fied ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. That decision by the Congress in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts." Id., at 454 [emphasis added].'

Because no time limit had been set by Congress in the proposed Child Labor Amendment involved in Coleman, it may be properly inferred from the quotation above that the establishment of a time limit by the Congress proposing an amendment would not leave open the question of what is a reasonable period. Certainly if a time limit had expired before an intervening Congress had taken action to extend that limit, a strong argument could be made that the only constitutional means of reviving a proposed amendment would be to propose the amendment anew by two-thirds vote of each House and thereby begin the ratification process anew.

Additionally, if the proposing Congress had fixed a specific time limit within the text of the proposed amendment itself, a strong argument could be made that any attempt to modify or extend that period would constitute an amendment to the proposed amendment, requiring the ratification process to begin again."

Even assuming arguendo that H.J. Res. 638 would be unconstitutional had the 7-year limit been included within the text of the ERA itself, it can nevertheless be viewed as constitutional if the placing of the limitation within what we shall refer to as the "proposing clause" permits a different result. From an analytical viewpoint, we think that respectable arguments can be made on both sides of this question.

An argument against the constitutionality of H.J. Res. 638 might be based on the following analysis: As suggested by the language of the Coleman opinion, the question of a time limit is no longer open once a time limit is imposed by the proposing Congress. Furthermore, Art. V itself can be viewed as envisioning a process whereby Congress proposes an amendment and is divested of any power once the amendment is submitted to the States for ratification," other than possibly the power declared in Coleman to judge whether ratification has occurred. Also, it can be argued that no distinction should be made between the placing of a time limit in the text of a proposed amendment and placing it in the proposing clause; to do so is to elevate form over substance. Finally, it is not unreasonable to say that States having ratified a proposed amendment with a set time period have done so in the expectation that a necessary three-fourths of the States would do so within the established limit or else the proposed amendment would fail of adoption.

An argument favoring the constitutionality of H.J. Res. 638 might proceed as follows: Dillon and Coleman confirm the power of Congress to establish a "reasonable" time in which ratification may occur and, therefore, an extension of a time once established is constitutional if the extended period is reasonable. If,

The language quoted above, from the opinion of the Court, was the opinion of Chief Justice Hughes joined by Justices Stone and Reed. Justice Black wrote a concurring opinion joined by Justices Roberts, Frankfurter and Douglas, that would have disavowed the assertion in Dillon that the courts would under some circumstances ever be able to inject themselves into the type of dispute presented. Justices Butler and McReynolds dissented on the ground that a reasonable time had elapsed since the amendment was proposed. See note 51, infra.

Although such an argument has some appeal, a contrary conclusion is supported by the analysis of the Court in Dillon v. Gloss, supra. In that case, the seven-year limit had been included in the text of the proposed amendment and the amendment had been ratified by the requisite number of States in about 13 months. If the Court had viewed the sevenyear limit as a substantive part of the amendment, it could have affirmed the limit's validity solely on the basis that it had in any event been ratified as part of the amendment itself and thereby would constitute an amendment to Art. V. Indeed, the brief of the United States in Dillon appears to embrace such an argument. See Brief for the United States at 5-6. The Court did not, however, decide the case on this proffered ground, suggesting that the Court might not have viewed the seven-year limitation as being a substantive part of the Eighteenth Amendment. See also 55 Cong. Rec. 5649 (1917) (remarks of Sen. Stone).

A contrary conclusion is also supported by the Court's decision in the National Prohibition Cases, 253 U.S. 350 (1920). In that decision, involving a challenge to the validity of the Eighteenth Amendment, Mr. Justice Van Devanter, in announcing the "conclusions of the Court," id., at 384, purported to set forth the "text" of the Eighteenth Amendment by quoting in full sections 1 and 2 but completely omitting section 3 which contained within it the seven-year limitaton imposed for the first time by Congress. Id., at 385. See id., at 393 (McKenna, J. dissenting).

See, e.g., 56 Cong. Rec. 446 (1917) (debate on proposed Eighteenth Amendment) : "Article V expressly provides that once this proposed amendment has gone from the halls of Congress and rests with the States, when ratified by the States it becomes a part of the Constitution."

under Coleman, a Congress years after an amendment has been proposed has the power to determine the reasonableness of the intervening time period, there is no reason to conclude that a Congress in the position of the 95th may not determine, at a specific point in time, that an amendment is still viable and will be so for a reasonable number of years in the future.

