MINUTES OF MEETING SENATE JUDICIARY COMbIITTEE AUG 1 0 lcfl2 February 8, 1979 OF MO&TkNA The thirtieth meeting of the Senate Judiciary Committee was called to order by Senator Everett R. Lensink, Chairman, in room 405 of the capitol building at 9:39 a.m. on the above date.
ROLL CALL: All members were present.
CONSIDERATION OF SENATE JOINT RESOLUTION 12: This is a joint resolution of the Senate and the House of Representatives clarifying the intentions of the 43rd legisla- ture concerning the time limit placed upon the ratification of the Equal Rights Amendment. Senator Lensink stated that he recognized the extreme im- portance to everyone concerning this bill and the marked dif- ference of opinion. He asked everyone to respect the viewpoints of each side. He stated that he would give twenty minutes to the proponents and twenty minutes to the opponents. Senator Galt, sponsor of the bill, gave the committee a packet of testimony and offered a statement. He introduced Betty Babcock. Mrs. Betty Lee Babcock, Helena, Montana, gave a statement in support of this resolution. (See ~xhibitA,) Mrs. Cheryl Cozzens from Billings, Montana, gave a prepared statement in support of this resolution. (See Exhibit B.) Mrs. Kenneth D. Peterson, attorney in private practice in Billings, gave a statement in support of this resolution. Miss Angela Romaine gave a statement in support. Mrs. Marilyn Wessil, from Bozeman, introduced Jean Ellison, from Stevensville, who gave a statement in opposition to this resolution. Mrs. Earl Rose11 from Billings, gave a statement in oppo- sition to this resolution. Mrs. Barbara Schelling, McCloud, Montana, representing women in rural Montana, gave a statement opposing this legisla- tion. Maggie Davis, representing the League of Women Voters, gave a statement in opposition. Minutes - February 8, 1979 Senate Judiciary Committee Page Two
- .Fran EPge, Billings, Montana, and representing the ERA Coun- ' cil with 1200 individual members, said that they strongly oppose this resolution,
Flora Martin, a professional home econominist and represen- ting Montana Association sf Home Economists, gave a statement in opposition.
Jim Murray, Executive Secretary of Montana AFL-CIO, gave a statement opposing this bill.
Sister Kathryn Rutan, representing the National Assembly of Women Religious and Network, which encompasses 5,000 Catholic sisters in the United States, stated they have been supporting .the ERA movement since 1973.
Phil Campbell, representing the Montana Educators Associa- tion, stated that they have supported the ratification of ERA since 1973-
Gary Jepsen, pastor ~f the St. John's Lutheran Church, stated that in 1972, at their national conference, they passed a resolution supporting ratification of ERA and were opposed to the resolution.
Mary Munger, R.N,, representing the Montana Nurses Associa- tion, and also a chairperson at the International Women's Year conference, stated that 1200 members in 1973 voted to support ratification of ERA.
Mrs. Irene Sshnell, Butte, representing the National Fede- ration of Business and Professional Wamen stated that it took two hundred years for women to become citizens under the consti- tution and that they opposed this resolution. Senator GaPt made a closing statement and he stated that you can vote for this resolution and still be a backer of the ERW movement.
Senator Lensink said that he appreciated the excellent testi- mony and the excellent manner in which it was presented to the committee and that the committee will act on this bill soon.
(See numerous amounts of written testimony presented.)
CONSIDERATION OF SENATE BILL 288:
Senator Brown gave an ex~fanationof this bill, which is an ( act to provide additional authority for converting shares of a corporation on merger.
There were no further proponents and no opponents. Minutes - Februaryc 8, 1979 Senate Judiciary Committee Page Three
Senator Towe moved that the bill do pass. Motion carried unanimously.
CONSIDERATION OF SENATE BILL 293:
Senator Towe gave an explanation of this bill, which is an act to revise youth court act to allow restitution. The sponsor . of this bill is Senator Thomas, but he was not able to attend.
Becky Giles gave a statement in support of this bill and explained how a youth who had been paroled from Pine Hills wrecked five cars and how they suffered much loss from this youth's action. Jerry Metzyer, coordinator for the youth court in Great Falls, stated he was the co-author of this bill and gave testi- mony in support of this bill. Senator Thomas arrived at the hearing and gave a further explanation of this bill.
There were no further pro~onentsor opponents.
Senator Van Valkenburg questioned why there was a limita- tion of $1,500.00 and felt that if the kid had a $1,500.00 hot rod. why should he not lose his hot rod. Senator Turnage said that he did not feel that the guar- dians should be liable and he stated that there are some youths who would just love to stick mom and dad just to get even.
There was further discussion on problems in the bill.
Senator Towe moved that the bill be amended on page 9, line 14 by inserting "."and strike the remainder of new mate- rial following the word "youth". The motion carried unanimously.
Senator Tove moved that this bill do pass, as amended. The motion carried unanimously.
RECONSIDERATION OF SENATE BILL 288:
Ward Shanahan, representing the Business Section of the State Bar of Montana, offered some amendments to this bill. Sen- ator Towe moved that we reconsider action taken previously on this bill.
Senator Towe moved the adoption of the amendments. The mo- tion carried unanimously.
Senator Towe moved that the bill do pass as amended. The motion carried unanimously.
There being no further business, the meeting was adjourned at 11:04 a.m.
SENATOR EVERETT R. T,ENSTNK pun Tnxt-~~ ROLL CALL
I r' SENATE --i SENATE )dG-y>t -rnmT& BILL ' ; VISITORS ' GISTER DATE -;/:Af - I Please note bill no. NAME REPRESENTING BILL # SUPPORT(check one) I - , I I .' ...... ,'. 7. ZW/' I - . , ! /i /' T -- -, I , 1 I I ' . > ; i I 1 - I --- --.--._ - ---t_PLEASE r PREPAR~~STATEMENT WITH SECRETARY SENATE \&(C L i P.- 1'7 COMMITTEE BILL~JR/L- VISITORS' REGISTER DATE --f'I SEWiTE 3~lF~11C>c:c:~7, COMMITTEE / BILL b Please note bill no. -Fheck-- NAME REPRESENTING BILL # SUPPORT^ OPPC ,A I) - , , ,,' >+L t /() ' A/. j,,q.n, ,4 iei- c' - .7 I 7 1~ / .? 1.' , , 'J ,I ,b,- 1- .!\L 4 b).,.4 1 I-) / .. , , a , J , / I! . . . -- ... _-.- l_ri;vsil1L / J I I ! I, ; , \, 1;, l ------r !I is4 293 1' +' I --+----.. . .-- - - -.--- It SJQ 11-- :' tj I./ ! iI. : I I I I I ! j I1 , ! i I (--I' iI j' I 1 1 -- -- i I 1: I ! j: ----t-- - - 1 r t i 1 I 1: 1 I! i 1 2['I1 Q I I - 1' - I '1 - - j I +-T - I I I I I ------ PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY C ,/ , F ..1ddT8c- t -. ,$ . [d- (2-.L&>C * -[ -""CL C --.-/- 2-L /J: <-,: SENATE > COHflITTLE BILL~UT12 ~ISITORS REGISTER DATE 2,,4-/J- NAME REPRESENTING BILL # SUPPORT OPPf - U ( */ I 8, I , . I --"- I i ,', - --..- ? ' /fiF7 J h/4.& ! dSCdy'' Cr ' 1,. -9 , --. I' , / /? /'1 ..-- Q. ' ( 9 [! // %14$ / v~kLu.I 1f l/\~p'/--?I v CC~~L-L I ;, ;, !,q./<.L;< ,:, i <. ,- I I . L // ' -, -LAC La- ,.'J,,.c/L~-c; - ,, : h,.:,l . ,/Lab' ) i. "I,. (,j 1 f', SENATE bl ,Y[J<(~ ha, COMMITTEE 3 / BILL VISITORS' REGISTER DATE ->-g->? b Please note bill no. check ox-' NAME REPRESENTING SENATE ))f(d(r.d 4)2 q COMMITTEE L' L' /' BILL y.1 1\7/~ VISITORS ' REGISTER NAME REPRESENTING ! I 1 1 I' 1 1 I - I -- I 'i!. -- I i 1 I 1------ PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY 1 27 .' 4Ldc,-• J SENATE &,>idy COMMITTEE nrm 5 J R 12 v1sIToRst REGISTER DATE )->.->+ .I-&.-* / ,' ,/..-,- -~,L>A.--.- -A 4-~./-(&>4~ .. /QL&&+,- (- f-* /' SENATE $lc{.(( :-<-I> yy COMMITTEE BILL S 12- VISITORS' REGISTER p;II 40 '04 psci1?c1 j, REPRESENTING ' * SENATE DATE SENATE BILL DATE Please note bill no. - (check one) NAME REPRESENTING BILL # SUPPORT OPPG e a'$ . ,/' , . i 1 . 17. :J -:. ~-y.l.J;c;-,. j ~LC~Jji . ? cl.zd' :. ;2 - '(7 , f 7 L' T t . 1 , i, ff ( , J . ..:-,; ,'J 1, / ;'/ Y J;(, , / --.. LC; f p :i / / / diGri1 -!tb4 8.0 2,3.,,,,J ' );!i; A}, @ I ., , C' , 'J I .'-.',, , 7. , y !... * .,-. %.,, ' L - i -,/ ~33-r/ / / .) - 4 .-- ' I i A.L r i 1 I ! 2 6 I ; I.i I 1 1- i : I rI j L ' . 1 - -+-! , I I 1 I i ------. I PLEASE LEAVE PREPARED STATc~phrr r.lrnll ct-*t-,c*Fnxr SENATE BILL s~f /A VISITORS ' GISTER DATE 2- -8d a Please note bill no. (check one,4- NAME REPRESENTING BILL # SUPPORT OPP: pP 13 I 3.. SJR 12 is a reaffirmation of the states rights in the amendment process. 2. The states have the right to put any wording in their ' resolutions of ratification. 3. Montana put a time limit in HJR 4 which was ratified accordingly. Montana held up her end of the constitutional amendment process. 4. Congress should respect our right and our ratification document which includes a specific time limit. 5, Congress, however, did not abide by their end of the process because the extension changes the way our ratification was written. Montana did include a time limit in HJR 4. 6. I, along with others, do not like the (fedp interfering w with states' rights. Congress is manipulating the constitution, which includes our state rights. 7, SJR 12 opposes this # manipulation, that being the extension. 8. Baseball game: serious matter. Could you see the last game of the Wrald Series? Let's say the Yankees won but a all of a sudden the Commission on Baseball says there should : ~L+)-L.,~%\.r-+ h L.A I C i~vlcL-IcL. LIT I, be another game beciins~theDodgers we-&--given- .-&hs(i .ihir 'r L,c.;,~.L,,rh how good thgy were? I U\iG-7'Lc - - ,+ 1% .l<,ucc.) 9. How about Allydar and Affirmed? After the first rack, people were saying ...if the race had been longer Alydar would have won. Well the races got longer, and Alydar never caught up. ~far.hr~/ch 10. A voter for SJR 12 is a vote for fair play and for ' ,< f3o, f z't; ~xf.tt,sjlraiAim rr tcw k9*$ !~,;rdkyr: Ek? " .-. - .-- k.be "the! irr;iE c4 a m!%t:tak;iJ!bey;(' I> a e d:@i;ljp~ijfkq pfry:~:r*.~i:9OI't3t r*~:~ffS~'?iSiEt:k$ ~ZCIJI , liangi'r th:*L. ti;voiving Tir g+~%qilrin so 1:124i,:ripia f7 ihr EiFvada I('D. ; $ &. Isst?$ aa' r;amTratrm ps~lrite Ilazp~ir&i;r.~~PJ 2, &'fi:li.T:p* qv;;tA;%f r-2!d Gtc* )..t*'i:t?b%;leQ g.ri.Yfik&* "tntcrtcra~atrr:t~'*wlih Ilht: dcrl-~:per.rc,tfe RZ' JYtl:<,A%394)b.J kW:P3YtU1)N ~r?r;-'~sZ~g~fi~-:~ f,1541 E':.li& @~.r:$ Fh"t:$ OEG 3' pr*r.l..sa! lffin.Utii;i;tt~q-7 $~psas~i.*gse~y W- I&??:& . \~gtv,~fiis,p.; ygiF[ pi& $3 >qtci.:$ $-8P*;:fE,:%ii;e Ra '-6 t RA$AdAdffl:g-;.;13't'3Fi .z, %-lit f~~bivaf a1-e ' LO IlilrgJtfy V~I!LEC~$bp 8iber~h--- rlip?# b%%s j~w?p% .* lti.24, ft~$*311iy\t(.*ak41rtir,lltBrt, f$;t.y fkk &I $hl'as:t.% "p,iiw?rx~" tkr? ax%. c:S g~iucuntrxeaf, A k~&na;Pr!g r*r * NAME WARD A. SHANAfLAlJ BILL NO. SB 288 301 First National Bank Bldg.- ADDRESS Helena, Montana 59601 DATEFebruary 8, 1979 L 1 WHOM DO YOU REPRESENTBusiness Section, State Bar of Montana SUPPORT XXXXX OPPOSE AMEND PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. Comments : The Companion section of the corporation Act was inad- vertently omitted from the bill and should contain the same language as the first section. Therefore, please amend the bill as follows: Page 1 line 5 after 35-1-801 add "and 35-1-802n. Page 1 line 6 after "merger" add "and consolidation". Page 2 line 8 insert a new "Section 2" as follows: (I) Any two or more domestic corporations may consolidate into a new corporation pursuant to a plan of consolidation approved in the manner provided in this chapter. (2) The board of directors of each corporation -shall, by a resolution adopted by each such board, approve a plan of consolidation setting forth: (a) the names of the corporations proposing to consolidate and the name of the new corporation into which they propose to consolidate, which is hereinafter designated as the new corporation; (b) the terms and conditions of the proposed consolidation; (c) the manner and basis of converting the shares of each mergP~gcorporation into shares or other securities or obligations of the surviving corporation or any other corporation or, in whole or in part, into cash or other property; (d) with respect to the new corporation, all of the statements required to be set forth in articles of incorporation for corporations organ- ized under this chapter; (e) Such other provisions with respect to the proposed consolidation as are deemed necessa Renumber Section 2 as writ STATE BAR OF MONTANA -- -- Eztty Lce 2abcoc!c lv nar.2 is Betty Lee Babcock and I wish to speak in scpport of Senate Joint Resoluion b., . - II represent a great many Women and their.families throughout 1,:ontana. I servd as the c;laiman of ths elected delegates to th~InternaZional PJomen's Year in IIouston, Texas I and sincz the Conzerence and the allcged Extension of the Equal Rights F_nen.3,~2ntby ths Congress our number of supporters has increased considera5ly. IPie 0220~2 the actiosl takm by Conyrsss to extend the ti~elinit for P.ztific3fion ~mt;_l June, 1982. The very passage of the Extension Bill proves that the ERA Sugporters cm- no-i cbtain the necessary ratification of 3 more States by the Pdarch 22, 1979 Daaciline. 1The Ext5nsion Bill is a confession of FAILUXE to itin mder the Rules. We object strongly to the Feminist Groups who are trying to restructure the Amarican Spciety. IAn.ong Liberal PRO-EX9 Supporters are the Eu'ew Yor~Times,Washington mews, Detroit News, Denver Post and the Washington Post. All of which, although strongly ezdorsing the Em Icould not endorse the tJhFAIR and constitutionl:~questionable PRO-Extension Positon. For Exxople, the Denver Post in July 20th, 1978 Editorial concluded: ER9 will be an IIIonored Dart of this Constituion if it passes Pairly,tut if Congress tries to rig tha rules in its favor it will dishonor the very tenets of De~ocracythat Em itself The saxe feeling has been eviden& by our om ltontana Editorials. Wetispapers v~hich ( rnrein Sugoort of ERA meemphatically opposed to the Extension. The Montana Standard in an October 23rd, 1978 Editorial statedand I Quote; ",wd they talk about 'Interference' in Nevada. In Washington, the Supporters did nore than Iinterfere, they put the fix in, pure and simple," Thz undemocratic tactics of the AmenLzen'is Su2~orterscontradict their purported concern for Equal Rights,* IThz Independent Record, August 17th, 1978 in an Editorial against th? Extention cozlcluded; "As far as we are concerned, Congress gave the Country Seven Years to approve or xejoct . ithe Eq:lal Rights Amendment and that is plenty of tine. If the Ainendment: fails to be ?,stif;-r:d by th? Original Deadl<.ne, so 52 it. Enolqh 3.s E~ough. 'Let's hop t;?e '~enats Ifeels the same way. We're sure a large segernsnt of the population also agrees. 'Fne Daily Interl&.e of Kzlispell stated : (Jul?e 21, 1978) "Another Seven Years too i;ush Ifor ERr,,. AS it now stands if Congress adopts the Extension, that would be interference with States Rights. Ass~rcingan Extension is granted for ERR, depend upon it, tl~arc will be Court Challenges. Seven Years is enough, another seven years woul6 be too en the kqual Rights Amendment was ratified in ::ontam in 1974 is seemed clear that ssven year limit was a najor factor in getting it passed and it was our hope the fight would be over. And now that the time is near and it appears that we worn they Ihave ch3nyed the Eules. This is extremely UTPA'A'LR, 2) I would like to enter in the testimony a telegram from former State Senator DavLd Jamerr. (Read Telegram) Several other Senators who were in the Senate and Participated in the Debate at that time Rave echoed his Sentiments. X believe this confims the fac.I that they were of the same opinion. Senator Sam J. Ervin Jr. in a letter to the House Judicary Committe, on June 19, 1978 I said; " At least 28 States describe the Prososed ER4 they are Ratifying as one which shall be valid to all intents and purposes as part of the Constituion when Ratified I by Legislators of 3/4's of the Several States within-SEVEN YEARS from the date of it Submission by the Congress." I Four of those States Ratified without adverting in anyway to the tine limit ad so it can be p-rescined that those wholdid include the time limit, did so intentionally. Montana I was one of several States That did, Gentlmen: Montana Ratified the ERA in 1974 upon the condition that the- Amezdnerlt would I be Ratified by 38 Stabs within Seven years. Why the time Limit?? Because a Constituional R~endmeiltmust reflect the t?ill of the people in a:: sections or States at relatively the same period. I Montana, when ratifying this Amendment was agreeing that seven years was the period of tS3.e during which the will of the people w~uldbe reflected. I The Congress should not be allowed to attempt to change the terms 0f.a mW-- or Resolution passed by the MONTANA LEG1SLATU;IE. a Their action is an unprecedented attempt: to encroach Gpon the STATES RIGHTS. I We ask you to uphold the HONOR, INTEGRITY and the SOVEREIGNTY of the STATE OF MONTANA. PLEASE Vote in FAVOR of SENATE JOINT RESOLUTICIN '12. I Honorable Chairman, Committee: My name is Cheryl Cozzens. I am from Billings and wish to speak in favor of SENATE JOINT RESOLUTION 12. The opponents of SENATE JOINT RESOLUTION 12 have tried to label this resolution as a recission bill. This is simply not true. It does not seek to annul, abrogate, cancel9 or void anything. It does not seek to overturn or replace HOUSE JOINT RESOLUTION 4 which ratified the ERA. In fact, SENATE JOINT RESOLUTION 12 simply reaffirms the wording of HOUSE JOINT RESOLUTION 4 which specifically stated that Montana's ratification was conditioned upon the ratification by three-fourth's of the states within a seven year time limit from the date of its submission by the Congress.. Whether we take action or not, some constitutional authorities, like Jules B. Gerard, claim that if 38 states have not approved the pro- posed ERA by March 22, 1979, Montana and 27 other states will find their .. ratification void, as the 43rd Legislature intended, for it was felt that seven years was more than ample time to allow for a contemporaneous con- sideration by the State Legislatures. In fact, up to this time, never has a constitutional amendment been passed with'kore than a four year time limit. It has been stated by our opponents that this limit can be altered because it is not in the body of the resolution, but simply a preamble. It was, constitutional law authority, Professor Noel Dowling, who attempted to clean up the wording of the Constitution by placing the time limits in the resolution rather than in the body of the amendment. He explained this change, which gtarted with the 23rd Amendment in the following words: The seven year limit is put in the resolution rather than in the text of the amendment. There is no doubt about the power of Congress to putit there; and it will be equally effective. The usual way, to be sure, has been to write the limitation inb the amendment; but we hope such an unnecessary cluttering up C, the Constitution can be ended, d As stated by Professor Dawling, the time limit is "equally as effec- I tive in the preamble as in the actual text sf the Amendment. I What SENATE JOINT RESO~UTION12 does do 5s protect the process of constitutional amendments. It will not prevent any future attempt to I ratify the ERA, provided it is re-submitted and the Federal ~overnment upholds the original contract deadline it submitted to the states. The I states, acting in good faith, Rave upheld their part of the contract. B is somewhat Pike an individual making a morgage agreement with a bank and failing to get the money by the deadline, so he seeks to extend the time I a limit without approval of the other contracting party, the bank. It is changing the rules in the middle of the game and allowing for.special. I interest groups, if they donmt like the way the game is going, to fe6er.q ally.encroach on the rights of state legislatures and change the rules. t? SENATE JQXNT RESOLUTION does not declare Montanans to be opposed to I 4 * the concept of ERA. It simply reaffirms thh no single political or moral issue should be allowed to destroy the constitutional system or kending process as decreed by the highest law of the land. If ERA is still a -3 r I viable issue let's resqbmit it again and recommit the states to &ts E ratification, To do otherwise would cost us far more than we could ever I d gain. $ I, as a citizen of this great state, have elected you to represent meI and to protect my state's rightsc You have sworn to uphold the ~onstitu-I tion and by doing so, the division of powers therein. I implore you to reaffirm that pledge by voting for SENATE JOINT RESOLUTION 12. -- :3;;1+%on Gauss of :,ontana %poses adz- 12;- i'o :la-:,A, -"y $kia iri-,sntions of the -: ;;,, L?=.d Legislzt-z's concernir4 the :he iizii pl.ttcud on the r~tifi~2t20~sf - a:.= ::.Lt%nt by the 1974 Leglslatxr5. 3. Ziti Z;XT T'ne foilcwi~,~is the col:iplcts :ext of kJ Bcs, 2.118 prc.posing ari r' ,?escive&by the Sa;late a,gd ~:>~s~af ;-C~>~CS~::;~~~:'C~ tf ;inl;s~ .- - ~~~~tesof fiincrics in CCY~ESSZSS~-ZIOLCC~ ftii~'-%ii-ki~ 0;' ezch iioiise conc;J-rrir,~;-therinj , ;'i:at..-. ;zx&le followi~gartic)e is &~opssedtis a: ?d?enclient to'the C' A Ccnstitution of the United States, which &oLi Se vdid to d.1 ?R?.::ts ~:ler:t$s ~E.Vss!-aiL 2c.t be - - 4 ceoiod ar a>rl-jgzd by tb-z vgitzd S"?_--; +=s sr by zsy ht.&;c cn acco~nt . - : fif C'.%, -,-..,-: -9 : i .,-;;:. :feTP 9 .-..*-<-, :3 ,-.,.+.,..<.;.T .7+>r.':: ;.- . , A:.,. -:, .:. ,. +.n .,,.---%- ,.,.' - -. -..- ,..- l;;' '.* -*,...... , ---,2 ."-...-.-. .-i..- ;..:. -. '. -. *- ,. - d .> a .A L - , - . , 4 ,. : --;-,;3-.:,; -..-. - ...2 .'."'.. - .:.: .:-;= ..- 2- , -..- -. -,;- ,,..- ;..r.,. -* .I .".2 rc r -..- r :....l-:-..zXL A* . - 'j, .7': - -. . >-->.-- "se.2iion ,iils- ~.;scLxsn$ ;:?if~5- 2 GC: ""1 ----a az,i2r &ste of re,iification ,'" -. 4, The Ilrstr.. p2zt of tkAe ah-je text 1s the ,pe~~,bleof the a7'.2fidjri~nt ex>lalnicg tke procedwe set out by Congress. j. The second pxt in quotaticns is tht &ci~- of the a:ci?r,L.-,-ten%%ha:. u35 ratlfied by the 1974 :+:cnta,m kg1slstt;re. 6, cr TP ---a" (. xuA%: S;E~;Z r1;‘'r~' T-- -.+?- jPe4Pd3S-- IS .&,SLU:~Q~- - -1, tdC.,,s 6:: A! L\:rL"L?iTS I?QT T:iZ .C ,.,A S In ths U. S. Sti,xe;;e Colirt easc, 2illPos -v. ..-' r. ,:A?? .in:: >-2-b,:;,-:,;3+.i<-jg, "1 -,.'he IEt:: ~lf.d ?(i+,h tbzoi~~h2233 Axa::d,3eqts ?satalg& 2 7 ye?Ar th7e L ' 1 ,.I.- -%f:c)I? in ','RE; '~;rfy ~f L,kc zjnf:n&r;ent, -. The ';?jdj- 9: ::?a $ms;iGj;ent :s ratifie< ;C Y - ma S.,r:i?za fsre, -,he tima l;.::i ?,.zt:,on .;o.;ld. r,~t&e -._lt,2r.2-juitho:~t r2s,l~r;.,,t- 6 t f ng 5-~eA~encilient to the 5 ktes. . - {.,? --L1.-. -'- . ' . -..*; -. -. ., I.. .--i. ,&,.?,,,i - c:,;.? ! ! -+: :. --, .. . - - $;*z+ I...-LI/: .- . -..-. ::. ,,.-.., < ._, . :...A. Ft.? .;.:;:."::.t2 cf+ 2.;: - .. - .- .. - - .. -- --. -- -. I .. _ ...... -. - '4.. - : a . i : , " ;'..;. ;.lc .\4*;i;*.. .1 .-:.;- -*.,I< 4 . -- -- &s -nn,t a substantive ~;;rrtsf thz IkmcndJ~er;t--jiis+,.i proccd~r:d or explznztsry 2e.r~. 11, resscn that the f:%e 1ini.t gas o=lgLg?lly Zr;corp3r-te& fnto i;t&e , nclt L+ f;aatlng ,-irz~r.dforsvtx. Zn thti ;;.St C;+rsce nizkata. ~r:tks Ski; AZE~~~;,~~~~ - : p - - ".AT.'- .-.- - .-( --..- - . .. ---..:- -- As.h,cc;t, of ;\.riz?ra, oiho zt?-.,tcd tl.