I think in every other instance, there has been no explicit language addressing the question of effective date. But I think it is important in this case that Congress treated differently the 7-year language, which was in the preamble that brought the amendment before the States, and the 2-year language, which was in the body itself. I think that, to give any significance to that difference in treatment, one would have to recognize that the 7-year language was not binding whereas the 2-year language was. Mr. STAREK. But you couldn't find any specific reason why that was in there? Professor TRIBE. I didn't find it, but I am not now telling you that it doesn't exist. Mr. STAREK. I haven't found it either. Professor TRIBE. I think a more complete search might turn up something on the 2-year provision. Mr. STAREK. In looking at it myself, the only thing I could find was there was a major concern, of course, about military service. And I think it may be included-don't hold me to it, but in my reading, it may have been included-because several of the people who considered the amendment were worried about the draft law. And they figured that in 9, 7, or 8 years, depending on how long it took to ratify the amendment, the draft law would be gone with the addition. Professor TRIBE. That is possible, but I think it is probably more accidental than anything else that that particular concern would have surfaced. I would be reluctant, in the absence of some positive evidence, to conclude that it was really anything other than a general sense, perhaps illustrated by some details of this kind, that the change was too basic to make overnight, and that we really wanted to be sure that, once it was in place, the Nation would have time to deal with it and adjust to it. Mr. STAREK. Thank you very much. Mr. EDWARDS. Mrs. Heckler. Mrs. HECKLER. Yes. On that letter point, I do recall Congresswoman Martha Griffiths that, who was the chief sponsor of this amendment at the time that it became a viable option of the Congress in 1972 and had been chief sponsor for some years, I believe, made it quite clear in her testimony that the purpose of the 2 years was in order to allow Government to have time to integrate all the conflicting statutes which were so extensive and comprehensive across the country and to allow for the orderly transition from the current status to the law as it would be affected by the amendment. But for you, Professor, since I did not hear all of your testimony, I would like to know if this is an accurate and brief summary which would be that you hold that the Congress can extend the time for the ratification of this amendment by majority vote as the bill before the committee proposes; That the issue of rescission is presently one clouded in uncertainty because ultimately the final judgment on rescission will be made after 38 States ratify. And in that case, when there are 38 ratifications, then the Congress sitting at that time will be able to decide the question of rescission and the validity of rescission in the States which have taken that action. And that, therefore, the only political ramification of this particular bill, the bill before us today, would be the possibility that the number of rescissions could increase. The uncertainty exists we are talking now about a quantum of uncertainty which could be increased, is that correct? Professor TRIBE. I wish I had said it that briefly and that clearly. That is absolutely correct. Mrs. HECKLER. Thank you. Mr. VOLKMER. Would the gentlewoman yield for one question? Mr. VOLKMER. But the effect of rescissions would be a policy decision for the Congress? Professor TRIBE. That is correct. Mr. VOLKMER. That is a policy decision. Professor TRIBE. I think it is also true that those who have constitutional doubts about the validity of any rescission should be assured that nothing this Congress now does bears on those doubts. Those doubts remain. And it might in fact be convincingly argued someday that there is no power to rescind. That issues is not really before us now. Mr. EDWARDS. Professor Tribe, we thank you very much for your excellent testimony. The next hearing day on this subject will be Friday at 9:30 a.m. | Whereupon, at 4 p.m., the meeting adjourned.] EQUAL RIGHTS AMENDMENT EXTENSION FRIDAY, NOVEMBER 4, 1977 U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVII. AND CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The hearing was convened at 9:40 a.m., in room 2141, Rayburn House Office Building, Hon. Don Edwards (chairman of the subcommittee) presiding. Present: Representatives Edwards, Seiberling, Drinan, Beilenson, and Wiggins. Also present: Thomas P. Breen, counsel; Catherine LeRoy and Janice Cooper, assistant counsel; and Roscoe B. Starek III, associate counsel. Mr. EDWARDS. The subcommittee