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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 i 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 choice that involved apportioning the legislature, both houses, in accordazst with the population, also involved multiple representatives from paticular districts so that
Senator HRUSKA. Perfectly legitimate, isn't it?
Mr. MARSHALL. Yes, it is, Senator, but I think a lot of people toe. 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 Congreso write an amendment that gets into this sensitive area, which will real make the choices that are put to the people fair choices. That is one 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.ii. districts are perfectly valid under Reynolds against Sims, are thes not?
1 Mr. MARSHALL. Yes, sir. Senator HRUSKA. That was my understanding.
If you are going to say that we want only those proposals put befonu the people for a decision which we believe should be put, not what to legislature, not what the elected representatives of the people will do in its composite judgment, then you are kind of getting away from theory that the ultimate political authority in this Nation shoul! ! the people, are you not?
Mr. ARSHALL. Senator-no, Senator, I would not accept that.
I think that the idea, the principle which you are describing has 3 a premise that the people will have a decision to make: Are we goins to count everyone's vote equally or are we not going to count esery. one's vote equally?
Now, if it were put that simply and that clearly, I would not ha? much doubt about how the people would decide. The thing that I think is impossible is to require the States, the State legislatures, a 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, whing 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, Sen 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 happeniing right now.
How often does our Senate, for example, or the House of Represent, atives 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 leg. islature 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 malapportioninent 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 des charge and handling of local problems, and the loss of important rights the citizen now has under the Constitution in this franchise.
It also should not be overlooked that action at this time is urged by many people in State legislatures so as to preserve their personal positions which cannot be maintained under the requirements of our present Constitution, and that the malapportionment which has esisted in many States for a long period of time has been maintained by such persons or their predecessors despite the mandates of State costitutions, 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 ibe 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 linion. 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 the day-by-day operation of representative government. One-person
. one-vote under our Constitution (without such amendments) provides for true representation. It is a sound system of which we a! 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 Dom long neglected in the urban and suburban areas, the Federal Gorettiment 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 local 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 government. Furthermore, the way to obtain just laws, is to require that laws be equal in operation. Where legislators are true representatives of the people of their State they tend to be vigilant in their response to the wishes of the electorate.
Several questions occur immediately in the consideration of the proposed amendments. One, do the proposals measure up to sound constitutional standards? Two, do they introduce various problems and potential abuses, in trying to avoid the one-person, one-vote requirement? Three, do they permit or inhibit the kind of flexibility which a constitution should afford!
Some who have not carefully studied malapportionment fail to realize how vast its influence is in the legislative process. However, once you have malapportionment, the effect is not merely upon the election of the particular representative but it carries through and pervades every part of the legislative process, so that all legislation coming before a legislative body elected on the basis of malapportionment is directly affected by that process. Thus the citizen who is discriminated against by the malapportionment is either inadequately represented in the consideration and vote as to all legislation affecting him or those like him in the constituency or, in some cases, his interest is completely without representation. For this reason malapportionment does much more far-reaching damage than the violation of other constitutional rights where the effect is limited to a particular transaction or matter.
In the consideration of these proposed amendments it should not be overlooked that majority rule is one of the American contributions to the philosophy of government, and that the one-person, one-vote requirement of the Constitution implements that contribution while making the legislative body truly representative. In the process now going on whereby representative government is being restored to its representative character in the legislative chamber, we can expect that such legislative bodies will again be worthy of serving a free people.
There are those who may argue that the proposed amendments merely give the opportunity for majority rule, and therefore should not be objectionable. The matter, however, is not that simple. Without the initiative and referendum the question can be formulated by a legislature with a majority occupying their offices only by reason of the malapportionment that they have been able to maintain. Under the proposals it would be most difficult to present the questions in a form where the people had a fair choice between one-person, one-vote and other possible formulas for representation. Even if it can be assumed that a group of officeholders maintaining themselves under malapportionment would present the questions fairly, and with a further assumption that in any event you would require action by a constitutional convention of the State rather than the legislature maintained in power by malapportionment, nevertheless I do not hesitate to suggest that a great deliberative body like the Senate of the United States should not offer the opportunity to a majority of the body politic to change the present eminently fair system of one person, one vote into a governmental structure where gerrymandering or combinations favoring rural, suburban, or urban areas could exercise the power of the majority to deprive one or both of the other groups of their fair proportion of representation. In so doing, they would at least partially disenfranchise the individual voters of such a group.
To apply this to specific cases, it would be most regrettable if, by these proposals, the Senate of the United States made it possible for the majority of the voters in the State of New York to perpetuate the present condition where New York City with 8 million per ty has been allowed to elect only 90 legislators, and upstaters withi million people have elected 118 representatives. Or to preserve a California a situation where Los Angeles County with a population of over 4 million has been allowed only 1 State senator while tła counties of Inyo, Mono, and Alpine, with a total of 14,014 resident have the same representation.
Under our Constitution as interpreted by the decisions of the Sá preme Court, these conditions may not be continued.
However, only by these proposed amendments or some ota changes in the Constitution allowing for such discrimination in tis basic right of fair representation could it continue. But let us turm to some other examples. In the State of Nebraska, which I krom much about, the discrimination has regularly been against the city of Omaha, and the majority of the people live outside that (1) But is there anything right or desirable about giving that major is the power under the Constitution of the United States to make vote of each resident of Omaha equal to only a small portion of this of the voters living outside of the city of Omaha? What is then about the residents outside of such a city that should cause t.Senate of the United States to grant the power to the majority *. do live outside of that city to reduce the voting rights of those with the city in that manner? In the recent case, the Court found to malapportionment to be discriminating toward Omaha comparte with areas outside of that city.
But this malapportionment has not been limited to the States The ferred to. In Maryland, Baltimore has been allowed only six Star senators regardless of its size, and in Pennsylvania, Philadelphia hao received the same treatment. Regardless of how large it has groat, Providence, R.I., has been allowed to elect only one-fourth of the to, number of State senators, and in Portland, Oreg., with a growth of percent since the last reapportionment in 1910, that city has not been granted a single additional senator. In Texas, Dallas and Houstic have 1 representative for each 175,000 persons, but in the sma*: counties 30,000 people have 1 representative. This disproportion like not been confined to the large cities. It has also extended to mar! medium and smaller sized communities. The discrimination has been so bad that it has been found in 31 percent of 42 States studied, and only 17 of 67 cities studied were represented in proportion to that population. With such abuses not only threatened, but actually har: ing been maintained over a very long period of years, those who ador cate that a majority should be allowed to reestablish and maintains such malapportionment should have a very heavy burden to try to persuade this body that it should have any part in assisting their
Now turning to specific objections to the opposed amendme!" Let us first consider the possibility of denial of judicial review units them. The first sentence of Senator Dirksen's amendment could I read to deny to the Federal judiciary and possibly to any of the Status judiciary the power to consider questions relating to the composition of the State legislature, or the apportionment of its membership Some State courts now abstain from such considerations on the ground