sensus is to be determined. Time out of mind, that question has had a single answer: one looks to what the parties said in the formal documents alleged to create the consensus. The language of House Joint Resolution 208, which submitted ERA to the states for ratification, reads in part as follows: "Resolved by the Senate and House of Representatives *** (two-thirds of each House concurring therein). That The following article is proposed as an amendment to the Constitution of the United States, which shall be valid *** as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by Congress: (the three sections of ERA are then recited)." [Emphasis added.] That resolution clearly proposed a condition on the ratification of ERA: the language is "when ratified . . . within seven years." There really can be no serious dispute over the proposition that the resolution was intended to, and did, propose a seven year time limit on the consideration of ERA as a condition of ratification. What did the ratifying states say? For purposes of analysis, the ratification documents on file with GSA can be classified into six separate categories: Category 1 includes those states which ratified as follows: "Whereas both House of the 92d Congress. . . made a proposition to amend the Constitution . . . in the following words, to wit: (reciting, first, the time limit, and then the text of ERA)." There are ten states in this group (Connecticut, Maine, Michigan, Montana, New Hampshire, New Mexico, North Dakota, Wisconsin, Ohio, and Wyoming), twelve if one includes Idaho and Nebraska which since have rescinded their ratification. Category 2 consists of states whose ratification documents are in these words: "whereas the 92nd Congress has adopted H.J. Res. No. 208 ... proposing an amendment to the Constitution . . . in the following words, to wit: (reciting, first, the time limit and the text of ERA)." There are eight states in this category (Kansas, California, Colorado, Indiana, Massachusetts, Minnesota, Washington, and West Virginia). Category 3 includes states that explicitly recite the time limit as a separate inducement persuading them to ratify. There are two states in this category (Oregon and Vermont). Category 4 consists of states that explicitly say that what was submitted to them for ratification was House Joint Resolution 208 containing the time limit, not ERA independent of the Joint Resolution: "whereas, this Joint Resolution .. has now been submitted to a vote of the States, and reads (etc.) . . . ." There are two states in this group (Iowa and South Dakota). ... Category 5 is composed of states which mention the time limit in their ratification documents, but do not indicate a reason for doing so. There are 4 states in this group (Delaware, Hawaii, New York and Texas). Finally, in category 6, are those 4 states which ratified ERA without adverting to the time limit in their ratification documents (Maryland, New Jersey, Pennsylvania and Rhode Island). It is as clear as the English language can make it that the 24 states in the first four categories consciously assented to the seven-year time limit proposed by Congress as one of the express terms of their ratification agreements. Congress had proposed an amendment to the Constitution, the proposal containing an expressly stated, unambiguous term, viz., that to be valid, the proposal must be ratified by three-fourths of the states "within seven years." The 24 ratifying states expressly accepted that term and incorporated it into their agreements to ratify. Thus a consensus was reached that the seven-year limitation was one of the terms of the ratification agreement. And since that consensus exists, it is binding upon Congress and those states. There is no rule of law that permits a search behind the expressly-stated, unambiguous, mutually-agreed-upon, terms of a compact in order to prove that an apparent consensus is something different than what is plainly set forth, or that it did not exist at all. Nor is there a rule that requires a party to "materially rely" upon such a term in order to make it binding. Consensus is what the Constitution requires, not reliance. "Reliance," and "right to rely" simply are irrelevant when parties with equal bargaining power and equal knowledge (which is the case here) have mutually agreed to an unambiguous, expressly-stated term of a compact. The ratification documents of Alaska. Kentucky and Tennessee were not available when I prepared this analysis. So only 32 of the 35 states are shown. The issue before your Committee, then, is this: After Congress has proposed a condition upon ratification which has been expressly accepted by the states in their ratification documents, can Congress then change that condition without the states' approval, but nevertheless require