by Congress may later reconsider its action and give its approval, but that a ratification once given cannot be withdrawn. (At 400)." "It would seem, then, that a state legislature which has rejected an amendment proposed by congress may later reconsider its action and give its approval. (Willoughby on the Constitution, sec. 329a.). "In a release from the department of state under date of April 20, 1935, attached as an exhibit to plaintiff's petition in this case, giving the status of the child-labor amendment, it appears that in five states, Indiana, Minnesota, New Hampshire, Pennsylvania and Utah, after the proposed amendment had been rejected, each of the states later adopted a resolution of ratification. When these states rejected the amendment, was their power with reference to the proposed amendment exhausted? If so, the subsequent ratification would be void. Is it to be seriously argued that the secretary of state could not count these five states in making up the total number of states necessary to adopt the amendment? "Thus it appears to be an historical fact that many states have rejected proposed amendments, and have later ratified them. (At 401). "From the foregoing and from historical precedents, it is also true that where a state has once ratified an amendment it has no power thereafter to withdraw such ratification. To hold otherwise would make article 5 of the federal constitution read that the amendment should be valid 'when ratified by three fourths of the states, each adhering to its vote until three fourths of all the legislatures shall have voted to ratify.' "It is clear, then, both on principle and authority, that a proposed amendment once rejected by the legislature of a state may by later action of the same legislature be ratified; and that when a proposed amendment has once been ratified the power to act on the proposed amendment ceases to exist.” (At 403) [emphasis added]. The Supreme Court of the United States affirmed the decision of the Supreme Court of Kansas in an unusually complicated ruling. See note 4, supra. 52 The opinion of the Court, written by Chief Justice Hughes and on this issue actually joined by Justices Stone and Reed, and presumably joined by Justices: Black, Roberts, Frankfurter and Douglas, recited the historic precedent estab-lished on the occasion of the adoption of the Fourteenth and Fifteenth Amendments and observed that this "decision by the political departments of the Government as to the validity of the adoption of the Fourteenth Amendment has been accepted." 307 U.S., at 450. The question whether a State has the power to change its position with regard to the adoption of a constitutional amendment does not seem to have become a serious issue in connecion with any of the later amendments submitted to the States. The problem, however, did arise indirectly in connection with legislation designed to establish procedures for calling constitutional conventions. In that context the Senate committee reports conceded that under existing law a State could not rescind its ratification of a constitutional amendment but took the position that the law should be “changed.” The bills therefore provided in effect 52 On this particular point, we think that the opinion of Chief Justice Hughes must rightly be thought of as an opinion of the Court as it is described at its outset. We say this because Justice Black and those joining his concurring opinion clearly reached the merits of the issues raised, 307 U.S., at 456 (under "compulsion" of the court's holding on the standing question) and also indicated that his disagreement with Hughes' opinion was limited to aspects of Hughes' opinion not relevant to the present discussion, id., at 458. 53 "The question of whether a State may rescind an application once made has not been decided by any precedent, nor is there any authority on the question. It is one for Congress to answer, Congress previously has taken the position that having once ratified an amendment, a State may not rescind. "The committee is of the view that the former ratification rule should not control this question and, further, should be changed with respect to ratifications. Since a two-thirds concensus among the States in a given period of time is necessary to call a convention, obviously the fact that a State has changed its mind is pertinent. An application is not a final action. A State is always free, of course, to reject a proposed amendment. Of course, once the constitutional requirement of petitions from two-thirds of the States has been met and the amendment machinery is set in motion, these considerations no longer hold, and rescission is no longer possible. On the basis of the same reasoning, a State should be permitted to retract its ratification, or to ratify a proposed amendment it previously rejected. Of course, once the amendment is a part of the Constitution, this power does not exist. S. Rep. No. 336, 92d Cong. 1st Sess. 14 (1971); S. Rep. 293, 93d Cong., 1st Sess. 14 (1973). that a State could rescind its ratification of a proposed constitutional amendment until it had been validly adopted. Both bills passed the Senate but died in the House of Representatives." 