"The Executive would carry out and apply all laws. He must sign all cogressionally approved bills within 10 days or they would become law anyway; but he could veto legislative acts. A check on the legislature. But the Congress could pass laws over his veto by a two-thirds majority vote. A check on the Executive.

"However, the Supreme Court was to serve as a brake on hasty legislation. If the Court declared a law unconstitutional, only the people could do anything about that. The people could, however, start a slow process of constitutional amendment to override Court decisions. The Convention delegates were well aware that courts needed a check-that King Charles I, of England, has gotten the judiciary to support the divine right of kings, just as Louis XVI did a century and a half later in France.

"Basic then, was that all power was to flow from the people. The people were to make the Constitution, elect the Executive and the Legislature. Laws were to conform to the Constitution. And only the people could change the Constitution. "The power that the people were to give to the Federal Government was to be explicit, spelled out. Anything not spelled out for the Federal Government was to remain with the States. A check of the States on the Federal Government. The Bill of Rights ends with the statement: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

"It was a government of checks and balances; a government with an intertional, built-in slowness to change; the people to have all power, spelling out what they would permit the Federal Government to do, reserving the rest of their governmental functions and expressions to their own States and local govern

ments.

"And to prevent unnatural forms of governments from arising through the State to devour the Union, article IV declares that "The United States shall guarantee to every State in this Union a Republican form of Government.'

"It was a government that echoed the years: 'Governments are of divine origin.' The great end is to secure people from the abuse of power.' 'Gover ments depend on men rather than men on governments.' 'The people are the rulers, the officers are the servants.' 'Governments derive their just powers from the consent of the governed.' 'Prudence, indeed, will dictate that gor ernments long established should not be changed for light and transien causes."

"And it is with this background that we address ourselves to the June 15. 1964, 6-to-3 decision of the Supreme Court on apportionment of State senators "Briefly, the six majority members of the Supreme Court said last June 15 "1. That seats in both houses of State legislatures must be apportioned solely on a population basis, and that the population in each district of the upper house, as well as in the lower house, must be as nearly equal as possible.

"2. That political equality can mean only one thing: ‘One person, one vote.' And that one political district being larger than another political district is 'counter to our fundamental ideas of democratic government.' And 'legisla tors represent people, not trees or acres *** people, not land or trees or pas tures, vote *** citizens, not history or economic interests, cast votes.'

"3. That the vote of a citizen in a district with larger population is debasel inasmuch as his vote counts for less; that he is, therefore, less of a citizen: and, as such, he is denied equal protection of the law under the 14th amendment. The first section of the 14th amendment declares that no State shall dery to any person within its jurisdiction the equal protection of the laws.'

"4. That the Federal system of apportioning Senators by geographical area (two to a State) is not a sound example for State legislatures to copy because the Federal system grew out of unique historical circumstances and was conceived out of compromise between 13 large and small, independent, sovereign States. They said: The Founding Fathers clearly had no intention of estal lishing a pattern or model for the apportionment of seats in State legislatures when the system of representation in the Federal Congress was adopted." They quote Thomas Jefferson as writing in 1816 that 'a government is republican in proportion as every member composing it has equal voice in the direction of its concerns *** by representatives chosen by himself.' And in 1819: 'Equal representation is so fundamental a principle in a true republic that no prejudice can justify its violation because the prejudices themselves cannot be justified' "The Court, therefore, ruled 6 to 3, that six States (Alabama, Colorado Delaware, Maryland, New York, and Virginia) whose apportionment cases were

before the Court on June 15, must reapportion both houses of their State legislatures on a population basis, and that alone. The following week the Court, in another series of decisions, nullified the legislatures of an additional nine States (Michigan, Washington, Oklahoma, Illinois, Idaho, Connecticut, Florida, Ohio, and Iowa). But the basic decision applies to more than 40 States which apportion districts in one or both houses of their State legislatures partly on population and partly along historical, economic, geographic, or county lines. "The June 15 decision was an astonishing departure from previous Court opinions dating from the 1800's. These previous Courts held that apportionment of State legislatures is a political question reserved for the States, and that the Supreme Court does not have jurisdiction in such cases.

"Justice Harlan, in a vigorous dissenting opinion on June 15, said: "It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States."

