FRIDAY, NOVEMBER 4, 1977 U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVII. AND CONSTITUTIONAL RIGHTS Washington, D.C. The hearing was convened at 9:40 a.m., in room 2141, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding. Present: Representatives Edwards, Seiberling, Drinan, Beilenson, and Wiggins. Also present: Thomas P. Breen, counsel; Catherine LeRoy and Janice Cooper, assistant counsel; and Roscoe B. Starek III, associate counsel. Mr. EDWARDS. The subcommittee will come to order. I recognize the gentleman from Massachusetts. Mr. DRINAN. Thank you, Mr. Chairman. Mr. Chairman, I move that the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary permit coverage of this hearing, in whole or in part, by television broadcast, radio broadcast, and still photography, or by any of such methods of coverage pursuant to committee rule V. Mr. EDWARDS. Without objection, the resolution is agreed to. This morning we continue our hearings on the proposal to extend the ratification period for the equal rights amendment. We are fortunate today to have two distinguished scholars with whom the members of the subcommittee are well acquainted and for whom we have great admiration. And, incidentally, they have quite different views on this question. So I think that we can look forward to a very interesting and enlightening morning. Our first witness is Thomas I. Emerson, lines professor of law emeritus, at Yale. Professor Emerson, we welcome, and you may proceed with your statement. TESTIMONY OF THOMAS I. EMERSON, LINES PROFESSOR OF LAW EMERITUS, YALE LAW SCHOOL Professor EMERSON. Thank you, members of the committee. I will not read my statement which I asked to be included in the record. Mr. EDWARDS. Without objection, it will be included in the record. [The prepared statement of Prof. Emerson follows:] (61) 26-365-78-5 STATEMENT OF THOMAS I. EMERSON, LINES PROFESSOR OF The Equal Rights Amendment was proposed as the Twenty-seventh Amendment by a vote of 354 to 24 in the House of Representatives on October 12, 1971, and by a vote of 84 to 8 in the Senate on March 22, 1972. The Joint Resolution which embodied the proposed amendment stated: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), 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." Up to the present date the Equal Rights Amendment has been ratified by 35 States, out of the 38 necessary. The seven-year period of limitation for action by the States expires on March 22, 1979. The question is whether Congress has power under the Constitution to extend the period for ratification and, if so, whether it may do so by majority vote. Article V of the United States Constitution, which sets forth the method for amending the Constitution, provides: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress." It is my conclusion that Congress has the power under Article V to fix a period during which a Constitutional amendment must be ratified, so long as the period is a reasonable one, and that such power includes the authority to extend a period originally determined. It is also my conclusion that such action by Congress does not require a super-majority of two-thirds but may be done by majority vote. Background In approaching these issues certain background facts should be taken into account. In the first place it is clear that Article V gives Congress full and extensive powers over the amending process. In Dillon v. Gloss, 256 U.S. 368 (1921), speaking about this very issue of the power of Congress to fix a time limit for ratification, the Supreme Court said: "That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed. An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments." (p. 373) And in Coleman v. Miller, 307 U.S. 433 (1939), the Court, again dealing with the same question, declared: ". . . Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amedment has lost its vitality prior to the required ratification." (p. 456). Until the proposal of the Eighteenth Amendment in 1917 no time limits were imposed upon ratification by the States. That Amendment for the first time included such a limitation. Although the proponents of the limitation initially talked in terms of ten to twenty years (see 55 Cong. Rec. 5556-9) a limit of seven years was eventually adopted. In 1921, in Dillon v. Gloss (supra), the authority of Congress to include a time limitation was upheld by the Supreme Court. Thereafter virtually all proposed amendments embodied a seven-year limitation, initially as part of the substantive provisions and, beginning with the Twenty-third Amendment, as part of the resolving clause. The Equal Rights Amendment, as originally introduced in 1923 and as presented in subsequent years, contained no time limitations. It was not until 1970 that a time limitation was proposed (see 116 Cong. Rec. 36864), and it was included in the resolution as passed by the House in 1971 (117 Cong. Rec. 35815). The seven-year limitation was accepted by proponents of the resolution on the ground that it was "customary" (see 117 Cong. Rec. 35814-5; Sen. Rept. No. 92-689, 92d Cong., 2d Sess. p. 20.). There was no debate or discussion as to whether or not seven years was an appropriate period for this Amendment. We start with the proposition, then, that Congress has plenary power over the amending process and that it is not hitherto given full consideration to the question whether seven years is a proper time for the ratification process to be completed in this case. THE POWER OF CONGRESS TO EXTEND THE SEVEN-YEAR PERIOD Article V contains no express provision dealing with the time in which a proposed Constitutional amendment must be ratified. Nevertheless, as already noted, the Supreme Court held in Dillon v. Gloss that the power of Congress to impose a limitation would be implied. That case involved a challenge to the Eighteenth Amendment on the ground that the time limitation provided, included for the first time in that Amendment, rendered the Amendment invalid. The Supreme Court, in a unanimous opinion, ruled that Article V must be construed as contemplating that ratification would take place within a "reasonable time," and that Congress had power to fix a limitation period in advance. The Court said: "Of the power of Congress, keeping within reasonable limits, to fix a period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule. Whether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification." (256 U.S. at 375-6). Coleman v. Miller, also noted above, reaffirmed and extended the Dillon decision. The Coleman case involved ratification of the Child Labor Amendment. Proposed by Congress in 1924, the Child Labor Amendment did not include any time limitation. It was ratified by the Kansas legislature in 1937. The ratification was challenged by members of the Kansas legislature, who contended that after 13 years a reasonable time had elapsed and the ratification was