Hon. BIRCH BAYH, Chairman, Subcommittee on Constitution, U.S. Senate, Washington, D.C. DEPARTMENT OF JUSTICE, Washington, D.C. August 14, 1978. DEAR MR. CHAIRMAN: During my testimony on S. J. Res. 134 on August 2, 1978, you requested that the Department attempt to ascertain whether the United States Supreme Court had ever denied certiorari in cases involving the power of Congress to determine "subsidiary matters of detail" in the proposal and ratification of constitutional amendments. We have conducted the requested research and have not located any cases of this type. To the best of our knowledge, Dillon v. Gloss, 256 U.S. 368 (1921) and Coleman v. Miller, 307 U.S. 433 (1939) remain the only cases in which the Supreme Court has been presented with the opportunity to decide such issues. Thank you for this opportunity to supplement my testimony before the subcommittee. Sincerely, PATRICIA M. WALD, Assistant Attorney General, Office of Legislative Affairs. DEPARTMENT OF JUSTICE, Washington, D.C., August 18, 1978. Hon. BIRCH BAYH, Chairman, Subcommittee on Constitution, DEAR MR. CHAIRMAN: During our testimony before your Subcommittee on August 2, 1978 concerning extension of the time period for ratification of the proposed Equal Rights Amendment, you raised the question of whether the Supreme Court, since its decision in Coleman v. Miller, 307 U.S. 433 (1939), has had occasion to reconsider any of the questions regarding the constitutional amendment process that were decided either in Coleman or in cases prior to Coleman. As Mr. Simms of the Office of Legal Counsel indicated in response to your question during the hearings, our research indicates that the Court has not addressed any Article V questions directly since 1939. The Court has, of course, decided several cases since 1939 dealing generally with the so-called "political question" doctrine, but those cases would appear to leave undisturbed the holding of Coleman with regard to political questions in the amendment process. See, e.g., Baker v. Carr, 369 U.S. 186, 214 (1962). The Court has also decided numerous cases involving the "standing" doctrine that have cited the Coleman decision on that point, but none of those cases would appear to us to be of relevance to the current questions arising from the issue of extension. It may be that some of the issues presently being debated have been raised indirectly in lower court litigation since Coleman and the Court has denied applications for writs of certiorari in such cases. Our research has uncovered no cases in this category, but it is difficult to say with confidence that they do not exist. Even if they do exist, we doubt their relevance here because such denials say nothing about how the Court would have resolved the merits of the issues raised were they to have given plenary consideration to those cases. See, e.g., United States v. Carver, 260 U.S. 482, 480 (1923). We are also enclosing for the record a copy of Assistant Attorney General Harmon's letter to Chairman Don Edwards of July 10, 1978 responding to the views of Professor Gerard regarding reliance by the States on the seven-year period set by the 92d Congress. Sincerely, Attachment. Hon. DoN EDWARDS, PATRICIA M. WALD, Assistant Attorney General. Chairman, Subcommittee on Civil and Constitutional Rights, JULY 10, 1978. DEAR CHAIRMAN EDWARDS: This responds to your letter of June 27, 1978, in which you requested our views on a letter to Chairman Rodino from Professor Gerard dated June 14, 1978. In that letter, Professor Gerard states certain views regarding the hearings held on H.J. Res. 638 and the effect of passage of that resolution which would appear to us to be incorrect. The purpose of this letter is to set the record straight with regard to the issues raised by Professor Gerard. Professor Gerard states as follows: "At the hearings on H.J. Res. 638 before the Subcommittee on Civil and Constitutional Rights, everyone assumed that states had ratified only the proposed amendment, not the time limit under which it was submitted, and further that the time limit had played no major role in the ratification decisions. Both of these assumptions, it turns out, are demonstrably incorrect." It is true, as stated by Professor Gerard, that everyone at the hearings assumed that 35 States had ratified the text of the proposed ERA rather than the text of the entire resolution, H.J. Res. 208, 92d Cong., 2d Sess., proposing that text. This assumption was then and is presently justified because Art. V of the Constitution provides for States to ratify amendments to the Constitution. It does not provide for ratification of language in so-called proposing clauses. The fact that no language in proposing clauses has ever been thought to be part of the substance of an amendment to the Constitution is, we think, conclusive on this point. It is not true, as stated by Professor Gerard, that "everyone assumed . . . that the time limit had played no major role in the ratification decisions" of the 35 States. In the preparation of our opinion to Mr. Lipshutz of October 31, 1977 on various questions raised by H.J. Res. 638, we thoroughly examined the ratification documents submitted to the General Services Administration. In that opinion, which was placed on the record of those hearings, we stated, at page 48, as follows: "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." Thus, we think it fair to say that neither this office nor the members of the subcommittee, having before them our October 31 opinion, merely "assumed" that the States had not relied on the seven-year limit. Rather, on the basis of available evidence we had concluded that no case for reliance by the 35 States could be made out even assuming arguendo that such reliance would have any constitutional significance.1 Professor Gerard states that he has since "looked into the matter in some detail" and that his examination of ratification documents of 33 of the 35 States