political issues and considerations and who in the process employ the basic political processes. I think that Mr. Justice Harlan's dissent in the Reynolds v. Sim case is worthy of quoting on this point: The Court's elaboration of its new "constitutional" doctrine indicates how far-and how unwisely-it has strayed from the appropriate bounds of its authority. ***It is difficult to imagine a more intolerable and more inappro priate interference by the judiciary with the independent legislatures of the States. I certainly agree with Justice Harlan's remarks. The apportionmen decisions of 1962 and 1964 by the Supreme Court are as Justice Haria: put it, "inappropriate interference by the judiciary with the independent legislatures of the States." If the States wish to change the method or basis on which they elec membership to their respective legislatures it should be left to the will and the vote of the people of the individual States to so decide. Already 14 States have petitioned Congress to convene a constitutional convention to accomplish in an approximate way what Senate Joint Resolution 2 would accomplish without the necessity of a national constitutional convention; that is, that they, the States, would rather retain unto themselves the basic right, subject to the fair standards laid down in Senate Joint Resolution 2, to determine the basis for repre sentation in at least one branch of their legislatures than to be con stantly told by the Federal judiciary what they can and cannot do i matters of their own legislative reapportionment. The people should have this right and in this belief I joined in introducing Senate Join Resolution 2. I ask this committee to report the resolution favorably and I strongly hope that it will become a part of the Constitution of the United States. Senator HRUSKA. Mr. Chairman, it has just come to my attention that the senator from Los Angeles County was also present in the hear ing room and has been present during the testimony of his colleague Senator Rattigan. I should like to present him, ask him to identify himself, give his name and his address, and make any comment he might like to make on it. Senator BAYH. There is another member of the California Senate present. They both might want to do this. The reason the chairman did not ask them to testify is that it was my understanding that we had unanimous expression of the California Senate and there was no need to comment on it. STATEMENT OF HON. THOMAS M. REES, STATE SENATOR, LOS ANGELES COUNTY, CALIF. Senator REES. I am Senator Rees from Los Angeles County. would only say that I concur in the great majority of Senator Rat tigan's statement, with the exception that I did carry the souther California highway bill and I consider it a very fine piece of legislation STATEMENT OF HON. VIRGIL O'SULLIVAN, STATE SENATOR, CALIFORNIA Senator O'SULLIVAN. Mr. Chairman and Senators of the committee I am State Senator Virgil O'Sullivan from the Eighth District, whic is the west side of the valley of Sacramento River in northern California. I concur with everything that has been said by Senator Rattigan and Senator Rees. We feel that, in California, we do have a good system of government and I concur also in the things that have been said in regard to popular sovereignty. I think that we should keep as close the limitations that have been placed in the Constitution in full forces and effect by the U.S. Supreme Court but, at the same time, I think the extension of this popular sovereignty on this particular issue would be helpful to State government. Senator BAYH. Thank you very much. We are appreciative of all three of you making the long journey here. I would suggest that, instead of reconvening at 1:30, we reconvene at 2:15 to permit us to check up on business on the floor and try to get our offices in shape so we can listen to the witnesses who will be with us this afternoon. We will be in recess until 2:15. (Whereupon, the subcommittee adjourned for recess, to reconvene at 2:15 p.m. on the same day.) AFTERNOON SESSION Senator BAYH. The subcommittee will please reconvene. I would like to note that we have a guest with us, Mr. Bryan Palmer, who is presently the Assistant Principal in the Legislative Branch of the Ministry of Home Affairs in the Government of Northern Ireland, who is here in Washington participating in the foreign specialist exchange program of the Department of State, and I have asked him. to sit here and observe first-hand. We are glad to have you with us, Mr. Palmer. Mr. PALMER. Thank you, Senator. Senator BAYH. Our first witness this afternoon, and I wish to again apologize for the lengthy discussions we were involved in this morning-not that they weren't necessary, I thought they were fruitful, but I know that it necessitated inconvenience to those who were to testify this afternoon. Mr. Robert McKay is our first witness, Associate Dean of New York's University's School of Law, who is representing the American Civil Liberties Union. I notice that Mr. Lawrence Speiser of the Washington Staff Counsel for the American Civil Liberties Union, is also with him and we will ask him to do as he has, join Mr. McKay at the witness stand, and to proceed to let us have your thoughts if you will, sir. Would you proceed, sir. STATEMENT OF PROF. ROBERT B. MCKAY, ASSOCIATE DEAN, SCHOOL OF LAW, NEW YORK UNIVERSITY, ON BEHALF OF AMERICAN CIVIL LIBERTIES UNION; ACCOMPANIED BY LAWRENCE SPEISER, COUNSEL, AMERICAN CIVIL LIBERTIES UNION Mr. McKAY. Thank you, Mr. Chairman. As already indicated, I represent the American Civil Liberties Union today and in my prepared statement which I would like to submit for the record I have some comments as to the particular interests of the American Civil Liberties Union in the question of reapportionment. I will summarize that very briefly. The interest of the ACLU, of course, is the fact that it has always been concerned with first amendment freedoms and the right of franchise and due process questions, all of