QUOTATIONS ON RESCISSIONS

1. The Supreme Court, in its decision in Coleman v. Miller, 307 U.S. 433 (1939), made it clear that Congress has complete control over the amending process and therefore can determine the effect of a state's rescission:

"We think that in accordance with this historic precedent the question of the efficacy of ratification by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment." Id. at 450 [emphasis added].

"The process itself is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point." Id. at 459.

2. Charles L. Black, Jr., Sterling Professor of Law at Yale, made the following statement before the House Judiciary Subcommittee on Civil and Constitutional Rights:

"It seems to me that it would be impermissible to extend the time for ratification without also extending the time for rescission *** I think it is going to be very hard as a practical matter to argue, for anyone to argue, in the future that rescission is not available to the States, although Congress has in effect exercised the same right * * * I think✶✶✶ that the States do have a right to rescind up to the moment when the amendment actually goes into effect." 3. Though on policy grounds he did not favor such action, Laurence Tribe, Professor of Law at Harvard, indicated his belief that Congress could provide a statutory right of rescission and concluded in his testimony before the Subcommittee that:

"*** Congress should, after the passage of an extended period, be willing to treat as effective a state's attempted retraction of its own prior ratification, as well as a state's attempted retraction of is own prior rejection; the quid pro quo for Congress' power to alter the time for ratification in such cases should arguably be Congress' duty, absent extraordinary circumstances, to treat as stale any state vote (pro or con) that has many years later been unambiguously reversed. In this way, a state would be assured that its vote on an amendment could not bind the state's people into the indefinite future ***

"I say this with hesitation, as someone who has supported the equal rights amendment. I don't relish the prospect of a reverse bandwagon of rescissions, but the question here is one of constitutional procedures and I am obliged to testify accurately on that question whether it cuts in favor of my substantive views or against them. . . . It seems to me it is at least bizarre to construe the Constitution in such a way that the power of Congress to extend, which it seems to me is simply a corollary of the inability of Congress to bind its successors, somehow cuts for and not against ratification of the amendment. It seems to me it does cut both ways. And although Congress might try to develop a lopsided procedure without offending the Constitution, I am not in agreement with the views which say that Congress must go only one way. I think it is clear that the period for further debate implies the power of Congress to retract as well as to extend and implies greater sympathy in viewing a State attempt to retract." 4. Erwin Griswold, former Dean of Harvard Law School and former Solicitor General of the United States, came to the following conclusion in his testimony: "I know of no decision which makes it clear that once a State has ratified it cannot reject * * *. I find no real basis in that for a justification of saying that once a State has ratified, no matter how long a time has passed, it cannot rescind although once it has rejected, it can always ratify thereafter. That seems to be a 'heads, I win; tails, you lose' proposition."

Senator BAYH. Our next witness this morning is one of our distinguished former colleagues from the gracious State of North Carolina. I notice that he is accompanied by our present colleague from North Carolina. Senator Jesse Helms. I did not realize he was going to be here, but it is good to have Senator Helms here as well.

Senator Ervin, it gives me a little lump in my throat to have you back in this room where you really saved the Union. There are a lot of people who give you accolades for that contribution to our country, and wonder if they recognize that in a much more quiet vein, a

much more steady fashion, and a much less publicized fashion, you have been one who has been a champion for some of those very important individual rights which, in the final analysis, may not save our Union but keep it what it is.

It has been a privilege for me to have a chance to serve with you on this committee and to consider you a colleague and to follow your leadership on some of these tough battles like first amendment rights. and separation of church and state, and some of these indispensable ingredients of our American way.

It is good to have you with us.

TESTIMONY OF HON. SAM J. ERVIN, JR., FORMER U.S. SENATOR FROM NORTH CAROLINA

Mr. ERVIN. Thank you, Mr. Chairman.

I was especially pleased to have an opportunity to see you and Senator Kennedy. Both of you served on the Subcommittee on Constitutional Rights with me for many years. You were strong right arms to all of my endeavors on that committee. We stood together on many of the civil liberty issues that the Senate had at that time. Often, this was done at great odds.

My only regret is that you and Senator Kennedy do not share my sound views on this present proposal.