leads "one inevitably to the conclusion that the time limit was a material consideration" to at least 24 of those 33 States. The members of your committee are, of course, as free as Professor Gerard and this office to examine those documents in an attempt to discern the "intent" of the States involved. We would suggest, however, that yet another document, not mentioned or apparently considered by Professor Gerard, may cast some light on this question. That document is the letter of transmittal by which the proposed Equal Rights Amendment was transmitted to the States on March 24, 1972 by the GSA. In that letter, GSA requested that the Governors of each State "submit this joint resolution (H.J. Res. 208) to the Legislature of [his] State for such action as it may take *** ." In view of the language of transmittal, we do not find it surprising that the State legislators who drafted and sponsored resolutions of ratification generally took the approach of reprinting in those resolutions H.J. Res. 208 in its entirety. Yet it is this simple act of including in full the text of H.J. Res. 208 in ratification resolutions which provides the basis for Professor Gerard's conclusion. Absent any historical or contemporaneous evidence that legislators in any State have ever assumed that reliance could be placed on a time limit not contained in the substance of a proposed constitutional amendment, and we are aware of none, we find Professor Gerard's conclusion to be questionable at best. We would add that if his conclusion is correct, we assume that further evidence of its correctness would be available in the floor debates over the various resolutions of ratification in the States. In our view, the burden of demonstrating such reliance is on those who would assert reliance. We simply take the position that the burden is not carried by Professor Gerard. In closing, we would emphasize that Professor Gerard's letter does not even address the question whether the 35 States involved would have been consti 1 We would note that a full twenty pages of our opinion were devoted to the general question whether such "reliance" by a State would have constitutional significance and concluded that it would not. Because Professor Gerard does not challenge our analysis, we are unable to discern the point of his letter to Chairman Rodino. 2 We have attached a copy of that form letter for your convenience. 35-065-79-8 tutionally entitled to rely on the seven-year limit contained in the proposing clause of H.J. Res. 208. The answer to that question, we would respectfully suggest, is determinative of the power of the 95th Congress to extend the time period for ratification of the proposed Equal Rights Amendment. As stated in our October 31 opinion, it is our conclusion that, as a matter of constitutional law, the States could not rely on the time limit set out in the proposing resolution. Sincerely, JOHN M. HARMON, Assistant Attorney General, Office of Legal Counsel. MARCH 24, 1972. Hon. GEORGE C. WALLACE, DEAR GOVERNOR WALLACE: Enclosed is a certified copy of a resolution of Congress (H.J. Res. 208) entitled "Joint Resolution proposing an amendment to the Constitution of the United States relative to equal rights for men and women," passed during the second session of the Ninety-second Congress of the United States. It is requested that you submit this joint resolution to the Legislature of your State for such action as it may take, and that a certified copy of such action be sent to the Administrator of General Services, as required by section 106b, Title I, United States Code, a copy of which is enclosed. Please acknowledge receipt of this joint resolution. Sincerely, RED KREGER, Acting Administrator. SEPTEMBER 14, 1978. Hon. BIRCH BAYH, Chairman, Subcommittee on the Constitution of the DEAR MR. CHAIRMAN: This responds to your request for our views regarding whether this Congress or a future Congress, should the occasion arise, might take into account purported rescissions by States of their ratifications of the proposed Equal Rights Amendment. For reasons stated hereafter, we think that nothing in Article V of the Constitution would preclude Congress from considering purported rescissions in making its ultimate determination whether that proposed amendment had been ratified in a timely fashion so as fairly to represent the contemporaneous consensus of three-fourths of the States. Because this precise question has never arisen, there are no court decisions directly on point. Two cases decided by the Supreme Court, however, offer some guidance. In Dillon v. Gloss, 256 U.S. 368, 375 (1921), the Supreme Court stated that ... and the felt needs of today, and *** if not ratified early while that sentiment and the felt needs of today, and if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress." Reasoning from this language, the Court unanimously held that Congress had the power to establish a time period for ratification and indicated in dictum1 that a period of seven years for ratification would generally be constitutionally acceptable. In Coleman v. Miller, 307 U.S. 433, 453-54 (1939), the Court, appearing to depart from the more mechanical approach of Dillon, identified the substantive considerations upon which the reasonableness of a time period might be based: "The question of a reasonable time in many cases would involve * ** an appraisal of a great variety of relevant conditions, political, social and economic *** [And it] can be decided by the Congress with full knowledge and appreciation ascribed to the national legislature of the political, social and economic 1 After stating that the reasonableness of the 7-year period involved there had not been challenged, the Dillon court went on to say, 256 U.S., at 376. "nor could [the reasonableness of the seven-year period] well be questioned considering the periods within which prior Amendments were ratified." conditions which have prevailed during the