Senator TYDINGS. Senator Hruska?

Senator HRUSKA. Mr. Marshall, you place heavy reliance in your testimony upon the bad impact this amendment of the Constitution would have upon the Negro minorities. Sometimes we like to think of Negroes as voters, as citizens, as our peers, and pretty much like we are in our aspirations and ambitions. As a matter of fact, in about 45 States, or 44 States, isn't that the way they fare politically, as well as every other way?

Mr. MARSHALL. Senator, I think that the problem of imposing dif ficulties on Negro registration is limited, yes, to not more than sis States right now. Now, I will say there are other States which have a history in the past, so that the Negroes are still, I think, as I said my statement, disproportionately underrepresented as an historica matter, because of what happened in the past. But I think the pres ent problem is limited to certainly not more than six States.

Senator HRUSKA. The thing that bothers so many of us when it > put on that basis is the question why should there be denied to a popa lar vote of the other 44 States of whether they want to modify Rey nolds against Sims, just because 6 of their sister States maybe have been a little derelict or substantially derelict in their treatment of 1 minority group? That is what really bothers us.

Why should we be paying the penalty in 44 States for the dere lictions of 4 or 5 States? We like to give life to the idea that we t people want to govern ourselves-not the Supreme Court, not t Congress-we, the people.

Mr. MARSHALL. Senator, I think from my point of view the answer to that would be that the amendment, I think, will hurt the politica voice of the Negroes who need a political voice very badly in the State legislatures in all the States. And the reason for that is because th movement of the Negro population, which has been accelerating over the last 20 years out of the rural areas, into the cities-and the whole idea, as I understand it, of giving the people of the States the righ to make the constitutional principles of Reynolds against Sims applicable in their States is to give the rural areas more of a voice pe voter than the urban areas, so that an answer to that at least Senator is that that will happen in all 50 States.

Senator HRUSKA. Mr. Marshall, if that is done-if that emphas is placed upon a one-man, one-vote rule-if Reynolds against Sims w be modified under this amendment as a part of our Constitution, it w be done by a majority of the voters in that State, and that will include Negroes. It will even include Republicans. It will include a lot of people.

If the people want to modify that rule within the restrictions laic down in this amendment, who is to gainsay it? What higher politica authority is there than a vote of the people, with the assurance that there has been the right of franchise extended to all who want it!

Mr. MARSHALL, Senator, there are matters in which we do not let the vote of the majority of the people control. Right now this is one of them. We will have to change the Constitution.

Senator HRUSKA. That is right.

Mr. MARSHALL, I would say that there are practical difficulties in putting it to the vote of the people in the first place. As you know, Senator, the initiative is not available in a great many States-I think

the majority of the States. So, how the choice comes before the people is a difficulty in the first place.

Senator HRUSKA. On that point, Mr. Marshall-I don't want to interrupt your train of thought-but you see, Reynolds against Sims would stay in effect as to both houses, unless a proposal were made to change it. If it is difficult to get a change, you are arguing against your own position.

Mr. MARSHALL. No. I think the proposal will be made, Senator. But I think proposals would be made, and the choice would be put in the first instance by the legislatures.

Senator HRUSKA. Yes.

Mr. MARSHALL. And that now includes that is my point, Senatorit includes a lot of legislatures that are apportioned to start with. Senator HRUSKA. But every one of which is under court order, under Reynolds against Sims-where they have not complied with Reynolds versus Sims. There is no State I know of that is not under court order to comply with Reynolds against Sims. That is an ephemeral condition.

It will not last very long, will it?

Mr. MARSHALL. Well,

Senator TYDINGS. I would like to hear the witness' complete answer. Senator HRUSKA. Yes.

Mr. MARSHALL. Well, I believe, Senator-I don't know whether there are cases in every State where the legislatures are presently malapportioned under Reynolds against Sims. It may be so. As I say, I don't know that.

