Mr. McCLORY. Since article V already speaks positively with regard to ratification, there is no inherent constitutional authority to rescind? Is that correct?

Mr. HARMON. That is my opinion.

Mr. McCLORY. Could the Congress rescind the equal rights amendment? What if we introduced a point or concurrent resolution to rescind the ERA? Could we do that by two-thirds vote, or would we have to do as we did in context with the 18th and the 21st amendment await ratification and then provide rescission by repeal?

Mr. HARMON. It would be my view that the action reserved to Congress would be, as you suggest, to wait ratification at that time, supposing that the ratification occurred instead of within 7 years, 50 years-within a 50-year period or 7 years-that the remaining three States finally come through. At that time, then, the Congress would be faced with a very serious question as to the timeliness of ratification. The question would be the continuing validity of the prior ratification by the States.

Mr. McCLORY. Would we be authorized to act ex post facto by legislation to approve the ratification by extending the time?

Mr. HARMON. At that time a determination under my reading of Coleman, is left to the Congress and Congress has the responsibility to examine the circumstances at that time and determine whether this could be said to be a reasonably contemporaneous expression of approval of the amendment.

Mr. McCLORY. There is one very serious question in Illinois. By its constitution Illinois requires that ratification of constitutional amendments must be done by three-fifths of the majority. However, the U.S. Constitution does not address requirements for ratification by the States.

Could we legislate with respect to the percentage of the State legislative body which is required to ratify?

Mr. HARMON. Mr. McClory, I would respectfully submit that in fact the Supreme Court has already spoken indirectly on that question. I know I am criticizing another court decision that you are facing there which I quite frankly have a great deal of difficulty rationalizing with the relevant Supreme Court decision. The author of that decision now sits on the Supreme Court, but it is hard for me to see the reasoning of that decision which permits the State to require greater than majority vote.

Mr. McCLORY. Simple majority?

Mr. HARMON. That is right, under the prevailing Supreme Court decision.

Mr. McCLORY. In other words, it is your opinion that if we wanted to legislate on that subject, we could legislate to the effect that a simple majority is all that is required for ratification?

Mr. HARMON. I would want to consider that question. I believe that that requirement is already there in the Constitution, but I would be happy to consider that question.

Mr. McCLORY. Thank you very much. I yield back the balance of my time.

Mr. EDWARDS. Ms. Holtzman.

Ms. HOLTZMAN. Thank you, Mr. Chairman. Since this joint resolu-, tion addresses one of the most important procedures given to the Con

gress under the Constitution, I would thank you, Mr. Harmon, for the extensiveness of your legal research and the clarity and lucidity of your presentation here.

Thank you, Mr. Chairman.

Mr. EDWARDS. Ms. Mikulski.

Ms. MIKULSKI. I have no questions, Mr. Chairman. Mine were raised by the gentleman from Massachusetts, Mr. Drinan.

Mr. EDWARDS. Certainly most of the questions I had have been answered. But suppose this went through, and the ratification period was extended to 14 years, and then the 96th Congress came along in 1979 and reduced it back to 8 years. Would that be constitutional?

Mr. HARMON. Based on the determination by the 96th Congress that the time of 8 years or 7 years was more reasonable than the time of 14? On the question of withdrawal, Mr. Chairman, you posed a hard question.

Mr. EDWARDS. Well, another hard one, since we are already in that area, would be: Suppose this Congress decided to reduce the term from 7 to 5 years?

Mr. HARMON. On that question, I think the Congress would be precluded from shortening the period. I base that on the analysis of prior precedent, the established principle that the Congress cannot withdraw an amendment once proposed to the States from consideration by the States.

It would be my view that the shortening of the period contained in the original proposal would in fact be a withdrawal of an amendment under consideration by the States. And on that basis, I would doubt the power of the Congress to do that.

Mr. EDWARDS. Thank you. Mr. Butler.

Mr. BUTLER. Thank you.

Mr. EDWARDS. Excuse me, Mr. Drinan first.

Mr. DRINAN. No.

Mr. EDWARDS. Mr. Butler.

Mr. BUTLER. Thank you, Mr. Chairman.

