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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 court 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 anti 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 statt 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. McKiy. Yes; I would be very glad to do that.
Mr. McKay. I wouldn't be surprised if I could produce a cops 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 reapportierment 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 gorerned by it.)
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 tffect 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 unrepresented because they are small in population. That principle was the underlying basis for the Federal analogy and for the Great Compromise of 1787 npon 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
Reynolds v. Sims, 377 U.S. 533 (1964). TICA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). *Roman v. Sincock, 377 U.S. 695 (1964). Lucas v. Forty-fourth General Assembly of Colorado, 377 U.S. 713 (1964). Darix v. Yann, 377 U.S. 678 (1964). * Beynolds v. Sims, supra at 576. There are four principal opinions in this group of six derisions: (1) the majority opinion of Chief Justice Warren in the Reynolds case : (2) the
esenting 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 Instice Clark at 377 U.S. 741. The quotations in this article attributed to the Court app from the majority opinion by Chief Justice Warren in the Reynolds case. The quotativos attributed to 'Justice Harlan are from his dissenting opinion. The quotations attributed to Justice Stewart and Justice Clark are from their dissenting opinions in the
is submerged as the controlling consideration in the apportionment * * [italics supplied]", the apportionment would be unconstitutional.
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 legislatire 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 application of the one-man-one-vote principle for both houses of a State legislature." **
WHY THE DECISIONS HAVE STIRRED A STORM 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 protectel 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 deba se& Quotation from Reynolds v. Sims, supra at 591.
Lucav. Forty-Pourth General Assembly of Colorado, supra at 746.
ment or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
In the second part the Chief Justice discusses Baker v. Carr, 369 U.S. 186 (1962), Gray v. Sanders, 372 U.S. 368 (1963),1and Wesberry v. Sanders, 376 l'.S. 1 (1964)." However, he comments that "Gray and Wesberry are of course not dispositive of or directly controlling on our decision in these cases involving State legislative apportionment controversies. Admittedly, those decisions *** were based on different constitutional considerations and were addressed to rather distinct problems." And he describes Baker v. Carr as holding that a claim challenging the constitutionality of the apportionment of seats in a State legislature "presented a justiciable controversy subject to adjudication by Federal courts."
The third part of the legal analysis in the Warren opinion consists of the citations of cases supporting the propositions that "the right to vote is personal
**" that the impairment of the right to vote "touches a sensitive and important area of human rights”, that "the political franchise of voting" is “a fundamental political right”, that "the Constitution forbids sophisticated as well as simple-minded modes of discrimination", and that "invidious dis(rimination based on factors such as race * * * or economic status * * *" impairs basic constitutional rights. The Chief Justice then follows this part of the analysis by holding that the equal protection clause of the 14th amendment requires both houses of a State legislature to be apportioned on a population basis.
The text of the fourth part of the Warren opinion cites a case in support of the proposition that political subdivisions are created as convenient agencies for exercising such of the governmental powers of the States as may be entrusted to them."
Finally, in the fifth part the Chief Justice returns to the citation of Baker 1. ('arr and Wesberry v. Sanders, in spite of his earlier statements distinguishing them.
WHAT THE WARREN OPINION FAILS TO DO The Warren opinion does not contain any analysis of the 14th amendment or the equal protection clause itself, or any reference to the legislative history of the 14th amendment or to any contemporaneous statement of its meaning. Justice Harlan commented on this omission in the introduction to his dissent:
“Had the Court paused to probe more deeply into the matter, it would have found that the equal protection clause was never intended to inhibit the States in showsing any democratic method they pleased for the apportionment of their zislatures. This is shown by the language of the 14th amendment taken as a whole, by the understanding of those who proposed and ratified it, and by the political practices of the States at the time the amendment was adopted. It is confirmed by numerous State and congressional actions since the adoption of the 11th amendment, and by the common understanding of the amendment as evi. otpeed by subsequent constitutional amendments and the decisions of this Court fw-fore Baker v. Carr, supra, made an abrupt break with the past in 1962.16
Justice Harlan followed this with 17 pages of opinion, accompanied by 7 ranges of appendix, containing an analysis of the 14th amendment and statements made by the authors and supporters of the amendment during the congressional debates concerning the purpose and meaning of the amendment.