the states to adhere to the other terms of the agreement? There is no legal principle, constitutional or otherwise, that permits-much less requires-an affirmative answer to that question. It therefore follows that the ratifications of those 24 states inevitably will become invalid (will expire) after March 22, 1979. What are the opposing arguments? The first is based entirely upon a casual dictum of Dillon v. Gloss. Dillon rejected a claim that the 18th Amendment was a nullity because it contained a seven year time limit on ratification which Congress was powerless to propose. In the course of rejecting that claim, the Court said that establishing a time limit was a "matter of detail" of the amending process, and was an "incident" of Congress' power "to designate the mode of ratification." Building upon this dictum, the argument proceeds that since Congress has the unreviewable discretion to propose the "mode of ratification" (by legislatures or conventions), it also must have the unreviewable discretion to establish, and change, time limits, since the latter are only "incidents of" the former. But this argument is flawed. First, its strength depends entirely upon the correctness of the Dillon dictum's assertion that Congress' power to establish time limits on ratifications derives from its power to propose "the one or the other mode of ratification," rather than from its power to "propose amendments to this Constitution." But that issue was not even remotely involved in Dillon. And no one yet has claimed that Congress has the power to change the text of a proposed amendment after it has been ratified by the people in one or more states. Second, in elevating this offhand dictum to a constitutional rule, the argument entirely disregards the reasons the Dillon Court gave for upholding congressional power to propose time limits. Those reasons are not in doubt, and both conclusively refute the argument under discussion. The first reason, given in Dillon itself, is "so that all may know what [the time period] is and speculation on what is a reasonable time may be avoided." The second reason, elaborated at length in Coleman v. Miller but also noticed in Dillon, is that serious constitutional problems are generated by amendments that are proposed without time limits and that remain unratified by the requisite number of states years after being proposed; the Court held that Congress had power to propose time limits to avoid embarrassments of this kind. It is too plain for dispute that both of these reasons are founded upon the need for consensus and have nothing whatever to do with lawyers' quibbles about which phrase of Article V provides the source of the power. The Court has said, with respect to Article V, "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition." A second argument runs that since the time limit is in the "resolving clause" rather than in the proposed constitutional text, Congress may change it. One fault of this argument lies in its failure to acknowledge that Congress has no power to enact a law and impose it upon the amending process like a statute of limitations; it has only the power to "propose" a term of ratification and to seek a consensus from the people. If this second argument is sound, the following conclusions flow from its inescapably: (1) Because the time limit will not be part of the constitutional text, Congress has power to declare that the period for ratification is at an end right now, and that no further ratifications will be accepted. (2) Because the time limit will not be part of the constitutional text, Congress has the power to declare that a ratification voted after the existing period expires would still be valid. (And if that follows, these hearings and the debate about the proposal to extend the time for ratification are pointless.) Moreover, the argument implies that consensus is needed only as to the terms of the constitutional text, but not as to whether the proposed text is to become a part of the Constitution at all. That is to say, the argument implies that consensus from the people of three-fourths of the states is not required with respect to the proposed terms under which the agreed-upon language is to be added to the Constitution. There is no justification in Article V for such a distinction. 4256 U.S. 368 (1921). Id. at 376. 6307 U.S. 433 (1939). 