My question still concerns the real significance of the location of the time limitation. I am concerned about the significance of the place where we find the time limitation and whether that really is a proper basis for determining whether we can extend this amendment.

Everything you say stems from that because it is your belief that if it were elsewhere-if it were in the body of the amendment itself— Congress would be powerless to do anything but begin over again. Your statement was, if I remember correctly, the best legislative history you can find surrounded the 20th amendment.

Mr. HARMON. Correct.

Mr. BUTLER. Since that time, so you may know that I was not setting a trap for you, counsel has provided me with some information dealing with an exchange between Senator Kefauver in the 84th Congress and the history preceding the 23d amendment. He refers to a letter from Professor Noel Downing of Columbia Law School who discussed why the 7-year limitation was placed in the resolution rather than in the text. There is no doubt about the power of Congress to put it there.

To be equally effective, the way to be sure has been to write the limitation into the amendment. We hope such an unnecessary cluttering up of the Constitution can be ended.

Our attention is also called to an exchange between Senator Russell and Senator Kefauver in which Senator Kefauver stated:

The general idea was that it was better not to make the 7-year provision a part of the proposed constitutional amendment itself. It was felt that would clutter up the Constitution. Sometimes that is done. We wanted to put the 7-year limitation in the preamble so the intention of the preamble is that it must be ratified in 7 years in order to be effective.

I will read in response Senator Russell's continued question:

Senator Kefauver agreed to the amendment which was then passed by the Senate to insert the word "only" before "if ratified within 7 years."

Senator Kefauver made it clear he and the Judiciary Committee staff felt the addition of the word would not change the effect of the limitation.

The thrust of what this has to say to me is that there is history surrounding the 21st amendment, which is the first time we broke with precedent.

Mr. HARMON. Yes.

Mr. BUTLER. The basis for this change was to keep from cluttering up the Constitution.

While that is a unique approach in this body, it has a lot of logic behind it. It seems to me that this challenges your premise, and I would appreciate it if you would comment on it.

Mr. HARMON. It does, and I would like to respond.

My difference with the analysis there is that there is a difference in terms from the reading of Dillon and Coleman. The question of timeliness, the period of time, is a question qualitatively different from the question of the text of the amendment itself.

The language that I referred to consistently here that setting a time period is a matter of detail to be dealt with as necessary by the Congress. That, as distinguished from the requirement of two-thirds vote, or of three-fourths ratification, or the text of the amendment itself, is a separate matter to be decided by the Congress.

Consequently, that matter of detail could be in my opinion elevated to a matter of substance by the inclusion of that matter of detail in the text of the amendment itself.

And with respect to the language of the document, the text of the document, then we have the requirement of the super majority, the strict requirements that have been developed or are developed and set out in the Constitution for the amendment process.

Consequently, it is my view that it is possible as did several Congresses before with respect to three amendments, to take this matter of detail and elevate it to a matter of substance by putting it in the text. However, when that is not done, then it remains in my view within the power of Congress to regulate that detail, that question of timeliness.

Mr. BUTLER. Returning to my question, when you formed your opinion, were you aware-did your staff make you aware of this exchange between Senator Russell and Senator Kefauver?

Mr. HARMON. I was aware of the exchange, yes, that the reason for the change with respect to the 23d amendment was, as you have read from the text, the matter of cluttering the Constitution.

I was aware of that, and I am sorry that I did not bring that to your attention.

Mr. BUTLER. I go back to the fact that I had the impression that the only incidence in which you could find legislative history concerned the 12th amendment.

We know there is some surrounding the 23d amendment.

Mr. HARMON. That is exactly right.

Mr. BUTLER. Are there others that perhaps you have overlooked? Mr. HARMON. Not of which I am aware.

Mr. BUTLER. Mr. Chairman, my 5 minutes are up, but my questions have not expired.

Mr. McCLORY. Mr. Chairman, I have one more question if I may. Mr. EDWARDS. Mr. McClory.

Mr. McCLORY. Mr. Harmon, we have another constitutional amendment proposal pending before the Committee, soon to go to the floor of the House. There is a question of whether we should provide in the proposal either a right of rescission or a prohibition against a right of rescission.

