ture in one case made it extremely difficult to call for State constite tional reform-in the case of Idaho, blocked State constitutional reform.

I think anyone on the scene could have easily attributed it to one basic fact-namely, that the State legislature was unwilling and in one case in outright opposition to constitutional reform, even though it was drastically needed.

So there is a vicious circle arising here, in which on the one hand a malapportioned legislature controls the reworking of State constita tions, and yet, on the other hand, the malapportioned legislature is unwilling to change the things that make the States unable to ac and, therefore, stop the trend, if that is what the supporters of Senate Joint Resolution 2 are interested in-stop the trend toward central zation of governmental power in the Federal Government.

I think the key to breaking into this vicious circle that has ariser at the State level is malapportionment. Without a reapportioned legislature, all those interested in State constitutional reform, and also those who may be interested in stopping the trend toward centralzation of Federal power will be unable to carry out the necessary

reforms.

It has been my thesis that State government is fast approaching a point of no return, a juncture presenting the alternatives of either assigning the States in practice if not in name to the junk heap of history, as unworkable instruments of government, or we are at th point now where we should take steps to pump new life and vitali into State governments. Senate Joint Resolution 2 will hasten the alternative of restoring State government, and, consequently, the principle of federalism in this country.

I will go further and make the observation that we are in a tradi tionally transitional stage in federalism-namely, the shift from co operative federalism into a state of what I would call administrative federalism. By administrative federalism I mean that type of federa ism practiced in Italy, South Africa, and the Soviet Union. In th type of federalism, the central government initiates, finances, and cot trols all domestic affairs, and the constituent parts of the Nation, the States in our case, serve only as administrative agencies to carry out th centrally initiated, financed, and controlled policy. This has already happened in such areas as highway and welfare. This session of Congress has carried the trend a bit further on education. And I hasten to add I don't necessarily agree with the trend. But I think those who are supporting Senate Joint Resolution 2 should think twice about the impact of this amendment upon federalism. They suppor the consignment of the States as relics to the museum of governmental institutions.

This is an effective means to achieve that end.

Mr. Chairman, at this point perhaps I could address myself to some of the questioning that was going on before our adjournment for lunch I have a great deal of difficulty with Senator Hruska's position tha the U.S. Constitution starts with the words "We the people" and therefore we the people should have the right to amend the Consti tution.

First, I think Solicitor General Rankin, and also Mr. Marshall pointed out that we in this country pride ourselves on not holding referendums on basic rights.

Secondly, the language of the particular proposed amendment that I have before me, which I think is substantially the same as all the others, says this:

Nothing in this Constitution shall prohibit the people of apportioning one house of a bicameral legislature upon the basis of factors other than population. This particular sentence would deprive the courts of judicial review. Even if we had reapportionment at this particular point in our history, in a short 10 years we would be back in the same position we have been in for the past 50, without any means for rectifying it.

For example, the population of our present cities might well be represented in State legislatures. But 10 years from now I want to be certain that the individuals who move out of the city will not be deprived of representation. Consequently, Senate Joint Resolution 2 would have the affect of doing what was done 50 or 60 years agonamely, depriving the courts of judicial review and freezing apportionment as it is today.

Another problem I have with Senator Hruska's position is that the Constitution does not say we the people reserve the right to ourselves to amend the Constitution. It says we the people of the United States, and then if we jump to article 5 of the Constitution, "invest the power to amend the Constitution not solely in ourselves, but also in the Congress of the United States."

This is the genius of any amending process, and the reason for it is this-hasty amendments, ill-considered amendments, amendments perhaps a majority of our population may wish will not be hastily enacted, and hastily attached onto the Constitution.

The Constitution does vest responsibility for amending the Constitution in this body, the U.S. Senate. It is my belief the U.S. Senate, its Members, have the obligation and responsibility not to pass the buck to the States and to the people of the States. Therefore the Members of this body have the duty to weigh the wisdom of these amend

ments.

The particular point I would like to emphasize-and I would like perhaps to preface it with these comments-I have no political ax to grind or no vested interests to protect.

These amendments, in my estimation, would mean the end of State government in this country-not tomorrow, perhaps, not next year, but in the long run I believe that the constiutional amendments proposed before this committee will have the affect of keeping State legisatures in the sorry conditon they have been in, keeping State executive branches in the sorry condition they have been in, as well as the judicial branches of State legislatures.

We will continue the process we have witnessed in the last 40 to 50 years of States not responding to the wishes of their people and therefore not fulfilling their responsibility.

I think it has been quite evident for the past six decades, quite apparent for the last three decades, Federal power and control are growng and State power is diminishing. I think this fact should be readily apparent to every member of this committee who is beleaguered by •he demands of constituents which should be handled at the local level and who finds himself in a politically difficult position of deciding controversial matters not handled in the first instance by the States. And the very reason the Senate and House are faced with those po

litically difficult problems is that the States have not handled them in the first instance. The increasing crush of business before Congress threatens the future of that body in the eyes of some, and it is time the States take up their share of the burden of government.

