shall be deprived of its equal suffrage in the Senate. It is a direct prohibition upon the Court. I frankly think that the Court correctly interpreted the equal protection clause in the 14th amendment. And they waited a long time on this matter. I was one of those who helped finance, out of my rather meager means, the famous Colegrove v. Green case. ΠΕ financed it in 1945-46 on a shoestring. In that case the Supreme Court refused to take jurisdiction in matters of legislative apportionment and they only took jurisdiction 16 years later after it had been made abundantly clear that the malapportioned State legislatures were not going to reapportion themselves even in rough conformity with the population principle. In both Tennessee and Alabama, which had constitutional requirements for reapportionment every decade, there had been no reapportionment after 1901. There was similarly no reapportionment in Illinois. The only way we could get even one house properly represented was to write into the State constitution the provision that the other house need not be and was not to be on this basis. Senator BAYH. I have no further questions. Senator DOUGLAS. I may say this, in Illinois, according to the 1960 census, 29 percent of the population elect the majority of the State senate, and they have the veto power over the actions of the lower house. Senator BAYH. Any questions, Senator Tydings? Senator TYDINGS. No questions. Senator BAYH. Senator Hruska. Senator HRUSKA. Mr. Chairman, I have a question or two for the distinguished Senator from Illinois-who has a very fine statement here, comprehensive, as usual, and drawing on history with ease and facility. Senator DOUGLAS. Thank you. Senator HRUSKA. I know it will be a fine contribution to the record of this subcommittee. There are some things in it about which I would like to question the Senator. On page 1, there is this language: I submit that no majority of whatever size has the right to deprive citizens of the United States of their right to equal protection of the laws, any more than a majority can deny them their freedom of speech or of religion. Senator DOUGLAS. That is right. Senator HRUSKA. Now, it is provided in the first amendment in the Constitution that Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof, the same reference is made to freedom of the press or of speech. Is it the contention, or view, of the Senator from Illinois that the first amendment cannot be repealed? Senator DOUGLAS. You mean whether we could not repeal that, jus as, apparently, some people believe that we can repeal the application of the equal protection of the law to one-man, one-vote? Well, I think that undergirding the Constitution is the moral law. I know this is venturesome ground. There is a reaction against the theory of natural rights, and the anthropologists have tried to prove, and I guess successfully have proved, that the "state of nature" is not a very beneficent state, and that the 18th century political scientists overstated the nobility of the "savages," so to speak. But I think Jefferson, and the men of the enlightenment, were really advocating that there were these moral principles from which government sprang, and that a mere majority did not have the right to compel people to worship God in any set fashion. it. Senator HRUSKA. That is fine as a moral principle, I will agree with Senator DOUGLAS. I think you believe in it just as much as I do. Senator HRUSKA. I believe it with my full heart. That was not my question, Senator Douglas. My question was can the first amendment to our Constitution, which was adopted pursuant to the amendatory processes contained in article V, be repealed by a majority by that same process? Senator TYDINGS. Could I interject a comment? I think the question is interesting, and I don't know whether the Senator from Illinois would agree with me, but I think, perhaps, technically, under the terms of the Constitution, any amendment, or any section of the Constitution, can be amended, but if it is the first amendment to the Constitution, if it were amended, it would destroy our democratic republic as we know it today. So my comment would be that perhaps, technically, you could repeal the first amendment, but if it were done we would no longer have in the United States the vast bastion of individual freedom as we know it today. Senator HRUSKA. I thank the Senator. May I ask the Senator from Illinois to answer my question, whether the first amendment can be repealed? Senator DOUGLAS. Let me say, I would oppose this being done. Secondly, I don't think it could be done, because this principle underlies the Constitution of the United States. Now, I cannot claim jurisdiction from God for this provision. I am certainly not authorized to interpret God. I can simply say that I think this principle is deep in the conscience of mankind, and I believe that this is the ultimate authority, really, of law. Senator HRUSKA. That is fine. I want to say to the Senator from Illinois that I would oppose it as vigorously as he. If I had his capability, and his physique, and his