which we think converge particularly in the context of reapportionment. Minority groups are particularly affected by the malapportionment that exists at the present time. In light of that special interest, the American Civil Liberties Union joined with the NAACP Legal Defense and Educational Fund, Inc.. and the American Jewish Congress to file a brief as friend of the cour in four of the cases that were argued before the Supreme Court in 1963 and 1964 that comprised finally the reapportionment cases, taking the position at that time as we take today that substantial equality of population in both houses of legislature is appropriate and we think required constitutional provision. I come today, then, to speak in opposition to the various amendments, in opposition to the essence of the Reynolds and Sims and related case decisions. By way of my own qualifications, I have been working in the field of reapportionment for some time and at the present time am staff director for Twentieth Century Fund Project in this area. They are not chargeable with my views but over a period of that investigation I have come to have very strong views on the subject. I have written somewhat, my most recent article being in the American Bar Association Journal, current issue, February 1965. Obviously I do not speak for the American Bar Association either, as would be evident from the testimony of Mr. Morris this morning. But they did give me the courtesy of a very generous form at that time. The broad question with which we are concerned is one of whether it is appropriate Senator BAYH. Excuse me for interrupting but I would like to ask a question. I think it would be valuable for the record if a copy of your article plus an article giving the other side of the picture by Mr. Kennedy, staffman for Senator Dirksen, were included in the record, perhaps prior to your statement. Mr. MCKAY. Yes; I would be very glad to do that. Senator BAYI. You have no objection to that? Mr. McKay. I wouldn't be surprised if I could produce a copy of that this afternoon. Senator BAYH. I was looking at one this morning, wanting to get a statement, a quote that you have from the Reynolds v. Sims. I know it is here. We will find it. (The documents referred to follow :) THE REAPPORTION MENT DECISIONS: A CONSTITUTIONAL AMENDMENT IS NEEDED (By Cornelius B. Kennedy, Counsel to Minority Members of the Senate Judiciary Committee) (After analyzing the Supreme Court's decisions last year in the reapportionment cases, Mr. Kennedy urges a constitutional amendment giving the people of the States the right to determine the composition of their own legislatures. providing that one house is based on population. The issue at stake, he asserts. is not one-man, one-vote, but the principle of a government representative of the people governed by it.) 3 4 On June 15, 1964, the Supreme Court of the United States handed down decisions dealing with the reapportionment of the legislatures of six States-Alabama, New York, Maryland, Delaware, Colorado," and Virginia. But the effect of the decisions was much greater, because they promulgated a broad rule for the apportionment of all State legislatures: “* * * we necessarily hold that the equal protection clause requires both houses of a State legislature to be apportioned on a population basis."' With these words the Supreme Court brushed aside as an "after-the-fact rationalization" the Federal analogy under which one house of a State legislature is apportioned on population and the other house is apportioned on area or other factors. It also rejected the present reality that, regardless of whether the States adopted the Federal analogy in their original constitutions, it has become the common form of legislative organization in the States today. The Court brushed aside, as well, the argument that it could have righted the wrong in each of the cases without reaching the question of the Federal analogy. But more important, in promulgating this broad rule, the Court rejected the principle that all segments of the population should be represented in the body which governs them. Significant geographic or economic interests should not be mrepresented because they are small in population. That principle was the underlying basis for the Federal analogy and for the Great Compromise of 1787 upon which the analogy was based. Without the application of that principle in the Great Compromise, the citizens of the small States would have had little voice in the Congress of the new Federal Union, merely because they happened to live in small States. Now, because the Court has rejected that principle in these decisions, many citizens will be denied representation in the legislature of their State. That this should be done in the name of the equal protection clause is ironic because, certainly, all of the people of a State are entitled to equal protection under that clause. In a representative government this must mean that people should not be denied or granted representation merely on a population basis. It has been the genius of our form of government that it has combined the concepts of majority rule and a government representative of all citizens in a workable fashion by having one house of a legislature based only on population and the other house based on area or other factors. And history has shown that governments are not likely to survive if segments of the population are denied representation in the government. The extent to which the Supreme Court has carried the "population only" test is indicated by the Colorado case. There the apportionment plan, according to Justice Stewart, had been "adopted overwhelmingly by the people in a 1962 popular referendum," was "entirely rational," provided by its terms for keeping the apportionment current, and "while clearly ensuring that in its legislative councils the will of the majority of the electorate shall rule, has sought to provide that no identifiable minority shall be completely silenced or engulfed." Nevertheless, the Supreme Court held the apportionment plan unconstitutional and substituted for the expressed will of the majority of the people of that State its own test that "population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies." Indeed, after discussing other factors which had been used in apportionment plans, the Court turned to political subdivisions, which it described as a consideration of more substance in justifying deviation from the population test, and then firmly said: "But if, even as a result of a clearly rational State policy of according some legislative representation to political subdivisions, population 1 Reynolds v. Sims, 377 U.S. 533 (1964). WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). 