Our first witness today is John M. Harmon, Assistant Attorney General of the Office of Legal Counsel, U.S. Department of Justice. We are pleased to have you, Mr. Harmon. And would you please introduce your colleagues. And then you may proceed with your

statement.

TESTIMONY OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY HERMAN MARCUSE, LARRY A. HAMMOND, AND LARRY L. SIMMS

Mr. HARMON. Fine, Mr. Chairman. Thank you.

I have from the Office of Legal Counsel Mr. Herman Marcuse, Mr. Larry Hammond, and Mr. Larry Simms.

Mr. EDWARDS. We are pleased to have you.

You may proceed.

Mr. HARMON. Mr. Chairman, I have already furnished to the committee

Mr. EDWARDS. Would you speak directly to the microphone so people can hear you in the rear?

Mr. HARMON. I have already provided the committee a copy of my opinion of October 31 to Robert Lipshutz on the question of the constitutionality of the House Joint Resolution 638, together with a formal statement.

With your permission, Mr. Chairman, I should like simply to summarize the principal points made in that opinion, and then try to answer your questions.

Mr. EDWARDS. Without objection, both documents will be made a part of the record.

[The prepared statement of Mr. Harmon follows:]

STATEMENT OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. Chairman and members of the subcommittee, I am pleased to appear before this Subcommittee to discuss what, at least to me, are difficult and complex constitutional questions raised by H.J. Res. 638. That resolution would extend the period available to the States for ratification of the proposed Equal Rights Amendment (ERA) until March 22, 1986.

I should state at the outset that, while the Administration has publicly taken a position supporting an extension such as the one contemplated on H.J. Res. 638, the purpose of my appearance before this Subcommimttee is not to discuss the merits of the proposed extension but rather to provide whatever legal advice I can regarding the constitutional issues raised by this resolution.

As you may be aware, in my capacity as Assistant Attorney General for the Office of Legal Counsel. I have already given my opinion to Robert Lipshutz, Counsel to the President, on the constitutionality of Congress' extending the time period available for ratification of the ERA. That opinion was issued October 31, 1977. and is appended to this statement. I would ask, Mr. Chairman, that the opinion be considered as a formal part of my statement.

Before addressing the constitutional questions raised by the resolution, I would first make several introductory observations. First, I see as essentially separate matters whether H.J. Res. 638 is constitutional and whether the issues it raises are susceptible to judicial resolution. In my view, it is important in any discussion of these issues to avoid a suggestion that because the 95th Congress or a successor Congress may have the final word on their resolution, the constitutionality of this resolution becomes an easier or an avoidable question. Secondly, I think that the lack of authoritative judicial precedent or guidance from the language of the Constitution itself makes it difficult to conclude with

certainty that H.J. Res. 638 is or is not constitutional. Finally, even though I think that the determination whether this resolution is constitutional does not turn on whether an extension would free ratifying States to "rescind" their ratifications, I address that question in some detail because I feel that discussion of this question may be helpful in the general debate over this resolution. On the main question before this Subcommittee, it is my opinion that Congress does have the power to extend the ratification period for the ERA. The Supreme Court recognized in Dillon v. Gloss, 256 U.S. 368 (1921) that as an incident to the Article V power to propose amendments to the Constitution, Congress has the power and responsibility to assure that the amendment has been ratified "within some reasonable time after the proposal," Dillon v. Gloss, 256 U.S., at 375, and that the amendment reflects the reasonably contemporaneous "expression of the approbation of the people" in three-fourths of the States. Id. However, it is clear that the Court considered the question of timeliness of ratification to be one of several "subsidiary matters of detail," Dillon v. Gloss, 256 U.S. at 376, necessarily delegated to Congress as an incident of the ratification process which do not go to the substance of the proposed amendment.

Congress did have the power to make the time period for ratification a substantive part of the amendment by including a time limit in the text of the amendment itself as was the case with the Eighteenth, Twentieth, Twenty-first, and Twenty-second Amendments. Had the 7-year time limit been placed in the text of the ERA, it is arguable that this Congress could not extend the time limit without beginning the ratification process anew.

However, the 92d Congress did not put a time limit in the text of the ERA but rather stated in the proposing resolution that the States should have at least 7 years to consider ratification of the amendment.

By placing the time period in the proposing resolution rather than in the text of the amendment, the 92d Congress effectively decided that the proposal should remain viable for at least 7 years without barring a subsequent Congress from making a more informed judgment at a later time as to the reasonableness of the time period for ratification of the ERA. Indeed, as a matter of logic, the determination whether circumstances are such that ratification can be said to have been reasonably contemporaneous would be better made by the Congress in session when the ratification occurs than by the proposing Congress. Only the later Congress can make the determination, referred to by Chief Justice Hughes in Coleman, whether the conditions which prompted the proposal of an amendment have "so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it." 307 U.S. at 453. In sum, I conclude that the 95th Congress, on the basis of a record presumably more substantial than that before the 92d Congress, may determine that an extension of the time limit is reasonable and thereby extend the period during which the States may consider ratification of the ERA.

