detail because we feel that discussion of this question may be helpful in the general debate over this resolution.

I. BACKGROUND

The two documents most relevant to our inquiry are H.J. Res. 208, 92d Cong., 2d Sess. (1972), which proposed to the several States the adoption of the ERA, and Article V of the Constitution, which sets forth the procedures for amending the Constitution. The text of the resolution is as follows:

HOUSE JOINT RESOLUTION 208

Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.

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 :

"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"Section 3. This amendment shall take effect two years after the date of ratification."

On March 24, 1972, certified copies of the full text of this joint resolution were transmitted to the Governors of the 50 states by the Acting Administrator of the General Services Administration with a request that each Governor submit it "to the legislature of your state for such action as it may take” and requesting also that a "certified copy of such action be sent to the Administrator of [GSA] . . .” See 1 U.S.C. § 106b. As of this date, thirty-five states have submitted certifications to GSA of ratification of ERA by their respective legislatures.'

Article V, the sole provision of the Constitution dealing with the amendment process, reads as follows:

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 the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner effect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V does not on its face contain any requirement that an amendment, once proposed by Congress, must be ratified within a specific time period or that Congress may establish a time period in which the States will be empowered to ratify a proposed amendment. In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court addressed both these issues.

In Dillon, a defendant convicted of an offense under a statute passed by Congress to enforce the Eighteenth (Prohibition) Amendment, contended, inter alia, that Congress had no power to set a time limit for ratification and that, as a consequence, the Amendment itself was void because Congress had placed a seven. year limit on ratification in section 3 of the Amendment. In rejecting this argument, the Court stated:

Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks

1 This resolution was adopted by Congress on March 22, 1972, when the Senate passed unamended the resolution adopted by the House of Representatives on October 12, 1971. 2 As of this writing GSA is also in receipt of three documents from Tennessee, Idaho, and Nebraska purporting to withdraw or rescind their ratifications previously certified.

The Eighteenth Amendment had in fact been ratified within about 13 months of the time it was proposed by Congress.

in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require; and Article V is no exception to the rule. Whether a definite period for ratification shall be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified. 256 U.S., at 376-76 (footnote omitted).

After Dillon, the Supreme Court has had only one occasion to address the question of congressional power under Art. V. to establish the time frame for ratification. That case, Coleman v. Miller, 307 U.S. 433 (1939), involved, inter alia, the claim that the "Child Labor Amendment," proposed by Congress in June, 1924 without Congress having set a time limit for ratification, could no longer he ratified by the Kansas legislature in 1937 because some 13 years had elapsed since its submission to the States. In response to the contention that 13 years was an "unreasonable" period of time, the Court stated:

Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. That decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts. Id., at 454 (emphasis added).'

Because no time limit had been set by Congress in the proposed Child Labor Amendment involved in Coleman, it may be properly inferred from the quotation above that the establishment of a time limit by the Congress proposing an amendment would not leave open the question of what is a reasonable period. Certainly if a time limit had expired before an intervening Congress had taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House and thereby begin the ratification process

anew.

Additionally, if the proposing Congress had fixed a specific time limit within the text of the proposed amendment itself, a strong argument could be made that any attempt to modify or extend that period would constitute an amendment to the proposed amendment, requiring the ratification process to begin again."

Even assuming arguendo that H.J. Res. 638 would be unconstitutional had the seven-year limit been included within the text of the ERA itself, it can nevertheless be viewed as constitutional if the placing of the limitation within what we

The language quoted above, from the opinion of the Court, was the opinion of Chief Justice Hughes joined by Justices Stone and Reed. Justice Black wrote a concurring opinion Joined by Justices Roberts, Frankfurter and Douglas, that would have disavowed the assertion in Dillon that the courts would under some circumstances ever be able to inject themselves into the type of dispute presented. Justices Butler and McReynolds dissented on the ground that a reasonable time had elapsed since the amendment was proposed. See note 51,

infra.