7 United States v. Sprague, 282 U.S. 716, 731 (1931) (emphasis added). As is more fully developed in Part II, Article V draws no distinction between "proposing" an amendment and "submitting" it for ratification; Congress' powers are the same with respect to the latter as to the former. Congress' function under Article V is not that of a legislature, but that of an agent of the people seeking consensus from the people. Once that consensus has been established, as it has here with respect at least to the 24 states noted earlier, Congress has no power unilaterally to change one of the terms of that consensus without simultaneously destroying the consensus, thus invalidating the ratifications containing the original term. The vote to extend the period of ratification must be by a two-thirds majority of both Houses of Congress. What is the nature of the proposed extension? If it is to have any effect, it must be either because it is a part of the amending process, and therefore requires a two-thirds vote, or because it is a "law" that must be obeyed. But the authorities are unanimous that Congress does not act as a legislature when it performs the functions delegated to it under Article V. So how can it pass a "law" to change a term of a proposal to amend the Constitution? Article V reads, "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution. . . ." It does not draw a distinction between proposing an amendment and submitting an amendment for ratification. The proponents of extension would read Article V as though it provided, at the end of the above quote, "and, whenever a majority of both Houses concur, shall submit the proposal. . . ." Until now, Congress has followed the Constitution and has not distinguished between "proposing" and "submitting" an amendment. Every proposed amendment has been submitted in one resolution containing both the proposed text and the proposed terms of ratification.10 Article V requires a consensus of two-thirds of the members of Congress both as to the terms of the proposed constitutional text and as to the terms under which that proposed text is to be submitted to the people for ratification. There is no justification in the language or history of Article V for the bizarre assertion that a majority of Congress can undo what it took two-thirds of Congress to accomplish. The issue is not, as some have said, "whether Congress may accomplish in two steps what it might have accomplished in one." The only thing Congress is permitted to "accomplish" under Article V is to decide, by two-thirds vote of both Houses, whether to propose an amendment for ratification; after the proposal has been sent to the states, and has been acted upon, an extension of time is not a second step to one decision, but a second decision. And like the first, it requires a two-thirds vote in both Houses of Congress. Nor is the issue whether the people rather than Congress have the power to decide what is a "reasonable period" for ratification. The people made no such decision. Congress did, and the people of 24 states accepted Congress' judgment and incorporated it into their ratification agreements. It may be that simple majorities of both Houses can determine whether an amendment proposed without a time limit has been ratified within a reasonable period. But that is not the problem here, and the argument is not relevant. States have the power to rescind their ratifications. However, since the Department of Justice has taken the position that a state is powerless to rescind a ratification, it behooves this Congress specifically to authorize ratifying states to rescind their ratifications during whatever extension period, if any, is provided. First, as to the argument that Article V authorizes the states only to "ratify" a proposed amendment, not to reject it; therefore, once a State has ratified, it has exhausted its power under Article V. A parallel argument would hold that Congress lacks the power to repeal legislation because Article I does not, in terms, authorize it to do so. Both arguments are nonsensical. Second, as to the policy implicit in permitting withdrawals of ratifications, I can do no better than quote the leading text on constitutional amendments: "Ratification should not be more final than rejection. Ratification by less than three-fourths of the states is ineffectual. Such is the theoretical approach. But there are even stronger practical arguments. It is more democratic to allow the reversal of prior action. A truer picture of public opinion at the final date E.g.. Hawke v. Smith, 253 U.S. 221, 229-30 (1920); United States v. Sprague, 282 U.S. 716. 