With regard to the question whether the resolution to extend the period must be approved by a two-thirds vote in each House or whether a simple majority is constitutionally sufficient, it is my opinion that a two-thirds vote is not required. This conclusion follows from the holdings in Dillon and Coleman v. Miller, 307 U.S. 433 (1939), first, that a constitutional amendment may only become law if it has been ratified "within some reasonable time after the proposal," Dillon v. Gloss, 256 U.S., at 375, and second, that the Constitution commits to Congress both the power and the duty to decide whether that implied condition of reasonably contemporaneous ratification has been satisfied. Dillon v. Gloss, 256 U.S., at 375-76; Coleman v. Miller, 307 U.S., at 454, 456, 458-59. Congress must have the ability to make the required determination. A requirement of a two-thirds vote to accept or reject the purported ratification of a constitutional amendment could frustrate the amendment process as the failure to obtain the two-thirds vote would not resolve the question committed by the Court in Coleman to the Congress. Under the decision in Coleman it is the responsibility of Congress to determine whether a proposed amendment has been ratified.

Moreover, a requirement of a two-thirds majority would be incompatible with the operating principle of our Constitution that those cases in which a greater than majority vote are to be required are clearly contemplated and made explicit in unmistakable language.

Finally, with respect to the possible effect of the extension on the power of the States to rescind prior ratification, it is my opinion that the extension would not give rise to any right of rescission and furthermore that Congress cannot give to the States a right to rescind by any means short of amending Article V

of the Constitution. The proposition was advanced by James Madison during the debates in the States over adoption of the Constitution that a State's ratificaion must be unconditional and irrevocable. Article V gives to the States the power to ratify a proposed amendment, but not the power to reject. This proposition has been consistently accepted by every Congress which has faced a question as to the validity of a State's ratification. In 1926 a resolution was introduced in the Senate to propose an amendment to Article V to give the States the power to rescind a prior ratification of a constitutional amendment at any time before the amendment had been accepted by three-fourths of the States. That resolution failed. Under the consistent interpretation of Article V of the Constitution, it is my view that a State which has once ratified an amendment is powerless to rescind that ratification and that the sole power to review a State's ratification at a later date to determine if it still reflects the reasonably contemporaneous approval of the proposed amendment by the required number of States is vested in the Congress. Coleman v. Miller, 307 U.S., at 454, 456, 458-59.

There is serious question whether a court would undertake to settle these issues. The Supreme Court held in Coleman that Article V vested in the Congress the authority and responsibility to determine whether a proposed amendment has been duly ratified. That case dealt with the question of the timeliness of ratification as well as the validity of a State's ratification after a prior vote of rejection. The resolution before this Subcommittee raises additional questions, different questions going to the very essence of the amending process. For that reason and in light of more recent Supreme Court decisions narrowly limiting the scope of the political question doctrine, it is far from clear that the Court today would say that these questions concerning the interpretation and application of Article V are exclusively reserved to the Congress. However, the possibility of judicial review cannot and should not relieve the Congress of its duty to assure itself that its actions are consistent with the Constitution.

In conclusion, there are no easy answers to the difficult constitutional questions presented by this resolution. It is my view that the resolution is constitutional; Congress has the power to extend the time period for consideration of the ERA. The sole responsibility for the exercise of that power is yours. I will be pleased to try to respond to your questions.

DEPARTMENT OF JUSTICE, Washington, D.C., October 31, 1977. To: Hon. Robert J. Lipshultz, Counsel to the President.

Subject: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment

This responds to your request for our opinion regarding the constitutionality of extending the period, presently scheduled to expire on March 22, 1979, for ratification by the States of the proposed Equal Rights Amendment.

In the course of addressing this general question, we have identified a number of discrete questions that we will discuss. Briefly, our views are as follows. (1) no authority suggests persuasively that an extension of seven years would be per se unconstitutional; (2) congressional action to extend the deadline for ratification can take the form of a concurrent resolution subject to majority vote of a quorum of each House; (3) we do not think that an extension would empower the States which have ratified the ERA prior to the extension to rescind that ratification during the extension period; (4) we doubt Congress may extend a right to rescind to States during the seven-year extension period; and (5) we believe that at least some of these issues would probably be held to present justifiable controversies in appropriate cases.

Before addressing these questions, we would first make several introductory observations. First, we see as essentially separate matters whether H.J. Res. 638 is constitutional and whether the issues it raises are susceptible to judicial resolution. In our view, it is important in any discussion of these issues to avoid a suggestion that because the 95th Congress or a successor Congress may have the final word on their resolution, the constitutionality of this resolution becomes an easier or an avoidable question. Secondly, we think that the lack of authoritative judicial precedent or guidance from the language of the Constitution itself makes it difficult to conclude with certainty that H.J. Res. 638 is or is not constitutional. Finally, even though we think that the determination whether this resolution is constitutional does not turn on whether an extension would free ratifying States to "rescind" their ratifications, we address that question in some

detail because we feel that discussion of this question may be helpful in the general debate over this resolution.