My late uncle James Murray-was a Senator from Montana. He told me before he died that one of his greatest problems in the Senate was keeping up with the crush of business-not the type of business be thought the Senate shoulld be faced with, but the business of sma... things, little things, that kept coming from the States, and then ma legislation which the States should have handled in the first place. The ramifications of State inability because of malapportionment and also because of outmoded structures of government are I thirs to say the least, complicated and far ranging.

I think it is clear that State failure has played a major role in the seemingly inexorable trend toward centralizing government power the hands of the Federal Government.

Although it may seem ironic, Senate Joint Resolution 2 will haste this trend by maintaining the States in the moribund position they have occupied since at least the depression era of the 1930's.

Thus I make this plea to the committee and to Congress to stop step back and look what you are doing to a fundamental tenet of the American system-Federalism.

Senate Joint Resolution 2 is perhaps advantageous to certain irterest groups. I know this well, since I was raised in a rural area Massachusetts. Also it may be helpful to one or more political part.es in a particular State. It may also be reassuring to the future of t political careers of dedicated individuals who have and who are now serving our Nation in the finest sense.

The sacrifice is much more than this. The sacrifice is much more even than the civil liberties of individuals whose votes may be diluted The sacrifice is the ultimate destruction of the States and the princip of federalism. I would ask all those who support it-and incidental I note that they are the ones who have been constantly calling it o our attention-is Senate Joint Resolution 2 worth the price. I think t is not.

(The full statement of Mr. Flynn follows:)

Mr. Chairman, members of the committe, I am John J. Flynn, assistant pr fessor of law at the College of Law, University of Utah. My interest in the matter before this commitee stems from 2 years of research and the writing of a book at the University of Michigan Law School Legislative Reserach Center on the subject of federalism as it relates to State antitrust laws; research ca the topic of federalism in Africa, Japan, Italy, the Soviet Union, and Germany and a study of State constitutional law and the teaching of a seminar in State constitutional law at the University of Utah.

My interest in the reapportionment problem, federalism and Senate J** Resolution 2 has been shared and stimulated by two fellow members of the Utah law faculty, Professors Alfred C. Emery and William J. Lockhart, Jr. Mar of the thoughts contained in this statement are derived from them and I would like to take this opportunity to thank them for assistance in preparing this statement.

I. INTRODUCTION

It is my hope to place the question of reapportionment in its proper perspe tive as a portion of the larger problem of federalism. We are all familiar with the belief in this country that our traditional Federal form of government is it jeopardy. On the one hand a vocal and sincere viewpoint has been arguing the the Federal Government is composed of a greedy, power-hungry clique in Wash ington bent upon the destruction of something called "States' rights." I woud

reject out-of-hand this charge and, furthermore, question just what constitutes "States' rights." To be perfectly frank, I am not sure a State has any constitutional rights except the right not to be deprived of its equal representation in the Senate. What really is meant by the concept of States rights is the notion that our Federal system contemplates a large scope of governmental power that will be exercised by the States. States have powers, not rights, under our system of government.

This difference in terminology is not a mere quibble over words. The word right implies a duty in others to observe the claim of the person or organization that has acquired the right. The concept of power, on the other hand, implies the responsibility of the person or organization claiming the power to first exercise it and secondly, exercise it wisely. It is precisely because of the fact that our States have been allocated a large number of powers in our Federal scheme and will not or, because of their own constitutional limitations, cannot exercise those powers, that a second group is calling for the abolition of the States as independent units of governmental policymaking.

The belief that the States serve no useful function, provide havens for abuse of political power, engage in wasteful duplication of effort and are havens for grafting politicians seems to be growing rapidly in the academic world, in the mind of the urban citizen, and in the mind of minority groups without a voice in State government. The trend toward centralization of governmental power in the hands of the Federal Government is a manifestation of this growing belief. I have yet to be convinced that the States have outlived their function in our Federal system of government. But, my belief that the States still have a meritorious role to play in our system and can contribute to the preservation of the American system is being shaken by the view of a growing minority calling for the abolishment of State government. The one thing I am certain of, however, is that the decline of State government is, in large part, caused by the failure of the States to exercise their powers and fulfill the responsibilities assigned to them under our Federal system of government; and, it is in this light that Senate Joint Resolution 2 must be viewed. Will it arrest the decline of State power, or accelerate the decline of State power?

It seems clear that Senate Joint Resolution 2 will hasten the decline of State government. Those supporting the resolution out of a sincere belief that it will stop or reverse the trend toward centralized Federal power and preserve State independence may find this statement rather startling. If I may be permitted a few moments to explain. I am sure the statement may become stark reality rather than a seeming attempt at Jesuitical logic.

II. THE DECLINE OF STATE POWER

Over the last five of six decades there has been a decline in the power of State government and a corresponding increase in Federal power. The reasons for this trend in our Federal system have been basically twofold, (1) necessity, and (2) the failure of the States as effective instruments of government.