5 Lucas v. Forty-fourth General Assembly of Colorado, 377 U.S. 713 (1964). *Reynolds v. Sims, supra at 576. There are four principal opinions in this group of six decisions: (1) the majority opinion of Chief Justice Warren in the Reynolds case: (2) the Lenting opinion of Justice Harlan at 377 U.S. 589; (3) the dissenting opinion of Justice Stewart at 377 U.S. 744, in which Justice Clark concurred; and (4) the dissenting opinion of Justice Clark at 377 U.S. 741. The quotations in this article attributed to the Court from the majority opinion by Chief Justice Warren in the Reynolds case. The quotafins attributed to Justice Harlan are from his dissenting opinion. The quotations tributed to Justice Stewart and Justice Clark are from their dissenting opinions in the Lucda ease. is submerged as the controlling consideration in the apportionment supplied]", the apportionment would be unconstitutional.s [italics Thus, not only does the Court's insistence on the population test not contain the flexibility which some have tried to find in it, but the Court's concept of equality is based on sheer numbers rather than on a plan of rational representation of the interests in a State. Not all members of the Court agreed with these decisions, however. Justice Harlan stated that since it can "be shown beyond doubt that State legislative apportionments, as such, are wholly free of constitutional limitations, save such as may be imposed by the republican form of government clause," the action of the Court in bringing them within the purview of the 14th amendment "amounts to nothing less than an exercise of the amending power [of the Constitution] by this Court." Justice Stewart, in a separate dissenting opinion, stated: "To put the matter plainly, there is nothing in all the history of this Court's decisions which supports this constitutional rule. The Court's draconian pronouncement, which makes unconstitutional the legislatures of most of the 50 States, finds no support in the words of the Constitution, in any prior decision of this Court, or in the 175-year political history of our Federal Union."* Justice Clark joined Justice Stewart in this comment and went on to add in another dissenting opinion: "Finally, I cannot agree to the arbitrary applica tion of the one-man-one-vote principle for both houses of a State legislature." "0 WHY THE DECISIONS HAVE STIRRED A STORM 20 Why this sharp language by Justices Harlan, Clark, and Stewart? What provoked them not only to dissent but to make such pointed comments about the majority opinions written by Chief Justice Warren? Why did the opinions stir the U.S. Senate to weeks of debate and cause the House of Representatives to pass a bill withdrawing jurisdiction over such matters from the Federal courts? The answers to these questions may be found, first in the fact that a cherished idea derived from the Constitution itself was held to be unconstitutional; and second in the fact that established institutions of government were suddenly held to be unconstitutionally constituted; and third, in the content of the opinions themselves. The idea held to be unconstitutional was that the Great Compromise could be applied to the apportionment of State legislatures. One by one over the years, the States had adopted a plan for legislative apportionment similar to that embodied in the Great Compromise because it provided the means of resolving conflicting interests within each State by assuring the representation of such interests in the State legislature. This plan became known as the Federal analogy. Nebraska even adopted the idea for its unicameral legislature by weighting the apportionment 80 percent on population and 20 percent on area. But because this method of apportioning State legislatures was not protected by specific language in the Constitution, the Court found that it was forbidden by the equal protection clause of the 14th amendment, which was adopted after the Civil War. The effect of the opinions is to require every State to fashion its legislative branch, not on the basis of reflecting the various interests in the State, but solely on the basis of population. Until that is done, the Supreme Court has now held, a State's legislature is unconstitutionally constituted. ANALYSIS OF THE WARREN OPINION While the sudden and sweeping effect of the decisions of course has had a great impact, much attention has also been directed to the principal Warren opinion itself. The legal analysis of that opinion divides it into five parts. The first part begins with the statement that the Constitution of the United States protects the right of all qualified citizens to vote, in State as well as in Federal elections. This is followed by the citation of cases dealing with the right to vote, the right to have one's vote counted and not destroyed by alteration of ballots or diluted by ballot-box stuffing or refused for racial considerations, and finally by the conclusion that "the right of suffrage can be denied by a debase * Quotation from Reynolds v. Sims, supra at 581. Lucas v. Forty-Fourth General Assembly of Colorado, supra at 746. 1a Lucas v. Forty-Fourth General General of Colorado, supra at 742. 11 Council of State Governments, Book of the States 1964–65, 64 (1964). |