inoperative. The Supreme Court, in an opinion by Chief Justice Hughes, reiterated that Congress has the power to determine what was a reasonable time for ratification and went on to hold that the question of what constituted a reasonable time was solely a matter for Congress, did not constitute a justiciable issue, and was not subject to review by the courts. The Court declared: "In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice. The questions they involve are essentially political and not justiciable." (307 U.S. at 453-4). There can be little doubt that, if Congress has power to determine what is a reasonable time for ratification, either by fixing it in advance or by deciding it at a later date. it also has power to extend a limitation originally fixed by it. The extension of time, like the original determination, involves an ancillary power, incidental to but necessary to its basic power to administer the amending process. It fits squarely into the holding of the Dillon case, "a matter of detail that Congress may determine as an incident of its power to designate the mode of ratification." In this connection two further observations should be made. First, the sevenyear limitation is part of the resolving clause, not a substantive part of the proposed Amendment itself. Hence it is plainly a matter of procedure, not substance, and thus even more clearly within the implementing powers implicit in Article V. Second, there is no problem here of reliance by any State upon the initial sevenyear limitation. None of the States have ratified that provision; they have adopted or rejected the substantive portions of the Amendment, not the resolving clause. Nor has any State relied on the time limitation as a reason for adopting or rejecting the Amendment; the timing of ratification could not be a factor in the position taken by any State. Hence there is no issue here of unfairly changing the rules. The power to adjust the period in which ratification or rejection takes place is an important one in the amending process. Congress may not at the outset judge precisely aright the "political, social and economic" conditions that are relevant to the length of time in which consideration of an amendment should take place. In the case of the Equal Rights Amendment the seven-year period was chosen primarily because it was "customary," without any serious attention to whether or not it was appropriate. Congress should, and does, have power to revise its original action in the light of subsequent developments. There remains only one further issue. The Supreme Court held in Dillon v. Gloss that the time period for ratification must be a "reasonable" one. Although Coleman v. Miller establishes that the question of "reasonableness" is a matter solely for Congress and not for the courts, nevertheless it is the duty of Congress to assure itself that any extension of time conforms to the Constitutional requirement. Without attempting to elaborate, it seems clear that provision for additional time for ratification of the Equal Rights Amendment, at least up to another seven years, would be reasonable: (1) History has demonstrated that a long period of time is necessary for the nation to make up its mind with respect to fundamental changes in the status of large groups in the population. Thus the Women's Suffrage Amendment was under consideration for nearly three quarters of a century. The first convention to consider the issue of votes for women took place in Seneca Falls, New York, in 1848; it was not until 1920 that the Nineteenth Amendment was adopted. Even the abolition of slavery, eventually accomplished by the Thirteenth Amendment, was a subject of national debate for decades. The Equal Rights Amendment was originally proposed in 1923. Most supporters of women's rights, however, believed at that time the objectives could be accomplished through the Fourteenth Amendment. Consequently it was not until 1970 that the merits of the Equal Rights Amendment began to achieve serious national attention. The seven years which have since lapsed constitute a very brief period for discussion of such a major social reform. (2) The issues raised by the Equal Rights Amendment have proven to be more comprehensive than may have appeared to Congress at first. The extent to which the patterns and practices of sex discrimination pervade our society was not fully recognized by many people. Thus the number of different areas affected and the nature of the adjustments necessary have raised more issues, and the need for more discussion, than was originally contemplated. (3) More importantly, the meaning and impact of the Equal Rights Amendment have been subject to an unprecedented degree of misunderstanding, misrepresentation, and distortion. This has resulted in wide-spread confusion concerning what the Equal Rights Amendment seeks to accomplish and what its effect would be. The citizens of the country are only now beginning to sort out the truth from the error. More time is needed to complete this process. (4) As noted above, Congress did not seriously consider whether seven years was an appropriate time for debate within the States over the merits of the Equal Rights Amendment. The time limit was adopted because it was "customary." It is now clear that additional time is needed. (5) Finally, there can be no doubt that the issues raised by the Equal Rights Amendment are still very much alive and current. I think it is beyond dispute that a large majority of the American people support equal legal rights for women. Some 35 States, representing over 71 percent of the population of the country, have ratified the Equal Rights Amendment. Debate continues in the remaining 15 States, representing less than 29 percent of the population. This is no time to cut off that debate. IS A SUPER-MAJORITY OR A MAJORITY VOTE NECESSARY ON THE RESOLUTION EXTENDING THE TIME FOR RATIFICATION In my opinion a resolution extending the time for ratification of the Equal Rights Amendment is not subject to the requirement of a two-thirds vote but may be passed by an ordinary majority. This follows from a number of considerations. First, Article V expressly sets forth the circumstances under which a twothirds vote is required. That is when both Houses "deem it necessary" to "propose Amendments". Other parts of the amending process are not subject to the unusual requirements of a two-thirds vote. Thus no such requirement is imposed with respect to the power of Congress, also conferred by Article V, to "propose" the "mode of ratification". The intent seems clear that the final decision on the substantive terms of a proposed amendment needs two-thirds of both Houses, but that preliminary and procedural issues ought to be determined by the usual majority vote. This is fully consistent with the basic structure of the Constitution; those occasions when a super-majority is required are |