&i, a Li~:.ii2: :.err ~~25I?~:ZES~F~-Y "SO that xp ;;Fli not 5znd c!rjwn to ,osterj.ty 2. ccoli,glcmerste ass of k:?~an&r,sntscotit.f~g ~3":3'~~ldir, -in ~I:?:-:FC---"b .. . - --- - , : . +., - ..1 - : . I:. . -2- z 2, - ,- +-,-*<., -- .;', , ...... - , , , . - ..?c":l* 3.. : . - --- . .. .. - . - . . . - .. --t;fiLhs, r;;~257i; i2br-sist;L;;e tS xr"i,f icatior_ ;->:G:Z~5g 2??.:.7-.:\.- :n.i.7 ojr 2,Y w ?..%AL-&,&.d ,-> ,-> 2, J~CO~r:.,~... Tee f'c~llo~i~;is 2 quote from u.S, Sc-at;or 2ci:czs5 123.t; the resci.s.sion deS2ce fn Su's.-:?icgtcn, D.C.: "I Qo t?;;tconcerls th~?,tC'iX wixl ?rode ra~i .-: It is t~~3tka,t thrjre =c irzlated pa:.;P;,zes !..c ti?@ zfbie $hat sC~&s:f 4 a -+r;zn's role as sg3ser~~ientto %en. But, there zre &so $;SS&~SS that say the sun gaes erots~dthe e=th, Gcc cz?:;;ot is2Latc cnc szzcags fiios the zr;d ~ee 5he treth 2n;r"iore thzn one czn listsn to cne note acd feci the pxwr of Eeethavents PILcth 3pph~r,y--c.r +, .l ' COPDENTS ON SENATE JOINT RESOLUTION 12 . The ~umanistSociety of Montana would like to be placed on record . . as opposing Senate Joint Resolution 12. This resolution is not an act that would clarify the intentions of the 43rd Legislature, rather, it would recind ~lontana'sratification of the Equal Rights Amrnendment we0 believe, as a central value, fn the preciousness and dignity of the individual, We also believe that without equality under the law that this cannot become a reality, Until the ERA is ratified and becomes law, women of . this country will not share in the equal protection of their rights and liberties. Instead, these very tenants of freedom are at the mercy of the varying whims of legislatures and the Congress, f would like to point out that the twenty-seventh ammendment guarentees that : Equality sf rights under the Law shall not be denied or ' abridged by the United States or any state on account of sex. Senate Joint Resolution 12 is an attempt to recind the ratification of this ammendment. It represents a step backward for the people of Montatq, and is a vote against the people of Montana. The ERA benefits man as well as women, and means that individuals should be judged according to their capabilities and abilities, and NOT by their biology. It does not mean that there will be mandatory unisex restrooms, or that women will not be able to choose the role in life they want to fulfill, nor will it mean that women will be drafted for combat duty in the armed forces, In closing I would Pike to remind this corninittee that voting to recind the Statefs ratification of the ERA violates the Montana Constitution. Article 11, section 4 states: The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither state, nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of '.. his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious fdeas. A vote fn favor of Senate Joint Resolution 12 is a vote against the Montana Constitution, a vote against women, and a vote against all citizens of our State. I urge you to oppose this Resolutfon. STAN WALTHALL, FEBRUARY 8, 1979 PROPOSED AblEiVDRIENT XXVII lo . . IIouse Joint Resolution 208 proposing nn n~nendmcntt,o fllc ~onstitutionof the United States relative to eqlial rights for lnen and wonlen. Resolved by the Se~.~nteand ITouse of Rep~~csa~taCivcsof the . United States of Americ,n in Congl-css nssemblcd (two-thirds of each House concurring tl~erein),That I The follo~vingarticle is proposed as an aix~endnlentto the Constitntion of tlle United Stat.cs, ~vl~ichsllall bc valid to all intents and purposes as part of the Constitntion when ratified by ttlc legis- latures of thl-ce-fou i-tl~sof the scl-cml Stotcs within seven ycars from the ?ate of its submission by the Congress: "Section 1. ICqualily of 1.ights linifer the law shall not be denied or abridged by tllc United States or 1)y any Stntc on account of sex. "Section 2. The Congress sllall l~avethe power to e~lforce,by appropriate legislation, the pr.o\:isions of this nrt.icle. "Sect.ioo 3. This amendment sl~alltake effect ti\ro years after . . the date of ratification." "Thls Amendlucl~txis proposed by Congress on ?.larch 22, 1972, when the Senate passed unnmendcd the resolution adopted bg the 'IIouse of Rcprescntnti~cson October 12, 1971. As of December 1,10T2,22 States had rii tified : Rawail, Blarch 22, 1972; Dclnware, March 23, 1952; Ken. Rampshire, Sfarch 23, 1072; Idaho, March 24, 1972; Iowa, Jfarch 24, ISi?.; Kansas, JIarch 28, 1972; Xcbraskn, Jrnrch 29, 1072; Tennessee, April 4, 1975; Alnsba, April 5, 1972; Rhotle Island, April 14, 1972; Ker Jersey, April 17, 1972; Texas, April 19, 1072; Colorado, April 21.1972; Teat Virginia, April 22, 1972; \Visco~~sin,April 22, 1972; New Tork, -4pril 23, 1972; Jficblgan, JIay 22, 1972; Ifar~land,31ay 16, 1952; Jlnssachusetts. June 21, 107% Kentucky, June 20, 1972; Pennsylvsnla, September 20,1972; California, No-icmber 13,3972 47 . -- - -. ---- ___------L AHA Annd Meeting 8 April 1978 . _ . , RESOLUTION ON ERA WHEREAS, the Rrne~feanHumanist Association has long been on record as endorsing the Equal Rights Amendment ; and 8 IdHEE$s, the rat if ication of the ERA has now been successfully stalemated, against the wishes of the American people, by margin votes in three key states; and WHEPS,llS, sthe time limit on ratification, imposed by opponents of the EPA in Congress, fi is only months from r'ming out, and if it runs out that would mean introducing the menbent again in Congress, which took 50 years after it was first introduced to I act on it favorably; and WHEREAS, equality under the law should be the right of every citizen in a democratic society but has been denied to women For 200 years; therefore I BE IT REOLVEDo that the AHA hereby endorses H.J. Res. 638, which extends the time limit for ratification of the Eq-1 Rights Amendment and that the Association 8 immediately notify the President and key members of Congress of this action! and # BE IT FURTHER RESOLVED: that the AHA joins those organizations boycotting States that have not ratified the ERA,and will not hold Annual rceetings or National Board 1 in unratified States, This decision . to be conveyed to the 1 National Organization for \!omen, ERAmerica, arld other groups working for the ERA, adto the Governors, State Legislatures, Chambers of Corrlaerce, and Hotel and f Restaurant Associations of unratified States; and BE IT FURTHER RESOLVED: that despite its boycott of unratified States the American Humanist Association will continue to encourage and help mernbers and chapters in unratified States in their efforts toward ratification of the Equal Rights Amendment.4. Art. 11,s 2 CONSTITUTION OF MONTANA , Section 2. Self-government. The people have the exclusive right of governing tl~cli~sclv~sas a frcc, sovcrcign, and indcpcndciit state. They may alter or abolish the constitution and form of governlnent whenever the> dccm it necessary. Convention Notes govcrn thcrnvclvea and to dcterlnino their , ...... , No change except in grammar [Art. 111, form of PJvcrnment. .- see. 21. Civcs Jfonti~r~ilnstho riglit to \ ' Section 3. Inalienable rights. All pcrsons are born frcc and have certain inalienable rights. They include the right to n clean and healtllful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, posscssing and proteetr ing property, and seeking their safety, health and happiness in all lawful ways. In enjoying thcse rights, all persons recognize corresponding re- sponsibilities. Compiler's Notes Convention Notes Section 3 of the Transition Scl~edule Rcvises 1889 constitution [.4rt. 111, see. provides that i'rigl~ts, procedural or sub- 31 by adcling three rights, relating to en- stuntive, crcated for the first time by vironment, basic neeessitirs, alid health. Article I1 sllall be prospective and not Thc I:lst scntcnce is also ~icvvnnd provides retroactive." that in ncrepting rigtits people have ob- Iigations. Section 4. Individual dignity. The dignity of the human being is inviolnble. Xo person sl~allbe cter~icd the cclunl protection of the laws. Neither the state nor any person, firm, corporation, or iristitution shall discrilnirlate against any person in the cscreisc of his civil or political rights on account of race, color, sex, cnlture, social origin or condition, or political or religious ideas. Compiler's Notes Cross-Rcfercnces Section 3 of tho Transition Schcdulo Frcedo~n frorn discrin~inntion 2s civil provides that "rigllts, procedural or sub- right, scc. GI-301 ot aeq. stantive, created for the first time by honrliseriini~~:~tionin education, Const. Article I1 shnll be prospective nnd not Art. X, sec. 7. retroactive." Convention Notes New provision proliibiting public and private discrirniuation in civil and political rig11ts. Section 5. Freedom of religion. The state shall make no Ialv respect ing an establishment of religion or prohibiting the free esertise thereof. Convention Notes : Cross-Refcrences Revises 1889 constitution [Art. 111, sec. Schools not to instruct in sectarian 41 by using wording of the U.S. consti- doctrine, scc. 75-7521. tution to guarantee frce exercise of re- ligion and prohibit the state from estab- lishing a religion. Section 6. Freedom of assembly. The people shall have the right peaceably to ussenible, petition for redrcss or pcaecably protest govcrn- iliental action. 2 2rrnCS- 34 79 , , Wl IOM l)O YO0 ll~~l'ltl~:!il;N'l' ,-,,ILL, ' c-2 - -- . .--- - I ,' ,' 'I SlJ l'i'OI<'l' OPPOS AMEND /// . r-1 - --,L -- -. --- - / PLf N""'s/- 2--,~r,~ PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. ,, , /.: WIIOM 110 YOU HI:I'III.:!;I:N'l' - LdA-A*---. ;-_~>LL'<-.-L-L , 7;- / Y' :; t I 1) L)O IW -y ---- OPI'OSE - AMEND P 1.,13ASI;: LF:AVL.: PREPARI.:D STATEMENT WITli SECRETARY. FormCS-34 -79 NO. - ---.------lii IJ -<5JF\ /L. C~L:---Lz %+L-c DATE ,@bZ7 WIIOM IN YOU III:I'I~I*:!;I 7 81' DATE I) - 'j- 7"J WIIOM IX) YOU Rl~:l'I~I!:!iI~N'l' L' st 11) l~oI~frP' OL'POSE AMEND .------. - PLf;ASE LEAVE PREPAR1;D STATEMENT WITH SECRETARY. '-3 7 '" //, (k:-.- / &%-.- fs - < - 5, >,' /(,, J , dl- /=/ Form CS-34 .- 79 r NAMi" I-&?'. -2_/1'i/lf-% .. ------.--- -- liill. NO. --SJP;(/A> 1.1 I 4' A1)I)RCSS LC.Lfr-% [,.- -f3 41, . ,-/, <,DATE ----- /[I;L~------ WIIOM I)O YOU IIEPI~I!::;I~N'L'- -- '-) -((i -- i /- ~~J~'I'OI~'1'- -- / OPPOSE- AMEND PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. FormCS-34 -79 IrilJ. No. .- I-/ - ,! .! / .2- A1)ljRl'SS ------;;i-..ELLlc_r_.- . . GL DATE 7 - 2-3 7 .- x------ Q sir5j orross AMEND ------PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. orm CS-34 79 ' ,,. ,"\I)L)Rj.:!;S '7'3 '--./ '- ' &,A <.' / ' I . I: / J-t--- I',. , , -. -:-- DATE Jf 2 / -,, i 'I- -- I/' Ol'i'OSE - -AMEND PLlCASI.: LEAVE: PREPARIa:D STATEMENT WITH SECRETARY. NAMic . gl &d -5 . . &cl: 5-u Q- - .------1li.1~NO. 51R 1 -J ))il -3 5-j-.-- w --- RIP. ~f- 8 i ) 1 iL ~s,MLDATEa-,4! /9xY WI IOM 110 YOU Ill!IN - bqd-(lAc -______P-- SIO J OI'POSE WEND ---FA-- - . . PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. Commc?n t s : J V -- OI'T'OSE - AMEND PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. c C L-_J.--- -- ---._ - - -- - / S J I' I'CI lt'l' - -- C -OPI'O:; I.: - -- AMEND PLBASE LEAVE PREPAR1,;D STATEMENT WITH SECRETARY. Form CS-34 -79 I- N AM I,: liill No. /?, DATE^^^<, /E?5Q WllOM I)() YOU IIKl'ltl:!; 13N'l' ------"'3Y" d :;I J lBt'U1{'l' -/" ------01'1'0s~- -AMEND Y LP:ASE LIXVE PREPARI-1D STATEMENT WITH SECRETARY. '3 , NAMI.: .-; -- , . . . ..', I\i 11. No. ...- - -^ - - -.------ Al)l)Rf.:.C;.'; ; . *.., , i c------____ ---- DATE , . . , I ' - WIIOM 110 YOU l?k:I'l~I~~~~l~'N'l'"I,. -, q. , c- . .. '. . , .. - -_- .- -.- _.--A- I---_---. _ :~lll~1~ol~'l' ., \ 0I'I~o:;F; .------AMEND PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. A/ N /\MI,: /= / ? " t WI IOM I10 YOU IIII1 7 J - , .- - .- -7 - - --.------:;i ll'~'01~'l' AMEND .- -- % -0PJ'O.C;I: - - . . PL.I:ASE LEAVE: PREPARI 'orrn CS- 34 -79 ,', ", /, NAMI.: Ilill No. 2 /' . - - . ------.----.- - + ---- -.-- -,---- I' , AlIDR6*:S!; ' . , L, I r DATE . . I------___ - ,:.' 3 WIIOM 110 YOU IIb~I'ItI~:!;ISM'L' -- --, --.---.------_--- I Sl AMEND L I l'i'O!<'l' ------OPI'OSE - -- , , I PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. Februc.- y 8, 1379 )Iembers of the Conmittee, my naRe is Jenet Cornish, 32L+ N. Alabama Street, Butte, and I wish to emress my op~ositionto Senate Joint ~esolution12, introduced by senetor ~ack hit, calling for the expiration of Montanals ratification of the Bqual Rights ) Amendment (ERA) on Karch 23, 1979. The arguments surrounding the ERA have become stale and perha~s so~ewhatunconvincing with the passing of time. It hzs become pzss$ to discuss matters of sex discrimination in hiring practices, by creditors, acadeeic institutions and in the law itself. Some have becoirie impatient and say that seven years is enough tize for ratification of the ERA. Mr. Galtls resolution reflects that im- patience. Yet, the debate over the extension of the ratification period has served to cloud the essence of the ERA itself, which states that "Equality of rights un2er the law shall not 3e denied or zbridged by the United States or by any state on account of sextt. The EM, if ratified, will guarantee thzt the protection of our rights as afforded by the structure of the law shall not be denied to any person. This does not threaten our basic deEocratic structure but rather enhances it. Certain religious tenets concerning the status of women may conflict with this basic s.tateffient of equa.lity. But our Constitution has- separated religious doctrine from questions of law in order to assure that no one religious systea will doninate. And yet the question of equal orotection under the law seems to ) have been forgotten as we turn to argu~entsover the time extension for ratification. I am forced to recall the many years of strug~le that Black Americans endured and continue to endure in the name of equality. It was more that 100 yezrs after the passage of the 14th Amendment that a Civil Rights Act w2s finally approved. It was only 144 ears after the Declsrstion of Independence thzt women, through the 19th Amendment, gained the right to vote. Is this con~itteeto reco~mendthat seven years is enough time to consider 2n amendment which effects more than half of our population? The issue of human rights must not be taken so lightly. I encourage the rneabers of this committee to show their continued sup~ortfor the ERA and vote against Senate Joint Resolution 12, ,' Thank you. LEAGUE OFc WOMEN VOTERS OF FffONTla&$A 9 February 79 If the sponsors of this legislation wished to register their opposit$on to extension, they could have done so in a far more direct and simple fashion. Senate Joint Resolution 12 is "cheapw recission, By and of itself the extension by Congress h2s no bearing on Montana's rztification of the Equal Rights A~endrnent. Montzqa's ratification was not conditioned on the texty~nitedStates House Joint Resolution 205, nor did this state rztify HJR 203 as claimed in SJIi 13 (page 2, line 8). Cnly the courts can decide whether the extension is legal, which will not happen until the issue is "ripe", ie, when the required 35 states have ratified. Stop E,R.A. has camouflaged this recission attempt in legalese p~dconstitutional gobblygook. Indeed the focus is off the merits of the ??qua1 Rights Amendment - merits which have been recognized and supported by a majority of Montanans for uver five years. Stop E.R.A. spezks of preserving the U.S. Constitution, yet they oppose graqting equal protection under the laws to 51% of the population, They would even have us believe that the extending of constitutional rights to individuals - fenale individuals - is secondary to and less irnport~ntthan maintaining the rights of sta.tes. The foundationsbf demorrncy in the United States are the rights held by individuals. And that is what America's Conqtitution and the Equal Rights Amendment are all about., The League of \!!omen Voters first supported the YRA in ?,lay 1972. Since then we have rep-ffirmed our position three times. The League of Women TJoters of ??ontzr-a with members in Rillings, Liberty County, Great Falls, Itissoula, Miles City, Helena, Boze- m2n, P-lberton, Lincoln County, Flathead County, Lewistown, Ra- valli County, and throughout the state urges that SJ2 12 be given a DO NOT pass recommendation. Nargaret S. Davis 917 Xarrison Helena, Montma 59601 /- --h-., The )zj.jc ,ane, Kd,,speli, NiOCtafid. W~GG~DG~~,June 21, 1978 t I ERA ...the Equal Xights Ameadinezt ...is still in status 1 quo. ! The Ii!i;lois Legislature recently defeat3d a resolution to I ratifjr the amendment. The score is sXl 35 states which : have a,s;jro;red thz s;;le;,dmerit.. . .tkee riiore to g~... three states Idaho, NebTasL; ar,d Te~ness2ehave thought twice ar,e rescinLcci t:ieir c;inir,al9 rziiiicat;;i~. I ni nat' poses a legzi p~aleiz...dces E'riA have three states : to ~G...GZsi:i? : nliie pi~pseiiERP. z;.;ecdxe;;t CGLU be ihe 27th in the , .-- u ;,ited. .Stiiles ~i>;istitiiiio~,b;: the ~:;gin;. C~r~gressiozai- actr~nis p~tticzthe ~ropcsaiup io tiie state3 for approval by three quai-;ers of then, se2-des',;uc'i ;\l;aiciA 22, 1979. A Zo~sesubcor~mittee hss &?provedaction which could zntc?iic! the 3EA de;dlir,e azoihe: seve; yexs. The i ~roposalfaces a t~;;ghfighi in .the . full Iiouse Judiciary , Zs,;z,itte~. an5 tiA?Scnlice rriigt, ;nltis;t? another filibuster ; Aii cf this is takizg plac~.in an electic,.; year znd it's pretty ce;;air. przxu;e wi;: je iii; thtt .c~,siiitorsseeking re- election. 1;: the ?ss; hist~ry~f this zaiior, ridic: l;ld:i 6,C;JO ameiid- Ich* ! merits have bee;; prop~sedsince 175;. Clriy 22 of them have . . *.I. . I he22 ceei;.?~ O; si;~~;ciez'inat;o;lai inA20r:arise to sen6 : them to the states. Gf that 22, subsequently i6 were . *. . x;;iiecl Aao;kie: ..=?;fo:r,~acce . by legis;siiri;es s.:; arnend- :;,~,*,.j we:',- :L,;,::~;,; ,. y~;r's ti;;.,<. j::~~;. ;:. iiI;a yecir's . , . -'. . , - - ?, ..- .., - . - . - - - ..,..,. ,,..A ;-.C,J.. r..*L< <..L....,. A\". \1. ClAlljL... C...2;;~.;;.i;...Ls. T,G.,., lGLVG; -L - :- . .L.AA, rc,.A. -2~ &r.,'Li-..;.; iOiiT years. .-.-. - . . .~G~;JLA-L.~! ,X.~~ d;ri.nt t:.b..~ ,, bi.kI,~~rtzr~-,.7-F.- iec, they w~z':Lave ;ki; WAY ,~;i;ehs ;hey have rnore iiXr. T, Members of the Committee, my name is Jmet Cornish, 321% N. Alabama Street, Butte, and I wish to express my opposition to Senate Joint Resolution 12, introduced by Senztor Jack Galt, calling for the expiration of Montana's ratification of the Equal Rights Amendment (ERA) on Narch 23, 1979. The arguments surrounding the ERA have bworne stale and psrhaps so~ewhatunconvincing with the passing of time. It has become pzssG to discuss matters of sex discrimination in hiring practices, by creditors, acade~icinstitutions and in the l2.w itself, Some have become impatient and say that seven years is enough time for ratification of the ERA. Mr, Galtls resolution reflects that im- patience. Yet, the debate over the extension of the ratification period has served to cloud the essence of the ER4 itself, which states that "Equality of rights under the law shall not he denied or abridged by the United States or by any state on account of sex". The EEU!., if ratified, will guarantee that the protection of our rights as afforded by the structure of the law shall not be denied to w- person. This does not threaten our basic derrocratic structure but rather enhances it. Certain religious tenets concerning the status of women may conflict with this basic stateuient of equality. But our Constitution has- separated religious doctrine from questions of 1a.w in order to assure thet no one religious systerc will doninate. And yet the question of equal protection under the law seems to ) have been forgotten as we turn to argoments over the time extension for ratification. I am forced to recall the many years of strugqle that Black Americans endured and continue to endure in the nam? of equality. It was more that 100 years after the pnssage of the 14th Amendment that a Civil Rights Act wcs finally apnroved, It was only 144 ears after the Declaration of Indenendence that wonen, through the 1: 9th Amendnent, gained the right to vote. Is this com~itteeto recormend that seven years is enough time to consider en amendment which effects more than half of our population? The issue of human rights must not be taken so lightly. I encourage the members of this committee to show their continued support for the ERA and vote 2-sainst Senate Joint Resolution 12. /' Thank you. a, 0 Q) C r( .c rd r( c, 13 cd cud X*d Sr-4 % cp ?,k3$ coo+, kc dCQ, dv) Q)+'oJCU' aJ b(d&+'tnco.o d"C@E"3.A 4 71 0 ww bd-4 hvl Ed4644 rr n* p cow*' 'f",,Oh 3 m 113 mc, ah roc; amn "- -5 -6 C cl Ed03 V14 0 QL~:+' C C c aJ a& hadmE ED 3OrdarQ)dzi 'c' W 3 a > & c rc Cf9)a,alTJ rb cum w.4 E E CS4aI u'ba, 0 3 x r: xa%i w 34 OQ df-l C 5Se,aiz Ca (C 04 3 fn ZL' 44 w * 3L:C+C'Oh ..do0 WSiJ trx+ Vl $3+ 44 Q)dA -u w cd 4 cd WI:0.3:P:3P! C4.d CQiL b d54 9) -4 cu 0 om4 LSE Cd-1 aI oa L 0n)LSPcc 0 03 4 ;:a) Q (U hrpL, :,J .A 2 =: & r: r: >4> aJ4d 0.4 alCOW+ P-: Ti UJ .A UJ .+ -+ cud e x 3 .~dLaJOQ) SL4 m o n (L' rrlj n =13o,=: wsu, 3kU C. 4 c. 0.2 h o, &o t arc ca aiJL 0.s WE: E.rc o, i C (O4d.Q CQrf03 cc rlkCT3j: (0 Q)4Q r: cfa earns COW? POSIT i3i.i~L;TA'~E~C?!T RKGAGDING THC, EqL'4L 3 1X"S AlX?:?)?T?lT As s professigk 19ng concerned dtb the quality of foxily life and the well-being of individuals, the Koctana Hone Ccooornics Association strongly suprsrts the ratification sf the Equal Xights Amendmen5 by I'lontana. iil'e believe the i3nh is vitally needed to pr~videthe guidance and impetus necessary for the eventual achievement 9f fairness for all., Equsllty nust exist ir~the attitudes of Amertcans as well as in the law befo~e it uilb become reality, and we doubt that. attitudes will change unless FR RS a nation have comiittea ourselves to a policy of equality, in writing , in our Constitut ion. As home economists, ve do not vieu ratirtcation nf the EEA ar. a threat tc, fainily struct~re-- on the c~nt~rarywe see possiSilities for improved quality in living as family members learn, in the sense o! fairness , to share responsibilities and privileges; and to regard each other as having equal stature with diffzrent abilities and potentials. Having interest in and concern for homemakers , we think they have long been overlooked in their occup a tion. It is time that they he recognjzed as valu~h1.ecitizens, that some worth be placefi on their contributions, and that their eff ~rts be resp~cte3as supp ortive 9f the national ecocmy and the well-being of most Prnsrican cit,izens, young and old. We belteve that in this time of shortages, wnrnen are an untap?ed resource which we can no longer afford to ;:r.dnrrat.e, and that their abilfttes and decisions deserve to be ?erceived AS soclally worthy hy both sexes. fiviously s uch perceptions and attitudes cannot be legislsted, For would we want to do so--- hut they will ?ot develop oq their own wffhout le~tslation w hich insures equal. rights; and such legisl~tlonwlll likely not, develop v:ithout the ljacking of the Cor?st.jtution, If it does, it will he costly, lengthy and sporadic, We therefore reconmend that SJR 12 not be passed and that ratification of EEA is the best beginning we have in long overdue equality and fairness in the American sense, and ~b edge olJr efforts to the ensuing processes necessary to achieve true Justice for all,. Briginel statenent developed in 1973. Support continued at the 1978 ArrmaP Dusicess meeting in ..Kalispel and reaffirned their sup~ortof this statement on January 29, 1979. orm CS-34 79 .r? i r' / 7.. NAMI.: %i- 7-- , /<$ . 