Mr. GERARD. I would not dispute that, at the time the equal rights amendment was before Congress, everybody seemed to think it would be ratified in a very short period, and that the 7-year limit was probably twice as long as was necessary.

Senator BAYH. I have problems with this.

Mr. GERARD. Let me add one thing, Senator. I am sorry to interrupt. I would like to add one other comment to the question you asked me a moment ago. Article V makes no distinction between substance and procedure. There is nothing in article V that would justify that kind of distinction being made.

Senator BAYH. Then why is it that what I call procedural and you do not call procedural-you must admit it is not in the Constitution, then why it is not in the Constitution?

If this is more than a pro forma way of getting this measure out and setting guidelines under which legislatures would consider the substance, then why isn't it in there?

Mr. GERARD. The legislative history seems to be conclusive on that question. All of it that I have read suggests that the only reason the time limit was not made a part of the Constitution was because the Senators and Representatives thought it was undesirable to clutter up the Constitution with time limits such as had been contained in the text of previous amendments.

I have not read a single piece of legislative history that suggests that there was any reason other than that for separating the time limit from the constitutional text.

Senator BAYн. Here we go back to the War Between the States. Congress and the subsequent interpretation that the courts have put on that as late as 1921 as to what authority Congress has and what authority it does not have.

We do not know what that means as far as this court is concerned. However, let me ask you this. I am trying to see if there is one area of common ground. One matter that was raised by Senator Garn comes close to this. Do you believe Congress has the right to prescribe procedure for the conduct of a constitutional convention?

Mr. GERARD. I have thought about that, Senator. To tell you the truth, I cannot make up my mind about that. That seems to be a very close question.

Certainly there is language in Supreme Court decisions that I consider uninpeachable to the effect that when the States ratify a constitutional amendment, they are, in effect, performing a Federal function, and therefore they cannot impose some sort of condition on the ratification.

So, whether Congress, if it were to call for ratification by conventions rather than by legislatures, could, as an incident of calling for conventions, establish procedures by which those conventions were to be elected and rules of procedures under which they were to conduct their business and so on; that seems to me to be a sensible and logical argument.

On the other side of the argument is the language of article V, which says that Congress may propose a mode of ratification. The verbs in article V both times are "propose." We know that the Framers of the Constitution could use the English language very well. They must have had some reason for using the word "propose." This is a conditional sort of word.

So, the argument on the other side is that all Congress can do is to propose procedures. If the States do not want to comply with those procedures, then they can say no. They could say that they would not call a convention under those terms.

By the way, this leads me to add another comment to something Professor Emerson said. He said that the States do not have to agree to Congress choice of the mode. They certainly do have to agree to it. I would suppose, if Congress had said that this proposed amendment shall be ratified by conventions, that ratifications by legislatures would be invalid.

Senator BAYH. I wonder if we are not on shaky ground here. I know you feel strongly about the word "propose" and you quite accurately described its uses.

I think you can reasonably suggest that the reason they use the word "propose," among other words that could be chosen, is that it is the one that was suggested that the function of Congress is to give it to the States and then the States will make the decision. The Congress will propose it and the States would dispose of it.

However, let me get on to this. We were discussing the quandary of the GSA Administrator when the bells rang. You were suggesting that it would be a rather arbitrary decision.

Mr. GERARD. I was suggesting it would be unconstitutional, yes.

Senator BAYH. I do not want to put interpretations as to where you are on this, but I come to the conclusion that what you said then and what you said earlier, that it is up to Congress then to dispose by determinining or by making a judgment as to what is happening. Is that correct?

Mr. GERARD. I tried to qualify it and I did not do a very good job of it, then. But I meant this. I do not agree with the testimony this morning that the Court today would hold that to be a political question.

I do agree with one thing that was said by the Justice Department, and that is that if Congress were to announce today that the amendinent had been ratified, that the Court would take jurisdiction of that. That is not a political question.

What I meant by my earlier remark was this. If a decision that an amendment has been ratified is reviewable in the courts, the decision that is reviewable would be the decision of Congress. It seems to me that any sensible interpretation of the Constitution would hold that that is clearly one of the nondelegable duties of Congress; that Congress cannot delegate the duty to determine whether an amendment has been ratified to another agency.