I think that it would not be correct, however, to say that there is a court order in every State that orders the legislatures to reapportion themselves now. And in fact I think that the Federal courts, with this amendment before Congress, and if the Congress passed this amendment, put it up to the States-I think they would hold back on making a decision until they found out whether the constitutional requirements which they were passing on now were going to stay in effect. So I think that the action of the Congress itself would affect very, very seriously the suggestion that these legislatures will be all reapportioned.

Senator HRUSKA. Mr. Marshall, you are in a good position to give us advice on this point and it is under consideration. If we added to Senate Joint Resolution No. 2 a provision that this shall be referred to the people in any event, after every decennial census, for their vote and approval, thus taking it out of the hands of a legislature that would be in effect now, would that help your thinking any on this bill?

Mr. MARSHALL. Senator, it would not, because I would still be opposed to letting a majority of the people decide that some people are going to have a bigger political voice than other people.

Senator HRUSKA. Can you tell us why you don't favor people deciding a simple issue-not all issues, not all legislation, not difficult, complex things. What is the source of the apprehension on your part against the people expressing themselves, after a campaign both ways, on an issue of this kind?

Mr. MARSHALL. Well, Senator, as I said, one practical difficulty which I think is unavoidable-although what you suggest, I think,

would help the amendment-but I think it is unavoidable that the way in which the choice is put to the people is going to be a difficulty.

Now, that means what is the choice and how is it put to them. They had a vote on this, as you know, in the Colorado case-this was one of the cases before the Supreme Court. Now, that choice was put to the people of Colorado in sort of an unpleasant way, because the chore ! that involved apportioning the legislature, both houses, in accordance with the population, also involved multiple representatives from par ticular districts so that

Senator HRUSKA. Perfectly legitimate, isn't it?

Mr. MARSHALL. Yes, it is, Senator, but I think a lot of people vote! against it for that reason, not because they didn't believe in one-mar. one-vote principle.

So I think it is difficult and probably impossible for the Congress to write an amendment that gets into this sensitive area, which will really make the choices that are put to the people fair choices. That is t point.

Senator HRUSKA. In other words, they would not be able to come with the decision that you would like to see adopted. The mult districts are perfectly valid under Reynolds against Sims, are they not?

Mr. MARSHALL. Yes, sir.

Senator HRUSKA. That was my understanding.

If you are going to say that we want only those proposals put before the people for a decision which we believe should be put, not what th legislature, not what the elected representatives of the people will d in its composite judgment, then you are kind of getting away from th theory that the ultimate political authority in this Nation should the people, are you not?

Mr. MARSHALL. Senator-no, Senator, I would not accept that.

I think that the idea, the principle which you are describing has a premise that the people will have a decision to make: Are we go to count everyone's vote equally or are we not going to count every one's vote equally?

Now, if it were put that simply and that clearly, I would not have much doubt about how the people would decide. The thing that I think is impossible is to require the States, the State legislatures, w are going to have an interest, after all, in preserving their own posttions, to put the question that simply, or that easily.

Now, as I say, the question of multiple representatives is one thing Another thing there are undoubtedly other ways, other factors, whic could be brought into the choice, which would distort the choice.

So I think that you cannot really assume, as a premise, when you are deciding whether or not you favor this constitutional amendment, Se ator, that the choice put before the people will be as simple and as clearcut as the question suggests.

Senator HRUSKA. Of course that same result is suffered by legis lative bodies every year in the history of our Republic, and is happening right now.

How often does our Senate, for example, or the House of Representatives get a clear choice of this or that? They don't get it. All of us know that.

In our process of government, that can never be attained, I don't believe. You have to approximate it. Certainly on the basis that you object to the voters acting on a matter of this kind, it would seem that you are denying the only avenue available for amending the Constitution. You see, without the proposed amendment they will never have an opportunity to change the structure of their own State legislatures.

Mr. MARSHALL. But, Senator, I would not want to rest my position just on what I said about the choice. That is a difficulty it seems to me, even accepting your premises instead of mine.

I would say that basically it is unwise and undesirable to give the majority of the people the choice of whether or not they can deprive the minority of the people of some right, of a basic right to vote, and have an equal voice in their government.