"Of course, trees and acres, and economic interests don't vote, Justice Harlan acknowledged, 'But it is surely equally obvious, and, in the context of elections, more meaningful to note that people are not ciphers, and that legislators can represent their electors only by speaking for their interests-economic, social, political-many of which do reflect the place where the electors live."

"The aftermath of the decision of the majority, said Justice Harlan, 'will have been achieved at the cost of a radical alteration in the relationship between the States and the Federal Government. (The Court) does not serve its high purpose when it exceeds its authority. *** For when, in the name of constitutional interpretations the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality subsitutes its view of what should be so for the amending process *** it has strayed from the appropriate bounds of its authority *** what is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible.'

"Justice Stewart joined Harlan in the dissent. "The Court's answer is a blunt one, and, I think, woefully wrong,' said Justice Stewart. The majority holds that 'the fundamental principle of representative government in this country is one of equal representation for equal numbers of people *** I think this is not correct, simply as a matter of fact.'

"Justice Stewart quoted ex-Justice Frankfurter on an earlier case who said that this (equal representation) '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 predominantly practiced by the States at the time of adoption of the 14th amendment, it is not predominantly practiced by the States today.'

"To put the matter plainly,' said Stewart, 'there is nothing in all the history of this Court's decisions which supports this constitutional rule * ** (it) finds no support in the words of the Constitution, in any prior decision of this Court, or in the 175-year history of our Federal Union.

"'Uncritical, simplistic, and heavyhanded application of sixth-grade arithmetic,' summed up Justice Stewart if geographical residence is irrelevant, as the Court suggests, and the goal is solely that of equally "weighted" votes. I do not understand why the Court's constitutional rule does not require the abolition of districts and the holding of all elections at large.'

"To summarize, in our own words, and in less legal terms, we can see that the Supreme Court majority of six is claiming that the Court, not the people, has jurisdiction over how State legislatures will be set up. The Court declared a new Colorado apportionment plan invalid, even though the people in a 1962 statewide referendum had approved it in every county of the State. Colorado had rejected an alternative plan to place both houses on a straight population basis.

"By this action, the majority Court declared that they, six men, can amend the Constitution-not only of the United States, but of the 50 States as well. The framers of the Constitution were careful to give this amending power to the people alone.

"If in the Constitutional Convention of 1787 a plan had been proposed before Madison, Morris, Randolph, Hamilton, and the others that the Supreme Court should have jurisdiction over the makeup of State legislatures, it would have gotten nowhere.

"If in 1787 these present-day majority six had proposed that the Supreme Court be given the power to amend the Constitution, they would have been run out of Franklin's town for proposing a centralization of power in one branch of the

legislature something that would have raised the hair on the necks of people that had been bowed before strong central government for generations. They who had just fought a war over the issue of a strong, despotic Central Government that imposed itself on the people against their will.

"By declaring on June 15 that what we have is not representative government. the majority six, in effect, charged that our American Government has been a farce since the Revolutionary War. They are indulging in pure theory. The Co stitution guarantees each State a republican form of government, but the ma jority six did not use this part of the Constitution to attack the government of the States. What they said is that the States do not conform to their own ideas of representative government.

"The majority six quote Jefferson as saying that proportional representation is a fundamental principle of a true republic.

"They also could have quoted a Chief Justice of the Supreme Court, Earl War ren, now one of the majority six, but who while Governor of California in 1948 said: "The agricultural counties of California are far more important in the life of our State than the relationship their population bears to the entire population of the State. It is for this reason that I never have been in favor of restricting their representation in our State senate to a strictly population basis. It is the same reason that the Founding Fathers of our country gave balanced repre sentation to the States of the Union, equal representation in one House ard proportionate representation based upon population in the other.

"Moves have been made to upset the balanced representation in our State, evez though it served us well and is strictly in accord with American tradition and the pattern of our National Government.

"Our State has made almost unbelievable progress under our present system of legislative representation. I believe we should keep it.'

"This agreed with Madison who wrote in The Federalist (No. 62): ‘In a conpound republic, partaking both of the national and Federal character, the govern ment ought to be founded on a mixture of the principles of proportional and equa representation.'