41, ,I,! - ( - / . . /-..---:-: .-.- .--7,--- --.-- .---- - llill. No. ~-7p/,q, .\ AIRI:!/ , -(glf -- I.-“.-.c ------I-. .-(---- . 1) ' ; - .L ;. DATE 3 --.7+ -- r WIIOM I)O YOU III :;illlPoR1r , 0 1' 1'0 :; i2 AMEND ------. k'LI;AsE LEAVE: PREPAR1:D STATEMENT WITH SECRETARY. NAM': . --- - - lii 11. No. i:?, kf~'I~l~~!il~~~'l' ------OL'I'OS E AMEND PLf3ASI;: LEAVK PREPARIID STATEMENT WITH SECRETARY. orm CS-34 79 7 , NAMI.: ,, . ,,.ri Iii 11. No. .". L-..:------.-. --.--.--. - - - .------:' , .'+‘ , # rll)l>Rl*:.C;.C; ------I...., ---: ---_-- - DATE..;/ - ,..: ,,' 1 ' .. ,,- ,. - . . .-- WllOM I)O YOU RI.:L'I~l:~!~I~N'1' .,' . ,,f,.tc /' ' SI l'!'ol{rr,.-- A,;: 0PPO:;I: AMEND -. -- . . PLEASE EIXVE PREPARI{D STATEMENT WITH SECRETARY. 3 NAMI-: j? u* k .C-t -LC.~-t ------iii 11. NO.-- ~-JR 12- AIR:-. -1 ---L-- 3 2 /X -KT-L--~.-V-C--- --_- DATE Krh a .771 Wl loM IN YOU Ill(l11(l~:!iliN'l' - - tllg-pJLC--&IQ~Z-.--- /:/?/+ S~~I'~'O1~~~'--- 3 -01'1'0.. - -AMEND . - k' LICASE A P REPARI:ll STA1rI:MENT WITII SECRETARY. ormCS-34 79 sllI'~'ol~'l' OI~I'oS1.: '!," AMEND .- --- -. - PLWSG LEAVE PREPARCD STATEMENT WITH SECRETARY. orm CS-34 79 . ,' NAMI" ck:, .I. . ,/ , IlilJ. No. . ,,, ./ . :-':. --- 1'- - .- .---,.- _ ---- -.-- .------., ,/ I -, ' -/;':: , . ,. . . , P ,,I..' Al~I>RI.:.C;!i . ,. , . I 'f DATE . . ./ - . -.--.------.- --.- _ --- . . WIIOM [I0 YOU l~l~~1~l~i~~~~l~N'l', I. - --- .. ----.------A_- - Sl ll)l'OI{'~ 01'1'0SI5' ,.------. -- AMEND :., . ..,. . bll,llASE LLAVI; PREPAIt1a:B S'I'ATEMENT WIT11 SECRETARY. rrn CS-34 9 .. NAM~-:R~riz..C~~/Ltrr-. -----.--.------11.i 11. NO. --L-J 1~ AIR!!---- 13 -- 2 a ---- rh--b--v-a-- DATE-^?^ 4 - 77 9 WI IOM I10 YOU I!IN--Ab[.ufekkL- ~f&f2-f2-~~~,,+f SI JI~I~OI~~I*- >(, o~~rose- AMEND Y L13ASL;: LEAVE PREPARFID STATEMENT WITH SECRETARY. Comments : Form c$-34 -79 \STC /c2 NAMi: . - )- - ~14z/+?- - -.h -is-- R- C?'Z-+Z - .------13j 11 No. -- dl).A JJ --Y[p+ ? az1_7Qe 1-fL. CL- DATE ,3 - Y I WI IOM 110 YOU IIEL'I SIII'PDItrP -- 1/ OPPOSE-- AMEND PLEASE LEAVE PREPARED STATEMENT WIT11 SECRETARY. Commcn ts r IlilJ. No. DATE$ - y- vf Sl Jl'i'OI{'l' orr.ose AMEND , ..- --- -. L/ - . . PLEASE LEAVE PREPARED STATEMENT WITH SECRETARY. id*.\;)CARN :.I c COY MITTECS; ARMED SERV~CES BANKING. IIOUSING AN0 URBAN AFFAIRS INTELLIGENCE JEFF M. BINGWAM WASHINGTON. D.C. 20510 / AOM~N~STIATIVFA5SfSTW November 3, 1978 Zear Legislator; On October 6, 1978, the United States Senate passed EL. J. Res. 638, a resolution purporting to extend the perio2 for ratifica- tion of the Equal Rights Amendment (ERA) until June 30, 1982, Although there are many questions about the constitutionality of Congress9 action, it is likely that efforts to have state iegislatures ratify ERA will now continue unabated until mid- 1902, That is, there will be presumption that h, J. Res. 638 is a vs:id 9eg~linstrunent that hes some kind of effect on the szares, Although I confess that 1 an not convinced of the con- st;~ucionalityof this measure (not to mention its wisdorn), I :ecognize that those of you in states that have not ratified the :~ro;osed arnendnent will continue to be ucder intense pressure LG dc so, Under the presuned legality of this neasure, states that ~~venot yet ratified ERA may continue to do as they have in the as^, i.e. consider the measure and either ratify it or reject - * L- S~acesthat have already rztified ERA may also continue to do ii:,=t they have in the past, i.e, either continue to support their ( :~:ior actio~or rescind. It is true that the effactiveness of rescission is unknown, but it is also true that the efficacy of cais extension is unknowa. This latter fact did not deter, or sven give pause to, those in Congress who were intent on extend- ins zhe deadline and locking in 35 states regardless 02 those states' present attitudes. The arguments for rescission are particularly important now, because I do not see how wc? can ojtain a "contemporaneous consensusn during a period that wilL ,,,..-%.- for over 10 years unless we allow legislatures to give or wichdraw their contemporary consent. 57'- arguments for and agaicst the right of rescission are sevsral a~dvaried, and they will not be decided in this letter, Flow- zver, it is a fact that there is no definitive decision of any trihuna: (whether the Suyrerne Court or Congress) on the effec- ~ivsnessaf rescission. The "precedent" of the Fourteenth Amecdrnsnt and the dictum i:: Cole~~anv. Miller-- are relevant but :Ley certainly do not dispose of the issue; ths objective rzsaarcher will quickly find that neicher the Reconstr~ction "srecedent" nor the Coler:,a~language will bear the burden of a rguinent that is upon then. ni,r,t.re ' hsve been severa1,excellent analyses of rescission and slnilar issues. I t~avefound the following particularly helpful : SENATE JUDICIARY d r i > /> Datc s,/,/-., >- Bill NO. r 7 . Tine NNvZE YES NO I t I Lensink, Everett R., Chr. (R) /' - - Olson, S. A., V. Chr. (R) / Turnaqc, Jean A. (R) w"' I O'Hara, Jesse A. (R) / Andcrso~l,Mikc (R) I J Galt, Jack E. (R) ,:-[..)(,.H-+ ,,. .( Towe, Thomas E. (D) I Brown, Steve (D) I d Van Valkenburg, Fred (D) IIealy, John E. (Jack) (D) 1 l,' I I Chairman Motion : <.4, .;+ ... . ., ,1 Lr ..--, ,: .,.( ..:.A. J *.b- (include enough information en rotion--put with yellad cup of amnittee report.) SENATE^^^ JUDICIARY Da tc , -, fi f,: Bill NO. 21'7 'rine 7p ,,. :>,h., ,l '/--< mw YES No I I Lensink, Everett R., Chr. (R) / Olson, S. A., V. Chr. (R) / Turnaqe, Jean A. (R) /' I O'Hara, Jesse A. (R) I/ Anderson, Mike (R) / -Gait, Jack E. (R) /" Towe, Thomas E. (D) Brown, Steve (D) 1 L/ Van Valkenburq, Fred (Dl -/ -ilealy, John E. (Jack) (D) I J Wd?4: ry,:q-/, Secretary -/-- Chairman (include enough information on mtion--put with yelled oopll of amnittee report.) SEI\~~mm JUDICIARY i iL? Da tc Bill No. 2 // Time NAME YES NO I I Lensink, Everett R., Chr. (R) / i Olson, S. A., V. Chr. (R) L/ Turnaqe, Jean A. (R) / O'Hara, Jesse A. (R) L// I Anderson, Mike (R) J Galt, Jack E. (R) 1 1 I Towe, Thomas E. (D) d Brown, Steve (D) I/ / 1 I i Van Valkenburg, Fred (Dl 1 I IIealy, John E. (Jack) (D) 1 // 7 I * /,)P c S/L-/ LP.-?-. -- -2 \/ Secretary ,., - Chairman (include enough information on mtion--put with yellud cap~of amnittee report. ) SEEGTE - JUDICIARY Datc ;*/ /? 9 ,4 ,-., ,d: Bill No. P-.. - :. Time Lensink, Everett R., Chr. (R) d/ d/ I I Olson, S. A., V. Chr. (R) I/ I Turnaqe, Jean A. (R) I / O'Hara, ~esscA. (R) (,.-, L,.L. ,, ,r*, xd/- Anderson, Mikc (Rj I Galt, Jack G. (R) 1 Towe, Thomas E. (D) / I I Brown, Steve (Dj 1 LA I Van Valkenburg, Fred (D) I/ iiealy, John E. (Jack) (D) 1 J. /-- /)./( ;.. ,j (L'.-., . # , ,, Secretary L/m ~otion: 2- #-A_,,rdx;:,,; (,..//,/>., I. .+ .- *' ,' /Xi.. ~.- *, .- ,/ J /' 2' (include enough informati~non rmtion--put with yell~~cop.? of camittee report.) MR...... ~XLS~~~L: ...... . . We, your committee on ...... J.U.~ICLX~ ...... having had under consideration ...... Senate Bill No...... 295 RespectfuiIy report as follows: That ...... R~i2.3.t.~...... Bill NO...... 2.35 DO PASS > (9'0. ...... :; ...... :;...... STATE PUB. CO. Zv9ratt 9. Lcnsink Chairman. Helena. Mont. __ MR...... ?X!?S~.~SA~~A ...... We, your committee on ...... L~.UL&Z&Y ...... a- 1 having had under consideration ...... s.2..n.B.~.h ...... Bill No...... ?.z.? .... Respectfully report as follows: That ...... Slcnzt@ Bill No ...... 322 DO PASS , . ...... \ STATE PUB. CO. ~vcr~t~3, Lensin" Chairman. Helena. Mont. MR...... P~d~id3a.t.: ...... we, your committee on ...... ~.u&LG~~xx...... having had under consideration ...... Senate Bill No ...... 217 Respectfully report as follows: That ...... Sci1at.l Ei11 No...... 217 30 Nj?'X' PASS c--- -I-- D@-&%S~, ? L$?! . STATE PUB. CO. Helena. Mont. STAidU tP3G COFt'iMITTEE REPORT President M R ...... We, your committee on ...... Judicfcry having had under consideration ...... Semte Bill No, ..??.? ...... Respectful!y report as fsllo!r/s: That ...... Senate Bill NO..~Z~.X...... introduced bill, bc mendad as ~OIIQPKS: 1. Page 1, line 24. Following: *office, " Insert: "conviction of' STATE PUB. CO. Helena. Mont. t. Orfield, The Amending of the Federal Constitution (1945); Corwin & Remsey, "The Constitutional Law of Constituti~nal I Amzndment," 26 Notre Dame Lawyer 185 (1952); (Rees) Comment, "3escinding Ratification of Proposed Constitutional Anendments--A Question for the Court," 37 La. L. Rev. 896 (1977); and Elder, "Article V, Justiciability, and the Equal Rights Amendment," 31 0k1. L, Rev.63 (1978). Of course, other comrientators reach other conclusions--and this amply demonstrates that the question is not settled. It will surely be argtied that Congress's recent action estab- lishes some kind of rule or precedent on rescission. But, if our recent activity establiskes anything st all it is that we did not establish any rule whatsoever on rescission, In fact, one of the strongest arguments used against the rescissiorl amendments was that adoption of such amendrr,ents woulG establish an unwanted precedent and that the 95th Congress had a duty to remain "neutral ." For example, Senator Birch Eayh (D-Ind iana) , the S?~atefloor manager of the extension said, "I do not see how the rzscission effort is going to be blunted in any way by a neutral ac~ionhere [viz., the rejection of ny amendment to expressly a ~zhorizerescissions during the effective period of 3. J. Res. 6381 when it has not been blunted by specific legal advice to the contrary up to now." The strongest supporters of extension (without rescission) in both the Senate and the House took the posi2ion that rejection of a rescission anendnsnt was a "neutral" .;osition, I nave my own views on the advisability of adding the Equal Rishts Amendment to the Constitution, but I do not believe these views on the merits of the amendment are relevant either to the issue of extension or ratification. The issue of extension ought co be decided by reference to neutral principles, which require ail amendments to be considered under the sane fair, familiar, arid unchanging rules, The issue of ratification ought to be decided by the people, speaking through their elected state representatives, and not by the national legislature which, we ksd all thozght, had discharged its duty in the anending process in i972 when it referred the proposed amendment to the states. ;.r.y debate on the Equal Rights Amendment in your own legislature will likely be emotional and divisive, and I extend my best ;~ishesto you as you atterilpt to represent your constitutents' vic?ws and express your own judgments on the proposal's serits. I Lzve enclosed a copy of some of my reaarks on rescission, which yod may find of interest. Sincerely, Jake Garn C United States tli dArnerica I'RO(.TEDIKGS AXD DEBAIES 0; THE 95 COZGRESS, SECOXD SESSION -= ---= ---- VoZ. 124 WASHINGTON, MONDAY, AUGUST 7, 1978 No. 122 Senate TESTIMONYOF SENATOR JAKE OARN substantive rightness or wrongness, wisdom Chairman: or folly. We do not prejudge the merits Mr. of an issue before submitting it to tfie judl- s~~reeiatethis O~~ort.unityto appear eial or le*latipe process before you and the distinguished members then, li we of this committee. S. J. Res. I34 raises issues .adjudge the issue as "good" or "bad", change of overriding Constitutionai importance and takesthe mes good accordingly. cases Our Judicial caystem bad rider the same I am glad to participate in these wles; trust that the witnesses ob legislative proce& requires the during the next three days will provideapppear the Administration'sbilLs, and bills, and the oppmltionss liberal bills to best information available 011 all sides of the succeed or fail according to their ls5ues. This testimony will not be a treatise on without changing the formal process. of course, the Administration and the opposi- law' there are tion and others are free to lobby, cajole, enough on the Constitution who will testify before this committee or who have appeared thecampaign, and twist arms if necessary, buf, before the House Judiciary Con-mittee. What changed, process remains unbiased, un- this testimony will be is a ples for detached, objective fairness. My testimony will be I think the Emits of ERA must be sep- relevant to both the Constitutional ques- arated from the issue of procedure. ~er- tiom and the pdicy questions, however, be- tably9because I oppose ERA,by position will cause in areas in whim Constitutional be Su~pect,but I Want to assure this corn- language and history do not evidence a clear mitee and all others who read this state- intent then matters of morality, philosophy. ment that * will the same zdxmdard to aod wise policy are helpful in establishing all other Constitutional azfleadments. For what will become precedent and, perhaps, example, I am a cosponsor with Senator Bayh law. and others of S.J. Res. 1, a proposed Consti- It is very unfortunate that the hue of tutional Zunendment to provide for the dl- ,ixtensionis belng intert~vined with the re& election of the Presidsnt, and if S.J. merits of the Equal ~igh- Amendment Res. 1 is ever placed in a position similar to (ERA) itself. For example, a recent flyer that now faced by ERA mY psition would printed by the National Organization for be the same. My position will be exactly the Women (N.O.W.)says, "Opponents have same with respect to S.J. Res. 14 and 15, bet1 using the deadline as a weapon, shift- the two Proposed Constitutional amend- big the dialogue from the merits of the ERA ments which 1 have introduced dealing with to the time limit itself."l I have friends who abortion. I fell vel-y, very strongly about support ratification of mA-1 do not-but I the need fur these amendments because 1 hope that those who favor ratification will believe abortion is a cancer growing in the be able to det.sch their views on the amend- body politic the like of which has not ffared ment's merits from their views regarding in this country since Dred Scott. but I would fair and certain procedures. This distinction not change the process of amendment td is critical, and it is a distinction that under- favor these zmendrnents. I think the abor- lies much of American law, i.e. we have pub- tion aniendments are critical and nrgent; I 1 lic rules regarding substance and public rules think tor every day of delay in referring and regarding procedure. We do not change our ratifying these amendments we consellt to procedures to correspond with our views of our own Slaughter of the Innocents, but I am not willing to substitute my judgment mtnotes at end of article. for the iud~mentof the Con~ressand the -. 64 vs.rioutj state legislatures, nor a.m 1 wiiung lor the utiliwtisn of tp fully legitha& sod to.ekew the process to favor my own sub- Fwallel (i.e. pEm.llel to the baditisna st~srtiveviews. This being my view, I Can method) method sf amendment,and that the no more justify an extension of the dead- 'reason andl logic of the Federal Constltut!oosl I line for ERA ratification because there Can Cwvention Procedures Act are applicsbie, by 6' be "No time limit on equality" than I could analog?, to first track questions, such as justify a change of rules for the abortion that Presepted in the ERA extension case. • amendments because "It is time for the Perhaps the fimt thing to note about the kiiiing to stop." This sloganeering is not the 1971 act is that it was debated, and psssed way in which to settle importallt Consti- 'unanimowsly, vrithout the heat and pressure tut,ioual and policy questions. a that occurs when Such debate takes place at Mr. Chairman, as I said at the beginning ? a time when a particular amendment is pend- of my remarks, my plea is for detached, ob- ing. Naturally, the constituency of any pend- jective fairness. In this regard I believe it ,hf3amendmefit (and their opponents) nl@,de is frnportant to remind the Senate of an . calm reflection dim~ult.This fwt, which is all earlier, analogous situation because I be- . too self-evident now, was foreseen by the Ju- lieye we can learn valuable lessons from the diciary Committe in 1971: experience of the g2nd Congress. In late The COInmitee urges passage of tnfs bit] 1971 the Senate took up and passed S. 215, now in order to avoid what might well be an the Federal Constitution81 Convention Pro- unseemly and cht%oticimbroglio Lf the q~es- cedures. Act. The bill was designed to pro- tion of Procedure were to arise simultz- vide guideljnes for what we might call the neousl~with the presentation of a substan- second track of Article V of the Constitution. tive issue by two-thirds of the State legisla- The first track is the traditionel method tures. Should article V be invoked in the ab- of amending the Constitution, i.e. the Con- of this legislation, it k not improbable two-thirds vote of each house, re- that the country will be faced with a con- gress, fers amendments the states which are "itutional crisis the dimensions of which vaIld as part of the Constitution when rati- have been matched in our history? fied t-le legislatures of three-fourths of Similar serltiment wzs spoken On the Sell- the states (or by state conventions). The ate floor when the bill was beisg debated. Fdr second track system, and the amending exanlple, the Chairman of this subcomrnit- nletilod to Which the 1971 bill addressed it- tee, ~r-~ayh, made the foliowing statement : ( self, is the convention method, 1.e. the "1 think it is vitally needed leaslation. I method by which two-thirds of the state SaY let us zct now- ut us not wait until a Iegisltitures may petition the Congress for constitutional crisis presents itself, when we the convelling of a Constitutional conven- not able to deal dispassionately and tion, and the proposals of the convention with wisdom with such an important matter are then referred to the state legislatures as amending the Constitution of the t'ilited for ratification. Second track emendrnents States." " also require three-fourths of the state leg- And a few minutes later, the then-junior islatures to ratify before they bec~mepart Senator from Indiana repeated his hope for of the Constitution. decisiom made in a calm atmosphere: Bth tracks are fully authorized under "1 agree with Senator Ervin that the gro111ld Article V, although the second trwk has rules for a constit~tl~nalconvention ought- never been used for the doption of an if at all ~ssibl+b be established before a amendment. Nevertheless, e-s of 1971 the convention is called tx, deal with a specific stz$es haC made over 250 egplicati~mt;o Con- 'Qic, lest views On the substantive issues gra.for the covenfng of zs Camtitutiostal color what should be neutral decisions about convention.^ The mmb; serious applications~fairprocedures. Let US set the ground rules for B conventio~~(judging from the number Uvance, at a time when we can agree cb- of ~t,at,eswhich made petitions) included jectivel~on what they should be. I also eree suc21 diverse causes as direct election of U.S. that we ought to take the micldlc ground in senators, prohibition of polygamy, limita-'framing such a bifI--avoiding both those tion of federal taxing power, reapportion- Procedures which make constitutiona~ ment, and revenue sharing. change too easy and those which stifle The express ptirpose of the 1971 Senate bill needed reform altogether." a was "to provide the procedural machinet-17 We can see, then. the stress that I necessary to effectuate that part of article V placed on the issue of calm and objective re- of the Constitution of the United states flection in 1971. However, the difference be- v~fi?chauthorizes a convention called by the tween the 92nd Congr-s and the 95th ~01~- States to propose specific amendments to the gress is not that they desired cbjectivjt~ Constitution." " want to emphasize that the more, but that they operated in a climate in bill was intended to establish the machinery which it Was possible. Surely every member C C 3 of this coounlttee and every Mtnm mnt $0 two-thirees Of the 8tZt.fzx has been met ang bke an objecthe look st this issue (and l the amendment machinery is set in natirjq ~MBm,ay even claim la do so), but I am j these mmiderztions DO longer hold, as& ~fra!d n*.3 are too close to the ernotio~l~~msd-*m is no longer psible. On the end prmurs that smound the SUb~mceI o? tht? Sam@FeoJOni~zg, o State should be- per- 4 of =A. ~f I: amright, then we can learn a mifted to r&u& its ratification, 07 t~ r~tjfg great ebout what a truly objective anal- 1 PrOgWed amendment it previovpiy rejected. ~2k.Gprdum by studying the 8rgu- ! Of' ~~, Onm the mendment is part of mentas ant5 wrndtasisns oi the 92~dConpeM. j the (=onStite?Slonthis power does not ex&t. 8 ~hk~gr-kt Congress, in the Federal Con-:(m~hsis adM.1 stituticnel Gonvsntion E?mc&u;7ea Act, dealt j$ It seem to me that the Judiciary Cornit- with t&= fg&uh:sthat 81"0 relevant to the bill : tee, in s the of calm malysis, s~dopwdthe at hand. T::-~~~thre i&&m are f&@iseion, th3 fakes%~ible prwedure. States that bed value of simple majority ruie cont,rssbd once rejected an amendment would be free supermajarity rule aad timeliness of Con- to ch~etheir mind and later ratify: thme stitutioml petitions. L& me deal da th~that hsd 9nce ratified would be free to recon- ~ssuesin order. sider end, if desired, resclnd the earlier The Federal Constitutional Convention axtion. so state would be irrevocably bound procedures (the ~ct)spmifially author- by it3 e~lierdecision Until the Constitu- ized rescission. Section 13 of the! Act was as tion:cl (or, 13 the case of applications for 8, follows :, I convention, statutory) standard of thre- &c. 13. (a) Any State nsy rescind ik rati- f~uths(two-thirds for a~plicatiom) bnrd. fication of p, proposed amendment by the been reached- same processes by which it ratmed the pro- I The standard contained in the Act an posed. mendment, except that no State may /attempt to codify fair plsg. It was -an at=, rescind when there are existing valid rati- ltezllpt to ensure that the debate continued fic2t:on; of such amendment by three- lfuil and healthy within each state for the four~ilsq1 the States. entire time authorized. We are hearing a (b) I'liy State may rat!fy a proposed 'great deal about the need to "continue de- amendn~ent;even though it previously may ,bate on a viable issue," but the fact remains have rejccted the same proposal. !that under the Constitutional scheme set (P,) (precludes jlldicial review and allom lforth by opponents of rf?sckSion the debs* Cor:gr.ess to be the sole judge concerr;ing ~ontdnueonly in those states which rai,iri:ation and rescission.) have not yet ratified the pending emend- nrent. Persons ljving in states that heve repo* Of the Judiciarp Comm!ttee ratified the amendment must content them- gave reasoning for this provision. ' quote the entire section of the committee .J7riting letters to the adjtor. report entitled "Itescission of Applications ,my xe a. method anenG=, and Ratifications" : ,meat in which $6po&entzi and opponents of ob proposed mnenb,ment may continue to me Of' whether a State may participate in tbe =tireJ rneanicgful debate rescind an application once made has not Iuntu th* amendment la ratifid by Con- been deciaec! any precedents Is there ~eitutiocdthree-fou.rtu of the states? pa any ailthority on the questlon. It is one for N.O.W. says, "The issue (in this case, of Congress to answer. (Note that this state- rstifrtog the ERA) continues to be one of wfth an a~piicationOf a state for pressing concern, and the debate is, if any- a ConstttutionaI convention.) Congress pre- thing, livelier than it was when the ERA was viousl~has taken the ~mftfonthat having introdam In 1972.