For my part, the committee will be earnestly searching for a reasonable middle ground, an area of agreement which will permit proper and undistorted representation for the majority, yet reasonable autonomy for States to apportion themselves.

The three proposals for constitutional amendments before this committee all propose, in different ways, that one house of bicameral State legislatures be apportioned on factors other than population, provided that the apportionment plan is provided by the people of the State in question in a popular referendum.

We will hear from Members of Congress, Governors, members of State legislatures, legal scholars, political scientists, farm groups, labor groups, business groups, and others.

I think that it is important for the members of the committee to maintain open minds on this issue until all the facts are in, for it is an issue in which many of the facts appear to be in considerable dispute.

Perhaps the first question we shall have to answer is this: Is it possible to apportion States on a basis other than population without improperly diffusing the voting power of the majority?

Another question: In terms of the Federal analogy, are the political subdivisions of a State really analogous to the political subdivisions of the Nation?

We shall hear extensive argument on both sides of those questions. Yet we cannot deny that there are many examples in our history demonstrating how easily the will of the majority can be thwarted through abuses in apportionment. I think that it is only fair to point out at this time that I think one of the things that prompted the Supreme Court's decision in the first place was the fact that we had many State legislatures that had made no attempt whatsoever to apportion properly even one house. I think this abuse led to the Supreme Court decision.

I would like to say, as chairman of this subcommittee, and as an ex-member of a State legislature, that I feel very strongly about the need to preserve as many State rights as we possibly can. But I would like to ask my colleagues on this committee to share my belief that with State rights also go State responsibilities. If we give States rights, either through the present Constitution or through a constitutional amendment, we must urge and make provisions for the States to accept the responsibilities which go with implementing the change which we might make.

I would suggest that should this committee act, it should act in socordance with the proposition that no man shall be denied his right to proper representation because of his race, his creed, or his station info Should this comm tree act, it should act in accordance with the beef that the people of a State, not only its representatives, shon'd have the feal sy as to whether apportionment should be based on factors offer then population. Finally, should the committee st. of should act on the basis of fact, not erlotion, on the basis of knowlthe hosts Nation's interests, not the

།

OPENING STATEMENT BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, HEARINGS ON REAPPORTIONMENT, MARCH 5, 1965

Today we begin comprehensive hearings on a subject that goes to the heart of our form of government-the apportionment of our State legislatures. Apportionment is the means by which the people of our Nation are given representation in the lawmaking bodies of our land. If apportionment in our Nation's bounding bodies is distorted, the voice of the people will be distorted. Our purpose is to determine what constitutes distortion of the will and voice of the people in terms of methods of apportioning our State legislatures.

We are not concerned in these hearings with congressional apportionment. In the National Legislature, we are bound by clear constitutional mandate to apportion one House solely on the basis of population. The other House gives equal voice to each State composing our Union. [Subject of constitutional amendment-review.]

Recent Supreme Court decisions have held that State legislatures, unlike the Congress, must be apportioned on the basis of population as the controlling factor. A number of our States, however, have been apportioned on the basis of the socalled Federal analogy-with one House apportioned on the basis of population and the other apportioned on other factors-geographic or economic factors, for example.

First, let me say that in my opinion the committee should proceed with the recognition of the validity of the Supreme Court's decisions in this area. Our role as legislators is not to debate whether the majority of the Supreme Court was legally correct or whether those who wrote dissenting opinions were legally correct. Debate along these lines might constitute an interesting academic exercise, but would accomplish little or nothing of a constructive nature. Our role-indeed, our obligation-is to determine whether the interests of the Nation are best served by keeping the Constitution intact or by changing the bedrock law of our land.

If we conclude that apportionment of State legislatures should be based on population as the controlling factor, we will recommend no change in the Constitution. If, on the other hand, we determine that the voice of the people in some instances can best be heard by permitting apportionment based on factors other than population, in one house of a State legislature, we will recommend a change.

Any effort on the part of witnesses to use these hearings as a springboard for vilification of the Supreme Court of the United States will be firmly quashed by the chairman.

For my part, this committee will be searching for a reasonable middle ground— an area of agreement which will permit proper and undistorted representation for the majority-yet reasonable autonomy for States to apportion themselves. The three proposals for constitutional amendments before this committee all propose, in different ways, that one house of bicameral State legislatures be apportioned on factors other than population, provided that the apportionment plan is approved by the people of the State in question in a popular referendum. We will hear from Members of Congress, Governors, members of State legislatures, legal scholars, political scientists, farm groups, labor groups, business groups, and others.

I think that it is important for the members of the committee to maintain open minds on this issue until all the facts are in, for it is an issue in which many of the facts are in dispute.

Perhaps the first question we shall have to answer is this: Is it possible to apportion States on a basis other than population without improperly diffusing the voting power of the majority?

Another question: In terms of the Federal analogy, are the political subdivisions of a State really analogous to the political subdivisions of the Nation? We shall hear extensive argument on both sides of both questions.

Yet, we cannot deny that there are many examples in our history demonstrating how easily the will of the majority can be thwarted through abuses in apportionment. [Prompted Supreme Court decision.]

*

Should this committee act, it should act in accordance with the proposition that no man shall be denied his right to proper representation because of his race, Creed or station in life. Should this committee act, it should act in accordance with the belief that the people of a State, not only its representatives-should

have the final say as to whether apportionment should be based on factors other than population.

Finally, should this committee act, it should act on the basis of fact, not emotion; on the basis of knowledge, not prejudice; on the basis of the Nation's interests, not the interests of a few.