733 (1931); Orfield, supra note 1, at 48-49. of ratification is obtained. No great confusion is likely to result from such a rule. Not to allow reversal of an acceptance may cause a cautious legislature not to act." 11 Orfields argument compellingly supports the proposition that has been stressed throughout this paper: that the indispensable element in a valid ratification is overwhelming consensus at the time of ratification. It simply is impossible to conceive of a consensus that includes the people of a state who are on record as having withdrawn their consent. Third, as to the argument from precedent. I believe it is undesirable to extend precedents established by the vengeful Reconstruction Congress, following the shattering events of the Civil War, to any situations today. Fourth, as to the argument that the conditions calling for ratification still exist, and that a reasonable time to consider ERA has not yet expired. Many of the states that ratified ERA in the early months after its submission did so without debate, without hearings, without calling witnesses, and without any real reflection. If the proponents seriously wish to argue extension on the ground of the need for further debate, there can be no reason for precluding that debate from occurring in states which did not engage in it to begin with. Precluding debate in those states is inconsistent with the basic premise of the argument, and is unfair, unjust, and, as I have attempted to show, probably unconstitutional. Moreover, to say that ERA is as necessary today as it was in 1971 is to ignore the interim developments of sixteen thoroughly considered Supreme Court decisions on sex discrimination" and at least five major pieces of congressional legislation to improve the status of women." Finally, representatives of the Department of Justice have testified that a state is powerless to rescind a ratification. This testimony has raised doubts in the minds of many state legislators considering rescission of the contitutionality of their doing so. Even though it is arguable that the ultimate decision of such a question would be made by the next Congress, this Congress, as a matter of fairness, should indicate its view that such recissions would be effective. 11 Id. at 72. 13 City of Los Angeles v. Manhart, 98 S. Ct. 1370 (1978); Nashville Gas Co. v. Satty, 98 S. Ct. 347 (1977); Dothard v. Rawlinson, 97 S. Ct. 2720 (1977); Califano v. Webster, 97 S. Ct. 1192 (1977); Califano v. Goldfarb, 97 S. Ct. 1021 (1977); General Electric v. Gilbert, 429 U.S. 125 (1976); Craig v. Boren, 429 U.S. 190 (1970); Stanton v. Stanton, 421 U.S. 7 (1975); Weinburger v. Wiesenfield, 420 U.S. 636 (1975); Schlesinger v. Ballard, 419 U.S. 498 (1975); Geduldig v. Aiello, 417 U.S. 484 (1974); Kahn v. Shevin, 416 U.S. 351 (1974); Cleveland Board of Education v. LaFleur, 414 U.S. 6 (1974); Frontiero v. Richardson, 411 U.S. 677 (1973); Stanley v. Illinois, 405 U.S. 645 (1972) and Reed v. Reed, 404 U.S. 71 (19). 13 Equal Employment Opportunities Act (Title VII, Civil Rights Act 42 U.S.C. § 2000e; Title IX of the Education Amendments of 1972 20 U.S.C. § 1681; Women's Educational Equity Act of 1974, 28 U.S. § 1886; Equal Pay Act, 29 U.S.C. § 206(d); and the Equal Credit Opportunity Act, 15 U.S.C. § 1691. EQUAL RIGHTS AMENDMENT EXTENSION THURSDAY, AUGUST 3, 1978 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION Washington, D.C. The subcommittee met, pursuant to recess, at 9:10 a.m., in room 318 Russell Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding. Present: Senators Metzenbaum, DeConcini, Allen, Scott, and Hatch. Staff present: Nels Ackerson, chief counsel and executive director; Mary K. Jolly, staff director; Linda Rogers-Kingsbury, chief clerk; Barbara Dixon, legislative assistant to Senator Bayh; Neil R. McDonald, minority counsel; Tom Parry, staff assistant to Senator Hatch; Nate Zahm, staff assistant to Senator Metzenbaum; and Irene Emsellem, staff assistant to Senator Abourezk. Senator BAYH. The subcommittee will come to order. I do not want to be a wet blanket, but for those of you who were not here yesterday, we do have a very busy schedule. We hope to be able to have all of our witnesses heard; so, I hope we can combine the subcommittee's time and the time of the interested citizens in order to hear what the expression of the witnesses is and not that of the audience. If you here are excited about this issue, one way or the other as I think most of us are then, as a relief, why do we not wait until the end of the hearing and then have a 5-minute session during which both sides can applaud to their hearts' desire. That way we will avoid the necessity of getting into a cheering match at certain significant points of the testimony. We are fortunate this morning to have a distinguished colleague with us, Senator Edward Kennedy, who is also a distinguished member of this committee. In a relatively short period of time he will become the next chairman of the Judiciary Committee. He has been a stalwart defender of the rights of individuals. In that capacity, he has been deeply concerned about the rights of individual citizens who happen to be women. He is a cosponsor of the extension measure which is before us, Senate Joint Resolution 134. We appreciate very much his taking time from his busy schedule to be with us. Senator Kennedy, it is good to have you with us. (161) |