will come to order. I recognize the gentleman from Massachusetts. Mr. DRINAN. Thank you, Mr. Chairman. Mr. Chairman, I move that the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary permit coverage of this hearing, in whole or in part, by television broadcast, radio broadcast, and still photography, or by any of such methods of coverage pursuant to committee rule V. Mr. EDWARDS. Without objection, the resolution is agreed to. This morning we continue our hearings on the proposal to extend the ratification period for the equal rights amendment. We are fortunate today to have two distinguished scholars with whom the members of the subcommittee are well acquainted and for whom we have great admiration. And, incidentally, they have quite different views on this question. So I think that we can look forward to a very interesting and enlightening morning. Our first witness is Thomas I. Emerson, lines professor of law emeritus, at Yale. Professor Emerson, we welcome, and you may proceed with your statement. TESTIMONY OF THOMAS I. EMERSON, LINES PROFESSOR OF LAW EMERITUS, YALE LAW SCHOOL Professor EMERSON. Thank you, members of the committee. I will not read my statement which I asked to be included in the record. Mr. EDWARDS. Without objection, it will be included in the record. [The prepared statement of Prof. Emerson follows:] (61) 26-365-78-5 STATEMENT OF THOMAS I. EMERSON, LINES PROFESSOR OF The Equal Rights Amendment was proposed as the Twenty-seventh Amendment by a vote of 354 to 24 in the House of Representatives on October 12, 1971, and by a vote of 84 to 8 in the Senate on March 22, 1972. The Joint Resolution which embodied the proposed amendment stated: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), 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." Up to the present date the Equal Rights Amendment has been ratified by 35 States, out of the 38 necessary. The seven-year period of limitation for action by the States expires on March 22, 1979. The question is whether Congress has power under the Constitution to extend the period for ratification and, if so, whether it may do so by majority vote. Article V of the United States Constitution, which sets forth the method for amending the Constitution, provides: "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, which, in either case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress." It is my conclusion that Congress has the power under Article V to fix a period during which a Constitutional amendment must be ratified, so long as the period is a reasonable one, and that such power includes the authority to extend a period originally determined. It is also my conclusion that such action by Congress does not require a super-majority of two-thirds but may be done by majority vote. Background In approaching these issues certain background facts should be taken into account. In the first place it is clear that Article V gives Congress full and extensive powers over the amending process. In Dillon v. Gloss, 256 U.S. 368 (1921), speaking about this very issue of the power of Congress to fix a time limit for ratification, the Supreme Court said: "That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed. An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments." (p. 373) And in Coleman v. Miller, 307 U.S. 433 (1939), the Court, again dealing with the same question, declared: “. Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amedment has lost its vitality prior to the required ratification." (p. 456). Until the proposal of the Eighteenth Amendment in 1917 no time limits were imposed upon ratification by the States. That Amendment for the first time included such a limitation. Although the proponents of the limitation initially talked in terms of ten to twenty years (see 55 Cong. Rec. 5556-9) a limit of seven years was eventually adopted. In 1921, in Dillon v. Gloss (supra), the authority of Congress to include a time limitation was upheld by the Supreme Court. Thereafter virtually all proposed amendments embodied a seven-year limitation, initially as part of the substantive provisions and, beginning with the Twenty-third Amendment, as part of the resolving clause. The Equal Rights Amendment, as originally introduced in 1923 and as presented in subsequent years, contained no time limitations. It was not until 1970 that a time limitation was proposed (see 116 Cong. Rec. 36864), and it was included in the resolution as passed by the House in 1971 (117 Cong. Rec. 35815). The seven-year limitation was accepted by proponents of the resolution on the ground that it was "customary" (see 117 Cong. Rec. 35814-5; Sen. Rept. No. 92-689, 92d Cong., 2d Sess. p. 20.). There was no debate or discussion as to whether or not seven years was an appropriate period for this Amendment. |