EQUAL RIGHTS AMENDMENT EXTENSION TUESDAY, NOVEMBER 8, 1977 U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS 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 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 up for ratification in the States. Thank you, Mr. Chairman. Mr. EDWARDS. Thank you, Mr. McClory. 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 limitation within the resolution or in the Amendment itself. When S.J. Res. 39 came to the House of Representatives, it was amended in two respects. One was to limit it to the appointment of Presidential Electors for the District of Columbia. The other was to insert the seven-year limitation in the resolution. With respect to the latter amendment, the House Judiciary Committee simply stated the amendment, and included a footnote, which reads as follows (House Rep. No. 1968, 86 Cong., 2nd Sess., p. 4): Congress first adopted the 7-year limitation provision in proposing the 18th amendment to the Constitution. It did so because at that time, several proposed constitutional amendments already submitted to the States for ratification had long lain dormant but were nevertheless subject to being resurrected and acted upon by the several States. (See Dillon v. Gloss, 256 U.S. 368, 373 (1921).) There was also another resolution before the House-H.J. Res. 757. The House Report on this (House Rep. No. 1770, 86th Cong., 2nd Sess., p. 3) simply repeats the statement of the earlier House Report with respect to the sevenyear provision. Eventually, it was S.J. Res. 39, as amended by both Houses of Congress, which was adopted. There is nothing in these Reports to indicate that Congress was intending to retain a greater control than it had when the seven-year provision was made a part of the Amendment itself. In this situation, the question is presented whether Congress can, by its action alone, without the concurrence of the States, amend this Joint Resolution so as to increase the period during which it may be ratified. The questions raised by this proposal will be discussed under several subdivisions below. I The only thing that is clear about this question is that no one except five Justices of the Supreme Court can answer it with authority. There is simply no decision which has dealt in any way with the power of Congress to amend a time limitation in a Joint Resolution proposing an Amendment to the Constitution. It is very difficult, too, to discuss the matter in terms of general principles. There has been some suggestion in constitutional decisions that ratification must occur within a reasonable time, in the absence of specification by Congress, but there has been no agreement as to what is a reasonable time. There has been no dissent from the position that Congress may prescribe a reasonable period, within the Amendment itself, or in the proposing resolution. There has always been agreement, by consent and practice, that seven years is a reasonable time period, when Congress has proposed it. But, there is no decision dealing in any way with the question whether Congress, after fixing a period in the Joint Resolution, may later extend the period by an amendment of the Joint Resolution, which after all has already gone to the states. Two analogies suggest themselves. With respect to confirmation by the Senate, it has been decided that the Senate loses power to reconsider after it has sent a communication to the President notifying him of confirmation, and he has acted on it. United States v. Smith, 286 U.S. 6 (1932). Similarly, although there is no decision on the question, it seems likely that Congress could not reconsider a bill which had been sent to the President for his approval, and surely Congress could not do so after he had acted on it. These analogies seem to show that Congress loses the power for further action after it has formally communicated its decisions to the President, through delivery of a duly certified bill to him, or a formal notice of confirmation. On this basis, it can be argued, with considerable weight, that Congress lost the power to change the Joint Resolution when it was formally communicated to the States. If Congress were to undertake to change it now, this would amount to a new resolution which would have to be submitted to, and acted upon by, all of the States. There is one case which falls in the general area, though it does not deal with the specific question of the power of Congress to amend the time limitation in a Joint Resolution proposing an Amendment. This is Coleman v. Miller, 307 U.S. 433 (1939). This involves the Child Labor Amendment, which was first proposed in 1924, and, as stated above, there was no time limitation within the Amendment itself or in the proposing resolution. The Amendment was rejected by the legislature of Kansas in 1925. However, in 1937, nearly thirteen years after the Amendment was proposed. a resolution of ratification was adopted by the House of Representatives in Kansas, and by a twenty-twenty vote in the Senate, with the Lieutenant Governor casting the deciding vote in favor of ratification. A suit was then brought in mandamus in a state court to restrain state officers from certifying that the resolution of ratification had been adopted. This suit raised many questions, including whether the Lieutenant Governor was a part of the Legislature of Kansas within the proper construction of Article V of the Constitution of the United States, and also the question whether the ratification of Kansas, if validly adopted there, came within a reasonable time. I have referred to Coleman v. Miller as a "case," rather than as a "decision," because it is extremely difficult to tell what, if anything, was there decided. There is an opinion. written by Chief Justice Hughes, which is designated as the "Opinion of the Court." But there were four members of the Court (Justices Black, Roberts, Frankfurter, and Douglas) who concurred in an opinion that the case should be dismissed for want of standing on the part of the complainants, and two members of the Court (Justices Butler and McReynolds) who dissented from the main opinion. Thus, there were six members of the Court who would not have reached the result stated in the so-called "Opinion of the Court." This leaves only three Justices who concurred in the decision expressed in that opinion. The "Opinion of the Court" in Coleman v. Miller reached the conclusion that the questions (1) whether a state may ratify an Amendment after it has rejected it, and (2) whether a ratification after more than twelve years comes within a reasonable time, are both political questions, within the ultimate authority of Congress, and that they are not justiciable, that is, that they are not within the competence of the courts. From this, it could be contended that Congress alone can make the determination whether it can amend the time limitation, and can make such an amendment for whatever reasons it thinks appropriate or desirable. Although Coleman v. Miller can be read to support such a conclusion, I believe that it is a very slender reed on which to rely. II Quite apart from the question of what was "decided" in Coleman v. Miller, it is clear that whatever decision was made there, if any, was based on the