Presented with these arguments without more, we would find it difficult indeed to choose between the two. We take as given from Dillon and Coleman that whatever power the 95th Congress may have to extend the seven-year limitation must be implied from Article V itself, and we think it fairly clear that such power may be implied unless the action of the 92d Congress must be viewed as binding on all future Congresses, including the 95th and the 96th, the latter being the Congress during whose life the initial seven-year period will actually expire. In our view, the soundest approach to resolving this question is to rely to the greatest extent possible on the historical understanding of the Congresses that have made use of the time limitation device.

II. HISTORIC PRACTICE REGARDING TIME-LIMITING CLAUSES

7

Although the placing of time limits for ratification in proposed amendments was considered in the 65th Congress, the first occasion for its actual inclusion was in the Eighteenth Amendment. In that amendment, the limitation appears as section 3 and reads as follows:

"This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislature of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress."

As pointed out by the Court in Dillon, this provision was included in part because of expressed Congressional concern that other amendments proposed much earlier in the history of the Republic might still be subject to ratification. Such a possibility concerned the 65th Congress because it generally agreed, as did the Dillon court subsequently, that some reasonable time period for ratification was implicit in Art. V itself. See Dillon v. Gloss, 256 U.S., at 372–73. Although the question was not focused on generally in House debate, at least one of the participants observed that "the [seven-year] limitation here is in the article that is to be submitted and is not a separate proposition. Hence, when it is voted upon by the States and adopted it is as much a valid article and amendment as [the substance of the amendment itself]."'

In the Senate, fuller consideration was given to the question of the power of Congress to place a time limit on ratification. In response to the argument that Congress had no power to impose a limitation on the ratification period, several senators argued that the apparent absence of such a power in Art. V would be overcome and such a power would be recognized as part of the Constitution should three-fourths of the States ratify within the then six-year period. 55 Cong. Rec. 5650 (1917) (remarks of Sen. Promerene); id., at 5659 (remarks of Sen. Sheppard). The debate in the Senate also indicated general agreement that the power of Congress to set such a limit would be subjected to judicial review and that failure of ratification by three-fourths of the States within the fixed time period would most probably require the resubmission of the amendment by a future Congress. Id.

When the next Congress came to propose the Nineteenth Amendment, congressional fears expressed in section 3 of the proposed Eighteenth Amendment were apparently put aside. The issue apparently never arose until an attempt to include a seven-year limit was made, and without debate, rejected."

When the Congress proposed the Twentieth Amendment by S.J. Res. 14 in 1932, a seven-year limitation was written into the text of the proposed amendment itself, now section 6 of that Amendment, in language virtually identical to that contained in section 3 of the Eighteenth Amendment quoted supra." On the floor of the Senate, section 6 was explained as follows:

"In effect, it [section 6] is the same provision that was in the prohibition [Eighteenth] amendment to the Constitution." "

7 See remarks of Senator Buckalew, 71 Cong. Globe 2771 (1866); S5 Cong. Globe 91213, 1040 (1869).

856 Cong. Rec. 463 (1917).

58 Cong. Rec. 93 (1919).

10 The phrase "as provided in the Constitution" was not included in section 6. Otherwise, the sections are identical.

1175 Cong. Rec. 5086 (1932).

During House consideration of S.J. Res. 14, Congressman Celler of New York proposed that a seven-year limitation, then not in the resolution, be added to what he described as the "preamble," or proposing clause, of the amendment. In doing so, he quoted at length from Dillon v. Gloss, supra.1

Celler's proposed amendment to S.J. Res. 14 drew immediate criticism from his colleagues. Congressman Jeffers, apparently not favorably disposed to any limit, refused to debate its wisdom.

"Because I think it is very clear that it [Celler's proposal] is out of place where it is being offered; but if the amendment has any virtue * * * I think it should be offered at the end of the resolution as an additional section, and then if it should be adopted it would be a part of the constitutional amendment."

"As it is now offered it would only be a part of the proposal clause of the constitutional amendment but would not be in the constitutional amendment.

"If the gentleman wants his amendment in the Constitution, it should go in as a new section, or section 6. As he has now offered it, it would be of no avail ✶ ✶ ✶

19 13

Another of Mr. Celler's colleagues, Mr. Ramseyer, intending himself to amend S.J. Res. 14 to include a seven-year limitation for ratification, indicated his agree ment with Mr. Jeffers as to the question of where the limit should be placed.

"The eighteenth amendment carried that 7-year provision as section 3, and it was that provision that the Supreme Court [in Dillon] held to be valid * * * "Section 6 goes to the entire article, as to how it shall take effect. It appears in the eighteenth amendment as the last section of the amendment ***. I am confident that is the place for it." "

Congressman Celler, after this discussion, withdrew his amendment.15 When Congress proposed what became the Twenty-First Amendment, it inIcluded as section 3 of that amendment language virtually identical to that in the Eighteenth and Twentieth Amendments.16 Comments on the floor of the Senate included statements that "the Congress which submits an amendment has the power to fix the terms upon which it may be considered," 76 Cong. Rec. 4152. (1933), and "after Congress adopts the manner of ratification, by legislatures or conventions, it has no more role to play." Id., at 4164 See also, 55 Cong. Rec. 5652 (1917).