I. BACKGROUND

The two documents most relevant to our inquiry are H.J. Res. 208, 92d Cong., 2d Sess. (1972), which proposed to the several States the adoption of the ERA, and Article V of the Constitution, which sets forth the procedures for amending the Constitution. The text of the resolution is as follows:

HOUSE JOINT RESOLUTION 208

Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.

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 :

"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"Section 3. This amendment shall take effect two years after the date of ratification." 1

On March 24, 1972, certified copies of the full text of this joint resolution were transmitted to the Governors of the 50 states by the Acting Administrator of the General Services Administration with a request that each Governor submit it "to the legislature of your state for such action as it may take" and requesting also that a "certified copy of such action be sent to the Administrator of [GSA] . . .” See 1 U.S.C. § 106b. As of this date, thirty-five states have submitted certifications to GSA of ratification of ERA by their respective legislatures.'

Article V, the sole provision of the Constitution dealing with the amendment process, reads as follows:

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 the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner effect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V does not on its face contain any requirement that an amendment, once proposed by Congress, must be ratified within a specific time period or that Congress may establish a time period in which the States will be empowered to ratify a proposed amendment. In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court addressed both these issues.

In Dillon, a defendant convicted of an offense under a statute passed by Congress to enforce the Eighteenth (Prohibition) Amendment, contended, inter alia, that Congress had no power to set a time limit for ratification and that, as a consequence, the Amendment itself was void because Congress had placed a sevenyear limit on ratification in section 3 of the Amendment." In rejecting this argument, the Court stated:

Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks

1 This resolution was adopted by Congress on March 22, 1972, when the Senate passed unamended the resolution adopted by the House of Representatives on October 12, 1971. 2 As of this writing GSA is also in receipt of three documents from Tennessee, Idaho, and Nebraska purporting to withdraw or rescind their ratifications previously certified.

3 The Eighteenth Amendment had in fact been ratified within about 13 months of the time it was proposed by Congress.

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. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified. 256 U.S., at 376-76 (footnote omitted).

After Dillon, the Supreme Court has had only one occasion to address the question of congressional power under Art. V. to establish the time frame for ratincation. That case, Coleman v. Miller, 307 U.S. 433 (1939), involved, inter alia, the claim that the "Child Labor Amendment," proposed by Congress in June, 1324 without Congress having set a time limit for ratification, could no longer be ratified by the Kansas legislature in 1937 because some 13 years had elapsed since its submission to the States. In response to the contention that 13 years was an "unreasonable" period of time, the Court stated:

Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. That decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts. Id., at 454 (emphasis added).*

Because no time limit had been set by Congress in the proposed Child Labor Amendment involved in Coleman, it may be properly inferred from the quotation above that the establishment of a time limit by the Congress proposing an amendment would not leave open the question of what is a reasonable period. Certainly if a time limit had expired before an intervening Congress had taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House and thereby begin the ratification process

anew.

Additionally, if the proposing Congress had fixed a specific time limit within the text of the proposed amendment itself, a strong argument could be made that any attempt to modify or extend that period would constitute an amendment to the proposed amendment, requiring the ratification process to begin again."

Even assuming arguendo that H.J. Res. 638 would be unconstitutional had the seven-year limit been included within the text of the ERA itself, it can nevertheless be viewed as constitutional if the placing of the limitation within what we

The language quoted above, from the opinion of the Court, was the opinion of Chief Justice Hughes joined by Justices Stone and Reed. Justice Black wrote a concurring opinion joined by Justices Roberts, Frankfurter and Douglas, that would have disavowed the assertion in Dillon that the courts would under some circumstances ever be able to inject themselves into the type of dispute presented. Justices Butler and McReynolds dissented on the ground that a reasonable time had elapsed since the amendment was proposed. See note 51, infra.

5 Although such an argument has some appeal, a contrary conclusion is supported by the analysis of the Court in Dillon v. Gl088, supra. In that case, the seven-year limit had been included in the text of the proposed amendment and the amendment had been ratified by the requisite number of States in about 13 months. If the Court had viewed the seven-year limit as a substantive part of the amendment, it could have affirmed the limit's validity solely on the basis that it had in any event been ratified as part of the amendment itself and thereby would constitute an amendment to Art. V. Indeed, the brief of the United States in Dillon appears to embrace such an argument. See Brief for the United States at 5-6. The Court did not, however, decide the case on this proffered ground, suggesting that the Court might not have viewed the seven-year limitation as being a substantive part of the Eighteenth Amendment. See also 55 Cong. Rec. 5649 (1917) (remarks of Sen. Stone). A contrary conclusion is also supported by the Court's decision in the National Prohibition Cases, 253 U.S. 350 (1920). In that decision, involving a challenge to the validity of the Eighteenth Amendment, Mr. Justice Van Devanter, in announcing the "conclusions of the Court," id., at 384, purported to set forth the "text" of the Eighteenth Amendment by quoting in full sections 1 and 2 but completely omitting section 3 which contained within it the seven-year limitation imposed for the first time by Congress. Id. at 385. See id., at 393 (McKenna, J. dissenting).