"It seems clear," wrote federal Judge Marion Callister in his recent decision on the Equal Rights Amendment, "from the statements of the founding fathers and from most courts in considering the amendment process that a ratification is linked to that great wellspring of legitimate constitutional power--the will of the people." That is precisely why a major section of his decision--namely, that Congress acted unconstitutionally in extending the time limit for ratification--is wrong and should be promptly corrected by the U.S. Supreme Court.
The operative word here is promptly. State legislators meeting during the next three months now have no idea whether there is even any point in considering the amendment. Unless the Supreme Court acts promptly, the will of the American people, as expressed in state legislative votes, will be obscured, not by constitutional requirements, not by binding legal precedents, but by arguments Judge Callister has pulled out of thin air.
Congress originally set a seven-year time limit for ratification of the Equal Rights Amendment by 38 states. When the deadline approached and only 35 states had ratified it, Congress, by a majority vote, extended the deadline by three years, to June 30, 1982. During this time, no state has ratified it. Meanwhile, five states have taken actions that they claim rescind their ratifications. The case that came before Callister in Idaho involved the right of states to rescind ratification of an amendment and the constitutionality of Congress' vote in 1978 to extend the time limit for ratification. TT he goal of the amendment process, T as Callister repeatedly argues, is to establish a consensus of the American people. The process is stated in Article 5 of the Constitution, which says that Congress, by a two-thirds vote, shall propose an amendment to the states and if three-quarters of the states approve, the amendment becomes part of the Constitution. There is no constitutional time limit in which an amendment must be approved or rejected. Congress has set time limits in some cases and in others has let the amending process go on for years.
Although Callister did not rule on the merits of the individual states' recision votes, which are also being contested, he did rule that states had the power to rescind "especially when that act would give a truer picture of local sentiment regarding the proposed amendment." That has an appealing element of fairness: If legislators can vote again and again during the ratification period on an amendment they've turned down, should they not also be able to vote again and again on an amendment they have previously approved?
Citing the goal of determining the will of the people, Callister ruled states could rescind, despite the fact that Congress, at the time it voted to extend the time limit, voted against allowing states to rescind. But Callister ignores that overriding goal when it comes to the question of Congress' power to extend the ratification time period. II n the process, Callister--severely, and I without legal basis--circumscribed Congress' powers in the amending process. Callister argued that the time limit, which is in the preamble to the amendment, was a substantive part of the amending proposal. "Once the proposal to the states is made, Congress is not at liberty to change it," he wrote.
He also decreed that even if Congress can change its proposal, it must do so by a two-thirds vote, another conclusion he arrived at without precedent.
Callister is a former high official of the Mormon Church, which has opposed the ERA. Although the Carter administration's Justice Department filed a motion asking him to step down from the case because of this conflict of interest, he declined, and the result is a ruling that because of its timing and its internal contradictions threatens to subvert the political process by which we amend the Constitution.
The point of the amendment process is not to see how fast it can be done; it is to determine the will of the people. Callister made that a paramount consideration in ruling that states that have ratified could change their minds. But in his ruling that Congress could not extend the time limit, the will of the people was nowhere to be found.