54 B. The application of Madison's principle When the Supreme Court held in Dillon v. Gloss, supra, that Congress has implied power under Article V to set a time period for ratification of a proposed amendment, it was writing on what was virtually tabula rasa. Likewise, in approaching the question whether Congress may extend a limitation once set, we think that historical understanding, while informative, cannot be thought of as conclusive. With regard to whether a State might rescind during an "extension" period there is certainly a temptation to assume that the question may be approached in the same manner because, no extension ever having been contemplated, it follows that the question of rescission during such a period could not have been contemplated. Were we to take such an approach, we could perhaps be easily persuaded by the argument that "[t]he extension of time for ratification but not for rescission would be *** grotesque *** 9 55 That argument appears to be that failure to provide for rescission would permit an amendment to be ratified without the "contemporaneous consensus" required by the Constitution (presumably required by Article V as interpreted in Dillon v. Gloss, supra). This lack of a "contemporaneous consensus" would, under this view, perhaps be evidenced by several or many attempted rescissions by States that would give a reasonable man reason to think that no consensus existed. That analysis confuses two issues that should, we think, be sharply differentiated in the consideration of H.J. Jes. 638. First is the issue whether the period of 14 years proposed in H.J. Res. 638 is "reasonable' 'in view of the interpretation placed on Art. V in Dillon v. Glass and with which we are in agreement. If 14 years or possibly a leser period is, in the judgment of Congress, "reasonable," the the question of the power of States to rescind in the last seven years of the 14-year period is irrelevant. The second issue is, of course, whether the States may rescind a prior ratification during the extension period because the will of of its people has in fact changed since initial ratification. This argument would appear to reduce to the proposition that a seven-year extension can be viewed as "reasonable" only if no substantial number of States actually attempt to rescind their ratifications during the extension period. Under this view, the power to rescind functions as a sort of escape valve permitting the States themselves to determine what is or what is not a "reasonable" period of time by acts of rescission. We are unable to agree with that analysis. In our view, the lesson of history, including prior congressional interpretation of Art. V with regard to the Fourtenth Amendment, is that States may not rescind a ratification. And we think Dillon v. Gloss and Coleman v. Miller are equally dispositive in rejecting any possibility that States, rather than Congress, are to have the final say concerning whether an amendment has been ratified within a "reasonable" time. In our view, the most persuasive argument that Art. V permits rescission during an extension period is predicated on a notion that State legislatures may have relied on the seven-year period established in H.J. Res. 208 by assuming that they would be held to their ratification for a seven-year period and no longer. We have examined the certifications of ratification submitted to GSA by the 35 States having ratified the ERA and are unable to conclude that such reliance is indicated, at least on the face of those documents. More importantly, we think that such a 54 The latest congressional recognition of the rule that a state cannot rescind its ratification of a constitutional amendment of which we are aware is Senator Bayh's statement on the floor of the Senate, delivered on March 6, 1974: "Mr. BAYH. Mr. President, one of the questions which has aroused considerable interest with respect to the proposed 27th amendment to the Constitution has been whether a State once it has ratified the amendment may later change its mind and rescind its ratification. The issue was first raised by the State of Nebraska which has now rescinded its earlier ratification. Several other states, in addition, have similar rescission resolutions pending before their State legislatures. "I am firmly convinced that, once a State legislature has exercised the powers given it by article V of the Congress, it has exhausted its powers in this regard and may not later go back and change its mind." 120 Cong. Rec. 5574 (1974.) Statement of Charles L. Black, Jr., Sterling Professor of Law, Yale University, on Extension of Time for Action on Amendments for the States, October 12, 1977. concept of “reliance" is essentially no different, in kind, from the proposal before the New York Convention to ratify the Constitution on a conditional basis, an act that James Madison viewed as invalid. We say "no different in kind" because, from a purely analytical point of view, the only difference would be that Congress' act of setting a seven-year limit in H.J. Res. 208 or in H.J. Res. 638 would have to be viewed as equivalent to Congress' extending to the States a right to raitfy an amendment conditionally. We think that the whole thrust of history is that Art. V, as interpreted, does not permit States to rescind or otherwise place conditions upon their ratifications. If we are correct in this view, we think it follows that such a power can be granted only by an amendment to Art. V itself. V. THE POLITICAL QUESTION DOCTRINE Although we think that the constitutional questions raised by H.J. Res. 638 should be addressed on their merits without reference to the likelihood that the courts will finally resolve any or all of them, we recognize that the difficulty of those questions coupled with the uncertainty we (and presumably others) entertain with regard to our resolution of them can give rise to congressional interest in this question. 