Justice Stewart, in his dissenting opinion in the Colorado and New York cases in which Justice Clark joined, referred to “the excellent analysis of the relevant historical materials contained in Mr. Justice Harlan's dissenting opinion" and said:
13 Justice Stewart comments : "It has been the broad consensus of the State and Federal pourts which, since Baker v: Carr, have been faced with the basic question involved in
1 cases, that the rule which the Court announces today has no basis in the Constitution And no root in reason." 37
n. 9. Justice Harlan comments: "Before proceeding to my argument it should be observed that nothing done in Baker v. Carr or in the two cases that followed in its wake, Gray v. minders and W'exberry v. Sanders, from which the Court quotes at some length, forecloses The conclusion which I reach. *** [I]t is evident from the Court's opinion [in Baker v. Carel that it was concerned all but exclusively with justiciability and gave no serious attention to the question whether the equal protection clause touches State legislative apptionments." "377 U.S. at 592, with emphasis added.
** Justice Stewart comments: "The rule of Gray v. Sanders, 372 U.S. 368 is, therefore, frympletely without relevance here." 377 U.S. at 744.
** Justice Stewart comments : "Consequently, the Court's decision in Wesberry v. Sand***, 376 (s. 1, throws no light at all on the basic issue now before us." 377 U.S. at 719-743.
13 Reynolds v. Sims, supra at 590-591.
"After searching carefully through the Court's opinions in these and their companion cases, I have been able to find but two reasons offered in support of this rule. First, says the Court, it is established that the fundamental prin. ciple of representative government in this country is one of equal representation for equal numbers of people. * * *' With all respect, I think this is not correct, simply as a matter of fact. It has been unanswerably demonstrated before now that this was not the colonial system, it was not the system chosen for the National Government by the Constitution, it was not the system exclusively or even predominately practiced by the States at the time of the adoption of the 14th amendment, it is not predominately practiced by the States today.' Se ondly, says the Court, unless legislative districts are equal in population, voters in the more populous districts will suffer a 'debasement' amounting to a con stitutional injury. We are not told how or why. * * * I find it impossible to understand. * * * 10
Thus, Justices Harlan, Clark, and Stewart are critical of the Warren opinion for not answering or even considering the legal argument that the equal protection clause of the 14th amendment is not and was not intended to deal with the problem of the apportionment of State legislatures.
THE CHIEF JUSTICE AND POLITICAL PHILOSOPHY When the Chief Justice turned his attention to the proper composition of a State legislature as a philosophical question, he reached three conclusions First, if population is submerged as the controlling factor in the apportionment of a State's legislature, the right of all the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired. Second. this would be true even though a clearly rational State policy of according some legislative representation to the various interests in the State might be appropriate. And third, this right of all citizens wouid be frustrated unless the "population only" test were applied to both of the houses of a State legislature to prevent the majority will, expressed by the representatives of the majority in one house, from being thwarted by the action of the representatives of a minority in the other house.
In commenting on the exclusion by the Chief Justice of any factor other than population as controlling, Justice Harlan said:
"I know of no principle of logic or practical or theoretical politics, still less any constitutional principle, which establishes all or any of these exclusions. Certain it is that the Court's opinion does not establish them." 17
REASON REQUIRES A REPRESENTATIVE LEGISLATURE After stating that "What the Court has done is to convert a particular political philosophy into a constitutional rule * *," Justice Stewart defines representative government as “a process of accommodating group interests through democratic institutional arrangements ** Appropriate legislative apportionment, therefore, should ideally be designed to insure effective representation in the State's legislature * * * of the various groups and interests making up the electorate." [Italic supplied.]
l'sing Colorado as an example, he pointed out that the State is not an ere nomically or geographically homogeneous unit. Instead, he said, the State contained four distinct regions, and he noted that the district court had found that the people living in each of these four regions had interests unifying them and differentiating them from those in the other regions. Given these underlying facts," he said, “certainly it was not irrational to conclude that effective repre sentation of the interest of the residents of each of these regions was unlikely to be achieved if the rule of equal population districts were mechanically imposed
With respect to New York, he pointed to the statement of Elihu Root at the New York Constitutional Convention of 1894 that in a State with a dominant urban population centralized at one point it would be appropriate to provide for a reasonable balancing of the political power among all the areas of the State.
* Lucas v. Forty-Fourth General Assemdly of Colorado, supra at 745-746. * Reynolds v. Sims, supra at 623.