Although such an argument has some appeal, a contrary conclusion is supported by the analysis of the Court in Dillon v. Gl088, supra. In that case, the seven-year limit had been included in the text of the proposed amendment and the amendment had been ratified by the requisite number of States in about 13 months. If the Court had viewed the seven-year limit as a substantive part of the amendment, it could have affirmed the limit's validity solely on the basis that it had in any event been ratified as part of the amendment itself and thereby would constitute an amendment to Art. V. Indeed, the brief of the United States in Dillon appears to embrace such an argument. See Brief for the United States at 5-6. The Court did not, however, decide the case on this proffered ground, suggesting that the Court might not have viewed the seven-year limitation as being a substantive part of the Eighteenth Amendment. See also 55 Cong. Rec. 5649 (1917) (remarks of Sen. Stone). A contrary conclusion is also supported by the Court's decision in the National Prohibition Cases, 253 U.S. 350 (1920). In that decision, involving a challenge to the validity of the Eighteenth Amendment, Mr. Justice Van Devanter, in announcing the "conclusions of the Court," id., at 384, purported to set forth the "text" of the Eighteenth Amendment by quoting in full sections 1 and 2 but completely omitting section 3 which contained within it the seven-year limitation imposed for the first time by Congress. Id. at 385. See id., at 393 (McKenna, J. dissenting).

shall refer to as the "proposing clause" permits a different result. From an analytical viewpoint, we think that respectable arguments can be made on both sides of this question.

An argument against the constitutionality of H.J. Res. 638 might be based on the following analysis: As suggested by the language of the Coleman opinion, the question of a time limit is no longer open once a time limit is imposed by the proposing Congress. Furthermore, Art. V itself can be viewed as envisioning a process whereby Congress proposes an amendment and is divested of any power once the amendment is submitted to the States for ratification, other than possibly the power declared in Coleman to judge whether ratification has occurred. Also, it can be argued that no distinction should be made between the placing of a time limit in the text of a proposed amendment and placing it in the proposing clause; to do so is to elevate form over substance. Finally, it is not unreasonable to say that States having ratified a proposed amendment with a set time period have done so in the expectation that a necessary three-fourths of the States would do so within the established limit or else the proposed amendment would fail of adoption.

An argument favoring the constitutionality of H.J. Res. 638 might proceed as follows: Dillon and Coleman confirm the power of Congress to establish a "reasonable" time in which ratification may occur and, therefore, an extension of a time once established is constitutional if the extended period is reasonable. If, under Coleman, a Congress years after an amendment has been proposed has the power to determine the reasonableness of the intervening time period, there is no reason to conclude that a Congress in the position of the 95th may not determine, at a specific point in time, that an amendment is still viable and will be so for a reasonable number of years in the future.

Presented with these arguments without more, we would find it difficult indeed to choose between the two. We take as given from Dillon and Coleman that whatever power the 95th Congress may have to extend the seven-year limitation must be implied from Article V itself, and we think it fairly clear that such power may be implied unless the action of the 92d Congress must be viewed as binding on all future Congresses, including the 95th and the 96th, the latter being the Congress during whose life the initial seven-year period will actually expire. In our view, the soundest approach to resolving this question is to rely to the greatest extent possible on the historical understanding of the Congresses that have made use of the time limitation device.

II. HISTORIC PRACTICE REGARDING TIME-LIMITING CLAUSES

Although the placing of time limits for ratification in proposed amendments was considered in the 65th Congress,' the first occasion for its actual inclusion was in the Eighteenth Amendment. In that amendment, the limitation appears as section 3 and reads as follows: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

As pointed out by the Court in Dillon, this provision was included in part because of expressed Congressional concern that other amendments proposed much earlier in the history of the Republic might still be subject to ratification. Such a possibility concerned the 65th Congress because it generally agreed, as did the Dillon court subsequently, that some reasonable time period for ratification was implicit in Art. V itself. See Dillon v. Gloss, 256 U.S., at 372–73. Although the question was not focused on generally in House debate, at least one of the participants observed that "the [seven-year] limitation here is in the article that is to be submitted and is not a separate proposition. Hence, when it is voted upon by the States and adopted it is as much a valid article and amendment as [the substance of the amendment itself]."

