by the States. The seven year time limitation assures that a ratification reflects the contemporaneous views of the people. It has been included in every amendment added to the Constitution in the last 50 years. It is interesting to note that the longest period of time ever taken to ratify a proposed amendment was less than 4 years. The power and responsibility of Congress to impose a reasonable time limit for ratification of constitutional amendments was made clear in both Dillon v. Gloss 256 U.S. 368 (1921), and Coleman v. Miller 307 U.S. 433 (1931).92

III. THE BINDING NATURE OF THE SEVEN-YEAR LIMIT IN H.J. RES. 208 In addition to this analysis in the Senate report, comments on the floor of the House and Senate generally assumed that the seven-year period was a limitation on the time in which ratification could occur. Thus, Congresswoman Griffiths, after describing the limit as "customary," went on to say that "I think it is perfectly proper to have the 7-year statute so that it should not be hanging over our head forever." 117 Cong. Rec. 35814-15 (1971). Senator Hartke, a supporter of the resolution, stated his view that "if there is such a delay [beyond seven years], then we must begin the entire process once again." 118 Cong. Rec. 9552 (1972). See also id., at 9576 (remarks of Sen. Cook).

The history of congressional use of a seven-year limitation demonstrates that Congress moved from inclusion of the limit in the text of proposed amendments to including it within the proposing clauses with and without the "only if" phrase without ever indicating any intent to change the substance of their actions. The one occasion on which Congress actually considered the possible differences between placement of the limit within or without the text of a proposed amendment, the only expressed view was that the limit would be to "no avail" were it placed without the amendment. And as recently as the debate over the ERA, the limit was viewed as a “statute." 117 Cong. Rec. 35814-15 (1971). Thus, when H.J. Res. 208 came before the Congress for consideration, it is not at all surprising that some members indicated their belief that the amendment process would have to begin anew were ratification not achieved within the seven-year limit.

We think there are sound reasons to view any substantive or procedural details placed in a proposing clause for an amendment as subject to modification by a succeeding Congress. First, as demonstrated above, on the only occasion on which Congress itself has directly considered this question, the only views expressed were consistent with this position.

Secondly, as the Court noted in Dillon v. Gloss, 256 U.S., at 373, “An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments." Thus, Congress' power under Art. V consists of more than simply proposing amendments: it includes the power to establish the details of how an amendment, once proposed, is to be acted upon by the several States.

As the Dillon Court noted, the substantive Art. V power to propose constitutional amendments is subject only to two limitations, one being the two-thirds vote requirement and the other relating to amendments that would deprive a state of its equal suffrage in the Senate without its consent. Dillon v. Gloss, 256 U.S., at 373-74. There is nothing in the text of Art. V which would bar subsequent Congresses from taking action with respect to the details of the ratification process as distinguished from the substantive amendment itself while the amendment is being considered by the States.

We conclude that the 95th Congress, under Art. V, can act to extend the sevenyear limitation period placed by the 92d Congress in the proposing clause of the ERA. The 92d Congress had the power to make the seven-year limit a part of the substantive amendment by placing the limit within the text of the ERA itself. The fact remains that it did not do so. We think our conclusion that a time limit fixed in a proposing clause should not be viewed as immutable is supported by the nature of the decision made by the 92d Congress and that which would be made by the 95th Congress were H.J. Res. 638 to be adopted.

The nature of that decision is, we think, accurately described by the opinion of the Court in Coleman, 307 U.S., at 453, as follows: the question of a reasonable time in many cases would involve . . an appraisal of a great variety of relevant conditions, political, social and economic.

The Court in Dillon, discussing the time limit from a somewhat different perspective, concluded that: "an alteration of the Constitution proposed today has

S. Rep. No. 689, 92d Cong., 2d Sess. 20 (1972).

26-365-78-2

relation to the sentiment and the felt needs of today, and . . . if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress."