** once ratif ed an amendment, a State may not This staien;cnt may rescind. be true, but if the issue continues to "press" us into debate even "livelier" than before, The committee is Of the view that the why not permit opponents in the ratified former should not con- states to participate? It is not the advocates trol tltis question further. be of res,i,sion who wjsh to cutof: debalIe, it chnngrd with to ratifications. Since is the opponents because f~rtlrenl the debate a tiTo-thirds cornensus the may only continue in those stntcs they have in given period time Is neces2vto not yet won. In short, they say, ERA is an call a convention, obviously the fact that isue in cnly 15 states. ~h~~~ of us who be- State has changed its mind pertinent- lieve rescission is eminently just, want the is , An a act'0n. It debr~teto continue not only in the 15 states merely registers the State's r~iews.A State is that have not ratifid, but in the free* Of course* to reiect a propmed st,t,, that hnve rescinded and the 31 stah mnend~nent.On these grounds. ft is best to that have ratified but have not provrds for rescission. Of coume. Once the Are we now to prohibit continued deba%? constitutional requirement of petitions from If so, v~esbandon a lofty principle adopt& 1 Cd oP;ar -& w&f&n @! P6 C~ZU%?~f by the Senate in 1971 during 8 period of td&XL k-43 g-aat-, studied consideration of Cons~utiondths& B dwiaive aaJOrity of the members ci principles for a position that Is taioted with not one but two deliberative Wies sees prejudice and which is adopted under in- tkat the amendment is the wisest mesm of < tense political pressure. , dealbg xith a fundamental national prob- a The second isme raised in the le&al con- j lem, and that they come to that agreement stitutiooal Convention Prmedurm AC~,&, before the amendment is submitted to the ,fist of simple majority versus supermalo& ! S:%tcs. We should require that the conven- ity. The issue in tho Act is not identical FT?tie* act through the same decisive majorft~ the ime being considered today by th& of its delegates. Only if such a broad can- committpe, but it is analomus should sensus is reached at the time the arnendment control unless substantial objecHons is draf ted-a time vc7hen viable alterrlative raised cgainst it. I hold that it shcdld con. t amendments are still under corstderation- trol. ! can we be confident that there is widespread agreement that the specific language of the Section 16 of the Act, as reported from I amendment proposed best fulfills its purpose. eommieee* provided , Once a hadthet been a Constitu- By allowing bare majority of the conven- the a~~"cationof convened (On tion to propose an amendment, the bill opens Of a then amendments the states) the door to the submission of proliferarlon be proposed by a of amendme~tsto the States. simple 'majority of the delegates. This posi- tion was defended by Senator ~~~i~ who It is true that three-quarters of the States claimed that the supermajoritfes necessav mu" ratify ~ro~osedamendment. ~ut to call the convention (two-thirds of the 'during ratification the Strstes cannot make states) and ratify proposed amendmen8 any chaxges in the proposal. It is preserlted (Ynree-fourths of the states) provided suf- to them in final form on s take it or leave it ficient, guarantee against unwise amend- basis. In each State, only a majority of the merzts and therefore the Act should follow legislrttrlre need be convirrcor', that tie partic- the precedent of the Philadelphia Conuen- ular amendment propxed is better thnn 110 #amendment at all. Ratification, therefore, is tlon at which a, simple majority vote carried sir,lply not a substitute for the reasoned e motion. This view was opposed however i who deliberation and the building of a sub~+an- in that 'Ince the 'On- itld consensus which olrght to prec.+.-Je tile Operating as 'On- proposal of change in the basic framework of mess does when ii debates and refers : an ,our It is for tllis reason, a.c that the 'Onvention Op- feel, that the founding fathers wisely re- crate I'llder % requirement as the , quired in Article V a two-thirds vote by each 'OngreSS does On Constitutions' amend- House before the Congress could propose an The oPPosit'on Was led by the junior 1 amendment, even though such an amend- Senator from indfsna, Senator Bayh, who : ment, too, must subscquentlg be and by Prop'*=d maaaEed the amendment : three-quaiters of the States. Our own con- which changed bare require- stitutional history demonstrates this grin- merit to a tw"-thirds requirement- The Ba~hkiple.' Since 1927, 28 constitution& smeod- (Number 450) was 45 lments have been y~tedon by one or both to 39.1" Houses of Congress. Of those debated, only 7' Senator Bayh's arguments can be slummed ' finally won support from enough members of I UP best by citing the "Se~.aratViews of,Congress to be proposed tm the States. But sf Messrs. ~agh,Burdick, Hart. Kennedy, and I those 7, not one msrejected by the States. TunneJr" in the senate re~rt.Those inter- 'In fact, since 1789 only 6 propr~sedsrnend- ested in the Senator's floor statements, and I ment-two of them part of the oiiginn,l ~tll his references to several excellent authotfties, of RighLhave been rejected by the States. mcty refer to the Record." The relevant part For these resons, pmpsals should be writ of the "Separate Views" follows : to the States for ratification only if approved Secti~il10, which permits the conventidn by two-thirds of the delegatzs to the conven- to propose amendments by a bare rnljority tion.12 vote should be amended to require a two- mere are, as I said, diderences between the thirds majority. AS presently written, it un- situation addremd by Senators Eayh, Bur- derrnines the traditional safeguard which has dick, Hart, Kennedy, and Tumey and the proie~iedthe integrity of the Constirution present situation. ~utit seems to me that ( since 1'789. Thai safeguard, of course, is Arti- anyone reding the views of these distin- cle V's requirement that ainerldments be pro- guished Senators with an open mind wii be posed by two-third~of the Congress. All Sen- impressed mtth the emphasis that was pIeced ators hiow very well the difference between a supermajority-. memajority of fie serl- Prscading half and ~ersudingtwo-t;hirds ate was certainly impressed because it passed c the Bayh SU~&XXJX+~~~~~YmendmeEt On a 45 This languee ha3 been helpful to me, rind 39 roll call votes. The votes of mators1 h~~t that it will be as helpful to those m20 who are members of the 95th Congres on the / as? "No time limit on equalitymor who preL ~ayhhendnent are shown in Appeqdtx A- : for 8 14 Year (unless thek amendment re- I rnn,-ede that the issues are not identical. ' maim umtkfied at the end of' that time 4 but isuea seldom are. I must Say that the! period) ratifkition deadline or who believe BRyh mendment provides greatly needed 1rfiat the nulllber of years thllt the emend- help in wsessing the current 6it~tionilnd merit remained pending before Congress be- that it should give pause to anyone who fore being referred L. somehow relevent to the quickly concludes that an e:~tensionof s rat- puesthn of contem~oraneitgand reson.. ification deadline can be agreed to by @'bleratification period. gim~lemajority of the Senate and Honse., The same Senators who opposed the sim- view and s&tements are replete / pie majority rote in convention also opposed with reference the necessity of a Super- ! the year deadline durhg which 8, stste*~ majority. note thst the ~upenna~ority~~onventioncall would remain V+II~.In the pleed in the Act at Separate Views cited above, senators point: after two-thirds of the States had ' Eayh* Burdick, Hart, Kennedy and nnney for a conve~ltionand before it is had this to say about the 7 year deadune: known whether the states will assent to the I that they were addressing specific amendment referred fmm the con-themselves to the period during which a ventionto the states. In the present case. it would remain contemporene- ts being proposed by some than an extension, OUS and valid, not the period during which car1 be granted after two-thirds of eac3 house I *" which had been referred to have referred an zrnendmeat to the states,, the states could mnain pending. and after the states have had seven years in, we believe that State's call for a con- which b act. It is my opinion that those who ! vention should not remain effective for seven su~portedthe Bayh Amendment in 1971 have yearnsas section 5 of the bill now provides. esiahlis!-li3da, strindard for extension that, at The call for a convention, as Professor Paul a micimum, requires a two-thirds vote of A- fieund has said, should reflect "a con- each house. temporaneously felt need." Of course,. enough time must be provided to gi-~ethe Fineil~~the - - Constitutfona' 'On- State Legislatures an 9pportunity to con- venticrl Procedures Act provides some wid- sider joining the request. However, in our ante on the issue of timeliness. The Act 8s view, four years viculd be p, sumcknt length repcl-tcd fronl committee provided that both of time. The vast majority of the legisla- applications for convention and referred tures-33 at latest coulit-now nleet an- amerldmerlts would remain timely for S@Wn nually. Even the 17 legislatures which meet year?. The report stated: only in alternate years would have two ses- Article TJ is silent on the question of hoq sions in which to act.14 long a proposed amendmerit should reman Senator Bayh introdcced an amendment to avaiiabk for ratification or rejectioll by the change the convention-call rule from 7 gears States. It is likewise silent on the question to 4 (Amendment No. 451 l6), but he never of how long applications for a convention called it up.'= "I would have preferred a should remain valid. There is general agree- shorter period of time than 7 gears," said ment that, to be meaningful, applications Senator Bayh, "so that if something is grezc- for a ~o~titutionalconvention to propose ly concerning the country, it call be dealt an amendment on a single subject should be with quickly." However, because the Senate a contemporaneous recognition by the States bad accepted Senator Bayh's earlier amend- of the need for solution of a constit~tictnal ment and because the House had not ;rot protam. There is some difference of opinion considered the measl.1re he did not call up hi& about the time period that Is all &ppropri- second amendment. ate measure of this contemporaneity. In me Mr. Chairman, the language of the Federal recerit past, in making provision for the rat- Constitutional Convention Procedures Act ification of amendments proposed by Con- itself, its report, and itUs debate can serve as gress, 7 years has been specified as the ap- excellent guides for the current debate. 1 propriate time period within which ratifica- think the Act was s reasonable and reasoned tion should take place. The bill provides that piece of legislatior, that was debated, amend- the same period-7 yews-shall be the valid &, and passed during a tiEe of Constitu- periM- shorter for instance Or tions~calm. our present ctrcurnstancks are ( yeam, viould not afford the States adequate not so peaceful-we me under extreme prcs.. time for debate and deiiberatlon on so Iunda- sure to do that which fs polltlcally exge- a questicn a propsed 'Onstitu-. dient. My fear is that our present tendency is tion-a: zmendment. On the other hand, a to respond to the pressure and heat and 1. much longer MY Years? not afraid that by doing so we will warp neu- satisfy the reasoned desire for consensus.* , b tre.1 principles thstt were shaped dc*ir a tlon on the survey, 1ncluclin.g the ex&&&: time nf calm anrdysh and ~Mcb6~~ad re- questions asked. sppene in Appendix E. , muin s irong, straight, ad I ~rnwell ware that the questions ~jsker:by I a?.m;rourc THE CONGTIT~~~NACCORDING TO Decbion K$iiakhg Information are very eon- (, GALLUP fiJiSSD HPERE troverslal in and of themselves. There is m. Chairman, before I concl-&e my re- considerable debate about the effect of ~ftP, marks and make my recor;unenbet:on for On laws relating to ~OX~IO~XU~~~~.Same be- resolution of the problem, lei me address one lieve that ~~ have no eEect on such ct:;er aspect of the &rue. mi^ wpect mn- 1~~s;dbers believe thst laws making dis- cern.j the i~seof polling percentages es an tinctions Or, what hrs become knoq7n 8s argsnient for this or that, option. An exam- ''sexu~lpreference" will violate the express ple of this Is M,O.W.'s statement that "All pr~rkio~of the Pmendment, and others reputable polls indiceate that the vast ma- believe that, tha whole ksue of homosexual fority of Americans, including those In the,rights slfd ERA is bugaboo and irrelevant. unratified states, want the ERA." le For these reasons, ~0 have stste legisl~ttors If is true that the polls show wide sup- making decisions based on the best informa- ~ortfor ERA rstificatlon. On 3uly 17, 1978, tion available to them. They can determfne Louis Ewrh wrote, "Afkr a two-yeas perioti for themselves whether ERsi Mli effecthomo- of sericus erosion, support for passage of ! sexual rights; they can decide rbout women, the Equal Rights Amendment to the Con- the draft, and their corx%tituenk'views; ~nd stitution has now risen to 55-38 percent, up they make the other judgments that arcs from 51-34 percent b~~rin ~anuar~," l9 implicit in cny ~e~lslativtidecision but whi r:h ~eorge<=-allup's July, 1978, poll slmwed are of extraordinary importance in ally de- even wider margfn+mG~llu~ shows support cision regaraing an amendment to the fee!- for extension equelly di71ded; Earris S~OWGera1 Constitution. a majc?rity favoring ~~X~~LS~GZI.This. of CQ'LlYSt?, of course, Co=,ore~~needs to be carefv1I is i~t~r~ti11giKlf~r~~t~0~ and any politicia~s. about playing this polling game. ~f we aye worth his szlt will pay atienticn to the nurn- going to maPo Constitutional decisinfis otl bers, but if these numbers have any rele- the basis of the pulls, we had better prepare vznca to the formal process of amending the to move in several areas, and do it United States CkXl~t~b~ti~nit IS 39t clear. A recent listing of Senate Joint Reao~ti- ( Article V k eei;plicit &bout the ma,2lleP of tir~n~to amenci the Constitution2 shows the ratiiic,xtlcn : after two-thirds of each house following: of Congress have passed s proposeci nmend- Six joint rwlutions to balance the mcrlt it is referred to the states, znd the ,budget; n prcposnl becomes a part Of Four joint resolutions to restrict the ternx oniy when ratified by three-fourths of the, ofice the President, 8enstors, and state legisletnres. The polls are relevant ;XlembersofCongress; to this extent: if that many people vrazlt Two ERA ratified they should see that their st&@ joint resolutions calling for a change lrgishtors vote for ix a~d,if they do not, they inlution the elec4aral coI1ege;" and one joint reso- have the option of replacing them with men WOUld eshblish natiorlnl ref and women who will do a better job of rep- erendum.3 resenting the people's views. We muId ignore these resolutions (as we There are, then, the self-evident prob- probatbl~wili, except for the change in the lems 0: conducting public policy according elt~=t~~alcollege) with impwvlity if it .~i;ere to the plls, but there arc also polls which not for 'the p~ll~;,wl-rich show cuppo~for all complicate what we zeled to belieyj~1s 8 of these me~ures.~Pb%y point, of course, is two-to-one mandate fcr ERA. mr exempie, that you will not S- the Unlted States Szn- the Cornimittee on the Stktus of VJomen COM- ate running off fmenshrfne polled permnbges mission& a by Deckion Making In- i~ the Constitution. We are a long WCL~fr~m formation of California which showed that a balanced budget amendment, a restricted by rnnrgin of 61-35 percent the American term amendment, fUld En initiative errfiend- people opposed seneing draft-age Promen "ent. why? Because we do not amend the into combat; by a margin of 65-23 percent C~nstitutionaccording b Gallup and Marris. they objected to transferring final power over N~eturall~we all know this about balsnced marrlege, divorce and custody from budgets and restricted terms and nztiotlal the stzi;es to the federal government; by s infiia3ives; my hope is that our knowledge margin of 5144 p~rcentthey opposed wek- IS as Sure in regard tomA- (, fng all school and college activities coeduca- RECOMMENDATION tional; and a rnergi~lof 66-23 they oP-, Mr. Chairman, I believe the best wag for posed giving hornosexuais the right to marry 'this committee act is to report a joint and teach in schoo!~. Additional informa- resolution the ffmr tinat is identic~jto 7 Ffme Joint ReoI~tl~nm, tb mgwB- E%Fz 2). Rv~by the C~nps&onel &- . olutisn c~nal~gthe Equsl I;sJgh.t;aAmend- swrch Srvic~,Librefly of mnvm. merit wb"leh wm referred ta the &&s On f" Q.J. E%s. 2,25,5Q,51,53,65. ~~a~ckr22, 1972, with one addition. The Wdl- S.J. Res. 20.25, 27,28. tioni would permit s-talm to resdnd during S.J Res. 1 and 8. the ratiiitcgtion period under the &%mecondi- '".J Fk3.67. tions wblcta were expressed in t'ae 19'71 Act. aa'l%e .he~dline~of some of tha polb are 1f tkia Is bone, I M11 not propme or support dmri~tive: "HW' Major?ty Backs Carkr any smcndrnents to the resolution itself, 1.e. of a -12nced Budget," TBif C)81lup I will neither pmpose nor support any mil* Rsfgq2st m,1977. "Public tx> Con- amendmenb dealing with bu-g, schoof the Electoral College." The Gallup prayer, abortion, bJanc& budget, snd 60 on. Pol1, Feb-r~mtry10, 197'7. "Nsjortty of Voters ~lsoI v,qli use wbt bdurnce I have to see 1 ~~~f Favor u~ton -rms of Senabrs, ~ep- thatemy mlle~bguesdo not propose or support! mntatives," me Gallup POU, December 81xch amendments. - 4, 1377. "Natloml initiative Prwes hvored If s resolution reaches tBe Boor atnd it does . by 57% Of Voters," The Gallup poll, ME^ 1% not bme the above elements, I w3iP have seri- 197e. ous reservations smut it and support - a.mendments Oesigned ta pro* what I un- APPEETD~A derstand to be the of the me~dlng Men~hersof tW 95th Conplress wfio vokd PrWeSS. theSe kmds of m@nbentsare noti on S. 215, thq Federei Consatutiona ~anven- successful then I believe it ia rtlY duty b:tion Procedures Act, md the B~~PIsmead- support those eRorts, under the 1711@P1 of the ment (rTo. 454)) tn t& gad mneresr;: Senate, whish will provide for s thorough snn+.,r, Bayh mendment, md debete of the many ts~uessurrounding ex- I ,g, (SA215) : pas- tension. Baker, no, yes. FOOTNOTES Ba$h, yes* yes. ' Flyer printed by X.;ztionai Crgani7~tion' T?elirfion,n.v., yes. for Vion:cn, diited July l(4, 1378 snd entitled ' Ber~t~e-z,yes, ya. "Nst toi~r;lX~obby Day." (XIereinafter, N.V.W. Rmke, ye, ys. flyer ) Burdick, ye6, yes. 2 SP~,tttt~le of "Stzta Applicatlo~isCa.,Tl!ng Byrd, 17a.,u.v., n.v. for C~nvenClon iio Propose Constitrationai B>M,FV. Va., no, ye. Psilei~dr~~entsfrom 1785 to September 1971 by Cannon, Yes, Fm. . Sr:bjtxt, ?~fatwr"in 11'7 Cong. Xec. 35754 C-e, Sm,9135. (1971 f jremrks of Senator Ervin). Chiles, no, 3-m. 3 S. li-ep. No. 92436, 926 Cong., 1st Sss. 1 Church, w,yc% (1973 1. Crrt3sbrl yes, yes a Id. at 2. oms, B.F., ~?EI~U)U~XX~Ei+pIm&, n=p., p~n- 6 117 Cong. Rec. 36761 (1971) (remarks of i'louned Senator Bagh) . Dole, no, yes. 0 IcZ. Eagleton, -ye%,yes. 1x6:Act is printed at 117 Cmg. Rec. 36806 , Gol.dwa-rs Ya- (1971). I Gravel, n.v., n.v.. asmounM fm. 6.Rep. st 14, &%pa note 3. ; Griffin. yes, yes. N.Q.W. flyer. I Hasen, no. yea. lG The vote is found at 117 Cmg. rtec. 36770 (2971). - . -- -_ I Inouye, yes, yee. ,' Suator Gayh's remarks 8ppear at 117 J~~~~~~,ys, yes- Cox3 Eec. 36760-36770 ( 1571). Javi ts, yes, ye& I S Rep. at 18, supra note 3. Kemedy, yes, n.v.* Id. 2t; 11. Long, na, n.v. Id. at 10. Magnuwn, yes, ya - 117 C'o~tg.Rec. 36760 (1971). Mathte.5, ~I.v..n.v. 'Ii Id. at 36803. McGovern, yes, yes. I' An den tical Act was passed by voice vote McIntyre, yes, yes. in the 93rd Congress on July 9, 19'73. 118 rduskie, yes, yes. Co7rg. Zrc. 22731 (1973). Nelwn, yes, yes. '- N 0 \V. Fiyer. Pacl.rwczo;f, n.v., n.v. 1"?'ht3 EIarris Survey, July 17, 1978. Pearson, yes, yes. - Tlls Gal!np Poll, Ju!y 16, 1978. Peil, n.v., n.v. - D~yestoJ Public General Bills and Reso- Percy. yes, yes. lzltrons, 95th Cong., 1st Soss (Final Issue, Proxmire, yes, yes. Fmdolph, yw, ye+% RibicoE, n.v., n.v, 8nnou11dI&. i R5a;B. m, yes. Schweiker, yes, yea. Sparkman, no, yw. Stnfford, ya,yes. Stecnis,_____ no,_ yes. _ _-_-_------.- iteve- 7% p~. steveneon, yea, Y= TMs mtdomal probattlity survey was cm- T~,W*, no, 7s !ducW between PJfarrh 26 tmct ApPil 3, 1977, ~htmn~nd,nq,yw. . 'by Decle@xa TO*-, n.v, announced n.V., Making hzformatlon of Sara agalnst, the nou& f~. IILTUL. Celliornl~.The study contains re- ,gUltS of 1,201 telephone in~~ewsvfth Weicker, no, yes. :adults (1Q ymrs and over) within the con- Wfllfams, yes, yes. was Young,no, yes. 'tlnental United States. The sample drawn ,kern the universe of vlth Total, 53. householde tele- - -*-- a:k 'phones.Pa1 forty-elght states were include& Itn the randomly seiected sample. In general, *Cmg7essimz Quarterly Senator .random samples such as this yield results K@nlae*~"kl.n-m for or CQ poll far." 'projectable to the entire univere of the ** Congressia! Quarterly AZ~Q~W92- adult population in the Unlted Btat~wlthln Congress, 1st Session- (1971) p. 414. 22.9 percentage points In 85 out of 100 caes. , release to the public of these resulb APPENDIXB ,should include all of the above reporting RESULTSOF NATIOF~ALSURVEY: EQUAL minima along wlth the exact wording of the RIGHTS P.MENDMENT-R.ELATEI) QUESTIONSquestions asked. I'd like to now talk for a minute or two about a proposed amendment to the United Ststes Constitution called the Equal Rights Anlendrnent or ERA. It reads as follows: ( "Equality of rights under the law shall not be denied or abridged by the United States or by any State on accodnt of sex." Some fa- vGr it while others oppose it, but for different reasons. 1. If the ERA means that if a war were to occur, draft age women will be sent into military cornbat just like men, would you favor or oppose the Equal Rights Amend- ment? Percent F'evor ------35 Oppose ,,------61 lTo2 sure ------4 2. If the ERA means that fine1 power over marriage, dlvorce and child custody will be transferred from the StaWs to the federal government, would you favor or oppose the Equal R3ightsAmendment? Percent Bvor ------23 Oppose -,------65 Not sure ,------12 3. If the ERA means hit every school and college, including all their activities, must be coed, would you favor or oppose the Equal Rights Amendment? Percent Favor ,------44 Oppose ------61 Not sure ,------.