In the Senate, fuller consideration was given to the question of the power of Congress to place a time limit on ratification. In response to the argument that

See e.g., 56 Cong. Rec. 446 (1917) (debate on proposed Eighteenth Amendment); "Article V expressly provides that once this proposed amendment has gone from the halls of Congress and rests with the States, when ratified by the States it becomes a part of the Constitution."

7 See remarks of Senator Buckalew, 71 Cong. Globe 2771 (1866); 85 Cong. Globe 912-13, 1040 (1869).

856 Cong. Rec. 463 (1917).

Congress had no power to impose a limitation on the ratification period, several senators argued that the apparent absence of such a power in Art. V would be overcome and such a power would be recognized as part of the Constitution should three-fourths of the States ratify within the then six-year period. 55 Cong. Rec. 5650 (1917) (remarks of Sen. Promerene); id., at 5659 (remarks of Sen. Sheppard). The debate in the Senate also indicated general agreement that the power of Congress to set such a limit would be subjected to judicial review and that failure of ratification by three-fourths of the States within the fixed time period would most probably require the resubmission of the amendment by a future Congress. Id.

When the next Congress came to propose the Nineteenth Amendment, congressional fears expressed in section 3 of the proposed Eighteenth Amendment were apparently put aside. The issue apparently never arose until an attempt to include a seven-year limit was made and, without debate, rejected."

When the Congress proposed the Twentieth Amendment by S.J. Res. 14 in 1932, a seven-year limitation was written into the text of the proposed amendment itself, now section 6 of that Amendment, in language virtually identical to that contained in section 3 of the Eighteenth Amendment quoted supra." On the floor of the Senate, section 6 was explained as follows: "In effect, it [section 6] is the same provision that was in the prohibition [Eighteenth] amendment to the Constitution."

99 11

During House consideration of S.J. Res. 14, Congressman Celler of New York proposed that a seven-year limitation, then not in the resolution, be added to what he described as the "preamble," or proposing clause, of the amendment. In doing so, he quoted at length from Dillon v. Gloss, supra."

Celler's proposed amendment to S.J. Res. 14 drew immediate criticism from his colleagues. Congressman Jeffers, apparently not favorably disposed to any limit, refused to debate its wisdom: Because I think it is very clear that it [Celler's proposal] is out of place where it is being offered; but if the amendment has any virtue . . . I think it should be offered at the end of the resolution as an additional section, and then if it should be adopted it would be a part of the constitutional amendment.

As it is now offered it would only be a part of the proposal clause of the constitutional amendment but would not be in the constitutional amendment.

If the gentleman wants his amendment in the Constitution, it should go in as a new section, or section 6. As he has now offered it, it would be of no avail. . . .13 Another of Mr. Celler's colleagues, Mr. Ramseyer, intending himself to amend S.J. Res. 14 to include a seven-year limitation for ratification, indicated his agreement with Mr. Jeffers as to the question of where the limit should be placed:

The eighteenth amendment carried that 7-year provision as section 3, and it was that provision that the Supreme Court [in Dillion] held to be valid..

Section 6 goes to the entire article, as to how it shall take effect. It appears in the eighteenth amendment as the last section of the amendment. . . . I am confident that is the place for it."

Congressman Celler, after this discussion, withdrew his amendment." When Congress proposed what became the Twenty-First Amendment, it included as section 3 of that amendment language virtually identical to that in the Eighteenth and Twentieth Amendments.10 Comments on the floor of the Senate included statements that "the Congress which submits an amendment has the power to fix the terms upon which it may be considered," 76 Cong. Rec. 4152 (1933), and "after Congress adopts the manner of ratification, by legislatures or conventions, it has no more role to play." Id., at 4164. See also, 55 Cong. Rec. 5652 (1917).

The Twenty-second Amendment likewise contained a seven-year limitation in section 2 of the amendment patterned after prior limitations. Senator McClellan

958 Cong. Rec. 93 (1919).

19 The phrase "as provided in the Constitution" was not included in section 6. Otherwise, the sections are identical.

1175 Cong. Rec. 5086 (1932).

12 "Proposal and ratification ... are not treated as unrelated acts, but as succeeding steps in a single endeavor. . . ." Id. at 3856, quoting Dillon v. Gloss, 256 U.S., at 374-75. 13 Id.