prestige, I would be opposed too. I return to my question, Senator Douglas, and I know you want to answer it so that the record will be complete. Can amendment No. 1 to our Federal Constitution be repealed by the procedures contained in article V, the same procedures by which it was initially : adopted? Senator DOUGLAS. Well, if you go through the debates on the ratification of the Constitution, particularly the debates in Virginia and in New York, you will find that those who opposed the adoption of the bill of rights, and those who opposed Madison when he proposed them in the first session of the Congress, said that it wasn't necessary to have a bill of rights, that these were inherent rights, and did not need legal or constitutional affirmation. Now, curiously enough, those arguments did not come from the socalled liberal or Jeffersonian and Madisonian groups. They came from the Hamiltonian group, and if the Hamiltonians would take the position that there were inherent rights, which it was not necessary for the Constitution to enumerate, well, I think it indicated they did believe in this deeper moral law, and this is one of the points on which I would agree with Alexander Hamilton. Senator HRUSKA. Mr. Chairman, I submit the witness has not answered my question. Senator DOUGLAS. I stand with Alexander Hamilton. Senator HRUSKA. Maybe he doesn't want to answer it. If he doesn't want to, he should say so. Senator DOUGLAS. I stand with Alexander Hamilton and John Jay on this point. Senator HRUSKA. Can you answer my question? Senator DOUGLAS. You can change the amendment but I don't believe you can change the rights. Senator HRUSKA. That is why I was very perplexed by the fashion in which you had put it. That the majority, of whatever size, cannot deprive citizens of the United States of their right to equal protection of the law any more than a majority can deny them freedom of speech or religion, but a majority under our Constitution can deprive citizens of freedom of speech and religion. Maybe they have their rights, but by a majority, following article V of the Constitution, those rights can be taken away from the minority. If the Senator has some authority to the contrary, I would like to have it. Senator DOUGLAS. Let me ask you this. Can you repeal the first amendment and then pass a law saying that anyone who doesn't believe in the 39 articles is to be condemned to death? Does that become obligatory on the moral conscience of man? Or if you are of Jewish blood that you can be legally gassed and burned? That was the law of Nazi Germany in the latter part of Hitler's rule. Men tried to justify their putting people into the ovens on the ground that after all they were merely conforming to the law. Now, I may be old fashioned, but I stand on the moral law, and on that last sentence of Jefferson's in his letter to Cartwright: "Nothing then is unchangeable but the inherent and unalienable rights of man." Senator BAYH. I don't want to interrupt this fine colloquy Senator DOUGLAS. We are getting into a very interesting constitutional and moral argument here. Senator BAYH. I am not certain I understood the last statement of our colleague from Nebraska. Certainly article I, the first amend-ment, could not be changed by a majority. I am sure we all realize it would take two-thirds of both Houses plus three-fourths of our State legislatures. So we are not dealing, really, with changing that. Senator DOUGLAS. As I say, I don't think the suggestion of the Senator from Nebraska will be taken up. I am sure he would oppose it if it were suggested. Senator HRUSKA. I just want the record to show that the question has not been answered, for a very obvious reason, in my judgment. I would infer that if the Senator said yes, the first amendment can be repealed, therefore, by following the procedures of article V this one man, one-vote rule of Reynolds v. Sims can be changed-if the provisions of the amendment are followed. So I presume that is the reason the Senator doesn't care to answer the question. Senator DOUGLAS. I submit I have answered it. I have said that there is a constitutional provision, but deeper than the constitutional prohibition against malapportionment there is a moral imperative. Now, I know that when a person raises a moral issue people will not agree, and will say, why are you more authorized to proclaim a moral principle than I am? Senator HRUSKA. Of course, someone has to judge what that moral principle is. Senator DOUGLAS. That is right. Senator HRUSKA. And under our system, and under our proposed amendment here, it is to the people that the question is addressed. Senator DOUGLAS. A majority of the people. Senator HRUSKA. That is right. Senator DOUGLAS. A majority of the people at just one time in a State. The Dirksen amendment doesn't provide for periodic submis sion. Senator HRUSKA. It can, if that-in the opinion of the committee or the Senate is considered wise. What does the Senator think of the proposition of letting the people decide this issue? Senator DOUGLAS. I tried to discuss that. Can a majority of the people take