the Boundary Commission Acts in the 1940's and 1950's. Is that approximately right?

Mr. PALMER. Yes.

Mr. MCKAY. And in Great Britain now there is an apportionment commission which works out the representation for the different districts with a certain amount of flexibility, the kind of flexibility in large part that I think might be ordained by the Supreme Court if given an opportunity to work out these matters.

You also asked, I believe, Senator Tydings, about the nature of the rotten-borough system.

Senator TYDINGS. Yes.

Mr. McKAY. I don't know that I can give all the details but there were some districts which were not even geographical areas. They were interest group areas specifically. They were academic communities or they were represented by particular constituencies having no relationship to population whatsoever.

Senator TYDINGS. Or geography?

Mr. MCKAY. Or even no relationship to geography in some instances. Senator TYDINGS. Give me a specific example. Oxford, Cambridge! Mr. McKAY. What is the old famous case, Old Sarum in which there

were

Mr. PALMER. Only about 20 could elect, or something like that.

Mr. McKAY. Whereas at the same time some of the newly growing cities in the north of England, industrial cities, had no representation at all during the period before 1832.

Now, the United States happily has never gotten that bad. But the drift if not stopped it seems to me was working toward the direction. Senator TYDINGS. So that actually in Great Britain's system you say only 20 persons could elect a Member of the Parliament?

Mr. McKAY. Yes, sir.

Senator TYDINGS. Now, you mentioned also on page 9 in this country John Calhoun's theory of the concurrent majority was another such exercise in political futility. I wonder if you would go into this a little bit more in depth. What was John Calhoun's theory of the concurrent majority?

Mr. McKAY. His theory basically was that while there is ordinarily the right of majority rule, if interest groups of various kinds in combination, even though less than the majority of the total, were opposed to particular kinds of legislation, they could form a concurrent majority which would be enough to exercise in effect a veto power over the actual numerical majority.

The theory was devised in large part, as I understand it, as a way of retaining the authority, the legislative authority, in the South in particular, because this was the period when the South was not gaining population as rapidly as the industrial North and the new West.

So they were proportionately losing representation in Congress. There were both more new States and thus their representation in the Senate was diluted and they were having a proportionately smaller part of the total in the House of Representatives. And so the theory was that some way should be worked out to exercise the veto.

Senator TYDINGS. I am still not quite clear. I still don't grasp entirely his theory. I recall the history at the time, what he wanted to do, what he wanted to hold off. But how did he justify an actual minority being the majority?

Mr. MCKAY. Because of the interests, the interests of minority groups were sufficiently important as to be

Senator TYDINGS. Like slavery?

Mr. McKAY. I don't know whether he worked it out that way. It would be economic interests, which would have perhaps a slavery interest.

Senator TYDINGS. Shipping.

Mr. McKAY. Shipping, tobacco. Something else. But the interests of these minority groups would be sufficiently weighted to overcome the majority.

Now, this never came about. His theory was never actually put into practice. I think fundamentally because it was so unacceptable to the American tradition as of that time. We were then in the Jacksonian peculiarly egalitarian period.

Senator BAYH. May I propose one parting question because I-
Senator TYDINGS. I have some more.

Senator BAYH. Excuse me. Go ahead.
Senator TYDINGS. On page 13, you state:

It is especially significant to note that individual States have found in the rule the flexibility that the Court said was there. Thus, in both Oklahoma and Wisconsin the reapportionment has been accomplished without crossing county lines, while the other States have replaced their old schemes altogether with new formulas designed to achieve more effective representation.

I wonder if you would like to comment a little more in depth on that statement?

Mr. McKAY. Yes, sir; the argument made by the critics of Reynolds V. Sims seems to me in large part that it requires such mathematical equality that it denies the necessary flexibility required for a representative democracy. The Court, I think, never intended that. The language throughout seems to suggest the kind of flexibility I think is there. The principal argument in behalf of the existing systems is that it is important to have political subdivisions have representation in the State legislature, because to some extent, important State legislative functions are delegated to them. That is an argument which the Court recognized and which it seems to me is valid, at least in my own State.

