Senator KENNEDY. What I think is dangerous about the amendment is that it locks in these interests and it locks in this power and it locks in this authority.

Senator BAYH. This is one question which you raised and I wanted to explore just a bit further.

We are trying to deal here with two irreconcilable philosophies neither of which are 100-percent correct. Simply put, we are faced with the task of assurring that the majority should always control, which it does in this country yet at the same time protect the rights! of the individuals and minorities.

You point out that it is your opinion that we are taking away the right of the individual citizen by this type of an amendment. You have expressed concern over who would phrase any question that would be submitted to a referendum. Would your concern be any less if an amendment prohibited such a presention to any legislature that was not previously apportioned on a one-man, one-vote basis?

Senator KENNEDY. I think it would remove that objection in that particular State.

The other objections that I have to the amendments would remain and I would still be strongly opposed to the amendments in any case. Senator BAYH. Is there any way that the review question could be relieved by a specific referral to a specific formula in a constitutional amendment itself or by specifying that not until Congress has enacted a formula? Could such procedure be adopted so that we would have clear language? In the California referendum, the recent one, Proposition 14, I think it was, I do not see how anybody knew what they were voting on.

Senator KENNEDY. In Colorado, in the reapportionment case, in Colorado, there was a question in the Department of Justice whether we would argue that case before the Supreme Court. That had been submitted to the people of Colorado and they supported it. But the language was such after you made an examination, it sounded fine, the people should make the ultimate decision. Examining the language first, you could see that the language was not fair for people to really be able to understand what they were voting for or against.

Secondly, I think it is very dangerous and the fact that we are making the decision-the people that live in the particular States are making the decision not just for themselves, but they are making the decisions also for their children. When you consider that 50 percent of the people living in the United States now were not alive at the beginning of the Second World War.

Senator BAYH. Did I understand that you would not be relieved by a formula written into the Constitution to guarantee a fair presentation? In other words, it should not be a question of, "Have you stopped beating your wife?"

Senator KENNEDY. You mean write out the language of what might be in?

Senator BAYH. Yes.

Senator KENNEDY. It is going to be complicated. You write in the constitutional amendment and in it you write out language that is going to be submitted to all the people in the State.

Senator BAYI. I was envisioning the possibility of giving Congress the authority to enact a formula.

Senator KENNEDY. That would be the language that would be submitted in every State?

I think that would create tremendous problems, whether you submit the same language in New York as you would submit in Kansas or in Alabama. I think that is very questionable. Second, in both the Javits and Dirksen amendments to the Constitution, there is no judicial review.

Senator BAYH. I think there has been a general acceptance, among the witnesses that have given testimony that the one factor we cannot permit to remain is the first sentence in the Dirksen amendment. It does, as I see it, take the Court completely out of the picture, although the distinguished minority leader said in his opening statement that this was not the intention. I think the Court looking at this wording would have difficulty finding any other reason for it being there. Senator KENNEDY. Yes, it is just the Dirksen amendment. The Javits amendment does not contain that statement.

Senator BAYH. I do not mean to impugn the motives of the minority leader because he specified his intent and I think this sentence would make the bill more in confirmity to his thoughts.

You mentioned, Senator Kennedy, the concern that you have for civil rights groups. At the same time you pointed out the Colorado case where one of the undesirable aspects was the voting law. Although we have it in Indiana, it does not give large metropolitan areas the type of personal representation that I think is best for them. Do you have any other thoughts of steps that we could or should take at the Federal level? Do you think we in the Congress should look further into the possibilities of a minority group in a large metropolitan area not having adequate representation? Aren't they lost when they become comingled with the majority?

Senator KENNEDY. The question is whether the Supreme Court will take that into consideration?

Senator BAYH. Do you feel they might go one step further or, if they fail to do so, should we in the Congress? Is this an area in the civil rights field that we should look into?

