who do the same kinds of jobs. We are talking equal pay, if you will. Some women professors are hired at a lesser dollar amount than male professors.

Mr. STAREK. Is that not a violation of the Equal Pay Act?

Ms. EDWARDS. Yes.

Mr. STAREK. If we already have Federal legislation on the books, what I am trying to understand is how the equal rights amendment is going to change that.

MS. FREEMAN. That is why we need the ERA, because apparently with respect to certain laws there has to be further legislation for people to believe in enforcement of the law. This unfortunately is true with respect to civil rights legislation. If this were the ideal world, if people enforced that law the way they enforce the traffic ordinance, then we could say probably you would not need it, but the whole history of the lack of enforcement of civil rights laws shows that, even if we have a 14th amendment, we need it, but we need the ERA because we will give an emphasis that this is a benefit that is a constitutional protection and unfortunately the legislatures can say to the executive and to the judiciary not "We need to have ERA" but "ERA is now on the books, so do not give us any more excuses."

Mr. STAREK. It sounds to me like that is an enforcement problem by the Federal Government.

MS. FREEMAN. This is another answer that we have had. In other words, you go from one excuse to the other. The point is, we need ERA and more enforcement. I am not saying we do not need more enforcement. We need enforcement of the law but we also need ERA. Mr. STAREK. Thank you, Mr. Chairman.

Mr. EDWARDS. I think with regard to the discussion with Mr. Starek on alimony and homemakers, at that point in the record a summary of the recent report of the Rand Corp., on alimony and child support should be inserted.

Most people think that women get paid alimony and child support as a result of court decisions and court orders. Actually, the situation is in disarray and the figures are dismally low. The judges might order 20 or 30 percent-we will put those figures inbut the payments are actually 15 or 10 percent or less. Certainly the evidence would be that a new look should be taken at the whole business of child support and alimony and that stricter attention should be paid to ability to pay. Whether the wife or the husband makes the payments, the money should be paid so the people should be supported and the spouse, whichever sex it is, would get the money. Mr. Drinan.

Mr. DRINAN. Just one point, Mr. Chairman.

Dean Griswold testified here last October and he is one of your former colleagues, a former Commissioner of the U.S. Commission on Civil Rights. I am wondering if you people could arrange that he be born again.

In October this is what he said:

The extension of the ratification period would be poor policy and a bad precedent and would be a breach of faith with the States.

I wonder if you would talk to that point, the breach of faith with the States. That came up yesterday. Frankly, that is a point that seems to bother many of my colleagues in Congress with whom I have discussed this matter.

He said further, "To change the time now is clearly a change in the announced rules governing a substantial matter in our constitutional structure." So, on that point of the breach of faith, or a violation of contract, would you want to speak to that?

MS. FREEMAN. I believe, first of all, I would be in disagreement with Dean Griswold. But when he served as a commissioner there were occasions when we did not agree.

First of all, with respect to the time period, there was no time period with respect to, I believe, the first 17 amendments; is that not correct? There was no time period required in the legislation, and there was certainly not one with respect to the 19th. I don't presume to know what Dean Griswold could have meant by a breach of faith with the States.

I would certainly disagree with that.

Mr. DRINAN. Thank you very much.

Ms. LEROY. I just have one question, Commissioner Freeman.

You touched on it in your testimony when you were talking about States which have sex-neutral alimony and support laws. In those States and in those States which also have their own ERA, have any of the dire results that the opponents have predicted come about Ms. FREEMAN. No.

Ms. LEROY [continuing]. That you are aware of?

MS. FREEMAN. No. I know of none and I don't know if they know of any either.

Ms. LEROY. That is all. Thank you.

Mr. EDWARDS. I believe there are no further questions and we thank the witnesses for very excellent testimony.

MS. FREEMAN. Thank you.

Mr. FLEMMING. Thank you, Mr. Chairman.

Mr. EDWARDS. Our last witness will be Prof. William Stanmeyer of Indiana Law School. Professor Stanmeyer is currently on leave from his law school and is spending some time here in Washington and on short notice has graciously agreed to be here today. We certainly appreciate his taking the time and trouble to bring the testimony and appear today.

Professor Stanmeyer, without objection your full statement will be made a part of the record, and you may proceed as you see fit.

