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When it gets down to the question of whether a group of peop are going to try to retain for themselves the special advantage of malapportionment, so they have more political influence on the ele tion of legislators, as much as I have great confidence in the people, I do not like to have them have that choice, with the approval of the U.S. Senate, especially when the record is as bad as it is about ma apportionment over the years.

Now, I don't think it is fair, I want to add, to charge the people of the United States with that whole record, because I don't think they have had a proper opportunity to pass upon all these questions of malapportionment in a way that they could make a decision. I thin in many cases the people have had provision in their Constitutiei which would require reapportionment and have been completely d regarded, they have had statutes that have required it, and that b been disregarded. But the people have not acted. And I am hopef that even if there was such an amendment passed by the Senate, the people, in their wisdom, which they have so often demonstrated, wo not discriminate against each other and see that we had an adherenc to one vote, one person.

But I see no reason why this great body should ever put up that isswhen we have that fine a provision in the Constitution.

Senator HRUSKA. Mr. Chairman, I am going to have to leave short I should like to address myself to the point that the distinguished former Solicitor General raises.

He asks in his statement

Is there anything right or desirable about giving that majority the power unde the Constitution to make the vote of each resident of Omaha equal to only a sua portion of that of the voters living outside of the city of Omaha?

I say there is a good, substantial, and totally meritorious reaso. That issue was referred to the voters of the States. Without the vo cast in Omaha in favor of that proposal it would not have carried.

I am one of those fellows who believes in the first three words of the Constitution, which begins "We, the people." The proposal was simpy. direct, everybody could understand it. It gave 20 percent weight t geography and 80 percent to population. Everybody understood.. We are a State of about a million and a half.

That is the kind of apportionment they wanted. In my book its the people who are not only the governed, but they are the governors What is wrong with that? Are we to say that we want to sit here. either in the Senate or in the Supreme Court, both of which are insttutions created and made possible by the constant support and acqu escence of the people, and say "No, we won't let the people speak of this issue" thereby raising hob with another article of the Constitution. namely article V, which says that when you follow these steps, you ca amend the Constitution.

In the judgment of the witness, in the judgment of many others, it unwise to change Reynolds against Sims. We have not gone into th in this hearing, and I think entirely legitimately, because the Reynolds against Sims interpretation is now the law of the land.

Mr. Chairman, somehow I cannot erase from my mind that whe the 14th amendment was proposed, pursuant to article V of our Con stitution, and the Senate was debating it, it was represented and warranted that it would not apply to the State legislatures. They gave

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very good reason. They said it was tried in the House, and the House ruled it out. The second reason they gave was that if they applied it to the States, the legislatures never would approve it.

We have had a nonlegislative body disregard that history and say that it does apply to the State legislatures.

Certainly, unless we are going to say that the Senate should stand in the way of the people of each individual State applying their composite wisdom on this very simple issue-not every legislative proposal, not every proposal-this particular issue, we are certainly neutralizing article V of our Constitution. We would be denying the rule of one man and one vote, because the people of the several States of this Union will never have a chance to cast a vote on this issue.

I am going to apply for a trademark or copyrights on the idea of modifying this one-man-one-vote rule, and add these words to it-oneman-one-vote, and a chance to use that vote. That is all we seek to do in this S.J. Res. 2.

I will grant that the resolution might have to be changed somewhat. That is why we have these hearings. I have already indicated my disposition toward sentence No. 1. If I had my way it would go out. I think, Mr. Rankin, you have outlined some good reasons why it should go out. There might be the need for a periodic referral of the issue to the people of the State that had deviated from Reynolds against Sims automatically and without reference to what the State legislature would say. That would eliminate another factor which is used as an objection to this resolution.

I do feel that unless we want to step down from the ranks of a selfgoverned nation, particularly a Federal Republic, where the States will have a voice in how they are going to be governed by their own legislatures-unless we want to do that, we better adopt this resolution and adopt it now.

Mr. Chairman, I have no questions. I think the statement of Mr. Rankin is a very studied one, and a splendid one. He never turns out work other than the highest quality. He has proved that many times. Again on the record, I want to restate my pride in his being a fellow Nebraskan, and thank him for being here.