14 Id., at 3856-57.

15 Id., at 3857.

16 The notable differences was that ratification was to be by conventions in the several States rather than by State legislatures.

noted that "a period of 7 years' time is given, under the terms of the joint resolution [for] the amendment to be ratified. . . . " 93 Cong. Res. 1800 (1947).

The Twenty-third Amendment, proposed in 1960, for the first time did not include a seven-year limitation within the text of the amendment itself. Instead, the seven-year limitation was contatined in the proposing clause, which read as follows: That the following article is hereby 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 only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.

The history of the Twenty-third Amendment is lengthy, as pointed out in hearings conducted by Subcommittee No. 5 of the House Committee on the Judiciary chaired by Congressman Celler. Early proposals to grant the District of Columbia voting power in the Electoral College would have amended Art. IV, section 3 of the Constitution directly." In 1940 and 1941, amendments were reported out of committee containing seven-year limitations in the text of the proposed amendments.18

The House report on the amendment issued by Congressman Celler as Chairman of the full Committee on the Judiciary, explained the limitation as follows: "The resolution . . . consists of two parts. The first part provides by its terms that the resolution [sic] shall be valid as a part of the Constitution only if ratified by the legislatures of three-fourths of the States within 7 years after it has been submitted to them by the Congress.

Footnote 8 to the report read as follows:

Congress first adopted the 7-year limitation provision in proposing the 18th amendment to the Constitution. It did so because, at that time, several proposed constitutional amendments already submitted to the States for ratification had long laid dormant but were nevertheless subject to being resurrected and acted upon by the several States. (See Dillon v. Gloss, 256 U.S. 368, 373 (1921).

The first 10 amendments to the Constitution were ratified by the necessary number of States within 10 months, 20 days of their submission by the Congress. According to a statement in Coleman v. Miller, 307 U.S. 433, 453 (1939), the average time for ratification of amendments 10-21 has been computed to be 1 year, 6 months, 13 days; 3 years. 6 months, 25 days has been the longest time used in ratifying. The 22d amendment was ratified in 3 years, 11 months, 7 days. (See also Dillon v. Gloss, 256 U.S. 368, 372; Constitution of the United States, S. Doc. 170, 82d Cong., p. 39).

H.R. Rep. No. 1698, 86th Cong., 2d Sess. 4 (1960). During the debate in the House over the resolution, it was said that "the critical hurdle will be to secure the approval of three-fourths of the State legislatures on the proposed amendment within the 7-year period." 106 Cong. Rec. 12570 (1960). See also id.. at 12559. 12561-63, 12571.

The Twenty-fourth Amendment included a proposing clause identical to that of the Twenty-third Amendment. The House report on the proposed amendment stated: "This resolution requires, of course, ratification of the legislatures of three-fourths of the several states within 7 years from the date of its submission by the Congress." 19

When the Twenty-fifth Amendment was proposed in the 89th Congress, the seven-year limitation once again appeared in the proposing clause in language identical to that of the Twenty-sixth Amendment and that in H.J. Res. 208 proposing the ERA. This language eliminated the phrase "only if" and simply announced that the amendment would be valid "when ratified . . . within seven years. . . ." The reports issued regarding the Twenty-fifth and Twenty-sixth Amendments add nothing to our consideration of the time limitation.

20

21

The Senate Report on the ERA, in its "Sectional Analysis" of H.J. Res. 208, states concerning the "resolution" or proposing clause that: This is the traditional form of a joint resolution proposing a constitutional amendment for ratification

17 See Hearings on H.J. Res. 529 before Subcommittee No. 5 of the House Committee on the Judiciary 82 (1960).

18 Id.. at 106-08.

10 H. Rep. No. 1821. 87th Cong.. 2d Sess. 5 (1962)

20 See S. Rep. No. 66, 89th Cong., 1st Sess. (1965); H.R. Rep. No. 554, 89th Cong., 1st Sess. (1965).

S. Rep. No. 26, 92d Cong., 1st Sess. 2 (1971); H.R. Rep. No. 37, 92d Cong., 1st Sess. (1971.)