--- 5 Wze~it s~baittedtie Equal Rignts kz;endFent to the states for ratificatioz or rejection os Xarch 22, 1972, Congress resolved t'mt the 2roposed amndinent should becoae a pGt of ?;fie Co~stitutiocif rztifie~'i;y criree-fourt'ns of the stazes within seve-, years jfron the date of its s'r;'szijsls, The Subcomittee is considerlcg S. J. Iies. 134, which was inzro&ucec in t'ne Ser,a~eby Senator Birch Bayh an2 others and which undertakes to ex ten^ Lne Gt2a~isefor ratifying the Equal Rights Anenbent ad~itiooalseven ye^-s. Apxt from such matters as the fairness of chaaging the rtiie~,oZ she gzne 13 zne ninth inning, S. J. Res. 134 presents to this Subcomittee z:-5 tie Congress tne serious constitutional questloc as to whefber Congress ?as tLe 2ower to extend the dzadline for ratifying the Equal ?,i&ts Amefi&-,e;;. Eow Constitution Is To Ee Interpreted Before elaborating ziy abiding cozviction that t2.z C~r~~Zitutii;~G~r.2,. to Corrgress tne power to do so, 1 wish to stacs Low I believi the ConstLt,-..-.,. I an not numbered anon6 the leg& activists who ixizer?zet t;; ,o;- ~titi.i~.h~to mean wh.5 iz would have saici if they lnsteaci of the r"our~,~; . - -k,ners ca: wrltten It. 2~the con?;ruy, I -3ekeve $he Consai;,t:on 1s t~ he iniie,r~i",,,-z ... tr~emanr.ei- ~cscribecby Aacrica's "reatest Juri,, of dl tk2, Chic,' JL:_:, .,;sn :.;=s:.~-:, ir, his famous opinion ir, Cljoons v OgLec, (1624, 9 Vier-, ,, G. -, . - - A-.~ me? w:,,.ii; inter.r;lons re;~i;n~ I.; :GT.~Z~~XLC_:Z:iZTuY t J-.;.; ;;L ;;L xmas :Jr,-zn nos: ,Lrect,, zaa ;..?tly eqess :..x idezs sky iatt-rii =x v-L-vej, -,.-.. - . ;niizntt 1.1; nztriat; wco frz;?;ek =I;;. : .:.stitutioc, zr.i -;LC --..r= ,..- :.A=. . :r-2 aaosz~-;,L,~.JS~ -2 ,r:cisrs';ooa to hzvs eq,-ayr ;. words iL tnelr naxra, -,c.--se, at, ;;j nevs i..; ..-. azc wt~;they *have sbsc i. Con~resstas co >a-,ers exceze ;hose zraczed zo 2% Sy the COT-- stLtution either in e:gress vords or by riecessary i~-',?~lcatlo~' Trca e.%ress ~ro28s. Since Article V, which ,-over-s its tctions ic 3rqmsinp axea&er.tsL I 6oes not expressly or iqlieciiy z~thorizeCongress to extend the 2eaaine flxed by it cn Xarch 22, 1972, for rune ratiflcatioa by tne re 1 of states of the Zqual Rlstts heskent, Congress has no goxr to take such I zction, 2nd the 2~oposaleriibodied in S. 2. Zes. 134 is cleariy unconstitutiocel. As tne Supren;e Court declzre2. ir~Afroyim v. Rus:~, (1967) 387 U.S. 295, 1 2j7., "Qur Constitution governs us aid we must never forget that our Constltutior- 1 4 llrnits the Gove~nmntto those powers speclflczliy granted or those thst =e r,ecesszry and proper to carry cat the s~eciflcaEyegrarited ones ." (~nderscorln~I adaed .) To answer the cofistltutional ~uestlonraised by S. J. Res. 134, I recourse musk be had to ArtIcie V of the Constitutlon, which defines the power (I1 of Corgress to propose to the states for ratification or rejection anen6xeiits to the Constitution. Insofa as It is relevant to tine question posed by I S. J. Res. i31+, Articie V reads as foi1o.r~~: 1 tan.+alie Cozgress, whenever two thirds of botii Souses shall deem it I cecessary, snail pro2ose arnc~d~en~sto this Co~stitutionx-* which * s'nzii 5e valid to all Intenzs and Pdrposes, zs part of this Constitution, when ratlfieG by the Legislatures of three.fourths 02 the several states." I Dr. Oliver Wendell iiolces n&es this trenchant 03servatio;l in his 1 Autocrat of tine Brealrfast Table : I "Life and language =e dike sacred. Romicidc an& ver3iciBe -- A,, .,;*.*Iisd vioicnt 'crcatmcnt of a word wFt'a f~tdr~sults to its legitLxate mc~ning,which is its life -- are dike forbidder,. " Those who naintain thzt Congress has the power to extend for seves 1 zdditisnal years the deaaine for state action on Z3.A zre cocmitting -first I Segree verbicide on the words of &ticle V. !?key nake a two-proceed zit%ack or, tne Constitution's words. FLrst, I tkcy assert that Cor~gresscan extcnd the dcauine because the Constitution is aileat on the subject; and, second, that Congress can extend the deadline, even I ;.r s Wh6-dwrL$y i* ---A-,w,L -LL* ctck gcz;a, $E~CGSC zI~efar ~aii2Lcaiionor re;ectioz -4 - Is a mtter of procedure and not a catter of substance. %ie first of tiese cb7;sents, i.o., tiht Congress cado *king wita res~ctto say izati%er on which tke C~:stihttoor. is siler.t, is a ~ost revoluiionary propositioa, which is toiaily irreconciiiable with the iniispuutabl tmth inat the Constitut:on contains an eni;ixerz%ioc of all tne powers gaited by the people to the Federal Goverment. ~Zverydecision of the Suprem Court on t'na subject recognizes this pricciple: "menever a question wises as to whetker the federal. governxent hzs I 2;he right to exercise any particular aut;corisy, recourse must be had to the Constitution itself in order to determice whetfier such authority io found 'therein cithzr by oxpress woz& or by neccccary iqlicati~il." 16 PLz. Jcr. Constitutional Law, Section 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 i~licrt~ the power to extend by seven years the deesine for state action respc~ing ERA. Eence, such congressional power is non-existent.. Tie Supreme Co~rthas declzred that Congress hzs no gowe3 to extend t'ne deadline for ratifying ERA beyond Xach 22, 1979. This proposition finds coqlete sup?ort in t'ne unanizous 02iniori or" the Suprenie Court in Dilion v. Gloss, (1920) 256 5.S. 368, 65 L. . 9,wkere the Court assigns two reasons for ttls co~clusion. The first reason is that ?ropos& or' an aaendaent by the Congress ~r.2 its ratification by the states are not treatec! by the Constitution "as un~elatei acts, but as succeeding steps in a single errdeavor." S. J. Res. 134 undertakes to do in -two endeavors what the Su?rers Court declares must be done in a endeavor. In stating the second reason w;?y Congress cannot extend tie dezdline fo2 ratifying a proposed acendnentJ the Court asserts, in sabstance, t'hat a * proposed arenhnt losss its potency unless it is ratified in a reasona3ie tim after its submission by Congrsss, and t'riat Conpess cannot permit any stzte to vote on khe matter after that date urJess it 2roposes the azendr;int to f5.s states a second ti=, i.e., anew. kinen it sukzlt'ced the E~ual?,igkzs Aaecdnxnt to the st;i';es for I ratification or rejection on 2.'imch 22, 1972, the 92nd Congress resolved ttat E3.4 should beco3e a part of the Constikdtion only if it should be ratixed by -4- -;.kuL a ie~islztiireeof three-fonrths or' Ce s:ates wicliiili- seve:. pas fro;; date of its subiiiission. 6y so 2oir-g, the 52~2Coagress declse2 tsat ;reaso,~~ tize for state action on E3A ill eqire XZch 22, i979. Ic fixing the seven year Unit for staie action oo ERA, t.~e92;d- Congress foliowed the ~rece&e~tsset by C~z~,c+ssin subzitti~~gvirtually ali I recent axecLwcnts to the states. Eesiiies, iZs aciioii haionized with ",.e Supreme Coi;zt dzcisioa in Dilion v. Gloss, which expressly a8;uQeci Czar ct2 Congess which submits e poposed ezendzent my fix z definite 2eriod for its zatification provided it keeps withir. ressozsbie limits, and tiai ice Coaaess- which subeittea the 18th hiendrent acted wit.iin reasona-ole iizits when it . sjecified that it should be ratified by the requisite riu~3erof statas wf-,T; . seveo years. Advocztes of E3A have already ha& a longer tLz2 to pzrsiia&e tks t- zewisite number of states to ratify EX4 thz~the advocites of any szer.L;rr.z ever adZed to the Constitution. AL1 amen&xents beretofor+ rdo2teZ L;ve I;+s; I raiifie1 withili periods vzcyi-ng fro2 a aini;;s of it :ontas to a =x;=da ,p less thar, 4 yeas. I I; Vae very nature of tnicgs, the power to Tix z reasonzble ti:- i;. 8 staie acrio:, on 2 proposeii constitutionzl a~cnciiieriimst rasi&e i:r tke C~o-32~~ wi.ich siiba2za it. It c~nnotbe 2eter.-.iae0 rztro&ctLveiy b~ t subseqne:.z Congress motivated by iis faci that tiie re~uisitecuaber of sictes Lzve ze"---rrafL - ! J-bo ratify It within the reasonibic limit o:l~in&lly ~~tjijli~h~d. Tne 95th Congress h2s ?over tc legislete for tine Ffiiure. It hr; 8 ns power to amend the pzst. Arid ~h2tis pecisely whzt it wWE ha tryh~CG 20 if it ils2ertook to eraend a congessioral zesolution adopteZ on Yarct 22, 1 3.972, by stliking out seven yeas &rid itseriicg in its place Zourtees ~2~s. The reasons why a fair inference or iqliclicacion fron Articie V is b.Lb ratific~tionmst be within a reasonajle ti~eafter iki pzo~aal~=-e we:: P a-.at;-~ by the Supe~cCouri in 3illcri v. Gloss. kt re quote ;he i~t'2- --=-, - rip-A ~rst, ~ro:~sal en& rztir'icacior. not treete2 as -xzels;eLi aczs, 3at as succeedinq steps in a single ende~vo?, 5th nnatural inference being tbzr ;key aeEOLU to be wiaeiy sz-~&'.et in :LEA. SecofiCLy, it is orLy wksn C~srs is deeaeii to be a necessity therefor that ~nhntsare to be pro?osed, zhe reasonabie implicaticn beicg that whes 2roposed t'iejr are to Se conslderzZ . - z~ddls~oseC cf ?reseztlv. Yiiirdly, zs T--'-~~-ac---catloa 1s GLG che exc;:essl~~ o" tne ap?roba~ionof the peopie znd is to be ef9ective wk.en had in three-fcx~~ia of the states, there is a fair Iqliczclon zhzt it %st be sufficien;Ly contemporaneous in thzt ncz3er of staxes ~o refiec~che wiil of tze =o?le In EX.sectiocs at relative> tne saie ?erloC, which, of course, raci?ize$fon scattered through a 1o~gseries of yexs would not Co." After stating these things, the S~prerieCourt declared that 2;' a proposed arrjendment is not ratir'ied by t'Lree-fourtas of the states withis e reasonable time, it is "not again to be vote2 upon, unless a second tlxs pr07josed by Congr2ss." (256 U.S. 368, 375, 65 L.Ec?. gg&, 997) Congress cannot extea2 the deadllne by ?assing S. 3. Res. 131 becazse it would be atterrrpting to do in two endeavors what the Superne Court sriys mst be done in a single endeavor and because z reasondole tiize for the ratlficztlor, of EiiA has expired. To be sure, however, Congress caa submit the EBA to the states aaew, i.e., a second time. For uriderstandsble reasons, advocates of Zlu do riot desire Con~;ressto submit the anenheat to the stztes a second the, i.e., zxxew. T=-C: recognize that such action caii be taken by Congress only by a vote of t~ro-tr;;.;.. - of botn of its Eouses, and will iqose u2on tnen the burda? of p=rsurZir,g thz iegisls I Xence, it is not surprising tkac zhey seek to beat what tLey 225~zc be s cons~ltutlonaldevil around the stuq. They emlate the ostrich. 3y stLc-~izj I their heads in the sand, they blind thenselvcr; to the wording of Art:c:.- v what Vne Supreme Court ex?ressly decla-eci in the case of ,,..,,, v. GLOSS. Xaving done this, they conjure up these unsu~portablenotioss: First, I Congress czq extend the deadline for m-&mg t'ne ZU by z siqle rxi:orIty I vote of both Zouses; second, a state viilch has ratii'ied LEG cwuiiot chzr~geits 1 ~2ndand rescind its ratification, but a stzte whicn has rejected Z?A ca charige its mind end rt~tif'yit; 2nd third> -ay e~%endingCis &ea&i.lr,e for r-tifi- 1 cetlon lnatezd of subnitting ERA a secoai zim, i.e., anew, to the stscek, - Conpess czn e~bdnand preserve t'ne vitziity of ratifying resoiutlor,~zCo?ceC by stztes prior to the ex~iratior02 Cae o-'7--,i,L,Aal deaaine of Kzc'r 22, 1979. inconsistent with the worls of krticle V. if it extssCs ths 2eziXneJ Con,-esa wiil be pro2osing tinat ssttes voce 0:: Wi Carir.g an adGtioa& 7 yeasJ &-.& Article V n&es it os cle= 2s tie ZOGF~~~su3 in a clmZiess 5@ cia-, Cczgess cii~otp~opose Cat the statas vote on ar~yszar.dzeat exec-$ by a ao-tLirCs vot of both of its Eiouses. I Tae first notion attempts to pdt asuader what Articie V irrevocs3l- ?uts togatirz. Indeeb, it attealis to rewrite A-ticle V in its entizsty. The Ar~iciecleaz-ly requires Congress to do everytting ccnnecze8 wit;? 1 ?ro?oslng aaerihents by a two-t'iiircls vote of both Euases. It mkes no 52s- tinction bemeen matters of procedura mtters of subst~nce-- betweer. the time for state action and tLe worciing of & proposeC azeiibect. I Tie second notion ignores the f.dnfiarr,eiizd differezce between fse 6eiegsted powers which Congress erigoys 2nd tie original ?overs which a stzts 9 legislature enjoys. Congress cannot take zny action whtitever uraess It Is 8 authorized to do so either eqressly or lqlieiily by a provision oil" the CGL- stitution of tne United States. A state legislature on tine costrary cc:. 8; I enythicg it is not forbidden to do by ti,e Cor--'""~1bu~,ion of 1;s st222 ~r by the Constitution of the Unites States. 1 Neither tine Consti-,utloc ol" &z.y sJ~stesor t'ne Cons-'".."'b~ b~bs~n 05' ,he 1 5nited States forbids a state zo reverse its action in ressecx to a ?ro?~s2d ancnh,ent at any time before the z;r,cnCacoiny 2roccss ic coqia$a, i.~.,z-:f.1 I the groposed zriiendment has been ratified by t'ni-e-fourths of the stazes ad *ereby mzde a part of tiie Co~stirntion.Conse~uenikjr, until that has 'n4?~~;.ed,8 ci stzte which hzs ratified LA cen chinga its zind 2nd rescind its ratilicatioo, and z sta-i which has rejeczed -W ca ctcage its mind an2 rztlfy it. 4 Focr of the states, Teziiessee, :iebraska, I&fio, adiCesiucky, hzvs 8 c'x~rcsslyrescinded their pior miificatioz of -23.4, znd ther23y reduced to 5 tke nun5er of states whose satiflcztions of s-1.e still vdfa. 70r the two reasons previously stzted, Consess has ro i?owzr to sx~e~C the &ezdli;.2 fir ratiA3ing 23A beyond Ymcb 22, 197% 3~teven if ii ~o;;essst 8 s~chFewer, Congress cor;ld cot ke+g rstificstions dsbefore tke expirscicr oi. I A - the o:iginaJ. deacilLne in force aft,er -L-c%t tirz by >assis; 5. J. Res. 2%. T.zk is true because those retificztlo;..,~z?;jiLeZ to a ?ro>osed enh her it whic'r, wsls to be effective orly if it stouid be ratified by the legisi&tii;-?s of t'c2z-f~~---: .. .,.A of the states witiir; SZV3N -- r=oz fmrteea -- yeus from izs subzisslon by tte Con~ess. 3. trnat has .just been, sziC Is ex~hasizeciby the ex;-;ress- Iz2: of the ratioing resolutions of at least twenty nine of the states which 2escrlbe the ~ro~osedznezEzerit they ara ratifying as or~ezrhich shdl Se valid to all intents end znr cses as p~-tof the Constitution tdlen rat5fled by t'ne iegislatures of three-fo.~r%insof tnz sever& stz%es wittin SBJE'I' =US from the dzte of its subaissi~n3y the Conpess. Tie twenzy nine s-cates so dsscribing the ?ro2osed a;r.enL~zrrttkey were rzti3ing es one expiring zlter Xarch 22, 197gJ if riot za-Lified b.j tizee- f0u~th.sof the states b.~thzt tixe, zrid the yeas of their ratirying resolut:~,; axe as foliows: Ceifornla Colorado Connecticut Delm~are Ea~raii 1b.k.o -~ndlana ?om. Karis as Kentuc'~~ Xalne iv':zssachusetts Michl~sn XJiir,r,c=.ota Wontaia Nebras kz New Zaqs'nire New Xexico New York i'ior~nDakota Ohio Oregon Soutk aa'xota rnreX3S Vcrinont l,.Jas'rLlnson Vest Vi~ginia Wiscoasia Wyonlng By virtue of tbelr eqress la~~~zge,the ratifying resoi~tlotsof 1 these twezty nine states wi;' becox 21'A.I. a& void after Xzrc'n 22, 1979, ' if is not ra-Lifieci by t'ce legislatures of tFcee-fourths 02 tke stztees by uu&t &YZ. -6- - A; A; I~ to -2e s;ote, =;- w2s -a,,A~eci-- A= -P= by these zwecty ~izes~ztes In tke f~llovir,~ysrrs: 15 ssetes ir, 1572, 9 skates in i973, 3 ststes 1; imJ I i state ir, 1975> a21 state 12 1977. It is no?; ody unco~stlt~tioza.l,3r;t also Irra~iosalto coulit t'zese I 22, i? --A'"' stazes as voting for rcitlfication after Y=ch 1979, LW is no% A ULL *eZ I -ay San 5. i2rvLr., Ji.. I 2. o. EOX 69 Morga?-Loa, S. C. 28655 c C~ncl~~i~of s( : Proceedings of October 3, 1978, Apf'cm in T~;s After Todq's Sc~atc United States f h qfdnerin. PROCEEDINGS AND DEBATES OF THE 95 CONGRESS, SECOND SESSION VoZ. 124 WASHINGTON, FRIDAY, OCTOBER 6, 1978 No. 161 Senate MY. GARN. were of very recent vintage, woven sp?- cially for the occasion of the debate on to On HouseMr. Pxsident'Joint Resolution we are about638, the voteresolu- thisresolution unprecedented and unconstitutional tion purporting to extend the period during which States may ratify the pro- Fifth, and most important of all, both posed equal rights amendment. ~t is im- the pr~~onent.and the opponents of this portant to clarify what q7e a;re res01ution seem to be in agreement that on, and review some of the ugu- State legislatures are free to rescind rnents advmced for and agaimt the ex- their ratifications of the E'RA9.Let me re- ternion, so that the American people will peat that: even the ardent proponents understand what Congress is trmg to do of this exteIlSion, and the Senators xho today-and, what is perhaps more im- voted against the Garn amendment that portant, wbtwe are not trying to do. ~ouldhave recognized the right to re- Five points stand out above all: scind, indicated very clearly that States First, the extension resolution is un- may rescind their ratifications. U7e dis- constitutiond. Congress does not have agree only on ~Pi-hohas the right to deter- the power to bind the 35 States that rat- mine the validity of those rescissions. ified the ERA resolution containing lim- Some, including Senator BAYHand the iting language, to a similar but distinct other major Proponents of exkllsion. resolution tht omits the liqiting Ian- feel that a future Congress will sit in Wage- jud-ment on the rescissions. Others. in- Smnd, the extensiol~resolution could cluding myself, feel that the U.S. Su- have had a limited constitutional effect, preme Court will ultimately decide of creating a new 39-month period in whether the rescissions are valid. The which 38 StaW might ratify the ERA, n'essage to the States should be clear: if it had been passed properly. Since the If YOU no longer approve of the ERA. resoiution was not czUed up under a two- then rescind Four ratification. It is the thirds rule, ho~ever,and since it did ndt only X'aY YOU Can signal to the ultimate pass the House by a txo-thirds vote, it tribunal that YOU no longer can be cannot operate as a new proposal of an counted as part of the "contemporaneous amendment that could be ratified by the consensus" needed for ratification. The States. entire Congress agrees that a contenlpo- Third, the debate in Congress on the reneous consensus is Ilecessav. and that extension resolution was large& directed Some future tribunal will have to judge the merits of the ERA, rather than to Khether it exists. no State should be the very different question of constitu- dissuaded from rescinding. On the con- tionality of extension. This underscores tra~,there k nore reason now than ever the very fimited ydue of this resolution before for States b take affirmative ac- even as wrsuaive authority for the tion to indicate their change in senti- courts, who ill ultimately have to rule ment- on the constitutionality of the rescission I will discuss each of these points That so many Members of Congress were briefly, Mr. President, but I cannot ex- unable to separate their desire for the haust the list of things that are wrong ratification of the ERA from their judg- yith this resolutior, in the short time ment on the constitutional effect of a available. There will be lawsuits over rescission u~derscoresthe danger of the Llis resolution; indeed, it might be called argument that questions of amendment the Constitutional Lawyers Relief Act of procedure are "political questions," on 1978. 1 hope that the courts, in revieff- which Congress can do anything it ing the record, will consider all the floor wishes without the chastening effect of proceedings an6 all the data. and opin- judicial review. ions inserted in the RECORDby myself Fourth, to the extent that proponents and others over the last 6 weeks or so. sf the extension did address the consti- After a revim of thme data and opin- tutionality of extension, and of the re- ions and these prweedings, I am confi- lakd question of rescission, they largely dent that the action we are about to take relied on several xnytb about the text, will not bear~ruthy. history, and interpretation of article V I hope the Court ultimately will look at of the Constitution. Some of these myths just the constitutional process. They c C not be hrolved in the pofiiics of de- ing ts treat Fuerto Rim as 8 6Stafx for cidjng whether they are for cr.against a the punose of smuriJXa three-fowhs particular amendment. mp jority of the States; but neb* would seriousljr propose ihzt Congress may do L TIC6 UNCONSTITUTIGNALITY OF TEi: EXTEN- so. SION REBOL'OTION Mr. President, nrticle V of the Consti- sionTaking resolution, s, carefd look at this exten- in it is faLrt* say tution, like many other provisions that that it of document. is very short. It provides as into procedures so far-fetched that the would f ollo~s: framers not have thought they needed to pro- The Congress, whenever two-thirds of both Houses shall deem it necessary, shell pro- hibit it, It is certainly not a matter of pose Amendments la thls Constitution, or,detafl. It waF from the States on the Application of the Legislatures ai h-othe right IXtif~or reject the proposd thirds of the several States. 6hdl caU a (30n-they were presented in 1972, retroactf~;e- vencion for proposing Amendments, which. IF turning each State ratification hlto in e~therCase, shall be valid all Intents a blank made to the order of Con- a~ldPurposes, = part of Constitutio~gress. This violates the balance of Stsk ratified the Legk1atures of three- and Federal power that was so fourths of the several States, Oi by Conven- tions in three-fourths thereof, es the one or drawm in article V. the other hiode of Ra.tiflcation map be pro- Here is what happened in 1972. Con- posed by the Congress: Provided that no gress presented the States with s reso- Amendment which may be m~deprior to lution containing certain limiting Ian- the Year One thousand eight hundred and guage. The resoIut.ion stated that;-- eight shall in any Manner affect the first [Tjhe foilowing article . . . shall be valid and fourth Clauses la the Ninth Section of . . .apart of the Constitution when ratified the first Article; and that no State, without by the legis19~twesof three-fourths of the its Consent. shall be deprived Of its equal several States within seven years . . , Suffrage In the Senate. Thirty-five States ratified that resolu- Article V does not attempt to set out tion. As Prof. Jules Gerard has pointed every detail of the amending process. out, 24 States espressXy mentioned the But it does state certain principles, as- time limit in their ratifying resolutions. signing the power of proposal to Con- The other States also ratified the entire gress, and of final ratification to the resolution, 2s limited by the time lirnit, States. They ratified no other resolution. Con- It has been suggested that where the gress now proposes to take the ratifica- Co~lstitutionis silent, Congress is free tions of House Joint Resolution 208 of to legislate. This is contrary to the gen- 1972, and to declare unilaterally that era1 principle that our Federal Govern- those ratifications are also to be regarded ment is one of limited powers, and to the as ratifications of House Joint Resolu- principle announced in the 10th amend- tion 638 of 1978, which does not contain rnent that residual power is in the States the 7-gear time limit, but substitutes a rather than in the Federal Government. longer time limit. Nevertheless, it is arguable that as an Snator BAYHhas admitted during this incident to its Power to Propose amend- debate that Congress would be powerless ments and to designate the mode of to bind the 35 ratifying States to this ratification. Congress may enact "house- new congressional resolution if the time keeping" legislation to provide for mat- limit arere in the text of the proposed ters of detail that may arise in the amendment. But he argues tkrat since the amending process. time limit Brasin the resolving clause and Congress may not, however, w its not in the kxt, Congress is free to go "housekeeping" pww b dter the del- back and take out the limiting language. ic8t;e balance of State and Federal This is Rrrong. for two reasons. First, it power in the amending process. It may ignores the fact that every State had the not, under the pretext of providing for a time, limit on the bargaining table when situation not expressly mentioned in it rietffied. There is no need to rely on article V, do violence to the principles hypothetical "reliance" by the States, a!