Whether they would or not-I don't know what those nine people will do. But I am saying what I think they should do.

The other question is more or less a question of prudence. But, of course, Congress has the obligation to follow the spirit of the Constitution. And I think the committee is really asking for such advice as academics can give on that.

And in my view, 14 years is like that song, you know, it is a mighty long time to have an amendment pending before the country.

Mr. EDWARDS. Well, then, why wouldn't your view be that the proposition itself is unconstitutional, that it ought to be two-thirds, and the 35 or 38 States or whatever the number might be that have already ratified, would have to be gone back to?

Professor BLACK. I think you can make a severely technical argument to that effect that the States who ratified and ratified something different from this, I think that is pushing logic too far. My theory of constitutional law is always backwards, forwards, and sideways, it has to make sense. That, to me, would be too logical, too severely logical. I think if you extend the time to a reasonable time by two-thirds vote, no substantial harm is done to anybody, and nobody has any substantial cause to complain.

I have read an argument, a very able argument, to the contrary. But I myself reject it. I think you do have this power to extend for a reasonable time with some validity in my mind, as to whether 14 years is such a time, by two-thirds vote of each House.

That is a summary of my view.

Mr. EDWARDS. You think that the Members of Congress relied on the 7-year period?

Professor BLACK. I think one cannot assume, it is impermissible to assume, that they didn't, that if they voted for something, they voted for all of it, and that the particular terms of it-that one of these can be treated as evidently in no way affecting the vote-is just totally impermissible as a constitutional matter.

It may or may not have been true in this case. I don't know. I know that there was serious discussion of this and and amendment to put in 7 years did pass in the Senate at an earlier stage of the consideration of this proposed amendment. But I think what we are talking about now is what we will do every time, what it takes to legitimate a part of the Constitution.

This is the process which, above all, should be one in which we cut square corners, and assure that legitimation has taken place.

I don't think you can do that if you just assume that we all kind of remember that enough people would have voted for this one anyway, whether it had 7 years in there or not. I don't believe that is the way one an deal with a matter which is to set a precedent for the long future for all kinds of constitutional amendments forever.

Mr. EDWARDS. I don't want to pursue it too far, but it seems to me that you have a double standard; that you are saying that the members of Congress relied on the 7-year period, but not the State legislators. You are willing to call it constitutional if there is a two-thirds vote in the House and the Senate, but then you overlook the same principle insofar as the State legislatures are concerned.

Professor BLACK. As I say, I believe most logic might conceivably lead you to that. I do not think the two things are disconnected.

We have to do here with a piece of paper which was voted on in the Houses of Congress and with the knowledge of each member focused on the contents of the piece of paper. And part of the contents was the 7 years limitation. Nobody ever voted for anything without that limitation. Not even one vote was ever cast or could have been as against the proposition that we have to start all over again because the State legislators have themselves relied on the 7-year limitation.

I don't think my position is inconsistent because if that reliance were made, it would have been misplaced in the whole scheme of my thought since I do believe Congress can change this by a two-thirds vote. So that the State reliance would have been wrong in my view.

And I think that is one reason, perhaps the logicial reason, why I would find the fault in that.

Mr. EDWARDS. Thank you very much, Professor.

The gentlewoman from New York, Ms. Holtzman.

Ms. HOLTZMAN. Thank you very much.

Professor BLACK. Do you have serious doubts about the reasonableness of 13 years?

Professor BLACK. 14?

Ms. HOLTZMAN. 13 years.

Professor BLACK. I am sorry, madam, I can see where we are going, and I think the decision is exactly what

Ms. HOLTZMAN. Do you have reasonable doubts about or do you have serious doubts about 13 years?

Professor BLACK. If you want to do it, yes, I guess I do.

Ms. HOLTZMAN. You have serious doubts? Are you familiar with the Coleman case?

Professor BLACK. I am familiar with the fact it didn't pass. The amendment didn't pass.

Ms. HOLTZMAN. What was the holding of the Coleman case with respect to Congress power to set reasonable time limits?

Professor BLACK. It was that that was up to Congress.