Mr. RANKIN. Thank you.

Senator TYDINGS. I just have one final question, Mr. Rankin.

One of the problems which has come up is the degree of flexibility in the Reynolds v. Sims and Baker v. Carr.

I would appreciate it if you would address yourself to the problem of whether or not there is sufficient flexibility in the decisions, particularly Reynolds v. Sims, to permit taking into consideration extraordinary geographical problems in a given State-a mountain range or something like that-which might be unusual and which might require some small deviation from an absolute mathematical one-manone-vote rule.

I would appreciate whether or not you feel that Reynolds v. Sims does provide a degree of flexibility which would not work extreme hardship in the case of an extraordinary geographical situation.

Mr. RANKIN. Oh, I think there is flexibility in Reynolds against Sims-although in my own meaning, to stay very close to one person one vote-in that that gives the individual citizen as complete a vote as possible. And it seems to me, in reading Reynolds against Sims,

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that the Court was very careful to recognize that we did have 50 different States with numerous different problems in this area, and that a good-faith attempt to try to reach the problem on the basis of one person one vote and make adjustment for special needs of a State would be recognized as something reasonable under our Constitution and its requirements.

So I do not think that the Court would be hide-bound about that matter.

But if it was done in such a way as to try to continue some kind of a program of malapportionment rather than a good faith attempt. I think then there would be difficulty about it.

Senator TYDINGS. Thank you very much, Mr. Ranking. You were very kind to take time out of your busy schedule. I commend you or your interest and the splendid record you have had in Governmen service while Solicitor General of the United States.

Mr. RANKIN. Thank you, it is a pleasure to be here.

Senator TYDINGS. I understand that Dean Reuschlein has a train that he wishes to catch. Ordinarily we would recess for lunch at 12:30. But we appreciate the effort you have made to come here, we will hear you now, if you will come forward, sir.

STATEMENT OF HAROLD GILL REUSCHLEIN, DEAN, SCHOOL OF LAW, VILLANOVA UNIVERSITY

Dean REUSCHLEIN. Thank you, Senator Tydings. I appreciate the courtesy in letting me appear now rather than to have to wait.

I think I should say at the outset that I am not here as any pro fessed authority on the law of the Constitution, but rather simply a the dean of a law school who teaches jurisprudence or legal philosophy, and in great part also as a citizen of a State in which I have labori rather long and not with entire success, to say the least, in trying to achieve constitutional revision.

I should like to be rather brief. The statement which I have is fairly brief. Then I should like to add just a little bit which has come along since, due to reflection on my part.

Senator TYDINGS. You have sat through these hearings, have you not?

Dean REUSCHLEIN. Yes, sir, I have.

Senator TYDINGS. I would be interested in your comments, pr ticularly on the argument which Senator Hruska has made repeatedly-namely, if the people of the United States desire to limit the votr rights of certain other people, if a majority of them do so, it is al right because the majority rules in a democracy. I would appreciate your comments. You have heard the long colloquy and dialog betwee Senator Hruska and the witnesses. I would appreciate your thinking along these lines.

Dean REUSCHLEIN. Well, Senator, it seems to me a fallacious s sumption that the majority does determine the fundamental character of our Government. This was not done in the original instance. I' is true that people were permitted to speak on a scheme, and ev there the ratifiers of the Constitution originally were rather a select

group.

I think if we pursue Senator Hruska's position we end up with the assumption that a majority can never be wrong, and that à minority does not need protection against it.

I think we cannot identify the people as simply being the majority. And that, I think, is the basic fallacy which he makes. The minority also are part and parcel of that people.

It is difficult for me to escape the conclusion that we just cut the minority out of all expression by this device.

I think the real evil in the proposed legislation, Senate Joint Resolution 2, is that it throws the question or permits State legislatures to throw the question at the voters in such a way that it just insures that all the people are not going to have the opportunity to speak.

I think it goes to that fallacious analogy also to the Federal system. I think it is basically invalid on that score-that it assumes the complete identity of the concept of the people or all the people with the majority.