- clearly stated by that article. though Professor Gerard makes a per- hrticle Y does not expressl~~mention sursive case th&tsuch reliance did exist. extension. Nor does it mention rescis- Simple contract law, which is after a11 sion. Nor, for that matter, dmit men- just a way to determine whether there tion any number of other hypothetical has been a meeting of the minds between absence 8 proposals; but the of swMc partiesStates to ar transaction, is enough. The reference in the Corfititution is hardly that ratified the resoluti~nwith evidence that the framers intended Con- the limiting language cannot be pre- gress to have w free hand h deciding sumed to have given their mceptance to a resolution containing no such language. whether a certain procedure is valid or The history the invalid. On the contrary, a procedure of amending process may be so far-fet;ched that the framers provides another equally strong reason to reject the reasoning of =nator EAYK, never thought arywdy "Q*~prr;mse micb is elso me res0-p of the Jllstice it, and felt no need to prohibit it. Artide kp3rtment and bf the Y. for instance, does not expressly pro- aconsiitutional exwrts,, of the hibit Congress from uni?aterdlllg dmlb- Senator BAYH 4 umn in debate. melwatiog Judiciary Committee. mecomdttee report. ~Ubm'ttHJbY Senator Bayh- noted under the limitation in the resoliring "Legislative History" that the time limit had ws clearly intended to differ on10 in been included es a result of the style, not in substance. from a limitation amendment in the gist Cougress [Sen. Re- in the kh. port No. 92-689. 92d C@ng.,2d Sess. 1972 st Grover Rees In has detailed this hs- 4-51. The report also stated: "The proposed tow in his memorandmL the Rouse Equal Righb Amendment reads follcws: subcodttee: . . . the following article . . . shall be valid to all intents and purposes as part of the Con- The *cot Of the Of the Seven- stitution when rat=& by the legislatures of Year Lixnitation. three-fourths of the several States u-lthin If the eeven-year limitstion in the seven gears from the date of its submission text of the proposed emendment Itselis it is ~9 ld, at 1-2 (emphasis added) - The report difficult to Imagine anyone suggesting that ;;lied: Oongress could now change the text and This thereby bind states oc-hich previously is the traditional form of a joint reso- wtLGdthe smendment to the new language. lution proposing a constitutional amend- The rirnit however, Ln the ment for ratification by the States. The seven preghmble, or "resolving clause." year time Limitation assures that ratification reflects the contemporaneous views of the Cowessprsented its entire people. It has been included in every amend- tion tc the 'llltes+the location '' the 'lme ment added to the Constitution in the last llmit sho~ildmake no difference. The seven- 50 years. xt Ls interesting ta note the gear P~~~~~~~~ On the bnrgalnillg longest period of time ever taken to ratify 60 'pep the states indicated proposed amendment was less than 4 pars.- assent. The location should mly make a dif- ference if the legislative history affumatively [Id. at 201 suggests that the states had reason to know Not e, word in the legislative history of the that the seven-year limit.ation was not bind- E.R-A- indicates that Errin* pm ing on Congress, and could be changed at posed the time limf%tion, Or the fkoate Ju- uvill. There ts not a trace of any such evi- diciary Committee, who reported it fflrorabl?, denm in the history of the E.R.A. or of con- 0' anyone fn Con~cssor fn the state legis- stitutional -endmenb generally; indeed, l~tUTe3.intended the Iimftation to hare any there ls affirmative evidence to the contrary. mbstantlve effect because Or its It is clear that the location of the time limit 10cfitton in the resolving clause rather than in the resolring clause ws purely matter in the text. The obvious reason is that Ian- of form, to which no substantive importance Wage in the clfixse does not wtu- attached by those who drafted and voted 811~become part of the Constltuiion %hen on the E.R.A. the amendment is ratified. n-hereas s limi- Ink-tbgly, the location of the seven- tation In the text would "clutter UP" the year limitation seems have been the xork mmtifXtion x71th language had be- & Senator mfn,an E.R.A. opponent. men come IneEective. That no substantive dis- the amendment was introduced in the glst tinction Was drawn k tfie Congress, it contained no time limit at all committee report's Casual I~clusionof the During debate on the resolutioq Senator rs~l'ing clause in what puvorts to be a re* Ervh i&roduced amendment cital of the text of the Amendment. Nore- among other things, bposd a seven-yew over, the numerous references :o similar Ian- limit. He sad it r6would requirew thsit Page in past amendmenb inpip that the ficat-on within seven years for the E.R.A. provision intended to hare the E.R.A. to be valid, adding: same ezect as the previous Jimftations. most Certainly, any proposed amendment to the of which had been contained in the text Of Constitution of the United States for which the therefore clear- there is any real demand can be mta~by ly could not have been tampered with by the legislatures of the required nubr of Con~re~afwr some states had ratified. 7 yeam after the date of its It is Instructive to examine the first in- submission.-[I16 Cong. Rec. 36302 (1970) 1 stance in which Congress placed the time Senator Dole added that the "provision re- limitation fn 8 resolring ck3~.5e,rather than quiring that the amendment be ratified in the text of a proposed amendment which within 7 years has been included in amend- ultimately became pert of the Constitution. ments proposed by Congress commencing The 23rd Amendment, granting the P~esi- with the 18th. and will prevent an anomaly dentbl vote to residents of the District 01 amendment from lingering in Ibbo for an Columbia, was proposed by SJ. Res. 39 h the 86th Congress. This resolution originally tndefinl* number Of proponents of the limitation Id*intended96450. Thatit to contained no language about the D.C. rote have the same eBect as similar clauses in at all, but rn Instead a resoIu tion, favorably prior amendments is signiqcant, she until. repol-ted by the Senate Judiciary Committee, the 23rd Amendment. these clews were all to propose a constitutionaI amendment pyo- viding for emergency interim appointments In the text Of the amendments 0f membem of the Roue of Representatives- then;selves. The Senate added the D.C. language, and Senator Ervin's amendment to the ERA.then the House kept the of *a- lanwage and resolution p=ised. over the o~~osition deleted the language about ator and Other leading E.Rh. propo- appointments. meresolution itself, however, (Senator express'ng hif?'pposi- had a long and well-documented le@slntfve tion to other parts Or amend-~toq,with particaar refemnce to the rnent, end not mentioning the time lidta-8ePen-pearume -btion for Ex.'. tion). me was not paved by the ~h,co~t-reportcn S.J. &s. 39 Isen. Senate in the 91st Congress* but when it NO. 86-461.86th Congr-, lst Sess..], intraduced ih the 92d Cong'w (HJ- Ra.,ys the resolution was 'identical in *=t*.to 208. S.J. ms. 8. 9) * it contained the timeSJ. Res. 8. which Dad the Senate in limitation exkctl~as by the minthe 84th Congress. S.J. &s. 8, when intro- amendment. The Ervin language induced by Senatcr Kefauver in the 84th Con- the resolution as approved by the snakgess, -ained ,= the llmltation in the < c of the amendment. Prlor 'Q committee hear- it c01Ad fairly CO~~LI~as such a re- in- on the resollitfon. Kefauver appp-~ent)~ferral to tkre Sbks. fioxever, the US. wM* tC) % num7Wr of ~nstftut~gl3f%llaw Suprenle Cob& pchkd poTeu scDo!an, ssking fur suggestiors on the Ian- agzinst ?AcCorrnack tbat Conmess r.2~ Gage of the anendme=lt. Only One response of those in the recard of me bear- not we mere nomenchtue b do some- inp recommenOed s change in the iocetion thi~U5with a s~PI~n2iWity vok when of the seven-year limitation. Professor Noel the Coristitution requires s two-thirds mv;.l@g of mlunihia Lew School draftee an vote to mbieve the sme edect. Thus ~e entire new version of the resolution. noting: House codd not "exclude**fi,dm Clayton "The ?-year Umitatioo is put fn the reso- Powell under a, rule requiring a simple lution rather than in the text of the amend- majority, since the Constitution required ment. There k no doubt about the power of two-thirds vote to "expel** hirn. And Conge= to put It there; and It be We cannot "extend" the Ep?by a equally efiective. The usual way, to be sure. bas been to mite the limitation into the majority vote and pass it on to the States amer.dment; but we hope such an unneces- for 3 additibnal Yews. when to achieve ~rycluttering up of the Constitution can be the Same effect by an original proposing ended." reso~uti02l would require a txo-thirds {Bearing before a Subcornnlittee of the vote of both Houses, by the clear Ian- Comnrithe on the Judiclar~,United States guage of article V. Senate. 84th Cong.. 1st. Sws.. on S.J. R-. 8 prof. Yale L3T (1955), at 3-41 charles ~~~~k of the The committee substituted Dowling's Ian- School,in a letter I have already imerted guage for the original. In response to a ques- into the RECORD,presents get another tion from Senator Russell in Senate floor rt%iSOn that this extension proposd, b debate, Senator Kefaurer stated : have whatever validity it might have .'The general idez was that it was better under any UleorlY of the amending proc- not to make the 7-year pro7.-ision a part of ess, needs a two-thirds vok in eacll the pioposd constitutional amendment It- House: self- It was felt that that clutter up It is my opinion that a tKo-thirds rote is the Constitution. Sometimes that is done. required for this extemlon proposal. rrs I said We %anted to put the $-year limitation Ln in my testhony before the House subcom- the preamble- the intentioilOf the prem- rnlttee, the original resolution that passed is it 7 both Houses of ble that must be ratified within gears and sent ERA to the m order to be fffectire."--llQ1 Con$. mc. country waz nrorded in a and ex- 6628 11956) 1 In rtsponse to Senator htussel!'~ co~tinued PresslS condition21 form. pro~idingthat the questioning. Genator Kefauver agreed to en text of the amendment should have ralldity smtndmcnt, which was then passed by the as part of the Constitution, if the rztificatlon anate, to insert the word "only" belore 'if took place within seven years Ttlis integral ratffied . . . within 7 years" in the resolving P~oPo~~--aproposal for ~ai!d!t~conciitioned claw. Senstor Kefauver made it clear that on a certain time-limited event-~~:as the only be and the Judiciar~Committee slaE felt the thing that an1 bodr el.er voted on or could Ebddition of the word not change the have voted on; it ras, In fact, the o11ly pro- effectof the limitation. Id. posal ever made ?XI the States. It Is lmposslblr Professor Do~llng'sletter, and the sub- to know how many votes on the propma? were sequent exchange on the Senate floor, are lnfluemea by the ~elu6ionof thls tlme Ilm- me only evidence of legislative intent behind ltatloa we do bow tbt it was arefully the location of the time ItrnIt in the rgsolu- considered and 1ntmuk-d to have serious ei- tion that eventually became the vehicIe for feet a Part of the ProPsal- But the nlaln ratific~tionof the 23rd Amendment-the ap- strength of my as is in the text of the pro- parent model for subsequent proposed PO^ Itself- It PrOPo=s that ~eliditybe con- amendments xhich include the limit in the dltlonal On ratifi~atbnHthin seven Fears. resolving clause. They Indicate that the That conditional ProPosal Was the Only pro- c3ange was nade purely in the Interest of a posal that ever PB~~M-It. seems to me pIainlr more elegant Constitution. and vTith no in- to follow that an alteration In the content tention of altering the substantive effect of of the ProPsal has be pm- by the same the time limitation so as to allow Congre-ss majority required to pass the proposal. to modify it after ratification bq- a nulnber I thfnk that Li the 8ct of extension were to of s'ates. have been offered on the day following the passage of the original proposal, and lf it bad conclusion. Mr. President, Congress been 6uggested that a simple majority vow may not make an offer to the States, R-aa; enough, the ludicrousness of this pmi- secure acceptance of that offer.and de- tlon would have been entirely deiir, but 1 clare unilaterally 7 years later that 2an.t see why it would make any difference the acceptance applies to a -difFerenl t%at,a gwx.3 be& ilf time has clasped. Some people say that this matter of time offer. And no "housekeeping"' power in pending 16 a ..mere,, procedural matter. Ih,s Congress can justify such an enhance- Mnd mng Is somewht hard to under- stand ment of the limited congressional role in on the part of lave=, because lau.~ym ' the amending process at the expense of how that the dlflerace betwen a lynching the role given to the States by article V. and s fair trial is only a ma'iter of ~rocedure, -I add that TEIE FATALLY DEFECTIVE PEOCEDm,IIS would nothing could bemore im- portant than the following of meticulousl- I I have pointed out, Mr. President, correct procedure with respect to the amend- ress is perfectly free resubwit ment of the American CoznstituMon-the the -m~far ratification by the States, bsic document lqitfmatlng olagurernmenr. and fa dsign2.k a reasonable the for m. THE FAILWEE m ADDBE% m REAL XWC7E5 such latification. IP me had dollo~edthe From the moment that thk exknsioc proper procedures izl adopting the reso- proposal began b.3 su~ace,it became lution we are about to vote upcrn today, clear that its only ~~~"lcefor SUCC~S was for the proponents to focus on fhe First, there is the myth that article V merits of the E23A and to ignore or gloss w&LS the final resolution of consti%,u- over the grave constitutional questions tional questions arising in the ernendicg involved. Mr. President, if this exterfiion prxw tO Congress. Some hfemkrs of proposal had been suggested in connec- Congress may even have spemtd under tion with an antiabortion amendment, the impression that the text of article V or even with a noncontroversial amend- contained such s grant of power. The ment to provide for the Presidential suc- fo3Towing excerpt from the House sub- cession or to make the marigold me committee hearings illustrates this fact: national flower, this Congress would not 3s. HOLTZMAN.m ~o-ss have ac- have given it the time of day. But file cept the ratifications by two-thirds vote? lobbyists for the extension made it clear Professor Bmcr5, CetrRinlY not- No, indeed- Sf&. that they regarded a vote on extension ed to theMOLTZMAN. substarn?Isn't that inextricably link- a 'Ote On the ERA Senators were Professor BLACK.But bbe acceptance of told, "We mow that if you're for women. ,tiBcaUon by Congress is not an Wde V you'u find a constitutional argumellt power. ~t is not so stated. 1t is not in article that will allow you tQ vote for the ex- v. AS a matter or fact---- tension." And too many Senators who Ms. HOLTZMAN.Where is it? discussed this externion proposal \T.ere Professor BLACK.It 16 not anywhere. There unable to confine themselves to its con- 1-0 statement as to who accepts ratEca- stitutional mer*. Instead, they tlon. It is a matter of practice from time to how much they loved their daughters time. And it has been changed from time to and spent time refuting the idea the ERA t 8 * lead to co-ed restrooms and homo- Ms. HOLTZMAN.Profesar Black. surely there sexuality in the schools. Those were not must be something in Ule Constitution that the issues. gives Congress the power ,to accept amend- Perhaps it is unfair to blame Senators menb? BLACK.If you say 60, show It to and Congressmen from them- Professor If you say there h. I woad thla that selves with me politic21 aspects of the putthe burden on to tell me where problem. They are legislators. and it 1s it i6. I don't happen to recall li there is s their job to vote for the result they mink pa5sage like ebt. desirable for their constituents. But who I don't have the whole thing memorized will ensure that the proper constitu- b J heart, but I don't believe there is. ional procedures are follo~yed?Tradi- ~~OLTZ~UN-Co~ress has no consti- tionally, that the ftrnction of cle tutional power to determine whether ratifica- courts. Yet the extension proponents tionsStates fiavehave properly taken place, whether 38 claim that the courts ill not inter- vene in this case, even if Congress should Other Members of Congress have sug- act in a constitutionally questionable gested that Congress has an implicit mariner. They say it is a nonjusticiable right to resolve all constitutional ques- "political question." Yet the precedents tions in the amending process, despite for such a nev, ~hichI shall discuss. suggestingthe absence such oi any a language in article V are ven n-eak; and the practical foli~thority for such a congressionalme only poser au- of It, the real danger of it, could not have been more vividly fllustrakd than by the fs in the case of Coleman against Miller. when That case was widely criticized,as even at fact that we should have been the time it came out, and and dispassi*akly internally inconsistent. Professor Orfield, meaning of article V, we were -Lead the most widely recognized contempo- worrying about restrooms and comtltu- my expert on the amending process, ent pressures. I look forward to the day. did not know what to mrtke of it The and it is to come' case, if can somehow be recon- ksue ill get the fair trial It deserves, even it cned wit& commonsense and with the in a job It and not to legislate. I am confident that clear language of article V, does not have the U.S. Supreme Court will not shirk anything to do with extension. Nobody its responsib~tgto give article v of me ever 6ugg- extension at the time. Constitution a day in court. And since the holding of Coleman was that some cases arising out of the amend- N. CONSTlTUTKONAL MYI"JXILOGY ing process, but not others, were non- As I have indicated before, Mr. Presi- justiciable, it cennot be authority for dent, the few constitutiCnal arg-ak anything outside its om fwts: that were advanced for the extension Most hportmt, Coleman has been im- resolution rested on a novel and fi&wedplicitly overruled by much later snd more viev of the amending procedure- 1% is a reasoaed Supreme Court decisions, in- view in wNch Congr@s rd~supreme, cluding Baker against Carr and Powell ~rfonningthe multiple roles of PrOsecu- against Meonnmk tor, judge, jury and executioner. PmU is the strongest case. Adam Hee are some of the elemen& of' Clayton Powell had been denied his seat Byzantine m'odel of the amending Proc- in the Rouse, and he sued the Speaker ess, some of the myths about the text of the House and won, over the strong end hfst.org of article V that have been contention of his opponents that this wm tlx-o~mtogether especially for the PUP- a "polibl question" on which the House pose of this debate: could do anything it wanted and be im- +& judicial review. Tne Ccurt ac- V~%atreally happened wzs that New tually revezd the House's judgment oil 'dork xw c~rsiderhgthe arl~pticnof the its om. inknd ~~ies.Can it thus be origin4 Constitxition. Some members of sesio'izsly crgued "Lhat the COLZyiU CIME the ?Jew EEorklegislature Kere concem~d its eyes ~;hiieCongress &mpers %-F;i"thne that the dwu~e~itcontained no bill of vew structure of the Constitilti~n?I rights, end theg %ant& ts ratify Kne thirk not. i Clhk it unfair Do con- Constitution with the condition or pro- tinue cithg Co1ena.n FS if it were s re- viso that a bill sf rights be ratified by speck5 a~zdundisturbed precedent. ~tkerStates. Madison repGe-d &\at such me reasr4rLing c: Pornell and sf Baker a conditional ratLication uisuld rot be 1ea.ves rst Torsrn for z?~erewonL~g of Cob- efioligh to m&e XeW Yoi-k pr rfizrnbel- of man. The GOLF"; MU not shy aitvayfrom the U1790n. That is a%1that hzppened. an isse because ft involves a possible Sever~lpoinb need to be made about conact with CO~VPSS,or ?Xcause C0Il.- Madison's. letkr: ~Tst,it did n~teven gres has done the allegedly uncumsti- pur~rtto interpret article V, the prcrvi- tutimj. action in the past, or ksause sioa for constitutiond arnei~dments.131- Con-m has used nome~cletureto nake deG, a.rticle V had not even been the appearance 09 dsing something ft adopted. Tae New Pork Legislature was h~ 2 fight a do, ~~hiek-g discussing the ratification of the Consti- result $4 is. otherwise prohibiA& from tution itself, not of any amenbent to it. a;chie*a.g. But Snzbr BA~h2~saic? snatol ~~ggestdmat what thrzt Coleman is still good jaw because Madism thought about the adoption of Powen dkGllgukh& ft. Thai ztssertion, the ~smtftutio~;must havk tile m. Resident, sbp'~dm5 not -WMV~ same a %hat he alought about me rau- a careful rewiing of Powell. It is true fication of men-ents. ~utthat sug- mat ~~~e~anW~.-S Qne of a laundry list gestion cannot stand in the face of tie of old Powell cited -for the clear action of the framers when the7 proposition that there are such things as wrote two different articles for the tzro mtkd questi@lX. But that Was all. different procedues-article V for There was no discussion of Coleman, ~t~damendments the Constitution, and no examination of its logic or its facts. article VJ-J for the adoption of the Con- YOUcannot read Po~elland continue to stitution itsex by the 13 original stam. hold the belief that the courts will blindly metwo articlefi contain entire& differ- give €?Beetto an uncola~tit~ti~nalact of ent fomds and procedures, becaa3e Con~~s,on the strength of the "pouti- theg involve two entirely difTerent situa - cal questions doctrine." Yet that Is what tions. So even if hladison realb had said the proponents of extension would have that t'ne States could not rescind, it us believe. ~rouIdhave had no bearing on article V, Anothw .myth concerns the case of wfiich is the only- question before us Dillon against Gloss. Contrary to what today. has ken asserted, this case did not Eut even assuming for the sake of recoae any right in Congress to ex- argument that Madison was talking tend . ratification deadline. Dillsn about constitutional amendments, a merels stated the obvious: close exandnation of his words tends to Thrit CA;~,- has the power to limit its support the State right to rescind. What ~~ Woposd~, by imposing a reasonable Madison said was that a, conditionad time limit in "&e first place. ratification is no ratification: DZon did not faold that Congress could A reservation of 8 right to .