distinction between questions which are justiciable, that is, which are appropriate for decision by courts, and those which are political, where courts should not intervene. In this connection, it is appropriate to recall that Coleman v. Miller was decided in 1939. This was near the end of a period when the Court took a rather narrow view of the questions which were properly justiciable. Some of the earlier cases are discussed in Coleman v. Miller. Within the next few years, several other cases were decided. These included Colgrove v. Green, 328 U.S. 549 (1946), involving legislative districts and apportionment, and MacDougall v. Green, 335 U.S. 281 (1948), refusing to decide the question whether signatures on nominating petitions must be spread among several counties. This approach was entirely changed by the decision in Baker v. Carr, 369 U.S. 186 (1962). As is well known, the Court did deal in that case with the question of legislative reapportionment, and in effect disapproved of the earlier cases in the area. The decision in Baker v. Carr has been extended and applied quite broadly. See Gray v. Sanders, 372 U.S. 368 (1963); Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Moore v. Oglivie, 394 U.S. 814 (1969); Hadley v. Junior College District, 397 U.S. 550 (1970). The Court also held in Bond v. Floyd, 385 U.S. 116 (1966), that the question of a state legislature's refusal to seat a member-elect because of his expression views presented a justiciable and not a political question. And this change of view was not limited to state matters. In Powell v. McCormack, 395 U.S. 486 (1969), the Court held that the political question doctrine did not bar its review of a challenge to an action by the House of Representatives excluding a member-elect. Thus, the conclusion in Coleman v. Miller, resting as it does on the political question doctrine, can no longer be regarded as having any particular vitality. Even if it can be regarded as a "decision", the foundation of that decision has been undermined by many more recent decisions of the Court dealing with the political question doctrine. III Even if it should be concluded that Congress has power to amend the time limitation in the resolution proposing the Equal Rights Amendment, it seem to me clear that Congress should not adopt such an amendment. This would seem to me to be poor policy, and a bad precedent, and it would be widely regarded as a breach of faith with the states. It is also sure to result in litigation. When the Amendment was proposed, it had a seven-year time limitation in the proposing resolution. This was the matter which was before the states. This was the condition under which the states acted when they ratified or when they rejected the Amendment. To change the time now is clearly a change in the announced rules governing a substantial matter in our constitutional structure. It is a little like extending the time of a football game after fourteen minutes in the final quarter, with the score tied, and one team on the other's one-yard line. The Equal Rights Amendment is a matter which involves deep feelings, and may bring about very substantial changes in our society, changes far beyond anything which can now be foreseen. It would be very unfortunate, I think, if such an Amendment should be adopted after a last-minute change in the rules established by Congress, in a manner which many persons of widely different points of view would regard as unfair. As to the constitutional power of Congress, I do not know the answer. As I have indicated, there are no decisions dealing with the specific question. There is language in Coleman v. Miller which indicates that issues of this sort are political and can be decided by Congress. But Coleman v. Miller is of dubious standing now, and there is nothing in it, in any event, which deals with the issue of how Congress should handle such a question. In such a situation, it seems to me that Congress should be guided by principle, and not by expediency. If Congress should proceed, at this date, by this route, it may well impair the chances that the Amendment, if adopted, will be accepted and assimilated, by our society. I do not think that anyone can say with confidence that Congress has the power to make this change. It does seem to me that there are strong reasons why Congress should not undertake to exercise such a power. In this situation, Congress has an opportunity to take a positive and construetive approach. There is no doubt, I think, that the basic objective of the Equal Rights Amendment has widespread support among the people of this country, and this is a view which I fully share. The problems which have developed are the result of the sweeping and rigid nature of the Amendment as it was proposed, and because of widely feared concerns about the application and effect of the Amendment if it is adopted in the form proposed. The operative section of the Equal Rights Amendment reads as follows: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. This seems simple enough, and it is surely appealing. The difficulty arises because it is hard to be sure how it will be construed and applied. Let us take, for example, the First Amendment to the Constitution, which provides thatCongress shall make no law . . . abridging the freedom of speech, or of the press. There have been strong arguments made in high places that this is very simple. "Congress shall make no law" says the constitutional provision, and "no law" means "no law." Based on this, Justice Black took the position that libel laws were unconstitutional. And the First Amendment has been pushed very hard in many areas simply on the ground that "no law" means "no law." Many of these results are undoubtedly sound. Nevertheless, there is a rigidity in this sort of constitutional construction which might lead to unexpected consequences if it was applied to the Equal Rights Amendment. Many of the concerns about the Equal Rights Amendment seem now to be relatively petty, and they have been belittled by proponents of the Amendment. The questions might loom more seriously if the Amendment were adopted, and the courts then followed a rigid, literal approach in construing the Amendment. Indeed, why should such an approach not be adopted, if this is the Amendment which is finally ratified? I cannot catalogue all of the concerns, but I will mention a few of them, which seem to cover the larger matters. 1. Probably the most serious question in the minds of many persons is that of women in combat services in the Armed Forces. It is very difficult to see how this can be avoided, on a wholesale scale, if the Equal Rights Amendment is adopted as it now stands. Many women want it. If the Equal Rights Amendment is adopted, men could rightly claim that they could not be drafted for military services with the prospect of combat duty, if women were not drafted too, on exactly the same basis. But there is also a legitimate and serious question whether men in combat want to serve with women, and whether they can or should be required to do so, on a basis of complete equality, if the Equal Rights Amendment is adopted. Many persons, rightly or wrongly, see this as a serious threat to the security of the United States. |