Senator KENNEDY. I think-I could not answer the question of what the Supreme Court will do. I don't believe that it is necessary at the present time for Congress to take any action in this field. It seems to me that on the Supreme Court decision on reapportionment, that the emphasis will then be placed in States on urban-suburban representation-I think the situation will correct itself.

Senator BAYH. One last question that is partially philosophical. I would like to have your thoughts for the record. Then we will let you get back to your busy schedule.

The Court, the Constitution, you, and the rest of us are concerned about obtaining equal representation. This is what this whole argument is about. You came before this subcommittee because you felt if an amendment like this is passed, that the citizens will not be getting equal representation. There has been a theory proposed that to be equally represented people must be equally accessible to their representatives, or at least that they have an equal opportunity to present their views to those who represent them in any State legislative body. Now, in the State of New York, Indiana, Ohio, or most of our States, modern communications and transportation exist so that everyone

does have equal access. But in one or two instances examples have been brought to the subcommittee's attention where there is a great deal of difficulty in communicating because of geography, or particular communications systems. In the State of Colorado we have an example where the west side of the mountain, the western slopes, have been inaccessible to television from any station in Colorado. A repre sentative representing that area has to travel long distances through rather tenuous terrain. Do you feel that this is a factor that might be considered or should be considered when you look at the people that he represents that are inaccessible. Are they getting equal representation as you see it?

Senator KENNEDY. I expect it is more of a problem in one area thar another. I also feel that if that representative doesn't get back to the western side of Colorado, then they will find somebody else to repre sent them. It doesn't seem to me it bears on any-that it bears or these constitutional amendments.

Senator BAYH. In order to get sufficient numbers in one district. you have to cover a considerable larger terrain. It is much more difficult to cover than a well-packed area. It would seem to me that a man would have a much more difficult time of covering such ar

area.

Senator KENNEDY. The television does not go from Denver to western slopes. The fact that you have two representatives there instead of one is not really going to make much of a difference. With modern communications individuals can get around. I do not know whether the idea would be that one member of the legislature would remain in the district and the other one would in the capital. That does not make any sense, either.

If you had two people-if you are inaccessible to one person you would be equally inaccessible to the two people.

Senator BAYII. Two people can cover the district more easily. Senator KENNEDY. Well, if you are saying the district is so large that they cannot cover the district, I think that is a different questionyou cannot have access to them when they are not in the capital.

Senator BAYH. You cannot cover the district. The argument has been given that with modern-day television you can reach everyone. Senator KENNEDY. I do not think there is any problem in any district with communications that we have at the present time in the United States. There isn't that much of a problem, whether it is in Nebraska, Kansas, Colorado, for the member of a group of an assembly or State senate in covering the district.

Senator BAYH. You mentioned in your opening statement that the Supreme Court certainly does allude to certain variations that permitted leeway.

Senator KENNEDY. Yes.

Senator BAYH. Do you suppose the Supreme Court would take into consideration in this particular Colorado instance, which I painted rather poorly, that it is difficult to reach both in person and by communications?

Senator KENNEDY. I expect when Colorado is going to draw its lines that may be a factor which the Court could accept. I do not think there could be any major deviation, however. Having spent a good deal of time in a number of these States and having moved around, I

think access to your constituents is not that difficult if one makes a major effort. I agree it is more difficult than if you live in a heavily populated area and it is more difficult where the communications are easier-where it is more difficult than where the communications are easier. But I think that is understood. We have been able to get by, certainly, and communications are much easier than it was a hundred years ago or 50 years ago or 25 years ago or 10 years ago-much easier now and it gets easier each decade. I do not think that is the direction we really want to move in and, again, we are talking about amending the Constitution of the United States and we are talking about all of the problems, for instance, with the Dirksen amendment and with the Javits amendment. The three major faults with the Javits amendment and five major faults with the Dirksen amendment and we are amending the Constitution, and it seems to me that although these are some of the problems of representative government that you have outlined, I think it is such a serious step that it should not be taken on the basis that there is somebody, perhaps, in Colorado, an assemblyman or State senator who has difficulty communicating sometimes with his constituents. That is not a general problem in the United States, and to write in all of these problems that we are going to face and all the difficulties and all the unfairness by accepting these amendments because this might deal with that kind of problem, I do not think the weight of evidence or the weight of our public interest is on that job. Senator BAYH. Thank you.