The Twenty-second Amendment likewise contained a seven-year limitation in section 2 of the amendment patterned after prior limitations. Senator McClellan noted that "a period of 7 years' time is given, under the terms of the joint resolution [for] the amendment to be ratified * * * ." 93 Cong. Res. 1800 (1947). The Twenty-third Amendment, proposed in 1960, for the first time did not include a seven-year limitation within the text of the amendment itself. Instead, the seven-year limitation was contained in the proposing clause, which read as follows:

"That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress * * * ." [Emphasis added.]

The history of the Twenty-third Amendment is lengthy, as pointed out in hearings conducted by Subcommittee No. 5 of the House Committee on the Judiciary chaired by Congressman Celler. Early proposals to grant the District of Columbia voting power in the Electoral College would have amended Art. IV, § 3 of the Constitution directly." In 1940 and 1941, amendments were reported out of committee containing seven-year limitations in the text of the proposed amendments.18

"The resolution * * consists of two parts. The first part provides by its terms that the resolution [sic] shall be valid as part of the Constitution only if ratified

12 "Proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor * * *," Id., at 3856, quoting Dillon v. Gloss, 256 U.S., at 374-75. 13 Id.

14 Id., at 3856-57.

15 Id., at 3857.

16 The notable difference was that ratification was to be by conventions in the several states rather than by state legislatures.

17 See Hearings on H.J. Res. 529 before Subcommittee No. 5 of the House Committee on the Judiciary 82 (1960).

18 Id., at 106-08.

by the legislatures of three-fourths of the States within 7 years after it has been submitted to them by the Congress." "

Footnote 8 to the report read as follows:

"Congress first adopted the 7-year limitation provision in proposing the 18th amendment to the Constitution. It did so because, at that time, several proposed constitutional amendments already submitted to the States for ratification had long laid dormant but were nevertheless subject to being resurrected and acted upon by the several States. [See Dillon v. Gloss, 256 U.S. 368, 373, (1921).]

"The first 10 amendments to the Constitution were ratified by the necessary number of States within 10 months, 20 days of their submission by the Congress. According to a statement in Coleman v. Miller, 307 U.S. 433, 453 (1939), the average time for ratification of amendments 10-21 has been computed to be 1 year, 6 months, 13 days; 3 years, 6 months, 25 days has been the longest time used in ratifying. The 22d amendment was ratified in 3 years, 11 months, 7 days." [See also Dillon v. Gloss, 256 U.S. 368, 372; Constitution of the United States, S. Doc. 170, 82d Cong., p. 39.]

H.R. Rep. No. 1698, 86th Cong., 2d Sess. 4 (1960). During the debate in the House over the resolution, it was said that "the critical hurdle will be to secure the approval of three-fourths of the State legislatures on the proposed amendment within the 7-year period." 106 Con. Rec. 12570 (1960). See also id., at 12559, 12561-63, 12571.

The Twenty-fourth Amendment included a proposing clause identical to that of the Twenty-third Amendment. The House report on the proposed amendment stated: "This resolution requires, of course, ratification of the legislatures of three-fourths of the several states within 7 years from the date of its submission by the Congress." 19

When the Twenty-fifth Amendment was proposed in the 89th Congress, the seven-year limitation once again appeared in the proposing clause in language identical to that of the Twenty-sixth Amendment and that in H.J. Res. 208 proposing the ERA. This language eliminated the phrase "only if" and simply announced that the amendment would be valid "when ratified *** within seven years * * * ." The reports issued regarding the Twenty-fifth 20 and Twenty-sixth "1 Amendments add nothing to our consideration of the time limitation.

The Senate Report on the ERA, in its "Sectional Analysis" of H.J. Res. 208, states concerning the "resolution" or proposing clause that:

"This is the traditional form of a joint resolution proposing a constitutional amendment for ratification by the States. The seven year time limitation assures that a ratification reflects the contemporaneous views of the people. It has been included in every amendment added to the Constitution in the last 50 years. It is interesting to note that the longest period of time ever taken to ratify a proposed amendment was less than 4 years. The power and responsibility of Congress to impose a reasonable time limit for ratification of constitutional amendments was made clear in both Dillon v. Gloss 256 U.S. 368 (1921), and Coleman v. Miller 307 U.S. 433 (1931)." 19 22

In addition to this analysis in the Senate report, comments on the floor of the House and Senate generally assumed that the seven-year period was a limitation on the time in which ratification could occur. Thus, Congresswoman Griffiths, after describing the limit as "customary," went on to say that "I think it is perfectly proper to have the 7-year statute so that it should not be hanging over our head forever." 117 Cong. Rec. 35814-15 (1971). Senator Hartke, a supporter of the resolution, stated his view that "if there is such a delay [beyond seven years], then we must begin the entire process once again." 118 Cong. Rec. 9552 (1972). See also id., at 9576 (remarks of Sen. Cook).