Ms. HOLTZMAN. What was the holding with respect to the power of Congress constitutionally? Wasn't the holding of Coleman that Congress had only the power to set reasonable time limits and didn't have power to set unreasonable time limits? Isn't that the holding of Coleman, one of the holdings?

Professor BLACK. I think probably so. I find the Coleman case a mystery.

Ms. HOLTZMAN. In that case, Professor Black, isn't it fair to say that Congress, if 13 years were an unreasonable period of time, would not have had constitutional power to set that period? Isn't that correct?

Professor BLACK. I am puzzled, madam, because I don't think they did. The child labor amendment didn't pass. And so Congress

Ms. HOLTZMAN. That is not the issue that was before the Court. Professor BLACK. But Congress never accepted 13 years as reasonable. What the Court said, as I recall Coleman, was that if Congress should do so, though it never did, in fact, the Court would not

Ms. HOLTZMAN. But the issue before the Court, very clearly, was whether the 13-year period was a reasonable period of time.

Professor BLACK. I thought they said they balked that issue because it was a political question, and they wouldn't decide it.

Ms. HOLTZMAN. But, Professor Black, it is not a political question if Congress does not have the power to set an unreasonable period of time. So what the Court retains is the power to review the issue of reasonableness.

And clearly, it would seem to me as a matter of plain logic that if the Court said it was reasonable for the Congress to accept a 13-year period of time, then that that was a constitutional limit, 13 years was constitutional and it was a reasonable period of time.

Professor BLACK. Well, you know, I don't have that case right before me. And I am not sure whether you are right or not. And in an age when we have seen the overturn of so many precedents, I don't think that a single precedent of a complicated class would conclude forever the issue whether 14 years is a reasonable time.

Ms. HOLTZMAN. I understand that, but if we do accept Coleman as a living precedent, then we are safe to say at least that 13 years is a reasonable period of time because it was within the constitutional power of Congress to accept it.

Professor BLACK. That was an argument of a man which rests altogether on the exact language of Coleman. And I don't have that before me or fresh in my mind. So I would have to say that that is what you say, but I don't know what I would say if you say the legislation

Ms. HOLTZMAN. But nevertheless, Professor, you came here with enormous certitude and said 14 years created serious doubts in your mind as to constitutionality without the language of Coleman before

you.

Professor BLACK. Yes, but that would be true whatever Coleman said. That still would create doubts in my mind just as Plessy v. Ferguson creates doubts. I have great doubt about that, although Plessy v. Ferguson was the firm law in that case.

My own estimate of where I start to say what is a reasonable time is not dependent in the least on what the Court said in Coleman v. Miller. I would address it as an original question and ask myself whether the time from the entry of the United States into World War I to virtually the election of Franklin D. Roosevelt was a reasonable time for one to speak of contemporaneous consensus.

I reserve my opinion as to what Coleman v. Miller said because I am not kicking that around right now in my head. I think this is a practical question rather than one that can be settled by one rather complicated and cloudy precedent in the Supreme Court.

Ms. HOLTZMAN. In that case, can we say until you have reviewed the language of Coleman v. Miller, the suggestion made to the committee in such emphatic terms that the 14-year period raised serious. doubts is at least inoperative?

Professor BLACK. I wouldn't take that suggestion, ma'am. It raises serious doubts in my mind in very emphatic terms. The proposition I am emphatic on and totally committed to is you have got to do it by a two-third vote. And that is a different question altogether.

Ms. HOLTZMAN. Let's examine that principle. Is Congress required to act with respect to all its powers under article V by two-thirds vote?

Professor BLACK. No; I wouldn't think so. No; I do think so. Ms. HOLTZMAN. What powers do not require a two-thirds vote? Professor BLACK. I would suppose that as to anything in the article, Congress would probably act by majority vote if the action were clearly disjoined in every way from action on the substance of an amendment. That would be my truly balanced answer.

This would raise a lot of hypothetical questions.

Ms. HOLTZMAN. Do you make some procedural distinction versus substantive distinction?

Professor BLACK. No, ma'am.

Ms. HOLTZMAN. What distinction, then?

Professor BLACK. My distinction arises again, this, to me, as I say, is the heart of the matter-from the language of what was voted on in 1972.