~'fthdrawif corns back, dkr 35 Stam had voted amendments be not decided On . . . !S a coo- on ofimdprowsd; and change that diti~"f%lZ%tifiC%tiOn, that . . . does not make New York a member of the New Union, anC progcjal giving the States consequently . . . she does not be received chsm to indicate whether they liked 0% th, Nan. Compacts must be reciprocal. the &awe. this principle umuld not in such a cecse be On tibe contrary. Dillon affirmed the preserved. concept that a "contemporaneous con- Madison was saying was that semw needed ratification AS if two garties to a compact ratify it with such. 0- importance that case has different thoughts in mind, there is for the present debate is to underscore meeting of the minds, and so the Corn- ratification-especfellythe right '' ea'' state li tothe rescind period Itsis pact is totally inefTective. Applying this extended beyond the original 7 years. to rescission and extension, if Perhaps the newest and most creative a State ratified in the erroneous impres- myth to emerge from these procedings sion that it c0dd rescind---Or on c0ndi- is somethhng cdld "Madison's Princi- tion that the proprrsd expire in 7 years- ple." Nobody had ever heard of "Madi- Its ratlflcation wsdd be totally fneffec- son's Principle" until just a few months tive. Imnstead, the proponents of extension ago, when the Assistant Attorney Gen- ~rithoutrescission would have us believe end of the United States unearthed a that eb conditional ratif?catior. would be letter from Jmes ?dr*caison to Alexander absolutely valid, as though it contained ham if to^, took it entirely out of con- no condition at all. This is simply not text, misstated its conclusion, and ele- what Madison was saying. The props- vated the remains into a sacred neck of en unfair extension should be precedent. C f ashamed to give I'diadkon's name to their The Justice m~arment,a~ld the Lb- novel end meet-to-order "pri~cip'fe." aistant Attorney General in particular, Ollc of the biggest distortions conce,pas have done yeomm sePcvice In the creation the so-calied "hisbdc precedent" of the md promulgation sf stories aMut 34th amendment. I think it is important the mending Process. In adition b to review 'what actua'Ely happen& on "Madlsoa's Principle," the Assistant A%- that day in 1868, to show how weak thetome7 Gmeral's rneInor~U'~dtim the precedent reany is. mereconstruction HOF ~~~bcommithcontatned the fol- precedent is discussed in a comment hl0-g lan~age: volume 37 of the Louisiana Law Review: Rowever, the 99d Congress did not put a On July 20,1868, Secretary of State Wllllam time limit ln the text of the ERA but ratber stated in the propslng resolution thsrt the Seward announced that he receivedStates should have st least 7 years to con- the fourthsdocuments of fromthe stateslegislatures purporting in & least to certifythree- dder ratification of amendment. ratification of the fourteenth amendmeat. mefabrication, out of whole cloth, of He noted, however, that he had also received the lest," give one a bit of official notice that Ohio and New Jersey had the withdrawn thelr consent to the amendment. flavor of the Justice Expressing his "doubt and uncertainty" as approach. Of course, the Assistant At- to the legality of these resolutioos, he celti- torney ma not as an Sed that U the Ohio and New Jersey ratifim- of the administration's pmition on the tions were stiu in force, the amendment was ERA, determined to get it through what- valld as psrt of the Constitution. ever the effect on the integrity of the On thhe followbg day, both houses of amending process, but as a counselor, Congress passed a resolution declaring that =ole is "not to discuss the mefits three-fourths of the 8ta-v including Ohio Of me proposed extension but rather to and New Jersey, had ratified and that the amendment was part of the constitution. provide whatever legal advice I can re- The record of the proceedings suggests garding the issues raised bluntly that the Republican majority neither by this XTSO~U~OI~.~ knew nor cared whether the Constitution menational press subsequently re- gave State5 the right rescind. The Senate ported that the Justice Department had passed the resolution without debate and that Congress and without s roll-call vote. In the House, the entire debate appears to have lasted only that States could not rescind. I suppose a minute or two. A Massachusetts Republi- that after we PSS this resolution, there can moved to send the resolution, not to the MU repork that Congress has "ruled" Judiciary Committee, but to the Committee about extension and rescission. But, of on Reconstruction. A Democrat protested course, the Assistant Attorney General that "it is an important question, and should and the Congress cannot "me" anything go to the commfttee on the Judiciary." The the constitution. professor Republican Boor leader then indicated that his intention was to "pass it no%," without Blwk put it bhenhe spoke to the Rouse any comettee consirieration at all. t~~tersubco-tke* hm the right some dlscusslon of the ides of adding tO say anything it wants to*but the ques- Georgia to the list (on the strength of tion is whether the Supreme Court telegram in the possession of the Speaker should give effect to what they say, as it which a Dm~ocratsuggested was a fabrics- 1S with all questions of constitutionality tion), the resolution was passed by a near- of 2Chof Congress." perfect party line vote. The Congressmen who voted that Oh10 and New Jersey could not these mytks are part Of the ten- rescind were, virtually man for man, those tral fanac~that is a matter resalved who five months earlier had voted to fm- by precedent, so that Congress need not peach President Andrew Johnson for his consider the constituiionality or fair- refusal to obey unconstitutional orders. ness of what it is doing. Mr. President, It should be emph~izedthat this Congres- there are no precedents here. And the sional action was never tesWd in court. By only thing that can be said about the the time the Supreme Court Was called upon weak and iliogjcal to construe the fourteenth amendment, In that. have the 1873 Slaughterhouse Cases, four addi- been advanced is what the Supreme tlonal stetes had rstifled the amendment so Court said in McComri@k: that ratification vel non by Ohio and New That an ~nconstftlltionalactioo has been Jersey was a moot point. taken before surely does not render that Apparently, the resolution of the Recon- same actlon any less unconstitutional st 8 struction Congress was not regarded as an later date. . . . The relevancy of [such) cases important precedent even by contempomJes. ts limited largely-to the Insights they aEord me ,discussion over Including Georgib- in correctly ascertaining the draftsmen's whose ratlACation would have brought tfie intent. Obviously, theref ore, the prece- total ta three-fourths even without Ohio destial vslue of these aestend6 to lncresse and New Jersey-suggests that the Republi- in proportion fa their proximity to the can leadership was not entlrely confident the Convention in 1787. gambit would succeed, ~oreover,two years later New Pork rescinded Its ratffication of The advocates of extension have cited the Bfteenth amendment. and the Secre- a few isolated irzcidents that began with tnry of state did not certGF the erneod&nt the ~ec~n~truction.Those ~~ecedak,if as valid until enough states had ratlfied SO anything, show why even more concern that New York's action was mwt. Shortly for fairness and constitutionallb 1s thereafter, the Senate twice relected at- needed when we are desbg the tempts to declare that no bate dghtrescind ~~~tit~~ti~~than d& or&lar7 legis- its mtlf3ceton of any future amendment. lation. and why there fs a Pressing need -- for judicial review of congressfontill picture of public OP~~~OSst the find date of ucture rati.ficatioo Is obtained. No pat cmniwion actions that aefect tfie str the ~5 likely to result from such a me. ~otto a- Constitution. low reversal of an acceptance rmy caw a I The political branches, CongrfZS and csa~tiousledslature .# not to set. the executive, have shown wheatthey can Moreover, hofessor Orfield, they go about * only a few years after the Coleman deci- ~~ILStit~ti~nd1%~.NOW it-- k the for the sion-the major "ljrec&ent" cited by op Judlclal branch to stmlghkn the ponents of rescission, although its fact mess we have made, to restore some fair- had not-g do cri~rescission- ness and logic and certainly the largdy discounted the effects of &t amending process. and concluded that "there has as yet 5- V. TRE STATE RIGHT TO REWIND no test of the finality of 8 ratification." I cannot emphasize too strongly, Mr. mob. Charles Black who of the President, that this resolution does not emanent c0nstitutiona.l 6ckfdars affect in ang way the Stak right to sped before the House subcommittee, rescind ratfieation of groposM ton- was the only one who had previously pub- stitutional amendments. That right lished anything about the menag; exists. It is a necessary conclusion from Process, strongly supPoits the right the concept of "contemporaneous con- rescind. He calls the view that ali af- sensus" of which Hamilton spoke in the firmative vote cannot be reconsidered, Federalist No. 85, md wMch W~S~f- but th& a negative vote can be recon- firmed by the Supreme Court in Dillon sidered time and time again, s "silly against Glos. And it flows from pure lobster-trap" model of the amending fairness and common sense. If you haye process. 38 States that have indicated their con- Senator Sam EIYin, a former Nernber sent to a proposal, and four that have <3f this body who has long been respected withdrawn, then ypu have a "oonse~uswlforhis sincerity and erudition in con- of only 34. That is not enough. stitutional law, believes strongly in the The Senate rejected my amendment, right to rescind vhich wouId have reaffirmed the ~ghtto But that is not all. Outside the context rescind, as a limitation to mitigate theof the ERA controversg-that is, when unfairness of rescission. But if there is an they xere able to separate the constitu- absolute right to rescind, flowing from tional question from the desirability of the constitutional requirement of con- a particular amendment--the Senate sensus, then notbiing we do here cm de- unanimously passed a bill that rec- tract from that right. ognized a State right to rescind. The Yet the opponents of my amenbent vote was 84 to 0. That was in 1971. The did not base their opposition on the ab- report of the Judiciary Committee- sence of a, stak right to rescind. I quote signed by Senator BA~,among others-- Senator Barn: strongly endorsed. the right to rescind: Anyone listenfng to my voice or anyone The question of whether a State may re- els's voice who fs responsibly debating this scind an appllcatioa once midie has not been on the other side of this issue has tr, havedecided by any pmxdent. ner is there mY heard us say that we do not know what the euthority on the quedion- It 1s one for con- answer to this is, that the proper time de- gresr; to answer. that this Statement clde Is efter the necessary e;hree-fomhs ~rdealswith an application of s state for ei the States have ratifled. Constitutional conventiorr_] Congress pre viously has taken the position that having It was by appealing to the SenElk b be bnce ratified an amendment. a State may not ''neutral" on the question of mcksion rescind th& Senator BAYH ably persua Senate having had under considerati~n...... gill No...... 2EG Sei-lakc 282, Reipe~tfullyreport as follov~s:That ...... Bill No...... izttro(_".rrccGbill, be ersc~desias f 02lows : 1- Title.. linss 4 and 5, Sfiri?:~I " 2\1'ElZDIP;G SEGTIG'T 35-x-2 91, f:Cji, ," 2. Yitlc, line 6. Fo%lo%3ing: "fERGEXW Insert: "OR COI:SOLIlIf?TIGli ; fi2'L':Ei4DK:.r7rJ SECTIOYS 3 5-1-901 Z:ij 35-1-302, ??C?i' - 3. Past 2. Follov?ing: lfnc 7 Inszrt: 'Section 2. Section 35-1-802, fTA, IS E.E?DCD TO AD: '' 35-1-292. Procedure for ccnsolidation. (1 ) ?my t.-m or more dncstio corporat5.ons ray consoli.late into il nev? cor?orotion pursuant to a plan GC cossolidotiorr approved in the r?an:lar proviCerl in this chaptcr. ...... STATE PUB. CO. Chairman. Helena. Mont. (2) The hard of Zirectors aE each ccr~oraf;ianshalt, by a !I resolation adopte2 by each such bmrtz, spprovc n plan of mnaoLiciat=fon setting Sorth: (el the r=es of?thc corpcrationr, ~roposL~gto colaclldata and the nane cf tk new cor;?orztfoa intc k~hlchthey FrGpOoe to coosoliGzte, F:IIC~i~ hereinafter dc3innatod as tho nc;r mr-oonmtiors- ; (b) tfro ters.3 and conditions of the proposed consolidaticn; (c) the nGnnar mil bnois of caxocrtisg t!;c ~hnrcnof ezch e~~rporntioninto slaroa or other s~curitiaoce obligations cf tho new corpmtion __I_-o: any otler ~i~orntfoaor, is w:i~leor Fn part, into czsh or other prr~crty: _I_-.--- (d) with rcspect to the ccqoration, rll oE the stake- =eats re~diredto 52 set forth fn articles of i~cor~oraticnfor coqmratio2s oz~nnfsodm5cr ehda c5qter; (a) euch ot!ic;r pravfsions with resjnct tn tfie propnoe2 consolicktion as are dowed ncccssery or dosirnb1.c." Rccuzher: szhsequent section And, as so mended, 'a---.-. PASS -~~~~.~~~~~~t...p.....~j~~~~*~...... :...... r . --I Chairman. STATE PUB. CO. Helena. Mont. M R ...... Prccirlent JndicAary We, your committee on ...... Scna fE3 293 having had under consideration ...... Bill No...... Sexiate Respectfully report as follows: That ...... : ...... ill p~o...2?.?.!.-.--. iiitroduccit bill, be zz;cnrfcA as f01 lo:m: 1. Page 9, lines 14 through 16, ~olloi~in~:"youC?~"-.-A. - - on line 14 Strike: renainder af line 14 throcch'$i,50@'' on line 16 An3, ~3 SO x:I;~2.2~i# DO-PASS - ...... 1...... :...... -i,-verett 2. r_lccsirJr, Chairman. STATE PUB. CO. - Helena. Mont. I - -- -__ VISITOR3_- ' REGISTER______r Check Onc BILL # -- NAME -. REPRESENTING- ' support oppose -Liow-h~y -. LT.EQU~~L~IG-~~T~CoudClc slCr/z LC " #I rf 353 a[ . r --Lsfwe--~~diarr-. ------5 - - -- - --- -- - - -- ------ -- - -- -- --- ----- -- - --- --- - - L ------ ------ ------*-I-__- ._ ------_- -_-_ __- (Plcasc leave prcparc~d statcmcnt wlth Sccrctarvl SITORS ' i(k:CISTER -- - - - .------. ------NAME AL fiCMTS-.-- %OU~CIL---- ad ------ ------up- ------ /I--- -- (pl p.,c;(, 1 p;lvr\ r,rrxr,:rr,*ri cr -.tnm,-.-e . ,: 8-r. I--.--- *- As submitted to the States by Congress in House Joint Resolution 208, the Equal Rights Amendment to the United States Constitution reads in full: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two 2ears after the date of ratification. MONTANA EQUAL RIGHTS COUNCIL P.O. Box 297, Helena, Mt. 59601 MONTANA ORGANIZATIONS SUPPORTIijG ERA Belle Wlnest~ne,Helena Honorary Chair Laura Nirhol>on, Helena Treasurer REGIONAL COORDINATORS Altrusa of Helena Clendive Area American Association of University Women, Pdcty Cditaghdn Montana Division Miles City Area Ruth Malone American Civil Liberties Union Great Falls Ares American Federation of Teachers Carol Farris American Women in Radio and Television Billings Area Frances Elge Associated Students, University of Montana Donna Higgins Common Cause of Montana Communications Workers of America Bozernan Area Montana AFL-CIO Marilyn Wesscl Montana Association of Social Concerns Livingston Area Jsne H~~lgcn Montana Bar Association Helenr Area Eleanor Parher Montana Church Women United Joyce Siefte<.k Nontana Democratic Party ?I~ntanaDemocratic Women's Club Montana Education Association Piontana Farmers Union Xontana Federation of Business and Professional Women i4ontana General Federation of \+'oment s Clubs Montana Home Economics Association ?Iontana League of Women Voters :?ontana Nurses Association !/lantana Press \Joinen hsntana Public Employees Association i4ontana State Low-Income Organizati-~n The Equal Rights Amendment reads in full: Section I. E~IIJIIIY UI rights under the Idv, shdl not be deflied or abridged by the United States or by any state on account of sex. Section 2. Corggress shdll hdve the power to enforre by appropriate legislation the provisions of this article. kction 3. Th15 amer~drncntshall take ettett two years after the date of rrtification. MONTANA EQUAL RIGHTS COUNClL P.O. Box 297, Helena, Mt. 59601 Belle Wlne>tlne. tfelena Honorary Chair MONTANA ORGANIZATIONS SUPPORTING ERA Ldurd NIC~O~JOII, Helend Treasurer REGIONAL COORDINATORS Montana United Methodist Church Glendive Area Montana Women's Political Cau us Patty Cdllaghdn Montana Women's Law Association Miles City Area Ruth Malone National Organization for Women Great Falls Area Soroptimist International Association, Carc~lFarris Lewistown Billings Area frdnzes Elge Soroptimist International Association, Donna Higg~ns Missoula Missoulr Area Ari~tdSdllee Y.W.C.A., Billings Bozenirn Area Zonta International, District I(II, Marilyn Wessel Billings Livingston Area Zonta of Missoula Jane Hdugen Helena Area Eleanor Parher Joyce Srefi~ck I The Equal Rights Amendment reads in full: krtir~o1. Etj~~rl~tyui r~ghrs under the Idw shdll not be denied or abridged by the United States or by any $:are on account of sr*. Section 2. Corigr~ss,h.~tI have the power to enforce by appropriate legislation the provisions of this artlcle. kclion 3. This dmendment shall take effect nvo years after the ddte of ratification. --TtlE NEED FOP ERA ------State Laws State laws are fuE I of provisions that treat women,solely on the basis of their sex, as second-class citizens: -- In Georgia, a married couple's home belongs only to the husband, even when it has been paid for by the wife. -- In West Virginia, the courts have decided that when a wife earns money working in her husband9s business, those earnings belonq to the husband. If a Maine couple .jointly run a business, the profits belonp Po the husband. --- In Arkansas, homestead rights belong to the husband, not the wife. The Arkansas husband can choose, abandon and sell homesteads without the wifevs consent, since state law presumes that all personal property, including household furnishinqs, belong to him. -- In Louisiana, a wife cannot receive her husband's half of community property even if he wishes to will it to her; instead, the property goes to his chi ldren or l ivinq parents, who are "forced heirs" under state law. -- According to the laws of 42 states, the one who earns a salary is the one vrho owns the property acquired in a marriaae. The homemaker, having no earnings of her own, therefore, has no ownership of the property. If her husband dies without a will, she may be oenniless. Et?A will eliminate these unfair state laws. This does not mean, t-~ck~ever,that ERA v~il l alter fami l y structure. It w i l i not force women out of the home or downgrade the roles of mother and homemaker. On the contrary, it will dignify these important roles. Federal Laws Federal laws need changing. The U.S. Civil Rights Commission has identified more than 800 sections of the I!.S. Code that are inconsistent with a national commitment to equal rights, responsibilities and oppor- tunities: -- Flarried wonten who work pay into Social Security the same as their male co-workers. But when they retire, their benefits are determined by their husbands' pensions, with little regard for their own earnings. -- Since the homemaker has no independent entitlement to benefits, if she becomes disabled, she and her dependents have no right to social security, even though her services are lost to her family. -- llle earninqs gap between men and women is higher now than it was before enactment of federal equal employment legislation in 1956. In that tinespan, women's earnings have dropped from 63 per cent of men's earnings to 60 per cent. -- Scr,e employees, such as those who work for Congress, still are not covered by laws that prohibit sex and other forms of discrimination in eriip I oyment . -- keaeral loan programs also discriminate aqainst women. The Farmers' home Anministration provides that when a farmer with an FHA loan dies, oi:; rridow cannot continue repaying the loan but must obtain refinancing even though she was a co-signer on the loan and continues to operate tht! farm. - lhese are just some of the examples of inadequacies that still exist in our state and federal laws. As workers, women are the victims of an earnings clap +hat is wider today than it was t,e fore enactment of equal eniployrnent legislation. As wives, women are still subject to laws that deny ther~ian equal partnership in marriage. It is claar that existing constitutional provisions, like the 5th and 14th amendments will not provide the remedy needed to end sex discrimination. Armed with the 5th and 14th amendments, women have gone to court to win the right to voPe, to serve on juries and to enter occupations ranging from attorney to bartender. In each case, they los?. Not only is the Equal Rights Amendment needed to establish equal legal rights for men and women, hut FRA is needed to provide a com?re- hensive, orderly revision of our laws and to put an end, finally, to the piecemeal approach to equality. The orderly legislative review Phat has taken place in states that have adopted their own state ERA provisions, like Montana, indicates that necessary changes do not produce the chaos predicted by ERA opponents. As Congress recognized in 1972, "only a constitutional amendment can provide the legal and practica l bas is for the necessary changes .'' FA 1 RNESS I - - ERA proponents are told that equal rights can be provided statutorily rather than by constitutional amendment. Relying on legislation, rather than a constitutional amendment, guarantees endless court cases as women challenge every law that needs to be changed. Is it fair to require women to bear the costs of these court cases? - - ERA proponents are told that EUA is unnecessary because equality is guaranteed under the 5th and 14th Amendments to the U.S. Constitution. hornen have tried to use these Amendments to win equal ity. By doing so, women have been denied the right to vote, the right to serve on juries and the right to enter various occupations. Women lost all these cases in court -- under the 5th and the 14th Amendments. Is it fair to argue that the ERA is not needed because of existing Constitutional guarantees? -. - The U.S. Supreme Court has consistently refused to declare sex a "suspect" classification because, as one justice explained in a 1973 decision: The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If the Supreme Court admits that the issue of equality has yet to be decided, is it fair to claim that women already have equal rights? - - Opponents to the ERA claim that the extension is unfair. The precedent of setting a time limit for the ratification of a proposed Constitutional amendment was established to keep amendments (such as the one prohibiting child labor) from "floating" around the States after debate had subsided. 