256 U.S., at 375, quoting Jameson on Constitutional Conventions section 585 (4th ed.). As a matter of logic, it seems to us that what constitutes a reasonable period of time for ratification of an amendment would normally be best decided not by a proposing Congress but by the Congress in session when the necessary three-fourths of the States have ratified a proposed amendment. This is so because the limit proposed by the proposing Congress is, at best, predictive, whereas a Congress presented with ratification by three-fourths of the States is better able to base its decision concerning viability of the amendment on concrete evidence. Indeed, as indicated above, the seven-year figure adopted by Congress in proposing the Eighteenth Amendment achieved, partly by virtue of its approval in Dillon v. Gloss, a talismanic significance that has never been examined in connection with the proposal of any amendments since they have included the same limit. In short, we think it is quite reasonable to accord the seven-year limit in the ERA only the deference that the express language of the limit requires, namely, that the ERA will be viable for at least seven years. We therefore think that the 95th Congress, on the basis of a record presumably more substantial than that built by the 92d Congress, may extend the time limit if such an extension be deemed "reasonable." 23

We would, however, make two additional points in this regard. First, assuming that Congress may extend the time period for a reasonable length of time, questions arise as to the form such an extension should take and the vote required in each House to pass an extension.

With regard to the question of form, it is our view that H.J. Res. 638 need not be presented to the President for his approval. It has long been established that the President has no role to play in the amendment process." Hollingsworth v. Virginia, 3 Dall. 378 (1798).

23

The second, and we would readily acknowledge more difficult, question is 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. Several considerations dictate the conclusion that a super-majority vote is not required. We begin our analysis with the same two Supreme Court precedents which have guided our consideration of the other questions addressed in this opinion: Dillon and Coleman. While those decisions may be subject to varying interpretations in some respects, we think that they establish two propositions which are no longer open to question.

The first proposition is that implied within Article V is the condition 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. The

23 We would comment briefly on the question whether, assuming the 95th Congress may extend the period established by the 92d Congress, the 96th or a subsequent Congress could shorten a period previously established. (We would observe first that the answer to this question would appear also to resolve the question whether Congress might declare a proposed amendment to no longer be viable in the absence of an explicit time limit in that amendment or its proposing clause.) Given the nature of the Congressional determination of "reasonableness" as described in Dillon and Coleman, it is certainly arguable that any Congress might, on the basis of adequate findings, determine that a proposed amendment is no longer viable because present ratification would not reflect a contemporaneous expression of the people's will. We think, however, that such an argument would have to take into account the historically accepted understanding that Congress may not withdraw an amendment once it has been proposed. See Jameson, A Treatise on Constitutional Conventions, Section 585, p. 634 (1887); Burdick, The Law of the American Constitution 39 (1922): Orfield, Amending the Federal Constitution 51-52 (1942). Without resolving this obviously complex question, we would additionally note that a Congressional act constituting withdrawal would perhaps run afoul of the logic if not the expressed views of James Madison, discussed at length infra, that States may not conditionally ratify a proposed amendment. The scholars cited above at the least assume, as do we, that a Congress could not "cutback" on time available for ratification of a proposed amendment because the membership no longer viewed the proposed amendment as desirable.

24 It is true that the Executive Branch, by virtue of 1 U.S.C. Section 106b and its predecessors dating back to 1818, has performed a ministerial function within the ratification process. We do think that congressional assignment of this function or similar functions to the Executive Branch might well require the approval of the President under Art. 1, Section 7, but we think this is quite different from the resolution extending the time period here.

25 We note that this holding in Hollingsworth has been specifically approved in subsequent opinions of the Court. See, e.g., Hawke v. Smith, 253 U.S. 221, 229-30 (1920). Thus, we see no justification for limiting Hollingsworth to its facts.

Court reasoned that inherent in the amending process is the assumption that any amendment will reflect the reasonably contemporaneous "expression of the approbation of the people" in three-fourths of the states. Id.