(1) NECESSITY FOR FEDERAL GROWTH

The Civil War marked the end of a long era in the adjustment of the relationship of the two major sources of governmental power in this country, both sources occupying the same geographical area and both sources governing the same people. During this period of history the State and Federal governments struggled to accommodate the conflict developing because of two diverse sources of governmental power occupying the same geographical area and governing the same citizens. The evolution of this struggle through the courts, the campaigns for the presidency and the halls of Congress to the battlefield of the Civil War has been traced many times; and, while the Civil War settled the issue of rational supremacy once and for all, it did not settle the question of FederalState relations in other spheres.

This became clear after the Civil War with the impact of the industrial revolution. Both sources of governmental power struggled to control that revolution, while the Supreme Court-generally espousing the philosophy of laissez faire and ragged individualism-blocked State and Federal attempts to regulate the explosion of industrialization. Cases arose where the Court invalidated national izislation on the grounds that it trampled on the reserved powers of the States. See e.g., Adkins v. Children's Hospital, 261 U.S. 525 (1923); Hammer v. Dagen

hart, 247 U.S. 251 (1918); Twiss Lawyers and the Constitution: How Laissen Faire Came to the Supreme Court (1942)). When a State attempted to imple ment identical legislation on the local level, the Court held that the reserved powers of the States could not deal with the problem because the Constitution prohibited State interference with contractual rights and interstate commerce, or required the States to observe strict standards of economic due process and equa protection. (Leisy v. Hardin, 135 U.S. 100 (1890); Lockner v. New York. I'm U.S. 45 (1905)).

Consequently, a limbo of governmental power existed in many areas we now take for granted as legitimate and necessary areas of positive government regalation. It is interesting to note, however, that necessity dictated the upholding of several major Federal statutes and the exclusion of State power during this phase of federalism. Even while the Supreme Court was compartmentalizing governmental powers and carving out an exclusive area for State action, it was setting aside areas of exclusive Federal control. This result was usually achieved by the Court striking down State legislation and Congress filling the vold k exclusive Federal legislation. For example, regulation of railroads (Sta regulation struck down, Wabash, St. Louis and Pacific Railway v. Illinois, 11a U.S. 557 (1886); National Government assumed regulation, Interstate Comments Act, 24 Stat. 379 (1887), as amended, 49 U.S.C. sec. 1 et seq. (1958)) regulation of interstate motor carriers (State regulation struck down, Buck v. Kykendall I U.S. 307 (1925); National Government assumed regulation; Motor Carrier A of 1935; 49 Stat. 543, 49 U.S.C. sec. 301 et seq. (1958)); regulation of natural £2. transmission (State regulation struck down, Missouri v. Kansas Natural Gas (265 U S. 298 (1924); National Government assumed regulation. Natural Gas A of 1938, 52 Stat. 821, as amended, 15 U.S.C. sec. 717, et seq. (1958)); regulative of electrical power transmission (State regulation struck down, Public Utilitwa Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927), National Governe assumed regulation, Federal Power Act of 1935, 49 Stat. 847, as amended " U.S.C. sec. 824 et seq. (1958); and the interstate sale of milk products (8regulation struck down. Baldwin v. Seelig, 294 U.C. 511 (1935); Natronal ti ernment assumed regulation, Agricultural Marketing Agreement Act of 1987 * Stat. 246, as amended 7 U.S.C. sec. 601 et seq. (1958)) were all taken on exclusively by the Federal Government. The increasing economic interdepend ence of the Nation and the complexities of government regulation demandę! action by 1 government rather than 48.

At the same time, two more subtle, yet equally important, developments bega to appear. The shift of population from rural areas to urban areas began in the older States began rewriting their constitutions. The several new Su entering the Union at this time simply copied these new constitutions of « States. The shift in population grew and left State representational schens outmoded and has resulted in the grotesque disparities revealed by the recr reapportionment cases. The drafting of new constitutions at this point in history turned out to be particularly unfortunate. Not only did these coust tions freeze apportionment schemes into State constitutions, but they also from the 1880 philosophy of government into State constitutions. That philosophy may be summarized in the oft-quoted cliche that "that government which governs least, governs best." This philosophy is readily apparent on the fay of almost every State constitution. They are riddled with debilitating visions rendering State government impotent to deal with modern-day problems This second phase of federalism, which witnessed the impact of the industrial revolution, the drafting of State constitutions and the urbanization of Nation ended with the depression. The third phase of federalism-or Federal State relations-began with the New Deal. And it was then that the necess for the growth of Federal power became apparent to all.

The economic disaster of the depression made abundantly clear the fact tha America was no longer a mere union of 48 independent political entities bo together for limited purposes. The economic interdependence of the Nat and its emergence from isolationism demanded centralized Federal power ! · the control of interstate corporations and labor unions; centralized control te mitigate the impact of the economic dislocation of the few upon the many; and centralized control for the maintenance and support of a large military esta lishment to prosecute hot and, subsequently, cold war. Congress, with its Hous based upon population and its Senate elected by a majority of the people, was alr to respond to the call of a popularly elected chief executive and take affirmative action. But the States, where political control was vested in the hands of a