Ms. HOLTZMAN. Does Congress have to accept the ratifications by two-thirds vote?

Professor BLACK. Certainly not. No, indeed.

MS. HOLTZMAN. Isn't that inextricably linked to the substance? Professor BLACK. But the acceptance of ratification by Congress is not an article V power. It is not so stated. It is not in article V. As a matter of fact

Ms. HOLTZMAN. Where is it?

Professor BLACK. It is not anywhere. There is no statement as to who accepts ratification. It is a matter of practice from time to time. And it has been changed from time to time.

Ms. HOLTZMAN. I understand my time has expired.

Mr. DRINAN. I ask that the gentlelady be allowed to proceed for 5 more minutes.

Mr. EDWARDS. If there is an objection

The Chair hearing none, the gentlewoman is recognized.

Ms. HOLTZMAN. Thank you very much, Mr. Chairman, and members of the committee.

Professor Black, surely there must be something in the Constitution that gives Congress the power to accept amendments?

Professor BLACK. If you say so, show it to me. If you say there is. I would think that would put the burden on you to tell me where it is. I don't happen to recall if there is a passage like that.

I don't have the whole thing memorized by heart, but I don't believe there is.

Ms. HOLTZMAN. So Congress has no constitutional power to determine whether ratifications have properly taken place, whether 38 States have ratified?

Professor BLACK. If it has, it arises by the kind of common sense inference that one makes in the silence of the Constitution. Isn't that right, Tom?

Ms. HOLTZMAN. Isn't that an implicit power from article V? Isn't it implicit Congress has the power to determine whether 38 States have ratified?

Professor BLACK. I think that is a subject-all the certitudes of these implications-I am not sure. I think perhaps so. It certainly isn't in the Constitution. It is as implicit, as much an inference, from commonsense as is my view that a State may rescind. We get them

both from the same place. That is from considering what the commonsense positions on the matter are.

Ms. HOLTZMAN. I haven't said anything about rescission.

Professor BLACK. I know you haven't, but I have. I just said it. Ms. HOLTZMAN. Who determines whether rescission is valid, Professor Black, and by what vote?

Professor BLACK. My own theory would be that is a straightout question of law and should be determined by the courts. It is not a question of moreness or lessness, of prudence, that maybe three is too many and maybe five is not enough, and so on. That is not the way, in my mind, to legitimate constitutional amendments.

It should be a very square-cornered procedure. It is a sheer question of law, yes or no, and in my view should be answered by a court.

Ms. HOLTZMAN. You mean if there were 38 States that now ratified the equal rights amendment, before any extension of time, you would say that no Federal officials could at the direction of Congress certify that the amendment was now part of the Constitution; that that would have to wait for an order of the Supreme Court? Is that what you are saying?

Professor BLACK. It doesn't have to wait any more than the passage of a nonconstitutional

Ms. HOLTZMAN. How does it get to be part of the Constitution, then? Just by what

Professor BLACK. Madam, I don't think you allowed me to finish my reply.

Ms. HOLTZMAN. Please.

Professor BLACK. That, of course, the Administrator of General Services who is now the official in charge of the premises could do whatever he was advised to do, and just as Congress may pass an unconstitutional statute which is later challenged in court, so it might approve what he has done or direct him to do so.

It is my view just as with all other congressional action or at least with many other congressional actions, questions of law may arise as to their constitutionality. And when these questions come up in court, then the court decides them.

Now, it seems to me that this is not one which falls within the political question exception. It is a straight, plain yes-or-no question of law and that the judicial branch should ultimately decide.

This is not a prediction as to what they will do. I have no way of predicting what they will do. I am simply giving my own view as to what I think they should do.

Ms. HOLTZMAN. So I take it, then, in that case, that if 38 States have ratified the equal rights amendment and 3 have rescinded prior to March 1979, that Congress would not have the right then to say that the rescissions were effective?

Professor BLACK. Congress has the right to say anything it wants to. The question is whether the Supreme Court should give effect to what they say, as it is with all questions of constitutionality of acts of Congress.

I do not think Congress would have the power to say with finality that the amendment had been adopted.

Mr. EDWARDS. The gentleman from California, Mr. Beilenson.