ERA Will Hurt The Family:

ERA will invalidate all state laws which re

quire a husband to support his wife.
ERA will impose on women the equal
(50%) financial obligation to support
their spouses (under criminal penalties,
just like husbands).

ERA will impose on mothers the equal (50%)
financial obligation for the financial
support of their infant and minor chil-
dren.

ERA will deprive senior women, who have
spent many years in the home as wife
and mother, of their present right to be
supported by their husbands, and to be
provided with a home.

ERA will eliminate the present right of a wife
to draw Social Security benefits based
on her husband's earnings. For a
homemaker to receive benefits, her
husband would be forced to pay double
Social Security taxes on the assumed
value of her services in the home.

ERA will compel the states to set up
taxpayer-financed child-care centers for
all children regardless of need. (See
Ohio Task Force Report)

ERA will deprive state legislatures of all
power to stop or regulate abortions at
any time during pregnancy. ERA will
give women a "constitutional" right to
abortion on demand.

ERA will legalize homosexual "marriages"
and permit such "couples" to adopt
children and to get tax and homestead
benefits now given to husbands and
wives.

What ERA Will
Not Do!

ERA will not give women "equal pay for
equal work," better paying jobs, promo-
tions, or better working conditions.
ERA can add nothing whatsoever to the
Equal Employment Opportunity Act of
1972.

ERA will not help women in the field of cre-
dit. This has already been mandated by
the Equal Credit Opportunity Act of
1974. On the other hand, ERA will take
away from wives their present right to
get credit in their husband's name.

ERA will not give women better educational
opportunities. This has already been
mandated by the Education Amend-
ments of 1972.

ERA will not help women in athletics, but

will require sex-integrated coed non-
sense such as the recent order by the
Pennsylvania courts that all high
schools must permit girls and boys to
compete and practice together in all
sports including football and wrestling.

ERA will not protect privacy, but instead will

prohibit privacy based on sex in public
school restrooms, hospitals, public ac-
commodations, prisons and reform
schools.

Senator BAYH. Professor Gerard, you have been even more patient after all this without saying a word. Our next witness is Prof. Jules B. Gerard, professor of law, School of Law, Washington University, St. Louis, Mo.

We appreciate your taking the time to be with us Professor Gerard. Will you please proceed.

TESTIMONY OF JULES B. GERARD, PROFESSOR OF LAW, SCHOOL OF LAW, WASHINGTON UNIVERSITY, ST. LOUIS, MO.

Mr. GERARD. Senator, I appreciate the opportunity to testify. What I would like to do is summarize a fair amount of my statement and then deal with some of the other issues that have come up.

Senator BAYH. That will be fine. However, we will insert your prepared testimony in its entirety so that it will appear in the record. Mr. GERARD. The four questions the subcommittee submitted to me were as follows:

One: Does Congress have the power to extend the time for ratification of ERA?

My answer to that is yes, of course it does, provided it doesn't attempt to bind States that already have ratified to their previous ratification.

It seems to me clear with respect to the second question that a twothirds majority of both Houses is required.

With respect to the problem of rescission, the one thing that I said that has been accurately represented in previous testimony is that States have the power to rescind. However, I would argue, since the Justice Department has testified in both the Senate and the House with great publicity that the States do not have the power, that this Congress ought to provide, if an extension is granted, that people in the ratified States may withdraw their ratifications.

Finally, the question that I am most interested in. It seems to me clear, that if an extension is granted, that at least the 24 States I list in the first 4 categories of my statement-that their applications would be invalid.

I would like to begin at a point Professor Emerson touched on near the end of his talk. He slid over it rather quickly. I thought it was fairly obvious that Mr. Emerson understands and it seems to be the basic principle of article V and the ratification process-that what is necessary is consensus. Nobody can read article V without concluding that what is required for ratification is consensus. Consensus by the people, consensus by the Congress, and consensus between Congress and the people.

With respect to article V, when Congress proposes an amendment, Congress performs a unique function under the Constitution. It is not functioning as a legislature. It is functioning as an agent of the people, seeking from the people an agreement whether to change the Constitution of the United States. There is really no dispute to that proposition; there is no contrary authority. At least there was no dispute before the discussion of the equal rights amendment came up. What Congress is authorized to do is one thing and one thing only. That is to propose an amendment to the people.

By the same token, when a State acts on a proposed amendment, it too is performing a unique function. That function is to indicate whether the people of that State consent, or assent as it used to be known, to the change that has been proposed.

The essence, then, of this process is consent by the people in overwhelming numbers. That is the essence of article V.