"But as we pointed out earlier, our Government arose from practical experienes not theory, and it is not the exact form that Franklin, Madison, Jefferson, or other individuals wanted. And let's hope that in this day, we don't make it a govern ment of what six men want.

"By their June 15 decision, these six men are saying that hundreds of court justices equally omniscient as they have been wrong down through the years for maintaining that State legislatures were a political matter for the States and the States' people to determine.

"In saying that States are not sound in copying the Federal Senate's geo graphical apportionment, the majority six are overlooking the fact that it was the Federal Constitution which copied State systems, and that State and colonial senators have been apportioned partly along geographical and political lines sire 1700. In no case that I can find was an upper house in colonial and Revolutionary times elected by proportional representation of districts equal in population.

"In saying that basic representation is based on equal numbers, and equal numbers alone, the six are overlooking that each State is 'unique in terms of topog raphy, geography, demography, history, heterogeneity or concentration of pops lation, variety of social and economic interests, and in the operation and inter relation of its political institutions,' as pointed out by Justice Stewart.

"The Indianapolis Star commented: The Court deals with people as a sack of marbles. They are to be rolled out on the table top and divided into equal piles.'

"The real essence of federalism is reserving certain defined powers to each component part. But democracy, in the sense of the majority six, is winner take all' with minorities having no rights that the majority can't override, sugges's Felix Morley.

"What people really want is good and balanced representation. And good representation where one State senator looks outside his downtown city office and sees the rooftops of all his constituents in a compact area of homogeneous interests is quite different from good representation of constituents by a State senator who comes from a large rural area of farmers and many small towns-with ther many interests, backgrounds, economic problems, and diversity.

"Good representation in government for a citizen does not stem from equal numbers-it does not even start there. It is born of the relationship betweet citizens and their representatives; the availability of the representative, th

feeling of rapport between citizens and their elected representative; the flow of information, ideas, and response between citizens and their representative; and the effectiveness of the representative in understanding the interests of his people and relating it to the national welfare.

"The great responsibility of American representative government is for the representative of districts to really represent-represent not just numbers, and equal at that, but represent the views and needs of the people in the crucible of the State legislature.

"Rural people, and those in small towns, are by distance, availability, and diverse interests harder to represent effectively than more homogeneous concentrations of population in concentrated areas.

"Counties perform many important functions for unincorporated areas-things such as zoning, park and recreation services, street and road construction, sanitation, schools, public welfare, police and fire protection, licensing-all of which justify county representation in the councils of State governments.

The majority six have violated the principle of the separation of powers. They have taken over the amending process reserved for the people themselves. The selection of one house on the basis of area has developed as a part of our American governmental system since colonial days; it has become intertwined in the warp and woof of our governmental fabric; and now six men seek to rent it apart, willfully and unilaterally, without consulting the Congress, without public debate, and without consulting the people of the Nation.

"It amounts to judiciary rewriting *** shocking judicial arrogance,' says Columnist William S. White.

"The Court did not say to States who were admittedly delinquent in apportioning their State legislatures: 'Live up to your State constitution and apportion as the people wish.' Instead, the six said: 'Live up to our ideas of what we think your constitution and apportionment should be.' The six have roped off State reapportionment as an area for their judgment, and their judgment alone. The lower courts, they say, are going to be their agents as the sole authority for what is 'proper' apportionment and representation. Not the people; not the States; but the courts.

"And the haste with which the courts have proceeded to carry out the June 15 decision suggests that they want to get it done before people wake up to the seriousness of what has been proposed. Instead of being a brake on hasty governmental action, the Court is a party to it-and the perpetrator. They have invaded the political arena to settle a question of politics with judicial power— through a plan hastily conceived and hastily executed, without the benefit of thorough public discussion.

"People never intended for appointed officials to determine political questions. They intended that these questions should be determined by themselves or by those who are both responsive to the voters and responsible to them.