I am also delighted to see Senator Allen of Alabama here. I would like to testify that I have never known a greater American than her husband, Senator Jim Allen, who also stood beside me in many fights on the Senate floor.

Mr. Chairman, I realize that you have a number of witnesses. I do not wish to delay the proceedings too much, but I would like to shed some light on this subject.

However, I have a long statement. I only wish to read the first seven pages; then, I wish to have this statement on this specific proposal printed in full in the record, including the things that I will not read. I would also like to have printed in the record following my statement the decision of the Supreme Court in Dillon v. Gloss.

Since I am one of those who believe that what is sauce for the constitutional goose is sauce for the constitutional gander, I would like to have printed in the record following my statement and the Dillon decision a statement that I have prepared concerning the bizarre and specious claim of supporters of the equal rights amendment that a State which has rejected the amendment can change its mind and vote to ratify: whereas a State which has ratified the amendment cannot change its mind and vote to rescind or withdraw the ratification.

One reason that I would like this put in is because I have analyzed the Coleman case. The Coleman case is the finest example of judicial schizophrenia to be found in Supreme Court decisions. It has the remarkable statement that on one point, the nine Justices were equally divided and could not make a decision.

It also demonstrates clearly, I think, that until a proposed constitutional amendment is ratified by three-fourths of the States, and therefore is made a part of the Constitution, any State can change its mind at any time and rescind its former action.

35-065-79- -13

A State that has ratified can change its mind and rescind, and a State which has rejected can change its mind and ratify.

I would like to have those things printed in the record.

Senator BAYI. We will have all of those statements in the record, and feel free to proceed as you see fit.

As Madison said, the ratification process should be handled in that

way.

Mr. ERVIN. I will read seven pages.

Senator BAYH. Go right ahead. I am anxious to see how a man of your wisdom can justify your position on this issue. [Laughter.] But I am sure you can do it.

Mr. ERVIN. If you listen with a high degree of intelligence, of which you are capable, you will not only find out, but you will agree with me. [Laughter.]

Senator BAYH. I am anxious to have your thoughts, because you know I respect your judgment. We have not always agreed, but we have respected each other, and I am anxious to have your thoughts. Mr. ERVIN. I have equal admiration for you, Senator.

When it submitted the equal rights amendment to the States for ratification or rejection on March 22, 1972, Congress resolved that the proposed amendment should become a part of the Constitution if ratified by three-fourths of the States within 7 years from the date of its submission.

The subcommittee is considering Senate Joint Resolution 134, which was introduced in the Senate by Senator Birch Bayh and others and which undertakes to extend the deadline for ratifying the equal rights amendment an additional 7 years.

Apart from such matters as the fairness of changing the rules of the game in the ninth inning, Senate Joint Resolution 134 presents to this subcommittee and the Congress the serious constitutional question as to whether Congress has the power to extend the deadline for ratifying the equal rights amendment.

Before elaborating my abiding conviction that the Constitution denies to Congress the power to do so, I wish to state how I believe. the Constitution is to be interpreted.

I am not numbered among the legal activitists who interpret the Constitution to mean what it would have said if they, instead of the Founding Fathers, had written it.

On the contrary, I believe the Constitution is to be interpreted in the manner described by America's greatest jurist of all time, Chief Justice John Marshall, in his famous opinion in Gibbons v. Ogden, 9 Wheat 1, 188 (1824), I quote his words:

As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who frame our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.

I submit the proposal embodied in Senate Joint Resolution 134 is unconstitutional for several reasons which I shall enumerate.

First, Congress has no powers except those granted to it by the Constitution either in express words or by necessary implication from express words. Since article V, which governs its actions in proposing

amendments, does not expressly or impliedly authorize Congress to extend the deadline fixed by it on March 22, 1972, for the ratification by the required number of States of the equal rights amendment, Congress has no power to take such action, and the proposal embodied in Senate Joint Resolution 134 is clearly unconstitutional.

As the Supreme Court declared in Afroyim v. Rusk, 387 U.S. 253,257, (1967):

Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones.

To answer the constitutional question raised by Senate Joint Resolution 134, recourse must be had to article V of the Constitution, which defines the power of Congress to propose to the States for ratification or rejection amendments to the Constitution. Insofar as it is relevant to the question posed by Senate Joint Resolution 134, article V, reads as follows:

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 several States.