TESTIMONY OF PROF. WILLIAM A. STANMEYER, INDIANA UNIVERSITY SCHOOL OF LAW

Mr. STANMEYER. Mr. Chairman, distinguished members of the committee, my name is William A. Stanmeyer. I am a law professor who has taught jurisprudence and constitutional law at Georgetown University Law Center and more recently at Indiana University School of Law. I thank you for the invitation to appear today.

Itis a privilege to have the opportunity to place on the record my serious reservations about the propriety of extending the ratification time for the equal rights amendment and my grave misgivings about the amendment itself.

I fully respect the credentials of your other witnesses, some of whom do not share these views; but I believe that the pro-ERA position suffers from the very rhetorical advantage of its having been argued

earlier and, consequently, not had the benefit of developing their position through dialectic. I believe that as the debate goes on the desire of the American people to ratify ERA will all but vanish, if it was ever there. I believe the remarks that follow will show why the growing suspicions about the amendment are well placed.

In light of the prior testimony, I wish to reserve, if I may, a few moments to comment on earlier witness' remarks.

In the body of my remarks I wish to dwell on a number of themes: One, the structural jurisprudence implicit in the constitutional amendment ratification process; two, the impropriety of extending ratification time without extending or permitting additional rescission time; three, the fact that a constitutional amendment is no longer needed, if it ever was, to provide all the legitimate changes in our social and legal life that women may deserve; four, the fact that if ERA is ultimately passed it will achieve no more for its partisans than transfer of the struggle back to Congress and thence immediately to the most unstable forum of all, the judiciary, for costly, contradictory and necessarily socially damaging resolution; and, finally, five, the fact, now admitted even by most of the proponents, that ERA necessarily entails immense unheaval in established patterns of education, sexual maturation, family stability and even such mundane pursuits as high school athletics and military recruitment.

In the comments that follow I will be both an advocate, urging that the 7-year deadline not be extended, and a counselor, simply setting forth for the client the natural and probable consequences of a contemplated course of action.

The jurisprudence implicit in the constitutional amendment ratification process mandates that there be no extension of the time to ratify. This is a question of both the "spirit of the Constitution" and of the integrity of the amendment process. The Constitution is more than a mere catalog of rights and an allocator of powers; it is our organic document; it states who we are as a people. The process of changing that document was deliberately made difficult.

In the case of ERA, a set time limit was deliberately provided. The process of amendment is designed to make such a momentous decision take place, if at all, in a time frame which some commentators have aptly termed "contemporaneous consensus." The change proposed here is not just symbolic; one does not litigate the meaning of a symbol. And it is not just a matter of equal pay for equal work, for this can already be obtained by litigation under various acts. Rather, it is no less than a matter of laying the groundwork, in a few superficially appealing but actually ambiguous and open-ended words, for a total social, legal, and moral upheaval in our society.

The cosmic stakes in the argument are only recently coming to light but are admitted by some of the proponents of ERA-for example, see Barbara Brown et al., Women's Rights and the Law, Praeger, 1977.

I wish to depart at this juncture from my prepared remarks to make this one observation: That when the text of the ERA first received widespread publicity during the congressional debates in 1972, my intuitive and spontaneous reaction was to support ERA; and initially my feelings remained the same. Who could be against such an innocuous request that we simply have equality and have sex not stand in the way of equality?

Later reading, considerable reflection, and review of some of the debates, have led me to change my mind.

I return to the text.

A constitution is not like a suit of clothes or even a person's vocational employment, to be changed as fashion or whim dictate. A constitution is, rather, the written expression of underlying values, purposes, and beliefs about the political order, to the degree constitutional provisions impinge on transcendant ultimates such as religion and morality or immemorial social institutions like the family, they are quasi-metaphysical and mystic documents similar to the credo or articles of belief of a religion. Thus the forging of a constitutional consensus is not a trivial matter.

As a matter of fact, at a time when popular disenchantment with government and all its works is so great, tinkering with the process of consensus formation in a matter of such gravity would seem as a cruel trick, further exacerbating the estrangement of the governed from the governors.

