of a mother was denied to illegitimate children, the court extended that right to illegitimate children, and it would seem to me in this instance in the State of Illinois-and we face this situation that will probably come up here, that this right will be extended to cover the largest group, rather than to be limited. And I get a little bit frustrated hearing leading questions saying, don't you agree that if this is passed, 5,000 or 8,000 laws all over the United States will be ruled unconstitutional and they will all be thrown out the window, and every woman in the United States will suffer as a result thereof.

I think the history of the Court has shown that it extends this right, it does not limit this right. Do you agree with this?

Mr. EMERSON. Yes. Yes; I agree with that analysis. As to rights of that character, I think it is quite clear that the courts will interpret the legislation to remain, eliminate the discrimination and thereby extend the benefits of the statute to those who have previously been discriminated against.

As you have pointed out, that proposition has existed at least since Neal against Delaware in 1890 interpreting the voting rights under the 15th amendment not to eliminate everybody else who was voting, but to admit to the voting rights those who had previously been discriminated against. The same rules were applied in the Wright primary cases as to voting, and they were applied when the 19th amendment giving women the right to vote was adopted.

It was not necessary to change all the laws that dealt with the suffrage. It was simply expanded to include women. And as you just said, in Leavy against Louisiana, which incidentally was argued by Professor Dorsen in the Supreme Court, the Court applied the same rule. They included, within the basic framework of the statute, those who had previously been eliminated by discrimination.

The major proposition is simply, and the rule that the Court applies in these cases which, as I say, really involves questions of severability, would the legislature have intended that the statute operate if they had been informed at the time it was unconstitutional to eliminate a certain group.

Now, I would say that as to most discriminatory laws now they will be interpreted simply by eliminating discrimination; for instance, laws prohibiting women from being bartenders. Well, that is quite clear. The legislature never intended that there be no women bartenders, God forbid, so women will be included rather than everybody excluded.

I would say the same thing would be true of family support. The legislature certainly never intended that there be no family support by one spouse who was financially able to do it, and so they are all within. The weight-lifting laws, I think, would simply fall, would drop because it cannot have been intended that nobody be able to lift weight over 35 pounds. However, that may be an area in which the State legislatures will want to take another look and perhaps have some more specific legislation that does not discriminate.

Senator Cook. I might say the State of Georgia has a law that applies to the physical potential of everybody regardless of sex. And I might suggest that in the testimony of Mrs. Miller from California, her union as a matter of fact came out with a memorandum at the

end of their national convention saying that weight-lifting laws ought to be regulated, based on equality for all sexes. So, really and truly, she was calling for exactly what we are talking about.

Mr. EMERSON. That is right, Senator. That would be very popular. Let me just say one other thing. Insofar as there were some areas that did require attention by the States or by the Federal Government in order to introduce certain reforms that were consistent with the equal rights amendment, I think that would not be too difficult a job to work out.

You will remember that when the Social Security Act was passed in 1935 it compelled the State to adopt a very elaborate system of social security within the course of a few years. All States had to have social security laws by January 1, 1937, or taxes would simply move out of the State.

That task of formulating unemployment compensation laws, welfare laws, pension laws, and so forth, was accomplished, and accomplished quite well within that period. And it was accomplished with some assistance from the Federal Government, which could be given here.

I think, also, the law schools would be very willing to afford assistance to State legislatures in revising their laws where necessary to conform with the requirements of the amendment where that would become necessary.

Senator Cook. Thank you very much, Professor Emerson.

Our next witness is Prof. Norman Dorsen, professor of law, New York University.

I might say while you are leaving, Professor Emerson, I was delighted in your quoting Griswold v. Connecticut, because I think that in going through all of this and hearing that we are going to have the mixing of sexes in the jails and everything else, that somehow or other in wanting to see the realization of one constitutional amendment go down the drain they had forgotten about a few others. Thank you very much.

You may proceed, sir.

