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Amendment has never before arisen. However, in view of the plain meaning of the Constitution, Congressional precedents, as well as the procedural nature of the time limitation as set forth in the proposed Equal Rights Amendment, a simple majority vote of the members present and voting in each House 11 is sufficient to extend the ratification period.

12/

11/ The Supreme Court has ruled that the vote required to propose an amendment is two thirds of the members present (assuming a quorum is present), not two thirds of the entire membership of each House. National Prohibition Cases, 253 U.S. 350, 386 (1920).

12/ The three principal methods by which Congress expresses its will are by enactment of a bill, a joint resolution, or a concurrent resolution. While the Constitution does not dictate the manner in which Congress may choose to express its will in carrying out its responsibilities under Article V, the most appropriate of the three methods appears to be the joint resolution. Constitutional amendments have always been proposed initially by joint resolutions. Jefferson's

Manual, §223. A bill would be inappropriate. Bills enact

statutes, and are signed or vetoed by the President.
Constitution, Art. 1, §7, cl. 2. Since it is doubtful
whether concurrent resolutions retain their vitality after
the term of the Congress which passed them, the use of a
concurrent resolution to extend the ratification period of
the proposed amendment would be certain to generate unnecessary
litigation. See generally, "Concurrent Resolutions", prepared
by Congressional Research Service, Library of Congress (dated
June 9, 1976). Joint resolutions are laws of the land, with
vitality beyond the term of the adopting Congress. Jeffer-
son's Manual, $397. Since the President does not participate
in the constitutional amendment process (Hollingsworth v.
Virginia, supra.), his signature would not be required on
a joint resolution extending the ratification period. It
should be noted that the resolution which declared the
Fourteenth Amendment to have been ratified (15 Stat. 709),
which resolution is analogous to a resolution determining
(or extending) the ratification period, was not signed by
the President. This Congressional procedure, the (Continued)

that:

A.

The Constitution And Past Congressional
Procedural Rulings Demonstrate That Matters
of Procedure Pertaining To Prospective Amend-
ments Are Subject To Simple Majority votes

Article V of the Constitution provides, in pertinent part,

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.... (Emphasis added)

This Constitutional language specifically requires Congress to
act by a two-thirds vote in only two matters when it acts under
Article V: (1) when Congress proposes an amendment to the Con-
stitution and (2) when Congress, upon the application of the
legislatures of two-thirds of the States, calls a convention
which will propose constitutional amendments and submit them
to the States. Equally clearly, Article V places in the sole
hands of Congress, but without specifying that Congress must act
by more than a majority vote, the authority to determine whether
the amendments submitted to the states have been "ratified by the
legislatures of three-fourths of the several states, or by con-
ventions of three-fourths thereof as the one or the other mode
of ratification may be proposed by the Congress".

.

Past Congressional procedural rulings have been in keeping with this literal interpretation of Article V. It has been

12/ (Cont'd) Supreme Court has held, is a binding constitutional precedent. Coleman v. Miller, 307 U.S. at 350. 17, infra.

See footnote

repeatedly held that the two-thirds vote requirement applies only to the vote on the final passage of the amendment. See V Cannon's Precedents, §§7029-7039. Thus, as to votes taken within a Committee of the whole, or votes to amend a proposed Constitutional Amendment, only a simple majority vote is required. V Cannon's Precedents, §§7031, 7033. From these precedents it is clear that procedural steps taken prior to the actual vote on final passage of the proposal to the states for ratification require only a simple majority vote. There is no cogent reason why procedural steps taken by the Congress subsequent to the proposal of an amendment to the states (so long as the text of the amendment voted upon by the states is not affected) should be treated differently.

