I thank you for this opportunity to express my view.

Senator BAYH. Thank you very much. We know how busy you are. We appreciate your willingness to once again lend your voice to these issues.

Senator BROOKE. Thank you.

Senator BAYH. Senator Scott?

Senator SCOTT. Mr. Chairman, I appreciate the distinguished Senator expressing his thoughts. I also appreciate the conciseness of his thoughts.

I want to thank you very much.

Senator BAYI. Senator Hatch?

Senator HATCH. Senator Brooke is one of my dear friends. I value that friendship. I agree with you that this is not a game.

It seems illogical to me, however, that if we are going to extend, that we do not commensurately allow the right to rescind-and allow the States the right to choose both ways, prior to that 38th State's ratification.

I think we make a game out of it when we do not do that. I think that is basically unfair.

If the amendment is a good amendment-and there are many in this country who argue that it is and many who argue that it is very bad-then it ought to stand on its own record in these States.

However, I appreciate my good friend's comments here today. I know his sincerity and his devotion to the causes that he believes in. Senator BROOKE. I certainly thank my distinguished colleague from Utah for his comments. I hope our friendship will serve to help him look at this question, as he has on many occasions, or on practically all occasions I know, with a thoroughness which may eventually lead him to the right decision to extend this time limit. [Laughter.]

I also hope that you will examine closely another issue. I did not address this in my prepared text, but I know you have been very much concerned about the question of whether this legislation would require for passage a two-thirds vote or whether it would be by majority vote. I do have an appointment with the Prime Minister of a foreign country, but I think this is an important issue.

Senator HATCH. Likewise, as a result of my valued friendship with you, I hope that friendship will also lead to a conclusion that maybe even though we differ on whether or not the amendment should be ratified, that there should at least be fairness in the process. I think we are lacking that right now, at least with the promulgation of this very narrow resolution which recognizes one side of the issue but totally ignores the other.

I think that really is what it is coming down to in the eyes of many people.

I know a lot of Senators and Congressmen who are pro-ERA, but very upset that this type of approach is being taken.

I do not favor ERA, but I am one who is very upset at this type of approach. It is unfair.

I think it fails to recognize the valuable decisions that the States have a right to make. It superimposes the Congress over all the States in a way that diminishes the rights of the States.

Your having been a good attorney general for your State, I think this may well make you reconsider the fairness aspects.

Senator BROOKE. I have looked closely at the fairness aspects. I do not think anything could supersede the fairness to the women of this country who have been denied what I consider to be their constitutional rights for such a long period of time.

I feel very strongly that the extension question is a procedural one. I think that equality has no time limit.

Senator HATCH. You and I agree.

Senator BROOKE. I am sure you agree. You have certainly demonstrated that since you have been in the U.S. Senate. Even before that, you exemplified that.

Certainly you would not deny a constitutional right to any citizen. of this country merely on the basis of some procedural time limit that has been established.

I think fairness is on the other side of this question. I said in my prepared text that there were several States which passed the equal rights provisions within their States and yet would not ratify this constitutional amendment.

Senator HATCH. It makes you wonder why, does it not?

Senator BROOKE. It makes you wonder why, but I bring this to you. Why grant it to a few States and then deny it to the country, to the women throughout the country?

There seems to be an inconsistency there.

Senator HATCH. Maybe I can help you with that.

Senator BROOKE. Yes; I would like to have you help me.

Senator HATCH. It comes down to this question. This may be just as important. That is the question of federalism. There is the question of whether or not the States have rights here and whether they can exercise those rights or whether Congress is going to impose on the States whatever they want.

That is with particular reference to the constitutional questions raised here.

Senator BROOKE. Look at the whole constitutional question. The Voting Rights Act was the same kind of legislation. It is very important.

I think the Senator from Utah and the Senator from Virginia would agree that the Voting Rights Act was a basic constitutional right that should have been available to the entire country.

Senator SCOTT. Let me say that I do not share the distinguished Senator's point of view.

Senator BROOKE. I had given you credit for that one vote. [Laughter.]

I am sorry to have you correct me on that. I really thought you went along with the Voting Rights Act.

Senator SCOTT. You know the people in Virginia and Massachusetts feel a whole lot different about some of these things.

Senator BROOKE. I do not think that is true. I think the Virginia people have always stood for constitutional rights. Virginia has been historically one of the great States in this country on the question of the Constitution.

As for voting rights, that is such a basic right. I think the rights of women are just as basic as the constitutional right to vote. [Applause.]

Senator BAYII. I want to be nice and kind about this, but we will not get this into a cheering session. I find myself in the position of wanting to clap with this hand, but I do not want to listen to the other side clap. They have as much right to clap as anybody. Let us keep this on a studied basis. If not, we wil have a cheering section. All of us feel strong about this. Our emotions are involved, but let us keep to the studied approach.

Please, I do not want to say anymore on this.

Senator Scott?

Senator SCOTT. Since the distinguished Senator did intend to compliment me, but did not end up complimenting me in the way in which he meant it [laughter] let me say this.

I am not talking about constitutional rights. I am talking about the Voting Rights Act. They are entirely different things.

The Voting Rights Act, in my judgment, was vindictive against the South. Virginia is a Southern State. I voted against the Voting Rights Act on two occasions when it was brought up. I would vote against it again.

It does not apply in like manner in Massachusetts as in Virginia.

I do not believe that the distinguished Senator intended to indicate that I was opposed to equality or opposed to constitutional rights of all our citizens. It is the Voting Rights Act that I addressed myself to. Senator BROOKE. I understand that. But, of course, I disagree with the distinguished Senator from Virginia, which is not unusual for me or for the distinguished Senator from Virginia.

I respect his right to have his opinion. I just disagree with his opinion, even though, as I said, I am of Virginia heritage.