STATEMENT OF NORMAN DORSEN, PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW

Mr. DORSEN. Thank you. I am Norman Dorsen, professor of law at the New York University School of Law.

I am honored to appear before the Senate Judiciary Committee to give testimony in support of the equal rights amendment, as passed by the House of Representatives. I am a professor of law at New York University School of Law, where I have specialized in constitutional law for more than 9 years. I am also general counsel of the American Civil Liberties Union, but I am appearing herein a purely personal capacity.

I would like to make a couple of preliminary comments.

First of all, I would like to compliment the chairman of these hearings, Senator Cook, in taking the lead in this measure.

I note from the earlier debate in the Senate that he is the father of four girls and that one of them was greviously discriminated against

in connection with her attempts to get established in a legal career. I am the father of only two girls and neither is a lawyer, although one of them will be entering nursery school in 2 weeks. But my wife is a lawyer and I have witnessed the discrimination against her and other women lawyers, some of whom, like Susan Della Ross, whose paper on so-called protective legislation has been inserted in the record of this hearing, have been our best students.

So I congratulate the chairman.

I have a second comment and it is not quite so flattering. I think it is highly unfortunate that Senator Ervin is not present here today to hear the discussion and the excellent testimony that has been given on behalf of the proponents of the amendment. I respect Senator Ervin a great deal. I have worked with him in his capacity as chairman of the Subcommittee on Constitutional Rights, especially in connection with his fine work on invasion of privacy and the due process for soldiers in the military services.

But I think it is very unfortunate in a matter of this importance that one of the leading opponents of the measure is not present to hear the arguments on the other side.

I also would like to make as a preliminary comment that I agree with Prof. Thomas Emerson in his interpretation of Dean Pollak's letter concerning the enforcement clause. I do not think that the enforcement clause would receive the interpretation that Dean Pollak ascribes to it. And I think that the problems that he presents can be cured in precisely the way that Professor Emerson has stated.

Turning now to my prepared statement, the thrust of my testimony has been suggested by witnesses before the committee who have expressed opposition to the proposed amendment. Most, if not all, of these witnesses have stated that they are in sympathy with efforts to remove laws from the statute books that are unjust to or exploit women. Despite these sentiments, the witnesses opposed the amendment because they felt that a constitutional change was not the way to accomplish the goal eliminating discrimination on account of sex. Statutory techniques were said to be preferable, perhaps supplemented by Supreme Court rulings.

I disagree with this point of view. I believe that a constitutional amendment is peculiarly suitable to the problem presented, and today I shall present my reasons for this conclusion.

My first reason is based on the nature and importance of constitutional amendments. I do not think the Constitution should be amended for trivial or transient considerations. Such solemn action should be taken only when a matter of sufficiently broad principle is at stake to warrant the long and complex process that the framers of the Constitution envisioned for alterations in the basic document. I believe that this is such a case.

The decision to eliminate centuries old discrimination against women calls for a constitutional amendment. This is so because an amendment would best emphasize a national commitment to the ideal of equality between the sexes under the law. In addition, the requirement of ratification by three-quarters of the States is most appropriate because many of the areas of discrimination which the amendment will cure concern State law and practices.

My second reason for favoring a constitutional amendment responds to the contention of some critics that the amendment will operate in unpredictable ways, cause confusion, and foster excessive litigation. I believe that this criticism is unjustified, that the difficulties have been magnified unrealistically, and that our legal institutions are sufficient to deal with any problems presented.

It should be recalled in this connection that many provisions of our Constitution are general statements that have had to be fleshed out by the courts over the decades. This is in the nature of a constitutional instrument which, except for housekeeping provisions, should not be as specific as a statute. For example, article I, section 8, of the original document authorizes Congress "To regulate commerce with foreign nations, and among the several States.'

These delphic words have provided the basis for the entire system of economic regulation in the United States. Hundreds, indeed thousands, of judicial interpretations have followed over the years both with respect to the powers of the Congress and the implied limitations on State authority over interstate commerce. This continuous judicial activity has not been a weakness of the Constitution. On the contrary.