Dr. Oliver Wendell Holmes makes this trenchant observation in his "Autocrat of the Breakfast Table": "Life and language are alike sacred. Homicide and verbicide-that is, violent treatment of a word with fatal results to its legitimate meaning, which is its life--are alike forbidden." End of the quotation from Dr. Oliver Wendell Holmes about verbicide.

Senator BAYH. Fortunately, verbicide is not a Federal crime. All of us might be in trouble.

Mr. ERVIN. Those who commit verbicide on the Constitution violate their oath to support that instrument.

Senator BAYH. I cannot argue with you on that.

Mr. ERVIN. Those who maintain that Congress has the power to extend for 7 additional years the deadline for State action on ERA are committing first degree verbicide on the words of article V.

They make a two-pronged attack on the Constitution's words. First, they assert that Congress can extend the deadline because the Constitution is silent on the subject; and, second, that Congress can extend the deadline, even by a majority vote in each House, because the time for ratification or rejection is a matter of procedure and not a matter of substance.

The first of these arguments-that is, that Congress can do anything with respect to any matter on which the Constitution is silent-is a most revolutionary proposition, which is totally irreconcilable with the indisputable truth that the Constitution contains an enumeration of all the powers granted by the people to the Federal Government. Every decision of the Supreme Court on the subject recognizes the principle:

Whenever a question arises as to whether the Federal Government has the right to exercise any particular authority, recourse must be had to the Constitution itself in order to determine whether such authority is found therein either by express words or by necessary implication. 16 Am. Jur. Constitutional Law, sec. 199.

Nothing can be found in article V or any other provision of the Constitution which confers on Congress by express words or by necessary implication the power to extend by 7 years the deadline for State action respecting ERA. Hence, such congressional power is nonexistent.

Second, the Supreme Court has declared the Congress has no power to extend the deadline for ratifying ERA beyond March 22, 1979.

This proposition finds complete support in the unanimous opinion of the Supreme Court in Dillon v. Gloss (1920) 256 U.S. 368, where the Court assigns two reasons for this conclusion.

The first reason is that proposal of an amendment by the Congress and its ratification by the States are not treated by the Constitution "as unrelated acts, but as succeeding steps in a single endeavor."

Senate Joint Resolution 134 undertakes to do in two endeavors what the Supreme Court declares must be done in a single endeavor. In stating the second reason why Congress cannot extend the deadline for ratifying a proposed amendment, the Court asserts, in substance, that a proposed amendment loses its potency unless it is ratified in a reasonable time after its submission by Congress, and that Congress cannot permit any State to vote on the matter after that date unless it proposes the amendment to the State a second time; that is, anew.

When it submitted the equal rights amendment to the States for ratification or rejection on March 22, 1972, the 92d Congress resolved that ERA should become a part of the Constitution only if it should be ratified by the legislatures of three-fourths of the States within 7 years from the date of its submission. By so doing, the 92d Congress declared that a reasonable time for State action on ERA will expire March 22, 1979.

In fixing the 7-year limit for State action on ERA, the 92d Congress followed the precedents set by Congress in submitting virtually all recent amendments to the States. Besides, its action harmonized with the Supreme Court decision in Dillon v. Gloss, which expressly adjudged that the Congress which submits a proposed amendment may fix a definite period for its ratification provided it keeps within reasonable limits, and that the Congress which submitted the 18th amendment acted within reasonable limits when it specified that it should be ratified by the requisite number of States within 7 years.

Advocates of ERA have already had a longer time to persuade the requisite number of States to ratify ERA than the advocates of any amendment ever added to the Constitution. All amendments heretofore adopted have been ratified within periods varying from a minimum of 4 months to a maximum of less than 4 years.

In the very nature of things, the power to fix a responsible time for State action on a proposed constitutional amendment must reside in the Congress which submits it. It cannot be determined retroactively by a subsequent Congress motivated by the fact that the requisite number of States have refused to ratify it within the reasonable limit originally established.

The 95th Congress has power to legislate for the future. It has no power to amend the past. And that is precisely what it would be trying to do if it undertook to amend a congressional resolution adopted on