III. THE BINDING NATURE OF THE SEVEN-YEAR LIMIT IN H.J. RES. 208

The history of congressional use of a seven-year limitation demonstrates that Congress moved from inclusion of the limit in the text of proposed amendments to including it within the proposing clauses with and without the "only if"

19 H. Rep. No. 1821, 87th Cong., 2d Sess. 5 (1962).

20 See S. Rep. No. 66, 89th Cong., 1st Sess. (1965); H.R. Rep. No. 554, 89th Cong., 1st Sess. (1965).

21 S. Rep. No. 26, 92d Cong., 1st Sess.

(1971).

(1971); H.R. Rep. No. 37, 92d Cong., 1st Sess.

22 S. Rep. No. 689, 92d Cong., 2d Sess. 20 (1972).

phrase without ever indicating any intent to change the substance of their actions. The one occasion on which Congress actually considered the possible differences between placement of the limit within or without the text of a proposed amendment, the only expressed view was that the limit would be to "no avail" were it placed without the amendment. And as recently as the debate over the ERA, the limit was viewed as a "statute." 117 Cong. Rec. 35814-15 (1971). Thus, when H.J. Res. 208 came before the Congress for consideration, it is not at all surprising that some members indicated their belief that the amendment process would have to begin anew were ratification not achieved within the seven-year limit.

We think there are sound reasons to view any substantive or procedural details placed in a proposing clause for an amendment as subject to modification by a succeeding Congress. First, as demonstrated above, on the only occasion on which Congress itself has directly considered this question, the only views expressed were consistent with this position.

Secondly, as the Court noted in Dillon v. Gloss, 256 U.S., at 373, "An examination of Article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments." Thus, Congress' power under Art. V consists of more than simply proposing amendments: it includes the power to establish the details of how an amendment, once proposed, is to be acted upon by the several States.

As the Dillon Court noted, the substantive Art. V power to propose constitutional amendments is subject only to two limitations, one being the two-thirds vote requirement and the other relating to amendments that would deprive a state of its equal suffrage in the Senate without its consent. Dillon v. Gloss, 256 U.S., at 373-74. There is nothing in the text of Art. V which would bar subsequent Congresses from taking action with respect to the details of the ratification process as distinguished from the substantive amendment itself while the amendment is being considered by the States.

We conclude that the 95th Congress, under Art. V, can act to extend the sevenyear limitation period placed by the 92d Congress in the proposing clause of the ERA. The 92d Congress had the power to make the seven-year limit a part of the substantive amendment by placing the limit within the text of the ERA itself. The fact remains that it did not do so. We think our conclusion that a time limit fixed in a proposing clause should not be viewed as immutable is supported by the nature of the decision made by the 92d Congress and that which would be made by the 95th Congress were H.J. Res. 638 to be adopted.

The nature of that decision is, we think, accurately described by the opinion of the Court in Coleman, 307 U.S., at 453, as follows:

an

"The question of a reasonable time in many cases would involve appraisal of a great variety of relevant conditions, political, social and economic

The Court in Dillon, discussing the time limit from a somewhat different perspective, concluded that “an alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and *** if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and no again to be voted upon, unless a second time proposed by Congress." 256 U.S., at 375, quoting Jameson on Constitutional Conventions § 585 (4th ed.).

As a matter of logic, it seems to us that what constitutes a reasonable period of time for ratification of an amendment would normally be best decided not by a proposing Congress but by the Congress in session when the necessary threefourths of the States have ratified a proposed amendment. This is so because the limit imposed by the proposing Congress is, at best, predictive, whereas a Congress presented with ratifications by three-fourths of the States is better able to base its decision concerning viability of the amendment on concrete evidence. Indeed, as indicated above, the seven-year figure adopted by Congress in proposing the Eighteenth Amendment achieved, partly by virtue of its approval in Dillon v. Gloss, a talismanic significance that has never been examined in connection with the proposal of any amendments since that have included the same limit. In short, we think it is quite reasonable to accord the seven-year limit in the ERA only the deference that the express language of the limit re