If it is a political question, then Congress' word is final.

Senator BAYI. Maybe we can reach a partial agreement here. There are situations in which Congress can finally prescribe what criteria must be met before you can have complete ratification.

After the fact and after the whole process

Mr. GERARD. Senator, let me suggest something that you might want to check out.

Alaska ratified only section 1 of the equal rights amendment. It did not ratify sections 2 and 3. That is what the ratification document

says.

It seems to be absolutely impermissible for the GSA to say that that is a ratification. It is not a ratification.

I do not suppose any of us would disagree with the idea that a State does not ratify a constitutional amendment submitted in three sections by ratifying one of those sections.

Senator BAYH. You are certainly right. Alaska only ratified one part of it.

Let me proceed onto the procedural question.

What Senator Ervin and I were trying to do with the Federal Constitutional Convention Act was to establish those ground rules before the fact-instead of Congress coming along afterward.

It is difficult for Senator Hatch and I to really separate where we are on the procedure and what is required by the Constitution from where we really are on the issue. We try, but it is a constant tug-ofwar. Should we fudge it a little bit here? It is not an exact science, of course, as to what the Court is going to say or even what the Court has said because we only have a small precedent here.

So, the temptation is to err in defining fairness as it affects our position on the issue.

If we do this before the fact, and if we lay it out and everybody knows it is before the fact, then it is good.

Now, do you believe that a measure like the measure that was passed by the Senate on two occasions can be passed, and indeed, if it is passed, would a majority vote suffice?

Mr. GERARD. This is to establish procedures for all kinds of constitutional conventions called in the future to ratify

Senator BAYH. The way the Court described the function is this way. If we are talking about a temporary consensus, then when you have 32 different petitions that can be dragged over a 20-year period of time, then they are not contemporaneous. These are different things and different times. We are trying to sort out what the contemporaneous consensus means in light of what the Court says. That is why we got involved in how long the States have to submit this kind of thing.

Mr. GERARD. With respect to the question as to whether something like that would be constitutional or whether it could be passed by a majority vote, I would say this. Inasmuch as it is then separated for any particular constitutional amendment, I would say that the argument is really a practical one. It fills a gap that the Constitution did not provide for.

I would argue then that such a measure would be constitutional. I would expect that if somebody has standing to raise the question in Court, however, that he could make a substantial challenge, saying that Congress does not have that power under article V unless that measure is passed by a two-thirds vote and receives approval of the States in the form of a constitutional amendment.

Senator BAYH. I agree with you 100 percent that I would expect somebody to raise that. Certainly that is going to be raised.

Mr. Gerard, we have gone beyond the time that I guaranteed you. But let me finish up with this. If indeed you believe-you need not follow this rationale, but let me give you something to think about until we have a chance to visit again-if indeed you believe that Congress can put these procedural requirements on amending the Constitution through conventions and pass that by majority vote as distinct

from two-thirds, then indeed do we not have a similar opportunity and similar authority to provide those procedural distinctions. Is that not what we are talking about as far as time limits are concerned? That may be tortuous by your definition.

Mr. GERARD. I tried to qualify my answer by inserting the qualification in the beginning, saying: "Well, if what we are talking about is general law divorced from any particular constitutional amendment, then that would be the case."

But let me point this out with respect to the amendments that do contain time limits in the constitutional text. It seems to me you could make the argument that the time limit is merely a procedural requirement there also, and that it makes no difference that it is in the text of the Constitution. It is still, by your definition, a procedural requirement.

Senator BAYH. Professor Emerson would make that argument. I would disagree with him with all due respect.

I would go back to your persuasive comparison to the statute. I would look in the statute books. When I go see what is in the Constitution and the difference between substance and procedure to me is what is in the Constitution.

Mr. GERARD. I thought of one analogy that I haven't been able to give you yet.

Suppose that there was a bill pending before Congress and the Senate passed it this session, such as, for instance, yours and Senator Ervin's bill with respect to constitutional conventions. Suppose then that in the next Congress, the House passed the bill. Does that make it law because both the Senate and the House have passed it?

My answer would be obviously not. The requirement is that both Houses pass it during the same session of Congress. That is what makes it a bill.