Senator TYDINGS. Let me direct another question to you.

You are, I think, as one of our foremost legal scholars, familiar with some of the testimony before our committee which consistently has been, particularly from some of the Western States, that because of the language of Reynolds v. Sims, if you had a situation where there was a mountain range or a large body of water was intersecting an otherwise homogeneous political area that because of the narrowness of Reynolds v. Sims no apportionment scheme would be constitutional which took into account any unusual geographical factor. I wonder if you would comment on that, on the Reynolds v. Sims decision, in that light.

Dean REUSCHLEIN. Well, if I recall the pronouncement of the Court correctly, it seems to me that we do not have here a little one-person, one-vote requirement. It seems to me that in every reference which the Court has made to the business of reapportionment by the State, there has been language in the nature of a kind of saving clause "substantially" this kind of scheme. "Substantially" is admittedly a weasel word, but in a sense we must thank God for weasel words-they do enable us to escape literalism.

I think there is enough flexibility under the decisions to permit of some discretion, some latitude, whether there is real reason to exercise it.

Senator TYDINGS. I am glad to hear you say that, because that is one point which has been bothering the chairman of our subcommittee, Senator Bayh, for some time. That is why I propounded the question to Mr. Rankin, and that is why I am delighted to have his judgment on it, because I think it is an important question and a valid one.

Dean REUSCHLEIN. I do not propose to read the statement which I submitted to you. It seems to me that no further purpose is served by that. But I would just like to punctuate it with a brief further

statement.

I think that the very thought that this backward-looking measure could become the 25th amendment to the Constitution ought to strike error in the minds of thoughtful citizens.

If I read our constitutional history right, it seems to me that the Constitutional amendments have invariably expanded the basic rights of citizens. This would be, I believe the first constitutional amendment in American history to reduce the basic rights of citizens. And the dif

ficulties which States are having in dealing with such critical issues as housing and transit and welfare matters generally would be multiplied if grossly inequitable patterns of representation are to be ebedded in the Constitution.

Another point I should like to emphasize is that the proposed amend ments would, I believe, perpetuate a cruel hoax upon the millions who with good reason have been led to believe that voting rights leglation can secure for them an equal voice in Government. Their votes would be rendered useless by inequitable apportionment.

After all, the wording of the amendment proposed by Senate Jor Resolution 2 places the entire responsibility for the composition of State legislatures in the States themselves. There is no reason why certain States could not constitute one house on the basis of race of property or economic position.

A third idea I should just like to emphasize is this.

For years now State legislatures have been hamstrung by antiquated procedures and by rural domination. They have been crippled by such plagues as short legislative sessions, mandatory adjournment date, low salaries, ancient and unworkable constitutions, and inadequate staffs.

Encouraging changes are in evidence, since the Supreme Court began its prodding a few years ago.

Some State legislatures have made real progress in reapportionment and reform.

This proposed amendment would, I believe, call a halt to the strengthening and the modernization of State legislatures. It would throw a roadblock in the way of all this-one of the most salutary recent tendencies in American political life.

Then I would like to touch just momentarily again on the suggestion that State legislatures should mirrow the Federal system whereby the Senate is elected on a basis other than population. The analogy is a false one. Every State has a right to two Senators irrespective of t size. But counties areas, and economic or other interest groups withir States have no corresponding rights. Representation in a State legislature is a citizen's right, it is not subject to a decision of the majority. This proposed amendment would authorize just such deprivation of rights by a majority decision.

Finally, the growth of an urban society, with ever-increasing and difficult problems crying for solution, has severely strained outmoded legislatures.

More seriously, public confidence in our outmoded legislatures has been seriously eroded.

There is no doubt but that this failure of State government is greatly responsible for the concentration of power in the Federal system, because the Federal system seems better able to deal with urban issues. This situation has fathered and nurtured a growing cynicism bordering on despair on the part of city dwellers, as to whether their political institutions can cope with the troublesome prol lems of metropolitan living.

The passage of the proposed amendment can only make matters worse. It would embed inequality, it would embed social futility into the Constitution. And this, I think, no thoughtful citizen ca desire.

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