Now the main consensus emerging in the last few years has not been. that the equal rights amendment is an innocuous bit of symbolism or a mere expression of equal work/equal pay reciprocity. Quite the contrary. The only possible explanation of why ratification by the States has ground to a virtual standstill today, after such a speedy start, is that a consensus is emerging that we have quite a different animal coming to birth than we thought at first. There is growing fear that ratification will cause to issue from the political womb not a tabby cat but a tiger, if not a monster of uncertain ferocity and appetite.

There is no doubt that a broad consensus exists, which every person here certainly shares, that women should be treated fairly and that there should be no irrational distinctions between women and men. But a later consensus has begun to emerge, that in some cases the American people want distinct and even better treatment for women; for example, that there be no compulsory combat roles assigned to women in the military, that certain high school and college sports be restricted to members of one sex if the parents and school authorities so desire, that legally-sanctioned marriage be allowed only to heterosexual couples. The descriptive fact is that the American people want certain exemptions and privileges for women and some additional burdens on men-for example, in matters of family support, probate benefits for women, et cetera-and out of this fact emerges the real consensus on ERA: that it may do more harm than good.

Now it grossly offends the spirit of the constitutional ratification process to extend the deadline for ratification in such a way that the good in the provision may appeal for positive support but the perceived evil may not.

As Dean Griswold testified here in October 1977, this is indeed "poor policy and a bad precedent, and it would be *** a breach of faith with the States."

The whole point of the 7-year time-limit involves the need for a clear and distinct contemporaneous consensus: The amendment must be ratified by the States as a whole, in a time frame fostering a singleness of collective purpose: ratified, that is, in such a way that by the time the last ones make up their minds, the first ones will not already have changed their minds.

If the "Ship of State" is to elect a new course into uncharted and probably stormy waters, the election process should not be prolonged so long that by the time the last 3 passengers of the 38 quorum climb, perhaps reluctantly, on board, some of the first 35 have not already jumped ship by rescinding their early, improvident ratification.

Of course, it is argued that once a State has signed up for the ERA voyage, it cannot change its mind; but certainly this view is political experience arising out of desperation by the proponents who know that if Congress clearly announced that the States could step off the ship before it left shore, quite a few would.

It is not a position based on a profound grasp of the jurisprudence here, which at least in the case of ERA intuitively recognized the controversiality of the consensus to be forged and insisted it be contemporaneous. Ratification is not just a quantitative process, a mechanical aggregating of 38 separate States; it is also a qualitative process of moving to a new, shared understanding. Because of this truth, Dean Griswold was eminently correct when he stated: "To change the time now is clearly a change in the announced rules governing a substantial matter in our constitutional structure." It is a change, I might add, not only in the rules; it is a change in the substance of what we are doing. We would be jettisoning the need for a shared consensus in favor of a seriatim or successive consensus, which is no consensus at all.

In other words, by extending the deadline another 7 years, we render a grave disservice to the American people; we make it possible for a change in the organic law-a constitutional amendment-to be inflicted on them even though by the time the 38th State does ratify, the majority conceivably do not want such a change at all.

It is improper to extend ratification time without extending or permitting rescission time. This is initially a point of simple fairness. If the rules of the game are to be changed near its end so as to double the time of play, then the Congress must allow both sides to score points. To recur to the metaphor of the "Ship of State" starting a voyage into troubled waters, if the crew and the travel agency promoting the trip receive a substantial extension of time to round up enough passengers from shore, those already aboard who begin to doubt the wisdom of the trip surely must be allowed to withdraw their hasty commitment and go back to dry land; otherwise some passengers will be "shanghaied."

It is a point of fairness to the States which, after spur-of-the-moment ratification, now wish to rescind. It is also a matter of fairness to those legislators, both in Congress and in the States, who voted for ERA with the understanding that the approval process was 7 years long. Prof. Charles Black's testimony on this point bears repeating: In his statement dated October 28, 1977, he argued that the time limitation must be important to at least some legislators voting for ratification or else it was meaningless and would not have been put in. Therefore, he said:

It may easily happen, in any given case, that a vote for the original resolution is cast partly on the ground that, in the view of the caster of the vote, the time is suitably limited. It cannot therefore be assumed that the original would surely have passed by the requisite two-thirds majorities if the time had been longer.

The process of ratification is not supposed to be simply an endurance contest. It is not a matter of one side being allowed to persuade, cajole, threaten or force legislators into approving this substantial change