26

The second proposition-which is suggested in Dillon and unmistakably affirmed in the opinions of both Chief Justice Hughes and Mr. Justice Black in Coleman-is that the Constitution commits to Congress the authority and the duty to decide whether that implied condition of reasonable contemporaneousness has been satisfied. Dillon v. Glos8, 256 U.S., at 375-76; Coleman v. Miller, 307 U.S., at 454, 456, 458-59. Furthermore, it is clear that Congress may make this determination after the amendment has been proposed and has been submitted to the States. Indeed, as we have suggested earlier, it would be appropriate and some would contend mandatorily required-for Congress to assess the reasonableness of the time period at the end of the process when ratifications have been submitted by the requisite number of States. Coleman v. Miller, 307 U.S., at 454, 456. As Chief Justice Hughes reasoned, it is at this time that Congress may most accurately assess 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," or whether to the contrary those conditions "were such as to intensify the feeling of need and the appropriateness of the proposed remedial action." 307 U.S., at 453.

If these two propositions are correct we think it must follow that Congress must have the ability to make the required determination. We can readily conceive of circumstances, however, in which a requirement of two-thirds approval for any decision made under Article V would deprive Congress of the ability to resolve the reasonableness question. Suppose, for example, that Congress had placed no time limitation in the proposing resolution for some amendment and that the approval of the thirty-eighth State was received many, many years after the matter was first committed to the States." Congress would have, at that time, a duty to decide whether too much time had passed, but if a resolution concluding that an unreasonably long period had elapsed would require a twothirds vote the amendment might well become law even though a majority of Congress viewed it as inconsistent with the condition implied in Article V.

We think that comomn sense would dictate a strong presumption against the conclusion that the Constitution has conferred a duty upon the Legislative Branch but at the same time has imposed a super-majority requirement that could prevent it from performing that duty. Indeed, even a cursory review of the other constitutional provisions which impose super-majority requirements demonstrates that in every case the question to be addressed by Congress is clearly specified and the consequence of a failure of Congress to muster the requisite number was clearly foreseen and contemplated. Thus, for example, with respect to the approval of treaties (Art. II, section 2), the Constitution makes plain that the question to be put to the Senate is whether the treaty is to be approved and the consequence of a failure to attain a two-thirds vote is clear. Similarly, with respect to trials after impeachment (Art. I, section 3), the Constitution makes clear both that the Senate must have two-thirds concurring in the conviction and that in the absence of such a vote the impeachment will not stand. The same is true of all other super-majority provisions. What emerges from a review of these provisions, we think, is that the apparent intent of the Drafters of our Constitution (and of its amendments) was that where matters

28

26 As we explain in our discussion in the final section of this opinion dealing with the political question doctrine, there remains some doubt whether Congress' power to establish a reasonable time is exclusive. On the question whether the judiciary may have some role to play, the Court's opinions do leave room for debate; on the question, however, whether the Constitution imposes upon Congress the primary duty to ascertain that amendments have been approved within a reasonable time there is no longer room for doubt. Congress has acknowledged the existence of this "power and responsibility" imposed upon it by Article V. See S. Rep. No. 689, 92d Cong., 2d Sess. 20 (1972), quoted in the text at note 21 supra.

27 History has shown us that consideration by the States of proposed amendments long after their introduction is not a far-fetched hypothetical. In at least one case the State of Ohio undertook to consider an amendment some 80 years after it was proposed by Congress. See Dillon v. Gl088, 256 U.S., at 372. Indeed, it was precisely this type of concern which led the Dillon Court to conclude that Congress could impose a time limitation to prevent a State from "resurrecting" a proposed amendment that had "lain dormant for many years." Id., at 373.

See Art. 1, Section 5 (voting to expel a member of Congress); Art. 1, Section 7 (override of veto); 14th Amendment, Section 3 (removal of disability of members of Congress); 25th Amendment (Presidential resumption of power after disability).

involving the Congress are concerned all decisions are to be governed by the democratic principle of majority rule, save those rare cases in which a greater burden was clearly contemplated, deemed appropriate, and made explicit in unmistakable language. Thomas Jefferson may have said it best: "The voice of the majority decides; for the res majoris partis is the law of all councils, elections, & c., where not otherwise expressly provided." "