I would make the same argument with regard to constitutional amendments. What counts is three-quarters of the States ratifying at the same point in time. There has to be some point in time when three-quarters of the States are on record as ratifying the Constitu

tion.

Senator BAYH. Yes, I agree.

The question is what is a reasonably contemporaneous consensus? Mr. GERARD. It is what the issue is. We are agreed that is the issue. Senator BAYH. We can disagree on what that means, I guess. I want to thank you very much, Professor Gerard. You have been very helpful and patient. I appreciate very much the extra effort. I am sorry to have kept you this late.

We will adjourn at this point.

[Whereupon at 5:20 p.m., the subcommittee was adjourned.] [The prepared statement submitted by Prof. Gerard follows:]

PREPARED STATEMENT OF PROF. JULES B. GERARD

My name is Jules B. Gerard. I am a Professor of Law at Washington University School of Law in St. Louis, where I have taught constitutional law for the past 15 years.

The four questions submitted by the Subcommittee, and my answers to them,

are:

(1) "Does Congress have the power to extend the time for ratification of the ERA?" Of course it does, provided it does not also attempt to bind states that already have ratified to their previous ratifications.

(2) "Must a resolution to extend the ratification period be approved by a twothirds vote in each House or is a simple majority constitutionally sufficient?" A two-thirds vote of each House is required.

(3) "Would an extension of the time period available for ratification by the states empower them to rescind prior ratification during this extension period?" The states already have that power. However, since representatives of the Department of Justice have testified in both the House and the Senate that states are powerless to rescind their ratifications, thereby raising doubts in the minds of some legislators about the constitutionality of rescissions. Congress should specifically provide, if an extension is granted, that people in the ratified states may withdraw their ratifications.

(4) "Would an extension of the ratification deadline invalidate some state ratifications on the theory that those states materially relied upon the initial seven-year limitation?" An extension surely will invalidate at least 24 ratifications; "materiality," "reliance," and "right to rely" are irrelevant.

My primary interest lies with the first and fourth questions, which are related. I begin by addressing those two questions simultaneously.

I

Congress, having incorporated a seven year time limit as a condition of ratification into its proposal to the states, has no power to change that condition without invalidating the ratifications of those states that accepted the condition in their ratification documents.

Amending the Constitution is a process governed by a set of principles that everyone has understood, that scholars and text writers have agreed upon, and that the Supreme Court has made the bedrock foundation for its few decisions on the subject.' Those principles are:

(1) When Congress proposes an amendment to the people, it is performing a unique function under Article V. It is not acting in its capacity as a legislature to make laws that govern those subject to its commands. Rather, it is proposing that the people agree to change the Constitution.

(2) When a state legislature acts on a proposed amendment, it, too, is performing a unique function under Article V. That function is to indicate whether the people of that state consent (or "assent," as it was called in earlier centuries) to the change proposed by Congress.

(3) The essence, the gist, the core of this process is consent by the people in overwhelming numbers.

Until the present debate over extending the time to ratify ERA transformed the amending process of Article V into a collection of lawyers' quibbles over irrelevancies, no one ever seriously questioned these principles.

...

The Constitution begins with the immortal 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 is a compact, an agreement, a contract by and between the people of the nation the major feature of which is consensus about what the supreme law of the land ought to be. Article V expressly adopts this majestic conception by requiring consensus in no uncertain terms:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution • which shall be valid

to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by Congress✶✶✶

The plain language of Article V thus requires consensus on what is to be added to the Constitution (the proposal) and whether it is to be added (the ratification). Nothing in the language or history of Article V suggests that consensus is not required, or that majorities smaller than those specified are permissible, on either of these questions. Consensus of the requisite size must exist as to both.

Consensus, then, is the sine qua non, the aboslute essential, to a valid constitutional amendment. The question then becomes how the existence of that con1 See, e.g., The Federalist Nos. 40 (Madison), 43 (Madison) and 85 (Hamilton): L. Orfeld. Amending The Federal Constitution, passim (1942); Hawke v. Smith, 253 U.S. 221 (1920): Smiley v. Holm. 285 U.S. 355 (1931).

This paper responds to the precise questions asked by the subcommittee and ignores unrelated problems. Hence here and at other places I have not quoted the full text.