"If the Court can apportion a State against the will of the people, then it can dictate how your country, your township, and your local school board will be run. If nothing is done, this is only the beginning of Federal interference,' says Representative William M. McCulloch, of Ohio. The composition of every political subdivision in the Nation may be subject to the dictates of the Supreme Court *** the circuit court of Kent County, Mich., pursuant to the Supreme Court decision, ruled (in September) that the county board of supervisors was elected under an unconstitutional apportionment. Every city council, city ward, irrigation, flood control and sanitation district, and board of supervisors, among others, may have their membership apportioned by the mandate of the Supreme Court.' "The decision of the majority six is illogical. How can a voter in a State with unequal population districts be 'debased' statewise and not be debased federally where 408,000 people elect two U.S. Senators in Nevada and 18 million people-45 times as many-elect two U.S. Senators in the State of New York? Is the city of New York debased in the U.S. Senate when that city has no Senators it can call its own, but has more population than 43 States that do have two Senators each? And is the majority six saying that the Federal Senate is a farce; not representative Government? They imply that it is somehow un-American and undesirable,' writes Felix Morley.

"The U.S. Senate is made up in such a way that 26 States having only 16 percent of the Nation's population exercise a majority in the Senate. Yet we haven't heard that the other 84 percent of the people are so deprived and debased that they want to throw out the Federal Senate and tear up the National Constitution. Or is this next for the majority six?

"The two Iowa Senators do not represent trees or acres or pastures. Indeed not. They represent the great State of Iowa. They represent a State with a unique contribution to the Nation. A glorious State with its own econoш). historical, and social history, strength, needs, problems, aspirations, honor, and people. It is a complex that the six men in Washington, D.C., have ceased to understand. I for one would not abide the charge that Iowa's two Senators represent trees and acres. And if I were one of Iowa's two Senators, I wou'd be working day and night—as I trust they are to see that the people had at opportunity to set the six men straight about that.

"In summary we can say that the decision of the majority six:

"1. Has no historical basis.

"2. Has no basis in the Constitution, as constructed.

"3. Is illogical.

"4. Is a violation of the amending powers of the Constitution.

"5. Is an invasion of States rights.

"6. Is an overextension of historic, expressed powers of the Court.

"7. Thwarts the checks and balances and caution built into our Govern ment.

"8. Is an impulsive creation of our overanxious Court.

"9. Denies fundamental protection to the minority.

"10. Propels an appointive Court into political matters.

"11. Is government theory of six men, untested in the public processes. "12. Creates a central governmental monster.

"13. Ignores the full content of the 14th amendment on which the decision is based.

"For some unexplained reason, the majority of six, in groping for something or which to base a case last June 15, clutched the straw that is in the first section of the 14th amendment. This Reconstruction amendment was an outgrowth of the Civil War, and all reconstructed States were required to ratify it to gain admittance back into the Union. The first section says: "All persons born or naturaz ized in the United States *** are citizens of the United States and of the State wherein they reside." And no State shall "deny to any person within its jur diction the equal protection of the laws." The reason for this, in view of the times, is obvious. It meant simply that whatever the law-it would apply to everyone, regardless of color.

"But there is a second, and longer section, to the 14th amendment. It recce nizes that States have exclusive power over who can vote and in what mannerso the second section provides that if the vote of any male citizen over 21 2 denied or abridged in any way-in National or State elections-then the State population for purposes of governmental representation will be reduced by the proportion that the denied voters bear to the whole number of male citizens 21 or over in the State.

"Justice Harlan, in his dissent, gives a clear history of the congressional de bate that preceded offering the 14th amendment for State ratification. He show that the Congressmen who constructed the 14th amendment at no time believed that it would render inoperative the several State constitutions of either loyal or reconstructed States.

"Congressman Bingham, the author of the first section, said on the floor of Congress at the time that "the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the contr. of the States." Other speakers stated this repeatedly. This point was wel understood in the Congress.

"Furthermore, 15 of the 23 loyal States that ratified the amendment before 1870 had constitutions which provide for apportioning one of their houses (3 other than population considerations. "Can it be seriously contended that the legislatures of these States, almost two-thirds of those concerned. would have ratified an amendment which might render their own States' constitutions unconstitutional?" asks Justice Harlan. And the constitutions of 6 of the 10 recur structed Southern States provided for State legislature apportionment on bases other than population. Would these legislatures intentionally put themselves and their constitutions out of business without mentioning it?

"For some reason, the majority six are silent about this part of the 14:: amendment.

"I am unable to understand the Court's utter disregard of the second section which expressly recognizes the States' power to deny "or in any way" abridge the right of their inhabitants to vote for the members of the (State) legisature,' says