The suggestion that two-thirds of both Houses must concur in order to decide whether a reasonable time has passed, we think, is incompatible with the Constitution's pattern of narrowly and carefully defined super-majority requirements. Whatever one says about the notions underlying Article V, it cannot be concluded that the Framers intended to, and expressed a desire to impose a twothirds requirement on such "subsidiary matters of detail.” Dillon v. Gloss, 256 U.S. at 376. We think it especially plain that such a requirement could not have been intended with respect to the timeliness question. The Framers contemplated that it should be difficult to alter the Constitution. In light of that premise it is simply not reasonable to conclude that they could also have intended that State ratifications would be accorded a standing of presumptive timeliness that could only be defeated by a two-thirds vote.30

On the face of Article V, unlike each of the other two-thirds approval provisions of the Constitution, it is simply not possible to tell what questions, other than the proposal question itself. Congress is to answer. Nor is it at all clear that the consequences of a negative vote on any subsidiary questions were understood. Finally, then, a majority vote must be accepted for the determination of reasonable timeliness. And, if Congress can determine reasonable timeliness by majority vote as the thirty-eighth ratification comes in, it may also decide by a majority vote to extend the time previously announced.

Our view is bolstered by the few scattered historical precedents which our research and the research of others has unearthed. We have found no evidence that questions dealing with the so-called subsidiary questions have ever been thought by members of Congress to require a two-thirds vote. Thus, when the Fourteenth Amendment ratification questions, which we will discuss more fully in our treatment of the rescission issue, were presented to Congress in 1868 there is no indication that Congress felt itself bound to resolve those questions by a two-thirds vote." Similarly, there is no evidence that the resolution introduced to resolve the same questions arising out of the adoption of the Fifteenth Amendment was thought to require two-thirds approval." See 91 Cong. Globe 3124 (1870). More recently, Congress has taken up consideration of a bill introduced by former Senator Ervin which outlined procedures to govern the State

2 Jefferson's Manual of Parliamentary Practice Section XLI, reprinted in H. Doc. No. 416, 93d Cong., 2d Sess., Section 508, p. 257 (1975).

30 Our view that it is essential that Congress have the ability affirmatively and directly to decide whether the ratifications reflect the "contemporaneous" judgment of the states is made the more critical when considered in light of the other conclusion we think compelled under Article V-that a State once having ratified may not rescind. See text beginning at page 28 infra. The States, in our view, are prohibited directly from announcing their view that conditions no longer warrant passage of an amendment once approved by them. Therefore, unless Congress retains the power to vote "yea" or "nay" on the reasonable timeliness question, a small minority of late-ratifying States coupled with a minority in either House of Congress might force the approval of an amendment no longer deemed appropriate by the majority. We should also add that if this event did occur we would have serious doubt whether the amendment was constitutional.

31 See text beginning at page 33 infra. In response to Secretary of State Seward's inquiry, Congress decided by concurrent resolution that the Fourteenth Amendment had been duly ratified by the States. The resolution. S. Res. 166 passed by the 40th Congress. expressed the position of Congress that the Fourteenth Amendment had in fact been ratified by the requisite three-fourths of the States even though two States, Ohio and New Jersey, had purported to rescind their prior ratifications before three-fourths had ratified. The resolution did not indicate on its face whether a two-thirds vote was required during debate in either House on the resolution. The vote in the House for passage was 127 in favor to 33 against, a majority of about four-to-one. 78 Cong. Globe 4266 (1868). Although the vote was not recorded in the Senate. we do know that the resolution was voted on by the Senate after a motion to discharge the resolution from committee was adopted without objection and that the voice vote was presumably not so close as to persuade any opponents of the resolution to call for a recorded vote. Id., at 4230.