57 Prior to the decision in Coleman v. Miller, the Court consistently 'entertained and resolved questions arising out of the amendment and ratification process." In Coleman itself, we think that a majority of the Court squarely held that the effect of prior rejection on ratification was a political question not justiciable in the courts and that the same majority took the same view of the effect of rescission on final ratification by three-fourths of the States. We see no reason why the Court would change its prior position on the political nature of these questions unless perhaps if this aspect of Coleman were premised on the understanding that the answers to these questions had been firmly settled by history and were not subject to reversal by a future Congress. There was, however, no clear majority in Coleman, as pointed out by Justice Black in his concurring opinion, for the position that courts could never review the question of reasonableness. Thus, we are not at all certain that the question of the reasonableness of the seven-year extension might not be subjected to judicial review in an appropriate case, particularly were ratification by the requisite three-fourths of the States to be obtained toward the end of the 14-year period. We think that decisions of the Supreme Court subsequent to Coleman,58 as well as the cases cited in note 55, supra, indicate that the questions of the power of Congress to extend a ratification, the vote by which such an extension must be adopted, and perhaps whether Congress might confer on the States a right to rescind are more likely to be viewd as justiciable controversies in appropriate cases. We take this view because these questions do not appear to present situations in which there is either a textually demonstrable commitment of their resolution to the Congress or there are no judicially discoverable standards by which to resolve the questions presented. 59 JOHN M. HARMON, Assistant Attorney General, Office of Legal Counsel. JUNE 27, 1978. JOHN M. HARMON, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, Washington, D.C. DEAR MR. HARMON: I would like to ask your assistance in clarifying an issue that has been raised in connection with H.J. Res. 638, the proposal to extend the ratification period for the Equal Rights Amendment. The issue was discussed at the hearings held last fall by my Subcommittee and was dealt with in your 5 See Hollingsworth v. Virginia, supra; Dillon v. Gloss, supra, Hawke v. Smith, supra; The National Prohibition Cases, supra; Leser v. Garnett, supra; United States v. Sprague, See note 51, supra. supra. be E.g., Baker v. Carr, 369 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969). Even assuming that the question of the effect of a rescission is non-justiciable under Coleman, as we do, it is possible that the Court would take a different approach were H.J. Res. 638 to be amended to provide explicitly for such a right to rescind. This is so because the power of Congress to grant such a right to the States by statute would perhaps be placed on a different footing. testimony, as well as in that of several other witnesses. However, it has come up again in the context of the attached letter from a professor at Washington University School of Law. The question raised by Professor Gerard has to do with the role the seven year time limit played in the ratification process in those states which have already ratified the Equal Rights Amendment. Prof. Gerard argues that a number of states ratified on the basis that the language of the preamble, which contains the time limit, was an essential part of what they were ratifying. As support for his argument, Prof. Gerard relies on the fact that a number of states recited the entire joint resolution proposing the amendment-including the time limit-in their certificates of ratification. He argues that an extension of time beyond March 22, 1979, would invalidate all such ratifications conditioned on the time limit. While the question of reliance on the time limit was addressed thoroughly at our hearings last fall, both by you and by others, I hope that you would be wiling to respond briefly to this argument as it relates specifically to the certifications referred to in the attached letter. I have not enclosed the certificates themselves because I am sure you already have copies of them in your own records. I hope I may have your answer as soon as possible: the Committee is planning to move ahead on H. J. Res. 638 in the next two weeks. Your clarification of this question would be greatly appreciated. With kind regards, Sincerely, DON EDWARDS, Enclosure. Hon. DON EDWARDS, Chairman, Subcommittee on Civil and THE DEPUTY ATTORNEY GENERAL, Chairman, Subcommittee on Civil and Constitutional Rights, DEAR MR. CHAIRMAN: This responds to your request for the views of the Department of Justice on the constitutionality and legal effect of various proposals which would amend H. J. Res. 638 as reported out of the Committee on the Judiciary on August 1, 1978. Generally, those proposals would allow States to rescind their prior ratifications of the proposed Equal Rights Amendment during the thirtynine month "extension" period for ratification that would be established in H. J. Res. 638. We believe that these proposals are inconsistent with the firmly established principle that States may not conditionally ratify a proposed amendment to the Constitution. Further, we believe that any of these proposals, if adopted, would at most express the views of the 95th Congress on a question which can only be resolved by the Congress in session when three-fourths of the States appear to have ratified the proposed amendment.1 Since James Madison first expressed the view nearly two hundred years ago that the act of ratification by a State must be "in toto" and "forever," Congress, the courts, and virtually all legal scholars who have addressed the question have accepted the principle that Article V of the Constitution recognizes the validity only of