*

[S.J. Res. 2, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States to preserve to the people of each State power to determine the composition of its legislature and the apportionment of the membership thereof in accordance with law and the provisions of the Constitution of the United States

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"SECTION 1. The right and power to determine the composition of the legis lature of a State and the apportionment of the membership thereof shall remain in the people of that State. Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of faetors other than population, or from giving reasonable weight to factors other than population in apportioning a unicameral legislature, if, in either case, such apportionment has been submitted to a vote of the people in accordance with law and with the provisions of this Constitution and has been approved by a majority of those voting on that issue.

"SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission to the States by the Congress."

[S.J. Res. 37, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution to permit membership in one house of a State legislature composed of more than one house to be apportioned with the approval of the electorate upon a system other than that of equal representation Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. Nothing in this Constitution shall prohibit any State which has a bicameral legislature from apportioning the numbers of one house of such legislature on factors other than population: Provided, That the plan of such apportionment shall have been submitted to and approved by a vote of the electorate of that State.

"SEC. 2. Nothing in this Constitution shall restrict or limit a State in its determination of how membership of governing bodies of its subordinate units shall be apportioned.

"SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by Congress."

[S.J. Res. 38, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution to permit membership in one house of a State legislature composed of more than one house to be apportioned with the approval of the electorate upon a system other than that of equal representatens Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of

the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. Any State having a legislature composed of more than one house may depart from the principle of equal representation in one house by adopting another reasonable system of representation with the approval of a majority of the electorate, provided review be permitted periodically.

"SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission to the States by the Congress."

[S.J. Res. 44, 89th Cong., 1st sess.]

JOINT RESOLUTION To amend the Constitution of the United States to permit any State to apportion one house of its legislature on factors other than population with the approval of a majority of its voters.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is hereby proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. Nothing in this Constitution shall prohibit the people of a State from apportioning the membership of one house of a bicameral legislature upon the basis of factors other than population, from giving reasonable weight to factors other than population in apportioning the membership of a unicameral legislature, or from providing for any such apportionment following each enumeration provided for in article 1, section 2 of this Constitution if such apportionment or provision is submitted to a vote of the people through a statewide referendum held in accordance with law and with the provisions of this Constitution, and such apportionment or provision is approved by a majority of those voting on that

issue.

"SEC. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the Several States within seven years from the date of its submission to the States by the Congress."

Senator BAYH. Before proceeding, I would like to ask the committee to consider that it appears now that although we have scheduled 6 days of hearings, we are going to have additional witnesses who will desire to be heard. The 6-day time limit we presently impose will not permit this.

I would like to ask the committee to make a determination when we have had the final list submitted to us-which I think we will be able to change as we proceed-to schedule other days and to consult prirately with the committee members.

Is there any objection to that?

This is the end of my brief prefacing statement.

The minority leader, I am sure, has a statement he would like to make.

Senator DIRKSEN. Mr. Chairman, Senate Joint Resolution 2 was introduced on January 6 by myself, along with 37 other cosponsors in the Senate.

I have here a statement that is not very long, and I shall read it in its entirety.

Senate Joint Resolution 2, the subject of this hearing, is an attempt to clearly outline the authority of the people of each State to determine for themselves the composition of their legislature and the apportion

ment of its membership. As sponsor of this resolution I propose to do this by means of an amendment to our Constitution.

At the outset I would like to make it abundantly clear that I am not debating the merits of the Supreme Court's decisions in the reapportionment cases. Senate Joint Resolution 2 does not reverse or overturn those decisions. It would simply provide States with an alternative by reserving to the people of each State the right to apportion one house of their State legislatures on factors other than population if a majority of the people of that State voting on that issue elected to do so. They would not be required to act, they might elect to follow the Court's formula, but they would not be foreclosed from adopting another.

Neither would the amendment change the jurisdiction or power of the Court. Its authority to review subsequent action by the various State legislatures would remain unchanged. Assuming that the pro posed amendment is made a part of our Constitution and a State elected to follow the Federal analogy of its legislature, would the Supreme Court be deprived of jurisdiction insofar as this action i concerned? The answer is clearly "No." The Court could examine every facet of State action to see that there had been constitutional compliance by the State.

We are confronted with a basic issue of free government here: = fundamental concept of free government is involved. The right of the people to determine for themselves the manner in which they will be governed is at stake. They may make mistakes in the exercis of their fundamental authority but it is their mistake. It will b made by them and not for them, and herein, I think, lies the principl so often overlooked in the current debate on reapportionment of State legislatures.

Shall the people themselves be allowed the right to determine the organic structure of their State government? That is what we her in the first instance are called upon to decide. If the people are no permitted to make this decision then who is to make it for them If we deny this right then a major step in the process of fragmenting freedom has begun. When a type of government is fashioned or a organic structure is created, not by the people or their delegate, but by someone else then a deprivation of freedom has occurred. Free dom will flourish and can only flourish when the people retain free exercise of the powers of government.

What specifically would Senate Joint Resolution 2 permit the people of each State to do that they cannot now do? It would only permit them the right to base one house of their State legislature on factor other than population. But this decision, under the procedure pro vided in the proposed amendment, could only be made by a majority of the people of a State at a statewide election. Clearly the principle of one-man, one-vote would be adhered to in this process. That is all that the amendment would do, nothing more.

By approving this amendment this committee will have reaffirmed the principle of the supremacy of the people in a system of free government. When our forebears met in Philadelphia in 1787 to fashion the Constitution they began by saying-

We the

⚫ do ordain and establish this Constitution for the United