away the rights of representation of a minority? Suppose the city of Chicago, for example, were to approve a reapportionment plan which gave nine-tenths of the representation in Illinois to Cook County and deprived downstate of its proportional representation? Could they do that properly? I don't think so. I think that would be an improper act. Senator BAYH. I have the greatest respect for the Senator from Illinois, but I am still looking to an answer to this problem: You may have a compelling argument for the moral principle of the first amendment, and on the basis of principles, with which I wholeheartedly concur, but at what point could we stop saying this is a moral argument, this moral principle applies to the Constitution, and when do we inject the argument on which the Senator relies, about the fallacy-with which I concur in the Federal analogy? In other words, if the moral principle of the Senator is in fact correct, then why do we not have a moral obligation to change the Federal agreement? Senator DOUGLAS. To try to do so would tear the country apart, and in order to preserve unity now, just as earlier, the big States will bear their burden and bear their chains with dignity-even as they clang upon the Senate floor. Senator BAYH. The Senator would not, despite the fact this may not be morally equal representation, change it? It has been a workable solution? Senator DOUGLAS. It has enabled the country to stick together. We are interested in the country. We will make sacrifices for the country. Senator BAYH. I don't mean to push this question too far, but let me ask you one other question. Senator DOUGLAS. This is a very important point. Senator BAYH. If this reason is sufficient-which, frankly, I agree it is--then, if you have sufficient numbers to comply with the constitutional amendment procedures, the same reasoning would dictate a similar amendment here which would set up a similar solution in our State legislatures. Would this not be a stronger argument than a moral one? Senator DOUGLAS. Well, let me say, we are not threatening civil dis obedience in case the Dirksen amendment or a modification of it should be passed. We would obey the Constitution, of course, but we do say that this is not something that the majority should ask a minority to acquiesce in. The majority should not push its powers too far. Senator HRUSKA. Senator Douglas, on page 7 you profess a position where you would shudder to think what would happen if a constitutional convention were called. Senator DOUGLAS. That is right. Senator HRUSKA. Would you elaborate on that? That interests me. Senator DOUGLAS. If you throw the whole Constitution open for amendment, you could get very strange things coming out of it. As I review the Constitutional Convention of 1787-I have tried to study it as best I could-my admiration for the final results increases. In the days when the Supreme Court interpreted the due process clause to prohibit the fixation of minimum wages or maximum hours for women and when it upheld the "yellow dog" contract, I was extremely critical of this section of the Constitution, which I felt was susceptible to a forced interpretation, as I think many people feel that the equal protection of the law now is given some forced interpretation. But, as I have studied this document more and more, and considered the problems which the founders of the Nation faced, I think it was an amazing performance. I doubt whether we have the wisdom today to do for our day and generation what those men in 1787 were able to do. What has happened has been that through the interpretations of the Court we have developed a system of government which is elastic enough to cover the changes of population, the changes of industry. and the new problems of urban or metropolitan civilization in which a system of wage labor rather than independent labor has been created So our Nation under its Constitution, both in its original form and in the interpretations which have been given to it, has shown it can adapt to changed conditions and yet preserve the fundamental liberties of the people. I think the first 10 amendments to the Constitution are a great protection. Let us remember that the delegates to a constitu tional convention, could be selected by the malapportioned State legis latures. The unrepresentativeness of State legislatures would be repeated in the convention. Senator HRUSKA. In other words, you feel that we ought to disre gard the constitutional convention method of amending the Constitution. Would that be your recommendation? Senator DOUGLAS. I view with horror the creation of another constitutional convention, with a hunting license to make any changes that it wishes, particularly since the delegates probably would come from or would be chosen by the unrepresented State legislatures. Let the work of reforming the State legislatures go on. Senator HRUSKA. Well, of course, if the orders of the Supreme Cour are going to be caried out they won't be malapportioned any more. Senator DOUGLAS. That is right. Senator HRUSKA. Would that change your mind on article V? |