3ebate on ERA has not subsided. Mississippi, for example, has never debated ERA in either house of the state legislature. Is it fair to cut off debate before all have spoken? -- Opponents to the ERA have repeatedly stated their intention to fight Montanafs ratification In coura after March 22, 1979. Two previous recision attempts have been defeafed by the Montana Senqte. Is it fair that this issue Is once again consuming legislators' time and Montanans1 tax do1 lars? MEMORANDUM ON THE LEGAL EFFECT AND VALIDITY OF SENATE JO INT RESOLUTI ON NO, 12 UNDER MONTANA LAW AND THE CONSTITUTION OF THE UNITED STATES Prepared for the 46th Legislature of the State of Montana February 8, 1979 INDEX POINT OF LAV? PAGE (S) Montana's Rati.fication of the Equal Rights Amendment Did Not Include a Limitation of Seven Years because the Language Containing the Seven Year Language was Contained in the Preamble of House Joint Resolution 4, which has no Legal Effect------1-2 The Instructions to the Secretary of State Contained in Senate Joint Resolution No. 12 Have no Legal Effect------2-3 Senate Joint Resolution 12 is an Attempted Rescission of Montana's Ratification of the Equal Rights Amend- ment, which is not Permitted by the Rules of the flontana Legislature------3-4 The Historical, Judicial and Congressional Precident Regarding the Attempted Rescission of the Ratification of Proposed Constitutional Amendments by the States is Against Rescission------4 - 11 A. Montana Cannot Impose a Limit upon Its 4atification------5-7 E. Historical and Congressional Precident is Against Rescission Power------7-8 C. Judicial Precident is Against Rescission----- 8 - 10 D. State Attorneys Genera1 Agree that Their States Cannot Rescind Ratification------10 The Seven Year Extension of Time within which States May Ratify the Equal Rights Amendment is Permissible for the Reasons that the Original Time Period was not a Part of the Proposition to be Ratified by the States, and for the Further Reason that Congress has the Full Power to Extend the Ratification Period------11 - 13 A. The Time Period was not Part of the Measure to be Considered by the States------11 - 12 B. Congress has the Authority to Extend the Ratification period------12 - 13 !IONTANAfS RATIFICATIOIJ OF TIIE EQUAL EIGHTS AMEYD?ENT DID NOT INC1,UDE 3 LIMITATION OF SEVEN YEARS BECAUSE THE LklfGUAGE I CONTAINING THE SEVEN YEAR LANGUAGE WAS CONTAINED I>T THE PREAtIBLE OF HOUSE JOINT RESOLUTION 4 , WHICH !IAS NO LEGAL EFFECT : Senate Joint Resolution No. 12 bases its legal authority upon the fact that House Joint Resolution 4 incorporated the text of the Congressional ERA resolution (J.R. 208), including the language: ". . . ?..'hat the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Const- itution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress: . . . "(Emphasis supplied). While it is true that Montana E.J.R. 4 contained the full text of the proposed amendment, including the seven year ratification language, that does not mean that such a limitation was included under Xontana law. The proponents of S.J.2. 12 have overlooked the fact that there are several parts of a proposed legislative measure, including the enacting clause or, in the case of resolutions, the resolving clause, and a preamble. A preanble of a resolution is: "[Aln introductory or prefatory clause, following the title and preceding the enacting clause, explanatory of the reasons for its enactment and the objects sought to be accomplished. It is usually introduced by the word 'whereas,' meaning 'considering that' or 'that being the case.' It is not an essential or effect part of an act. The preamble cannot enlarge or confer powers, or cure inherent defects in the statute." 73 Arn.Jur.2df Statutes §92 (Emphasis supplied). Montana accepts the law that a preanble has no legal effect. The 1978 edition of the Bill Drafting Manual of the Montana Legislature, prepared by the%~ontana Legislative Council, notes: "The preamble follows the title and precedes the enacting clause. Because of its placement, it does not become a part of the law gnd is rarely used. It is a preliminary statement of the reasons for the enactment of the law and begins with the word 'Whereas.'" Plontana Legis- lative Council, Bill Drafting Manual, p. 38 11978) ; (Emphasis supplied) . See also, Flontana Legislative Council, sill Drafting Ilanual, 28 (1962 Ed,), In resolutions, "The preamble of a resolution is identical to the preamble of a bill, It usually begins with 'WHEREAS' and states the purpose of or reason for the resolution." -Id., p. 56. In Montana an enacting clause is required for the passage of laws. S43-516, R.C.M. 1947; Joint Rule 6-3, d Senate Joint Resolution No. 2 (46th Legislature, 1979). "In a resolution, a resolving clause takes the place of the enacting clause of a bill. In the past, the body of a resolution has consisted of one or more paragraphs, each beginning with the statement "BE IT FURTHER RESOLVED." Montana Legislative Council, Bill Drafting Manual, p. 56 (1978). Therefore, since the purported seven year limitation was contained in the preamble to H,J.R, 4, and since the language in a preamble has no legal effect, Senate Joint Resolution No. 12 cannot presume to give effect to a legally ineffective part of the ratification res~lution.As will be discussed further, the seven year language in H.J.R. 4 cannot be eve11 now interpreted as a limitation on Montana's ratification of the Equal Ri-ghts Amendment. THE INSTRUCTIONS TO THE SECRETARY OF STATE CONTAINED IN SENATE JOINT WSOLUTION NO. 12 HAW NO LEGAL EFFECT; while the Secretary of State of Montana is instructed by the proposed resolution to obtain the return of Montana's ratification documents, the measure has no legal effect. While the Secretary might wish to follow the resolution, if enacted, he can refuse to do so because a joint resolution is not a general law and cannot be used to control the discretion of state officers. Gildroy v. Anderson, -Mont .- I 30 St. Rep. 389, 507 P.2d 1069; 12 Atty. Gen. Ops., p. 40. This is because laws, which are mandatory in character, must be passed by bill and not resolution. Montana Constitution, Art. V, Sll(1). If this measure is deemed to be "legislative in character," in that it goes beyond mere opinion, it is subject to veto by the governor. 26 Atty, Gen. Ops., p. 26. For the same reason, the proposed "sense" of this legislative session has no legal effect. The resolution clause of H.J.R. 4 was the legally effectual part of the measure, and since the time language of the resolution was contained in the preamble, that was not a part of the ratification by Montana in legal effect. Aside from the fact that it would be presurnptu.ous for this legislative session to read intent into the prior measure, as is indicated by the title of S.J.R. 12, the fact remains that the ratification was absolute in its terms, as required by the United States Constitution. SENATE JOINT RESOLUTION 12 IS AM ATTEMPTED RESCISSION OF MONTANA'S RATIFICATION OF THE EQUAL RIGHTS AMENDMENT WHICH IS NOT PEFU'IITTED BY THE RULES OF THE FlONTANA LEGISLATURE: Montana law does not permit the rescission of a proposed constitutional amendment once the amendment has been ratified by the Montana Legislature. s6-l(2) of the Joint Rules of the Montana Legislature (S.J.R.2, 46th Legislature) provides: "A joint resolution must be adopted by both houses and is not approved by the governor. It may be used to express desire, opinion, sympathy, or request of the legislature; to adopt or amend the joint rules; to ratify or propose amendments to the United States Constitution; and to direct changes to, repeal, or direct adoption of a rule in the Montana Administrative Code. Except as otherwise provided in these rules or the Constitution of the State of Montana, a joint resolution is treated in all respects as a bill." (Emphasis supplied) . The descriptions of the separate functions of the joint resolution, separated by semicolons (;), clearly are intended to separate their funcbians. On the one hand, joint resolutions are used to express nonbinding desires of the legislature, and on the other, the joint resolution is used to ratify proposed amendments. The rule does not permit joint resolutions to rescind the ratification of proposed constitutional amendments. Given the repeated attempts at rescission in the Montana Legislature in past sessions, this body could have well provided for rescission, They did not, and aside from the fact that rescission is not permitted (as is discussed below), it is not permitted, Given the clear fact that the seven year language of H.J.R. 4 was not in the enacting clause, which is required by Joint Rule 6-3 and prior rules, this measure is clearly an attempt at rescission, which is forbidden by the joint rules. THE HISTORICAL, JUDICIAL AND CONGRESSIOIJAL PRECIDEN'? RSGAgDING THE ATTEMPTED RESCISSION OF THE RATIFICATION OF PROPOSED CONSTITUTIONAL AIETGTJDMENTS BY THE STATES IS AGAINST RESCISSION: A. MONTANA CANNOT IMPOSE A LIMIT UPON ITS RATIFICATION: S.J.R. 12 is clearly an attempt to impose a limitation upon Montana's ratification of the Equal Rights Amendment. What is the precident regarding the legality of such an attempted limitation? James Madison was one of the primary drafters of our federal constitution. He was an active and vocal delegate to the constitutional convention, the drafter of many of the provisions of our constitution, and one of the authors (along with Hamilton and Jay) of the Federalist papers, which have been used to resolve questions of constitutional law. -See I Morison and Commager, The Growth of the American Republic- 279, 288, 296 (6th Ed.- 1955). When the ratification of our constitution was being considered by the states, there was discussion that New York should ratify upon the condition that certain amendments to the federal constitution must be adopted. V Papers of Alexander- Hamilton 147, 177 (Syrett Ed. 1961). Hamilton did not agree with conditional ratification, and he sought Madison's opinion on the matter. Madison replied that any condition would he improper. In 1922 the United States Supreme Court described the ratification function of states and noted that states cannot impose limitations upon their ratification: "The function of a state legislature in ratifying a proposed amendment to the Federal I Constitution, like the function of Congress in proposing the amendment, is a federal function derived from-the Federal Constitution; and it -transcends any limitations sought to be imposed by the people of a State." Leser v. Garnett, 258 U.S. 130, 137 (1922). (Emphasis supplied). In 1973 a United States District Court in Florida invalidated a statute which put limitations upon the state's ratification of constitutionaf amendments. The court cited the language forbidding state limitations. Trombetta v. Florida, 353 F. Supp. 575, 578 (M.D, FPa. 1973). In Montana it has been clearly recognized that our state nay not impose limitations upon the ratification process. In --State ex rel. Hatch v, Murray, our own Supreme Court held that: " [A] state may not subject ratification by its legislature of a proposed amendment to the federal constitution to referendum nor may it otherwise limit its legislature 7in the exercise of its federal function of rat- ifying such amendments. 526 P.2d 1369, m(1974) (Emphasis supplied). The resolution clause of H.J.R. 4 fully ratified the ERA without condition. That being the case, a proper statement of the law is: "[Wlhen a proposed amendment has once been ratified the power to act on the proposed amendment ceases to exist." Coleman v, Miller, 146 Kan. 390, 403 (1937), affd. 307 U.S, 433, 449 (1938). Ratification must be full, complete and unequivocal. Where there is such language, such as in H.J.R.4, it will be accepted as a valid ratification by the General Services Administration with regard to its certification of ratification under 1 U.S.C, S106b. Glass, "Amending the Federal Constitution - - Procedures of the General Services Administration and of the State Legislatures, p. 8 (Congressional Research Service, April 6, 1971). Therefore, since Montana unequivocally ratified the ERA in the resolution clause of H.J.R. 4, this session of the Montana Legislature cannot attempt to place conditions I upon the ratification. B. HISTORICAL AND CONGRESSIONAL PRECIDENT IS AGAINST FUZSCISSION POWER: No attempted rescission of a ratification of a constitutional amendment has ever been accepted. North Carolina's rejection of the Constitution in 1788 after ratification in 1789 was ineffective. lqarren, The Making of the Constitution 820 (1928). In the case of the adoption of the Fourteenth Amendment, Ohio and New Jersey first ratified the amendment and then passed resolutions to withdraw their consent. 15 Stat. 707 (1868). Congress accepted the original ratifications of the states and rejected attempts to rescind them. 15 Stat. 701-710 (1868). The question again came before Congress when New York attempted to rescind its ratification of the Fifteenth Amendment. New York was counted with the ratifying states. 16 Stat. 1131 (1870). J. William Heckman, in a letter to a state legislator on the question, expressed the view of Congress : "Congress, therefore, has expressed itself quite definitely on this question. It is my legal opinion as Counsel of the Subcommittee on Constitutional Amendments of the United States Senate that once a State has exercised its only power under Article V of the United States Constitution and ratified an Amendment thereto, it has exhausted such power, and that any attempt subsequently to rescind such ratification is null and void." While the measure extending the time for ratification of the Equal Rights Amendment did not address the question of rescission, and the final decision as to the efficacy of any purported rescission will be made by Congress when the requisite number of states are certified as having ratified, the report of the House Committee on the Judiciary recommending the passage of the extension resolution (H.J.R. 638) discusses the point well: "Although the decision most properly belongs to a subsequent Congress to determine the efficacy of any attempted withdrawals of ratifications of the proposed equal rights amendment, nevertheless the conunittee believes it important to point out that its own analysis of this issue revealed that past conqressional and judicial precedent stand for the proposition that rescissions are to be disregarded. Over the years Congress has taken the position that a State's attempt to rescind is ineffectual, both when confronted with actual rescissions, as in the case of the 14th amendment, and when drafting legis- lation clarifying the amendment process." Proposed Equal Rights Amendment Extension, Committee on the Judiciary, Report No. 95-1405 (House of Representatives, 95th Congress, 2d Session). C, JUDICIAL PRECEDENT IS AGAINST RESCISSION: The first Supreme Court commentary on the question of rescission was contained in the case of White v. Hart. 13 Wall. 646 (1871). In discussing the effect of the adoption of the 14th and 15th Amendments by Georgia, the court noted: "Upon the same grounds she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into, The case is clearly one in which the judicial is bound to follow the action of the political department of government, and is concluded by it." -Id. 649. The state courts have agreed with federal judicial inter- pretation. In Opinion of the Justices, the Maine Supreme Court noted that ratification of an amendment was final 2nd c~uldnot he rescinded. 118 Me. 544 (1919). In Colenan v. YiLler the Kansas Supreme Court noted: "It is generally agreed by lawyers, statesmen and publicists who have debated this question that a state legislature which has rejected an amendment proposed by Congress may later reconsider its action and give its approval, but that a ratification once given cannot be ~~ithdrawn."146 Kan. 390, 400 (1937). When the Kansas case reached the United States Supreme Court, that body held that the question of rescission is a "political question'' which the federal courts cannot decide. Coleman v. Miller, 307 U.S. 433, 450 (1938). However the court noted: "[Tlhe political departments of the Government dealt with the effect both of previous rejection and of attempted withdrawal and determined that both were ineffectual in the presence of actual ratification." -Id. 449. Article V of the Constitution only requires the states to ratify constitutional amendments: "[Amendments] shall be valid to all intents and purposes, as part of this constitution; when ratified by the Leaislatures of three-fourths thereof d . . . ." (Emphasis supplied). The article itself only requires a state to ratify, and when a state has done so, its function in the amendment process is complete. "The function of a state legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution." Leser v. Garnett, 258 U.S. 130, 137921). The proposed resolution attempts to retroactively interpret the intent of the intent of the 43rd Legislature by subsequent resolution and thereby attempt to change the absolute character of Montana's ratification. However, this I measure cannot be effective because: "Ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment." Hawke v. Smith, 253 U.S. 221, 229 (1919). In other words, Montana has already performed its federal function of assenting to the Equal Rights Amendment, and has fully performed its function under the Constitution. D. STATE ATTORNEYS GENERAL AGREE THAT THEIR STATES CANNOT RESCIND RATIFICATION; There have been several state attorney general opinions to legislatures advising on the legality of rescis,sion, and those opinions have indicated that rescission is not permissible. On March 15, 1977 the Attorney General of Ohio gave the opinion that rescission would be invalid. (Letter of Assistant Attorney General). In May of 1973, the Attorney General of Michigan indicated that rescission would be a "futile gesture." In February of 1973 the Kansas Attorney General indicated that rescission would probably not be recognized by Congress indicating, "there is no ground upon which to anticipate other than continued adherence to this precedent." In August of 1973 the Attorney General of Kentucky indicated that a rescission attempt "would simply be ignored by Congress," and would be "futile." In March of 1973 the Legislative Council of California indicated that "a state once having certified its ratification thereof to the Administrator of General Services is without power to rescind or reconsider its action." Finally, in January of 1973 the Attorney General of Idaho indicated that "Subsequent attempts by the same state legislature to retract or appeal its prior ratification would be of no legal effect." THE SEVEN YEAR EXTENSION OF TIME WITHIN TWICH STATES MAY RATIFY THE EQUAL RIGHTS AMENDMENT IS PEI?JIISSIBLE FOR THE REASONS THAT I THE ORIGINAL TIME PERIOD WAS NOT A PART OF THE PROPOSITION TO BE RATIFIED BY THE STATES, AND FOR THE FURTHER REASON THAT CONGRESS HAS THE FULL POWER TO EXTEND THE RATIFICATION PERIOD; A. THE TIFIE PERIOD WAS NOT PART OF THE MEASURE TO BE CONSIDERED BY THE STATES: It is important to note that the original seven year period of ratification is not contained in the text of the proposed Equal Rights Amendment. The preamble of House Joint Resolution 208 reads as follows: "Proposing an amendment to the Constitution of the United States relative to equal rights for men and women. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (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 to all intents and purposes as part of the Const- itution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:" [Text]. Congress agreed that if the seven year limitation had been placed within the body of the proposed amendment, "a decision by Congress to extend that period . . . would be an attempt retroactively to change the character of an amendment on which other states had already voted." Proposed Equal Rights Amendment Extension, Committee on the Judici.ary, Report No. 95-1405, p. 6 (House of Represent- atives, 95th Congress, 2d Session). However, the time I period was not contained in the proposed amendment and was not one of the items to be consi,dered by the states. The House report indicates that Congress did not intend to "- submit the time question to the states for a vote, and I the report approved by Congress commented upon the argument that there could be no extension of the ratification time by stating: "The committee found that argument unpersuasive." -Id. p. 9 f.6. "[Tqhe critical fact here is that we are not presented with such a case, The amendment itself, as voted on by the States, contains no time limit." -Id, In a situation precisely like the one under consideration here, the Vermont Attorney General agreed that Vermont's ratification of the ERA, contain2ng a preamble like that of H.J.R. 4 in Montana, was valid, concluding that Congress did not submit the time question to the states, and concluding that Congress could extend the ratification period. Opinion No. 50-79 (January 5, 1979). B. CONGRESS HAS THE AUTHORITY TO EXTEND THE RATIFICATION PERIOD ; Article V of the Constitution contains no provision as to time limits, and such limits are left to Congress to determine. For the first 125 years of American const5tutlonal history, no time limit was provided by Congress. House Report No. 95-1405, p. 7. As stated by the House Judiciary Committee, and approved by the full Congress: "[Tlhe authority of Congress to extend a time llmit once established may be implied, if the tine limit is reasonable and kf the action of the 92nd Congress in proposing the original time limit is not binding on subsequent Congresses. In favorably reporting House Joint Resolution 638 to the full House, the committee res~lvesboth of those questions in the affirmative and endorses the principle that the Congress has the authority to extend the time period within which the proposed 27th amendment to the Constitution may be ratified." -Id. Why is it that Congress can make such an extension? Because the United States Supreme Court has indicated %hat Ccngress . . can put time limits on the ratification as a threshold matter, or deal with time after two-thirds of the states have acted. -Id., Citing Dillon V. Gloss, 256 U.S. 368 (1921) and Coleman v. Miller, 307 U.S. 433 (1939). EQUAL DIGNITIES PROVISION Article I1 of the 1972 Montana Constitution contains a section popularly referred to as the "Equal Dignities Provision", which states: Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, -sex, culture, social origin or condition, or political or religious ideas. This section, which became effective July 1, 1973, provides protection for individuals against unequal treatment on the basis of sex. Ratification of the federal Equal Rights Amendment, according to ERA opponents, portends legal havoc and social upheaval. The effect of the "Equal Dignities Provision" in Montana proves the contrary. The Montana Legislature in 1974, 1975, and 1977 undertook . 8 and accomplished extensive amendments to Montana statutes to eliminate discriminatory provisions. These amendments occurred in areas such as marital relations, child custody, probate, employment opportunities and benefits, criminal law, and property rights. The statutory implementation of the "Equal Dignities Provision" has been an orderly transition to equalization of application of Montana laws. There is no evidence of social chaos, unwarranted government intrusion into areas of private activity, an inordinate increase in divorce rates in the state, or any other symptoms of social or legal malaise as the result of this equalization. The freedom from discrimination granted individuals by the laws of the State of Montana does not, unfortunately, protect them beyond its borders. Furthermore, the "Equal Dignities Provision" of the 1972 Montana Constitution cannot protect Nontana citizens against discriminatory provisions contained in federal statutes and regulations because the laws of Montana are not binding on the federal government. Such protection would be granted, however, under the provisions of the Equal Rights .Amendment to the U.S. Constitution.