I would like to have your expertise to help me in trying to resolve this question. Is it your opinion that we could by reference amend article V by addressing rescission in a new constitutional proposal, or do you feel that in order to amend article V with respect to the subject of rescission, we should amend article V?

Mr. HARMON. I feel it should be an amendment of article V, but that could certainly be done within the text of a proposed amendment. I see no necessity of breaking it out into two amendments.

Mr. McCLORY. If the question of rescission was addressed in a new amendment, then article V would be amended by reference. Since this would be a later change in the Constitution, article V would be altered.

Mr. HARMON. That is right. I believe that the Congress would have the power to include that within a proposed constitutional amendment. Mr. McCLORY. Thank you very much.

Thank you, Mr. Chairman.

Mr. EDWARDS. Are there further questions?
Mr. Volkmer.

Mr. VOLKMER. The only question I have is not in regard to ERA specifically, because we have been discussing it in regard to other constitutional amendments and the question of rescission. The question is whether permitting rescission can only be done by constitutional amendment or whether we can make a provision in the statutory law for rescinding ratification.

As I read hurriedly in the first few pages of your statement, you seem to have said it would have to be by constitutional amendment, changing article V which provides for the ratification process, is that correct?

Mr. HARMON. That is correct.

Mr. VOLKMER. You disagree with others. You say it can't be done statutorily?

Mr. HARMON. Yes; I would disagree.

Mr. EDWARDS. Mr. Harmon, do you see any validity in the argument that once there is a ratification deadline that it should not be changed or cannot be changed because the States have somehow relied on a 7-year limitation and, therefore, Congress can't come along and change the terms of the package that has been presented to the States.

Mr. HARMON. Mr. Chairman, that point, that argument has to assume that the ratification of the amendment again was conditional, that the State had conditioned its ratification upon this 7-year representation within the proposing resolution.

Again, citing James Madison and the consistent interpretation since that time, the ratification by the State must be unconditional, unqualified, and irrevocable. Consequently, the Constitution does not require a condition imposed by the State, upon its ratification, such as a condition that the 7-year period would not be extended.

That would be my answer to that argument.

Mr. EDWARDS. Mr. Butler.

Mr. VOLKMER. Mr. Chairman, would the gentleman yield in turn? Again, back to this point, now article V does not provide in itself for any rescinding procedure, but it does not prohibit rescission, does it?

Mr. HARMON. It would be my view that it does prohibit rescission because it provides the power to ratify but not the power to withdraw a ratification. In the absence of this power, the State would be foreclosed from withdrawing the ratification.

Mr. VOLKMER. The Congress, although it has all these powers given to it at other points in the Constitution, would not have the power to provide for a method of rescinding a ratification?

Mr. HARMON. It would have that power through the amendment process. In 1926, a specific amendment was proposed that would have in effect amended article V to provide that a State could rescind its ratification of a proposed amendment at any time before the necessary three-fourths of the States ratified that amendment. That proposal did not carry and did not reach the floor, as a matter of fact, in either House.

I believe, as I tried to explain to Mr. McClory as well, that that would be the method by which Congress could provide for rescission. Mr. VOLKMER. And it is the only method based on the Founding Fathers' discussions on ratification by the States and based upon the fact that there was a proposed constitutional amendment introduced in 1925?

Mr. HARMON. Yes, I cite the proposed constitutional amendment as an example of an interpretation consistent with my interpretation. Mr. VOLKMER. But, again, there have been no court decisions on this. Mr. HARMON. No, there have not. The Court has never passed the question.

Mr. VOLKMER. Never has, that is right.

Mr. EDWARDS. The gentleman from Virginia.

Mr. BUTLER. Thank you, Mr. Chairman.

I do not like to take so much time, but I am interested in following where all of this leads us. Somewhere along the line, you said Congress cannot withdraw. We cannot really shorten our period from 7 to 5 years, and States cannot condition their ratification.

What happens if a State does condition its ratification and Congress states, "We accept the condition"? What happens if Congress then says, "We withdraw, we have cut the ratification period down from 7 to 5 years." What are you going to do about that?

You say, "It is unconstitutional." And it probably is.