32 See text beginning at page 36 infra. We hesitate to read too much into the historical evidence surrounding the Fourteenth and Fifteenth Amendments. While it is true that resolutions adopted in both cases contained no designation that a two-thirds majority would be required for approval, and while the recordation that the resolutions had been approved contains no indication that they had been embraced by two-thirds of each House, It does appear that the votes were never close. Indeed, by voice vote or otherwise, the vote in each House was in excess of two-thrids. Nevertheless, we think it not unreasonable to conclude that if members of Congress had recognized a two-thirds requirement there would have been some indication of that fact in the historical record.

conventional method of amending the Constitution. S. 215, 92d Cong., 1st Sess. (1971). The bill, which contained provisions dealing with the time periods in which the States could act under the convention approach, passed the Senate by a wide margin. Again, however, there is no indication that anyone in the Senate considered that the bill would be subject to the two-thirds approval requirement.s Where, as here, the answer to important questions of Constitutional law are not readily apparent from the text of the Constitution, such congressional precedents are entitled to weight.

While, for these reasons, we conclude that no more than a majority vote is required for extension, it might be conceded that the issue is not free from doubt. We recognize that this may be the only instance in which Congress is empowered to take action (apart from purely internal "housekeeping" matters) without either the constraint of a two-thirds vote requirement or the safeguard of a Presidential veto. We also acknowledge that it may be contended that this conclusion would allow a majority of one Congress to set aside actions that required the concurrence of two-thirds of some prior Congress. Despite these considerations, however, we think that the controlling Supreme Court precedents, the historical examples, and the basic framework of the Constitution admit ultimately of no other response.

34

IV. THE REASONABLENESS OF H.J. RES. 638's SEVEN-YEAR EXTENSION

In discussing whether the seven-year extension in H.J. Res. 638 is reasonable in the constitutional sense, we begin by embracing the position of the Dillon Court that the passage of time between proposal and final ratification by the requisite three-fourths of the States could be so great as to generate serious doubts as to whether a proposed amendment should be proclaimed as part of the Constitution. Passing the question whether such doubts could be resolved by the judiciary in an appropriate case, see Coleman v. Miller, supra, the fact remains that the Court's unanimous opinion in Dillon v. Gloss is the only extant judicial authority on this issue.

In Dillon, the Court unequivocally stated that a seven-year period could not be regarded as unreasonable "considering the periods within which prior amendments were ratified." 256 U.S., at 376. At the time Dillon was decided, all 17 amendments previously ratified had been ratified within four years of their proposal. Id., at 372. Since Dillon was decided, the eight amendments ratified by the States have likewise been ratified within four years, the longest period being three years and 11 months (Twenty-second Amendment) and the shortest being four months (the Twenty-sixth Amendment).

As our historical review has disclosed, the seven-year limitation "approved" in Dillon has been given talismanic significance by the Congress, which has, with one exception, placed that limitation on every subsequent amendment that was eventually ratified. The Court's opinion in Dillon obviously abscribes no special significance to the seven-year limitation. The apparent thrust of the opinion is that one factor to be considered is the time period in which other amendments have been ratified. Although the Court does not elaborate on this point, we think it may well have intended to recognize Justice Story's following comment on the ratification process:

"Time is thus allowed and ample time for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or arti

33 To our knowledge, the Ervin bill never came to the floor of the House for a vote. The bill also provided for congressional action by majority vote of each House, not subject to the veto power of the President, regarding details concerning the calling of a constitutional convention by the States. See Sections 6(a) and 11(b) (1) of S. 215.

34 As we have suggested earlier, see note 22 supra, we doubt whether-either by majority or two-thirds-Congress could so shorten the time as effectively to withdraw the question from the States. Additionally, it is our view that the original time limitation need not, as a constitutional matter. have been set by a two-thirds vote. For the same reasons set forth above, we would conclude that the time period is a "subsidiary" detail which Congress could prescribe by majority vote as an incident to proposing an amendment.

We wond also state that we gain little guidance from parsing of the words of Article Vitself. Grammarians might differ over whether the two-thirds requirement modifies only the first clause, the first and second, or the entire sentence. Given our presumption against reading super-majority requirements broadly, however, we do conclude that the wording of the Article itself does not compel extension of the two-thirds vote to all issues which might conceivably arise under the amending power. Finally, it should he noted that our review of the debates, and other contemporaneous history, surrounding the constitutional convention has not disclosed any substantial evidence of the Framers' thoughts on this question.