affirmative acts. With regard to the constitutional amendment process, the rule has meant that a State that first rejects a proposed amendment may later ratify it and a State, once it ratifies an amendment, may not later rescind the earlier ratification. Simply stated, Article V gives a State the power to bind subsequent legislatures by its ratification, but not its rejection of a proposed constitutional amendment. In 1788, the convention called in New York to consider ratification of the newly proposed Constitution followed Madison's principle. In 1789, the State of North Carolina, and in 1791, Pennsylvania, did the same. In 1868, the full Congress applied Madison's principle when it declared ratification of the Fourteenth Amendment. In 1870, 1913, 1919 and 1920 the Secretary of State (exercising the authority now granted to the General Services Administration under 1 U.S.C. 1 The substance of what follows is based on an opinion rendered by the Office of Legal Counsel to the Counsel to the President on October 31, 1977 and entered as part of the record of hearings conducted by your subcommittee on H.J. Res. 638 on November 1, 1977. § 106b), recognized and applied Madison's principle in proclaiming ratification of the Fifteenth, Sixteenth, Eighteenth and Nineteenth Amendments. The Senate most recently acknowledged the historic acceptance of the principle in 1971, when it was considering a bill to establish procedures for calling constitutional conventions." In 1939, seven Justices of the Supreme Court reaffirmed Madison's principle in Coleman v. Miller, 307 U.S. 433, stating the view that the law on this question had been settled by "historic precedent." Although the Coleman decision characterized the question as a "political" one, we share the view of Professor Noel T. Dowling expressed the following year that the result reached by the Court "involve[d] something akin to a decision on the merits" and that this aspect of Coleman was in reality "a pronouncement on the law."* In light of the foregoin ghistory, we believe that Madison's principle that a State's ratification must be "in toto" and "forever" is firmly embedded in our constitutional jurisprudence and that State legislatures and legislators are bound by that rule in 1978 as they have been throughout the life of the Constitution. Congress's power, derived from Article V, to tend to the subsidiary details of the amendment process cannot be extended to sanction recognition of the validity of a State's purported rescission, which would abrogate this basic constitutional principle. We understand that some Members of Congress have argued that even if Article V does not permit rescission by the States, Congress can nevertheless provide for rescission. There are two answers to that proposition. First, if Article V itself requires a State's ratification to be “in toto" and "forever," we believe it indisputable that a congressional action providing for rescission would be nothing less than a repudiation of Madison's principle. If Congress wants to do that, it must amend Article V. Second, nothing the 95th Congress does with regard to rescission would prevent the 96th or a subsequent Congress from refusing to recognize the validity of rescission by States if that Congress were to be presented the question of ratification of the proposed Equal Rights Amendment. This proposition flows from the fundamental tenet that one Congress cannot bind a future Congress with respect to questions of constitutionality and policy, and also from our conclusion, explained above, that questions involving the constitutional amendment process are governed by Article V and not by the legislative judgment of a particular Congress. In other words, questions such as rescission inevitably must be resolved as a matter of constitutional interpretation rather than a a matter of policy choice. This is not to say that Congress may not in appropriate circumstances express its views on constitutional questions, including the question of recission. The 95th Congress might desire to communicate to future Congresses and to the States its view that the validity of rescissions by the States during an extension period should be recognized by Congress should the occasion to do so present itself. We do not recommend that course. As Professor Charles Black wrote in a letter to Chairman Rodino in 1972 (arguing against the wisdom of S. 215), even though such a bill would not bind future Congresses, "it might be used as a specious talking-point supporting the assertion of an obligation which, on reflection, cannot be created, morally or practically," by the 95th Congress. On the contrary, based on 190 years of constitutional precedent, it may be unfair to the States to suggest at this time that their rescissions would be recognized as valid and binding by a future Congress. 6 In conclusion, it is our opinion that Congress may not constitutionally give to the States the power to rescind their prior ratifications of the Equal Rights Amendment. No amendment to H. J. Res. 638 purporting to grant that power to the States would have any legal effect or be binding on future Congresses. Sincerely, BENJAMIN R. CIVILETTI, 2 See S. Rep. No. 336, 92d Cong. 1st sess. 14 (1971) (on S. 215, introduced by Senator Ervin). 3 Dowling, "Clarifying the Amending Process," 1 Wash. & Lee L. Rev. 215, 219 (1940). We understand that at least one proponent of an amendment to H.J. Res. 638 to provide for rescission. Congressman Railsback, accepts this proposition entirely. See H.R. Rep. No. 1405, 95th Cong., 2d sess. 34 (1978) (separate views of Mr. Railsback). Black. "Amending the Constitution: A Letter to a Congressman," 82 Yale L.J. 189, 191 (1972). • Id., at 193. |