As stated above, Article V of the Constitution requires a two-thirds vote only when Congress proposes a constitutional amendment or calls a convention for proposing constitutional 13/ amendments, and leaves to the Congress the matters of detail pertaining to the mode of ratification. Coleman v. Miller, 307 U.S. 344 (1939). One such matter of detail to be filled in by Congress is the time period to be allowed for ratification. Coleman, supra., Dillon v. Gloss, 256 U.S. 368 (1921); cf. Baker v. Carr, 369 U.S. 186 (1962).

Congress' extension of the time within which ratification of the Equal Rights Amendment may occur is also a procedural detail.

13/ The Constitution prescribes supermajority votes by the

Congress for a number of specific situations. See Art. 1,
65 (voting to expel a member of Congress); Art. 1, 63
(impeachment); Art. 1, 67 (override of veto); Art. 2, 82
(Senate's ratification of treaties); 14th Amendment, 63
(removal of disability of members of Congress). If the
framers had intended that all aspects of the amending process
be subject to a supermajority, it is reasonable to suppose
that they would have expressly so provided.

Such an extension would not affect the text of the amendment which Congress submitted to the states since the time limitation is contained in the "resolved" clause of the joint resolution and not in the proposed article of amendment itself. Therefore, the states which considered the proposed article of amendment did not have to consider any aspect of the seven year limitation in deciding whether to ratify the amendment. Hence, Congress' extension of the ratification period would not prejudice any state which previously ratified the amendment and would not affect the validity of any prior ratification.

The history of other amendments (especially when considered in light of the Coleman and Dillon decisions) also indicates that the time provision is merely a procedural and legislative detail that Congress filled in.

The first seventeen amendments ratified by the states and the Nineteenth Amendment contained no time restrictions. See letter of Prof. Thomas I. Emerson, published at 116 Cong. Rec. 35959 (1972). The Eighteenth (40 Stat. 1050), the Twentieth (47 Stat. 745), the Twenty-First (47 Stat. 1625), and the TwentySecond Amendments (61 Stat. 959) contained a seven year time limitation within the proposed article of Amendment. The TwentyThird (75 Stat. 847), Twenty-Fourth (78 Stat. 1117), TwentyFifth (81 Stat. 983), and Twenty-Sixth Amendments (85 Stat. ), like the proposed Equal Rights Amendment, contained a seven year time Limitation in the "resolved clause". The legislative history concerning the seven year limitation in the proposed Equal Rights Amendment indicates that the time designation was inserted only as a "customary" provision. 116 Cong. Rec. 35959 (1970); 117 Cong. Rec. 35814-5 (1971) (Cong. Griffiths).

When Congress acts to extend the period for ratification it would be acting within its constitutionally mandated

responsibility of filling in the details as to the mode of ratification. Dillon v. Gloss, 256 U.S. 368, 376 (1921). Since Congress is fulfilling the same procedural functions, whether it be prior to the proposal of an Amendment to the States or after its proposal, the vote required to perform that function should. be no different. A simple majority, therefore, is sufficient to extend a ratification period.

B. Questions Of The Validity of State
Ratifications Have Been Resolved By
Congress By Simple Majority vote

Congress has acted affirmatively in the past to resolve disputes concerning the ratification of amendments and did so by a simple majority vote. Since Congress' action in these instances was analogous to the prescribing or extension of a ratification period, it must be concluded that only a simple majority vote would be required to extend the period within which the ERA may be ratified by the States.

During the ratification process for the Fourteenth Amendment, the legislatures of Ohio and New Jersey had ratified the proposed amendment and then subsequently passed rescinding resolutions. During this same period, Georgia, North Carolina, and South Carolina had rejected ratification resolutions. However, Congress restructured the governments of these three states (14 Stat. 428, March 2, 1867) and their reconstituted legislatures then ratified the proposed amendment.

At this point, the Congress directed the Secretary of State to report the number of states which had ratified the proposed amendment. The Secretary's report noted that serious doubt had been expressed as to the validity of the ratifications of Ohio and New Jersey (which had ratified and then rescinded) but that if these states were deemed to have ratified, then the

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