That seems to me to be wrong-to let the majority have that kind of a choice.

Senator HRUSKA. Mr. Chairman, I had other questions here. My respect for the witness is the highest. I have worked with him over a long period of time in other fields in this Senate. I would like to explore with him some of the other concepts that are advanced in his statement. However, the hour is getting late. We are going to adjourn the hearings, with today's hearings. There are one or two other witnesses.

Senator TYDINGS. Thank you very much, Mr. Marshall. We appreciate your being with us.

We are very privileged to have the distinguished former Solicitor General of the United States, the Honorable J. Lee Rankin, native of Nebraska, practicing law in New York, Chief Counsel of the Warren Commission.

We appreciate your being with us very much, Mr. Rankin. You may proceed.

Senator HRUSKA. May I add my welcome to the distinguished witness, as a fellow native Nebraskan, Mr. Chairman. You have said so many nice things about him. While I can add to the list, I shan't do so at this time.

STATEMENT OF J. LEE RANKIN, ATTORNEY

Mr. RANKIN. Mr. Chairman, Senator Hruska, I appreciate the opportunity of appearing before your subcommittee today to testify regarding the proposed constitutional amendments which would, in essence, overturn the decisions of the Supreme Court last June 15 in Reynolds v. Sims and related cases, and allow one house of a State legislature to be apportioned according to factors other than population. In my judgment, the passage of any of these amendments would present a constitutional crisis of major importance to our system of government and be a serious threat to the truly representative character under our Federal form of government according to present requirements of the Constitution,

It cannot be denied that these proposed amendments have as their basic purpose the taking away of declared constitutional rights and granting to the majority in a State the power to preserve or establish malapportionment in one house of a State legislature. This would

have the most far-reaching effects on the future of our country, the ability of local government to meet its full responsibility in the discharge and handling of local problems, and the loss of import rights the citizen now has under the Constitution in this franchise.

It also should not be overlooked that action at this time is urge by many people in State legislatures so as to preserve their persona. positions which cannot be maintained under the requirements of our present Constitution, and that the malapportionment which has existed in many States for a long period of time has been maintained by such persons or their predecessors despite the mandates of State constitutions, statutes, and the Federal Constitution requiring the estab lishment of truly representative government.

Action on these amendments should call forth the most statesmanlike consideration of all of the rights of the citizens involved and the serious threat to our form of government in putting in the hands of a majority the opportunity these amendments offer to denigrate the vote of the citizen and to deprive him of his right to consent to the action of the Government that you expect him to support.

In the consideration of these proposed amendments dealing with reapportionment, the function of the Senate is comparable to that of the Founding Fathers at the time of the establishment of the Union That is true because they provide an opportunity to modify the basi structure of our Government.

In our Federal system the State legislatures are primarily in th day-by-day operation of representative government. One-persor one-vote under our Constitution (without such amendments) pro vides for true representation. It is a sound system of which we al may be proud in that it requires equal treatment for each citizen in the voting process.

The proposed amendments involve the representative character of the State legislatures which have been called the "fountainheads of representative government." The thrust of the amendments is to make a change in the Constitution so as to permit the legislatures to be less representative than is required by the equal protection clause, and the obligation to apportion on the basis of one person, one vote.

I am sure that the Senate of the United States is well aware of the contribution that State legislatures may make in resolving serious problems within the States. It may be assumed that as the State legislatures correct malapportionment and become more nearly repre sentative and thereupon undertaken to provide solutions for some of the serious problems of their communities, and especially those now long neglected in the urban and suburban areas, the Federal Govern ment should be relieved of some of that responsibility. At the same time, the dependence of such areas on Federal action should be reduced and people properly represented can be expected to rely more on the local government for the necessary provision for such loca responsibilities.

There is another advantage in making State legislatures representative that should be of great interest to the Senate of the United States There is a self-executed characteristic of any governmental structure that is truly represenative and therefore based on the consent of the governed. The equal protection requirement becomes a most effective practical guaranty against arbitrary and unreasonable govern