period since the submission of the amendment." We think that part of the "full knowledge" ascribed to Congress by this language in Coleman could include the fact of purported rescissions by one or more States and that this fact could therefore be taken into consideration by Congress in its final determination of the timeliness question. We would emphasize, however, our view that purported rescissions may not, consistently with Article V, be viewed as having legally binding effect nor could the 95th Congress bind future Congresses on this point in connection with the present effort to extend the time period for ratification of the proposed ERA. Sincerely, JOHN M. HARMON, Assistant Attorney General, Office of Legal Counsel. AFTERNOON SESSION Senator BAYI. We will reconvene our hearings with apologies to those who have been waiting. We always are required to be at two places at once. Our next witnesses are James E. O'Neill, who is the Acting Archivist of the United States, National Archives and Records Service. He is accompanied by Ms. Allie B. Latimer, General Counsel of the General Services Administration, and by Fred Emery, Director of the Federal Register. We are anxious to have your thoughts on this matter of extending the time for ratification of the ERA. Please proceed. TESTIMONY OF JAMES E. O'NEILL, DEPUTY ARCHIVIST, U.S. NATIONAL ARCHIVES AND RECORDS SERVICE, GENERAL SERVICES ADMINISTRATION, ACCOMPANIED BY FRED J. EMERY, DIRECTOR, FEDERAL REGISTER; AND ALLIE B. LATIMER, GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION Mr. O'NEILL. Thank you, Mr. Chairman. Speaking for Mr. Jay Solomon, the Administrator of General Services, I thank you for the opportunity to review with you the role of the General Services Administration in the constitutional amend ment process. Accompanying me today are Ms. Allie B. Latimer, our general counsel, and Mr. Fred J. Emery, Director of the Federal Register. The Administration, of course, strongly supports Senate Joint Resolution 134 and the adoption of the proposed equal rights amendment. The responsibilities of the General Services Administration in handling the ratification of constitutional amendments by the States are based on article V of the U.S. Constitution, and title 1, section 106 (b) of the United States Code. Under Reorganization Plan 20 of 1950, the duties with respect to constitutional amendments were transferred to the General Services Administration from the Department of State. In carrying out these duties, the General Services Administration has, in general, followed precedents and customs established by the Department of State. The procedures involved in the General Services Administration's role in constitutional amendments are as follows: First, the Congress sends to the Oflice of the Federal Register in the National Archives and Records Service of GSA the original joint resolution proposing an amendment to the Constitution. Identical letters are then sent to each Governor by the Administrator of General Services requesting that the proposed amendment be submitted to the State legislature and that a certified copy of the legislature's action be sent to the Administrator. Also included with the letter are a certified copy of the proposed amendment as well as extra printed copies. If action is taken by a State legislature, a certified copy of the action document which evidences adoption of the amendment by the State is sent to the Administrator of General Services. These action documents are maintained by the Office of the Federal Register for record and information purposes and are made available for public inspection. When notices have been received which indicate the amendment "may have been adopted" by three-fourths of the States-currently 38 States a certificate naming the States which have ratified the amendment is prepared for the Administrator's signature. After signature by the Administrator, the original certificate is received by the Office of the Federal Register for publication in the Federal Register and in the U.S. Statutes at Large. As can be seen from this explanation, the functions vested in the Administrator of General Services in handling these State ratifications involve receiving State ratification documents and making them available for public inspection, and, after 38 States have ratified, publishing the amendment along with a certificate proclaiming that the amendment has become valid as part of the Constitution of the United States and specifying the States which have ratified. These documents from States acting on proposed constitutional amendments are then deposited in the National Archives for permanent preservation. We consider them to be among the most important records of the history of the Nation. With respect to the current status of the proposed equal rights amendment, the legislatures of 35 States have apparently adopted, and we have the action documents on file at the Office of the Federal Register. The legislatures of four States have taken action purporting to rescind their ratifications. These States are Nebraska, Idaho, Tennessee, and Kentucky. We have also received documents reflecting these actions. In addition, in June of this year we requested from the Governors of all 50 States information on all actions taken with regard to this proposed amendment by either House of the State legislature. This request was made to assure the preservation of the valuable historical record of the amendment process. To date, we have received responses from 29 States. That concludes my statement. My colleagues and I will be glad to answer any questions the subcommittee may have. Senator BAYH. Before the recess for lunch, we were discussing the friendly disagreement or difference of opinion that the Senator from Utah, Senator Hatch and I had, relative to what it is indeed that the States question in terms of ratification and to what extent the time limitation is to be a major factor. |