In my own State of New York, at least at the moment, the representation has been to a large extent based upon counties, but the Counties in New York are not really the significant governmental units. In New York City, for example, it is the city that is operative; on Long Island, it is the towns and not the counties which have a significant governmental function. Therefore, if the lines are to be drawn on a local government subdivision basis which made any sense in New York, they would be drawn on city lines, which they are not, or on town lines, which they are not.

In Oklahoma, the counties have genuine functions, delegated to them by the State legislature. Therefore, accordingly, it is the function, I think, and how much of a function it is is up to the State legislatures which make a case for preserving those local government lines wherever possible. In Oklahoma, where the redistricting was ordered by the Federal court, in Wisconsin it was ordered by the State court, county lines seem to be a satisfactory basis for working out a formula without crossing county lines. Maybe that is a little too articifial,

maybe it is a little bit too strict. It will not work in all States. In some States the county lines are essentially meaningless and should therefore be disregarded.

Senator TYDINGS. The house of delegates in Maryland worked out such a formula for Maryland reapportionment and it passed the house of delegates. Whether or not it will be satisfactory is a matter yet to be seen. But that is just a gratuitous comment of mine.

Mr. McKAY. That is really the essence of what I wanted to say on that.

I will give you another instance if you are interested. In Michigan, immediately after the decisions in June, Michigan came down with a plan that was proposed as one of several alternative plans by their apportionment commission that was approved by the State supreme court. This plan adhered almost mathematically exactly to the popu lation equality principle, too precisely, in my judgment, for sound structure. But they did all sorts of interesting things, some of which I think perhaps made some sense. For instance, one county has a heavily populated area in the center of the county. That urban area was made a district, and all around it, the rest of the county is another district. So there is one district completely enclosed within another district.

That is unusual. Maybe it is not good; maybe it is good. But it shows that there are devices which can be used by those who are imaginative.

Senator TYDINGS. It is not too unusual. We have the city of Baltimore, the integral part of the county is the city of Baltimore and the boundary, or the area around it, which is another subdivision, is the county.

Mr. MCKAY. Yes; I had forgotten that.

Senator TYDINGS. Let me ask you one other question not quite on point, but since we have gotten you here, Professor, a number of the States have passed resolutions, as we discussed, asserting a section of the Contitution which has never been, to my knowledge, used before, which would call on the Congress of the United States, after at least two-thirds or three-fourths of the States-I do not know which, passed such a resolution ordering the Congress of the United States to hold a constitutional convention. In your judgment, if the States, if the necessary number of States should pass such a resolution, could they force the Congress of the United States to call a constitutional convention against the will of Congress?

Mr. MCKAY. Senator, I do not think there would be any way to force Congress to call a convention. As Senator Hruska pointed out before and I am happy to say we are in complete accord on this. at least the language of the Constitution is mandatory: Congress shall call a convention. What article V does not specify is what shall be the makeup of the convention, under what kind of operating rules it will work, how the delegates will be chosen, and here there is a very interesting equal-population question which might be brought up, on the makeup of that convention. The language is not too clear whether Congress would be obliged to consider at all the uniform language of the resolutions proposed by two-thirds of the States, or whether the convention could consider any other possible language, including, I would think, the language before you.

Senator TYDINGS. Suppose the Senate of the United States refused to call a constitutional convention?

Mr. McKAY. I should think that would be the end of the matter unless some constituents would be sufficiently upset that they would take this matter to the polls and express their discontent in the next

enatorial election.

Senator HRUSKA. What would happen if the Congress of the United States refused to pass an appropriation?

Mr. McKay. I take it that would be the end of that matter, too, Senator.

Senator TYDINGS. The Senator from Nebraska has made a point which is very impressive. I agree with his point.

There is an analogy. The reason I asked the question is that a great number of State legislatures have refused to call constitutional conventions in the States, which in my situation was a direct mandate of the Constitution and through referendum of the people, or to comply with their provisions of their State constitutions. That is the reason I brought up the point.

I do not think I have any more questions, Mr. Chairman.

Senator BAYн. Let me ask one more.

The Civil Liberties Union has done yeoman work in pointing out the importance of protecting the rights of individuals, and the reason that it and you two gentlemen are particularly interested in this is that you are fearful that any other formula than the one-man, oneVote formula would deny the individual equal representation in the halls of his State legislature.