Mr. Chairman, I want to thank you very much.

Senator BAYH. Thank you, Senator Brooke. We appreciate your

presence.

Our next witness is the Honorable Patricia M. Wald, Assistant Attorney General, Department of Justice.

She has with her Larry Simms of the Office of Legal Counsel.

We appreciate you being here today. We welcome you and your colleagues.

Please proceed in any manner you see fit.

TESTIMONY OF PATRICIA M. WALD, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; ACCOMPANIED BY LARRY SIMMS, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE

MS. WALD. Thank you, Mr. Chairman.

Thank you for inviting us to attend.

I would like, with your permission, to have Mr. Simms participate in answering the questions, inasmuch as he had a large part in drawing up the underlying legal opinion of Mr. John Harmon, the Assistant Attorney General, Office of Legal Counsel. He is quite familiar with many of the materials cited in that opinion.

I recognize the lateness of the hour, and I will try to make a brief summary of my statement, mostly as the basis for questioning to proceed.

I appreciate this opportunity to appear before the subcommittee to discuss Senate Joint Resolution 134, which would extend the deadline for the ratification of the equal rights amendment, or ERA, from March 22, 1979 to March 22, 1986.

As I am sure you are aware, the administration strongly supports this joint resolution. Support for the extension of the ratification deadline only became administrative policy, however, following the preparation by the Office of Legal Counsel at the Department of Justice of a detailed legal opinion which reached the conclusion that such an extension of time is entirely constitutional and within the power of Congress to effectuate by a resolution such as Senate Joint Resolution 134 passed by majority vote of both Houses.

As a representative of the Department of Justice, I would like to concentrate primarily this morning on the constitutional and historical analysis which led the Department to reach this conclusion.

For your information and use, I have appended to my prepared statement a copy of the Justice Department's formal opinion of October 31, 1977, prepared for the Counsel to the President, concerning legal issues raised by the proposed extension of the ratification deadline of the ERA.

I would like to request that this document be included in the record of these hearings.

Senator BAYH. Without objection, that will be inserted in the record. MS. WALD. The main question before this subcommittee is, of course, whether Congress, in fact, has the power to extend the ratification period for the ERA. We believe that it does.

At the outset, it is worth noting that article V of the Constitution, which sets forth the procedures for amending the Constitution, does not, on its face, contain any requirement that an amendment, once proposed by Congress, be ratified within a specific time period or that Congress must establish a time period in which the States will be empowered to ratify the proposed amendment.

In 1921, however, the Supreme Court addressed this issue in Dillon v. Gloss, 256 U.S. 368, where it was held that Congress, "keeping within reasonable limits." could fix a definite period for the ratification of a proposed amendment.

The Court there held that Congress has a general power to deal with "subsidiary matters of detail" as an incident of its power to designate the mode of ratification of amendments and that defining a "reasonable time" for ratification was one such subsidiary matter.

Eighteen years later, the Court had occasion to consider again the power of Congress to determine the length of time available for ratification.

In Coleman v. Miller, 307 U.S. 433 (1939) the Court held that in the case of a proposed amendment as to which neither the text nor the congressional proposing resolution contained any time limit. Congress should be exclusive judge of whether ratification by the requisite number of States had taken place within a reasonable time of the amendment's proposal.

35-065-79- -5

Despite the fact that these two cases clearly support the power of Congress to determine what period of time for ratification is reasonable, we nevertheless recognize that arguments are made that, since the Coleman case involved a proposed amendment with no time limit at all, the establishment of an initial time limit by the Congress proposing an amendment forecloses for future Congresses the question of what is a reasonable period and they are not free to alter that limit once the amendment has been submitted to the States.

We cannot concur in such a conclusion. It is clear, first of all, that the Congress in session at the time that the last of the required number of States ratifies the proposed amendment is in a far better position to judge whether the "contemporaneous consensus" exists about which the Court in the Dillon case spoke as necessary to support an amendment. Under Coleman, that judgment should turn on whether the problems which gave rise to the proposed amendment continue to vex the country, and whether other intervening factors have developed which have a bearing on the question of what would constitute a reasonable time for ratification.

The implications of the Coleman case are that the Congress which ultimately decides on whether ratification has taken place has the power and duty to make a decision on the reasonableness of the time period whether or not prior Congresses have specified an initial time limit, unless the time limit was incorporated in the amendment itself.

Along the same lines of reasoning, we believe Congresses subsequent to the proposing Congress enjoy the power to determine that an amendment is still viable and should remain so for a reasonable number of years in the future.

The prognosis of the initiating Congress, in other words, cannot bind its successors unless it is placed in the text of the amendment itself. This response takes on added weight when viewed in the context of historical practice in the placing of time limits for ratification in proposed amendments. The first 17 amendments to the Constitution contained no time limit whatever.

The 18th amendment, the prohibition amendment, contained a 7-year limit in its text, the validity of which was the subject of the Dillon

case.

Some debate on that amendment focused on the need for placement of the limit in the amendment text itself (56 Cong. Rec. 463 (1917); 55 Cong. Rec. 5659, 5650 (1917)).

The question of whether the time limit should be included in the preamble, or the actual text of the amendment, apparently first arose during Congress consideration of the 20th amendment in 1932.

It is noteworthy that some members who opposed placing such a limit in the preamble to the resolution argued that such a limit placed elsewhere than in the text of the amendment would be of "no avail." I refer to 75 Congressional Record 3856-3857.

The 20th, 21st, and 22d amendments all contained a 7-year limit for ratification in the text itself. It was not until 1960, and proposal of the 23d amendment, that Congress first included the time limit in the proposing clause.

At that time, the only discussion of the intent as to the changed placement indicated a desire not to "clutter up the Constitution" with extraneous or obsolete material.