Senator Tydings?

Senator TYDINGS. I have a couple, just along the line that the chairman, Mr. Bayh, just asked, namely, if you have a large district to represent, it might be difficult because the territory was greater and the individual constituent would have to travel farther. As a matter of fact, Senator Kennedy, to serve your constituents properly is not the most important thing how long the constituent has to wait in line to get to see you or how many telephone calls are ahead of him, and, as a matter of fact, is it not in many cases a representative of a large area, a small population group has a great deal much more time to spend with his constituents than an individual representative from a large urban area who might have, even though he lives in the very city, he might have so many people waiting in line to see him that he might not be able to give the same amount of time that a representative from a large geographical area could to his constituents?

Senator KENNEDY. Well, it is possible. I do not know what the exact answer to that would be. I think, as I say

Senator TYDINGS. Let me ask you one or two other questions. You touched somewhat in your statement on the historical or some of the historical arguments. Is this not the first time the Constitution would have been amended or attempted to be amended since the inception of this Republic to limit the franchise of individuals? Senator KENNEDY. I believe that is true.

Senator TYDINGS. You stated on page 3-page 4 that 36 of the 50 States provided for equal population representation in both houses. As a matter of fact, under the adoption of the Northwest Ordinance, is it not a fact that every State admitted to the Union under the terms of the Northwest Ordinance had to have equal representation or that his representation according to population in both houses?

Senator KENNEDY. That is correct.

Senator TYDINGS. And I think you covered it well in your statement that this just to emphasize for the record the question of malappor tionment of the legislatures or the actual existence which we have now is actually a comparatively recent thing-when I say recent-the only real unbalance in one house of the legislature began in the latter part of the 19th century with the urbanization of this country. And that historically in the United States, as you pointed out, we have had a population of both houses based on the number or representation in both houses of legislatures based on roughly the population of these houses?

Senator KENNEDY. That is correct.

Senator TYDINGS. Just another point.

I do not know whether you considered it or not, but in the Americar Revolution in the period of time preceding the American Revolution. when the actual organization of the War of Independence was taking place, would you consider that one of the factors directly leading to the War for Independence was the fact that British Parliament did no consider the 13 Colonies worthy of equal representation in the Hone of Commons and therefore we were subject-the original 13 Colonies were subject to taxation without fair representation in the British House of Commons, the British Parliament?

Senator KENNEDY. I understand that was one of the reasons we g involved in the dispute.

Senator TYDINGS. No further questions.

Senator BAYH. I think the Senator presented some very useful information. I thank the Senator.

I am glad you put in the concern about the taxation without repre sentation.

Thank you, Senator Kennedy.

Do you want to introduce Mr. Feldman?

Senator KENNEDY. Mr. Justin Feldman has come from New York He is a prominent lawyer in New York, has been interested in matters of public policy, civil liberties, and civil rights for a long period of time, and I think his testimony would be well worth while for the committee.

Senator BATH. Let me again, on behalf of the committee, thank you for taking the time and for expanding on your very detailed orig statement to let us have your thinking in some of these other areas. Thank you very much.

Senator KENNEDY. Thank you, Mr. Chairman and Senator Tyding Senator BAYH. Mr. Feldman, we are happy to have you with " this morning.

STATEMENT OF JUSTIN N. FELDMAN

Mr. FELDMAN. My name is Justin N. Feldman. I am a member of the New York bar and I practice law in New York City. I am s chairman of a special committee on reapportionment of the Demoeri State Committee of New York, and until recently, I served as cour to the Democratic County Committee of New York County. I ha been actively involved in the last few years as counsel in several e-involving legislative apportionment and congressional districting No York. Most recently, I was counsel in the proceeding w.