Insofar as equal representation of an individual requires his representative to express the needs and desires of that individual voter, I would like once again for you to point out how this individual voter is equally represented under these circumstances which I cite from the testimony yesterday of Governor Love. He points out these two particular Colorado districts. I would like you to direct your anwer at how the voters living in either area are equally represented under the one-man, one-vote formula:

An example of the problems created is in new senate district 35, covering the Lorthwest part of the State. The district measures approximately 175 miles from east to west, and 140 miles from north to south, over rugged mountainous Terrain. It contains 10 counties covering 20,514 square miles, an area larger than that of 9 of our States. For example, this district is 10 times the size of Delaware, and so on.

The district includes three major river basins, one to the east of the Continental Divide, and two to the west. And yet States smaller in area each have two Senators in the U.S. Senate, while the district in question has only one Senator in the Colorado Senate.

Another example of the problems created by this new plan of apportionment is The treatment now accorded the San Luis Valley in the south-central region of Colorado. The six counties in this valley are in the Rio Grande River Basin, and are vitally concerned with water rights on the Rio Grande, and with Colorado's relationship with New Mexico, Texas, and Mexico, with respect to the Rio Grande. The rest of Colorado has no direct interest in this great river, whose waters are The economic foundation of the San Luis Valley. This area is also one of the most economically depressed of the State, and contains a high percentage of residents of Spanish-American heritage, with a relatively low-educational level, and a relatively high State welfare load. This area, containing 38.000 persons, according to the 1960 census, was formerly able to elect a Senator to bring to the attention of the legislature its unique problems. But under the new per capita based apportionment, the legislature was forced to place the counties of

the San Luis Valley in three separate senatorial districts, and the residents of this valley are in the minority in each district.

In my estimation, it was not forced, although they thought it was, and I will not argue with the Governor on the use of the word.

There is no need to repeat his interpretation of this. But we are faced in this whole problem with two theories. You know them very well, tyrannical majority on the one hand which, if not properly checked, will oppress the minority and the minority on the other hand which, as you have pointed out, has tended to roadblock and oppress and prohibit the will of the majority from being expressed.

Now, explain to me how the "tyrannical" majority is going to be prohibited from oppressing, from denying to the individual citizens in these two rather unique areas the equal representation and voice that they need in the area in which they live?

Mr. McKAY. It is very hard to comment on the particular one without seeing the whole State arrangement. It sounds to be, from the description that the Governor gives, as though that was not a very happy solution that they arrived at. This area that had homogeneous interests, I take it

Senator BAYH. Excuse me. May I enlarge the question just a bit. I think your article points out that in your opinion the Reynolds v. Sims case gives the leeway that we discussed earlier. We do not yet know how far the Court is going to go. You might care to comment as to whether you feel the Court would be tolerant in leeway under the existing formula in these two situations that exist. I do not mean to answer for you, but I would like to have your thoughts.

Mr. McKAY. I will take that, if I may, Senator, as an opportunity to expound a little bit more on what I think to be the ultimately desirable standards in apportioning and districting. It seems to me the equal representation principle is just one.

Second is the requirement of compactness and contiguity to protect against the gerrymandering, which seems to me is also a very serious difficulty and is not dealt with in these decisions; finally is the question of legislative wisdom, and that is the question of homogeneity of the legislative districts, that they should have some kind of unity where that is possible.

Obviously, the first and third of those principles are to some extent at war with each other, because it is not possible to have mathematical equality and have absolute homogeneity. Therefore, it seems to me that the flexibility which I find in the Supreme Court decision is worked out through a merging of those principles into a good-sense formula in each State, grounded upon the fact of the situation in that State.

Therefore, in Colorado, for instance, it would seem to me, without knowing more about it, that it might have been more logical to put these several counties together, perhaps tied to something else that might not have had altogether the same interests. Perhaps that district could have been smaller in population than the districts in Denver or the districts in Colorado Springs.

But what I was saying about Colorado before still seems to me very true; there was no rational basis for the population inequalities in Colorado as they existed before 1963. Instead, there was a pattern.