The Constitution begins with the words "We, the people of the United States, in order to form a more perfect union*** do ordain and establish this Constitution for the United States of America." The Constitution then is a compact, or an agreement, or a contract, by and between the people of the Nation. It's major feature is consensus about what the supreme law of the land ought to be.

Article V expressly adopts this conception by requiring consensus in no uncertain terms. It requires the consensus of two-thirds of both Houses of Congress to propose an amendment. It requires the consensus of three-fourths of the legislatures of the States, or conventions in the States, to ratify it.

The plain language of article V thus requires consensus on what is to be added to the Constitution and whether it is to be added to the Constitution. Nothing in the language or the history of article V justifies the conclusion that smaller majorities than those specified are permissible, or the consensus is not required, on either of these questions.

I would like to respond to something that Professor Emerson said a moment ago.

Article V reads, "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution ***"Now article V does not say immediately after that language "and, whenever a majority of both Houses concur, shall submit the proposal." Article V of the Constitution of the United States does not, as the constitutions of some States do, draw a distinction between the proposal itself and submitting the proposal. Article V says, "shall propose amendments." So an argument that the terms under which something is submitted are to be treated differently than the proposed amendment finds no support in the language of article V.

The language of article V uses the word "propose" twice. It says, "shall propose amendments to this Constitution," and shall "propose" the mode of ratification. It does not say "impose". It says "propose". What then have the States said in response to House Joint Resolution 208? I don't suppose there is any debate that Resolution 208 did, in fact, propose to the States a 7-year time limit as a condition of ratification. I don't see that there can be any disagreement on that. The language is "when ratified within 7 years.'

Now what did the States say? I was interested in your question, Senator Bayh, about what Indiana had provided; and I can answer one of the questions that the GSA representatives did not answer. Maryland, New Jersey, Pennsylvania, and Rhode Island ratified without any reference to the time limit at all. They simply ratified the text of the equal rights amendment. Then there are also four States that recite, simply recite, the language of House Joint Resolution 208, but they don't say why they are doing it.

The States that we are concerned with are States that say things like, this is the language from the Ohio resolution: "Whereas both Houses

of the 92d Congress made a proposition to amend the Constitution in the following words" and then recite the time limit. There are 10 States in that category; 12 if you count Idaho and Nebraska, which have since rescinded their ratifications. Now, to me "proposition" means proposition. When they say "this is the proposition submitted by Congress" and recite it in the formal document of ratification, the document means what it says.

There are eight States, including Indiana, in category two which ratified in these words, "Whereas the 82d Congress has adopted House Joint Resoltuion No. 208 proposing an amendment in the following words" and then they go on to recite it.

Oregon and Vermont separtely recite the time limit as one of the recitals preceding ratification.

Then there are two States, Iowa and South Dakota, which use this language in their ratification documents: "Whereas this joint resolution has now been submitted to a vote of the States." What they say is that the resolution has been submitted to a vote.

It is as clear as the English language can make it that the 24 States in these four categories consciously assented to this 7-year time limit. proposed by Congress. This is one of the express terms of the ratification agreement. Congress proposed the amendment under those terms. The States said we accept that amendment under those terms, and incorporated it into their ratification documents. So it seems to me that a consensus was reached about whether that term was a condition precedent as to whether ERA should become a part of the Constitution. We are not talking about the constitutional text. We are talking about wheher that text should become a part of the Constitution. It seems to me clear that the Constitution requires consensus with respect to both those questions. When Congress proposes a condition upon whether an amendment will be added, and the States accept that condition, then that is it.

I don't know of any rule of law that permits a search behind the expressly stated, unambiguous, mutually agreed upon terms of the compact in order to prove that an apparent consensus is different than the one plainly set out in the document, or that it did not exist at all. This is with respect to the question of reliance. So far as I know, all the rules say that when you say what you mean, then you do not search behind the document for evidence of reliance and so on. You accept what has been said.

I would like to make one comment about the two-thirds vote issue. What is the nature of this proposed extension? If it is to have any effect it has to be for either one of two reasons. That is, either because it is a part of the amending process, which requires a two-thirds vote, or because it is a law that has to be obeyed. But there is one point on which there is no dispute among any constitutional authorities, and that is that Congress does not act as a legislature in the amending process. So how can it pass a law? It has no legislative power in this area. Its only power, according to all of the authorities unanimously, is to act as an agent of the people to propose an amendment to the basic law of the land.

With respect to rescission, I just don't agree that article V prohibits the States from rescinding ratifications. The 110 years of constitutional