The courts were properly entrusted with the duty of reviewing the varied legislative enactments. So too here, where the primary authority will be in the Congress and the State legislatures "to enforce” the amendment, subject to the overriding authority of the courts. This has been the classical American pattern.

Another example, even more pertinent, concerns the adoption of the 14th amendment, which was principally designed to protect the legal rights of former slaves. When this amendment was passed no one could have predicted the ways it would affect life in the United States or the amount of litigation and the difficulties of interpretation that would ensue, many of which we still face today.

This was to be expected because of the massive difficulties inherent in ending the institution and consequences of slavery. Yet, it surely was no mistake to pass that amendment because of these difficulties. Could the Nation have shirked the responsibility of guaranteeing in our basic charter of Government the equal protection of the laws because of difficulties of interpretation?

Women, too, have been subjected to centuries of discrimination sanctioned by our legal system. It is not so long since women lost their property when they married, lacked the right to vote or serve in Government, had no right to serve on juries, no right to contract or sue in court, no right to receive an education, no right to keep their own earnings. Some of the worst manifestations of this lack of citizenship have been remedied, but others remain. The equal rights amendment is needed to end these gross inequities in our legal system, and to complete the job of making women full citizens under the U.S. Constitution.

It is wrong to suggest that because ending deepset and historic discrimination will result in some uncertainty and litigation, we should not act. The 14th amendment was needed and passed for blacks; the equal rights amendment is needed and should be passed for women.

I would like to turn now to the problem most frequently stressed by those opposing the amendment-the alleged impact on labor laws

that protect women but not men. The fact is that the effect of the amendment on protective labor legislation provides no sound basis for opposing it.

There are three interrelated points here. First, the crazy quilt of existing State protective laws reveal graphically that there is no consensus on what is needed protection for either men or women, and that much of the legislation, instead of providing solutions to the real problems of women workers, actually "protect" them out of jobs that they are perfectly capable of fulfilling.

Second, under title VII of the Civil Rights Act of 1964, much State legislation of this type is being invalidated and will be of no longterm importance. Third, such laws that confer genuine benefits can and should be extended to men under the equal rights amendment.

Before dealing with each of these points, I would like to comment on the suggestion of at least one witness before this committee that the equal rights amendment is being advanced only by professional women and that working-class women will be disadvantaged by it because they need the benefits of the protective legislation that is on the books.

With all respect to that point of view, I would remind the committee that virtually all reform measures are propounded and pushed by middle-class professionals. Certainly, that was true of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But this does not mean that others do not profit by reform. I do not have exact statistics available, but it is clear that a healthy proportion of title VII cases under the Civil Rights Act have been brought by blue collar, working women who have been victimized by so-called protective legislation.

Moreover, at least half of the equal pay cases involve factory workers. It would be a mistake to regard the amendment as exclusively or even primarily for the professional class. Most of its beneficiaries the overwhelming percentage of working women-would not be in this category.

I turn now to the three points regarding protective legislation that I mentioned above.

First. The pattern across the country of State laws shows that there is no coherent system of protection provided for women. For instance, while women are allowed chairs for rest periods in 45 States, they are given job security for maternity leaves of absence in no State and maternity benefits under temporary disability insurance laws in only two States. Women are even excluded from temporary disability benefits for pregnancy leaves in these two States.

Furthermore, in the benefit areas most people would consider most important a minimum wage and a day of rest-men do receive substantial protection already. Only seven States have minimum wage laws for women only, but 29 States, plus the District of Columbia and Puerto Rico, cover both men and women. More important, the Federal minimum wage law covers both men and women at higher rates than all State laws except Alaska.

In contrast, maximum hour laws are a major area where men are not covered. Thirty-eight States cover women only, and three States cover men and women. Since the Supreme Court has upheld the va

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