found that the formulas for apportionment "are so explicit and detailed, the New York Legislature has little discretion, in decennially enacting implementing statutory reapportionment provisions ***" (WMCA, Inc., v. Lomenzo, 377 U.S. 633, 646 (1964)). Maryland's constitutional prescription, too, the Court found so rigid that the best-intentioned legislative effort could not bring an equitable apportionment in terms of equally weighted voting right (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 662-664 (1964). Virginia's constitutional requirement was condemned for failure to compel legislative redistricting on an equitable population basis (Davis v. Mann, 377 U.S. 678, 685–690 (1964)). And constitutional formulas which fix apportionment on population bases which are themselves inequitable, whether backed by long history like Delaware's (Roman v. Sincock, 377 U.S. 695, 705-708 (1964)), or recently ratified by popular vote like Colorado's (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 734–737 (1964)), must likewise fall before the equal protection standard. Alabama's constitution provides that "representation in the legislature shall be based upon population" (Ala. const. art. XVIII, par. 284), that each county is entitled to at least one representative but the rest of the lower house is to be apportioned equitably (Ala. const. art. IX, par. 199), and that the senatorial districts are to be divided equitably on a population basis (Ala. const. art. IX, par. 200). In practice, the Court found that members representing 25.1 percent of the State's population actually controlled the senate, and 25.7 percent of the people elected a majority of the house (Reynolds v. Sims, 377 U.S. 533, 545-551 (1964)). In New York, the percentage of population controlling the lower house was found to be 37.1, and controlling the senate, 40.9 (WMCA, Inc. v. Lomenzo, 377 U.S. 633, 646-648 (1964)). In Maryland the upper house was controlled by 14.1 percent of the people, and the lower house by slightly less than 25 percent (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 664-666 (1964)). Virginia's senate was under the control of 41.1 percent of the population, and the lower house was under the control of a slightly smaller percentage (Davis v. Mann, 377 U.S. 678, 688-699 (1964)). In Delaware, 21 percent controlled the senate and 28 percent the house, notwithstanding a 1963 amendment by which the constitution purportedly was brought into line with the rationale of Baker (Roman v. Sincock, 377 U.S. 695, 705-708 (1964)). Finally, in the case of Colorado's 1962 amendment, the lower house majority is now controlled by 45.1 percent of the population, while 33.2 percent are in control of the senate (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 726–729 (1964)). The proposal set out in Senate Joint Resolution 2, in the light of both Federal and State constitutional history, fundamentally contradicts the uses of the amending process to deny to the people of the United States a right which is inherent in the American system of government. The farct that in practice over a substantial period of time the States of the Union have fostered processes of legislative apportionment which have nullified the guarantees endorsed in their own constitutions, only emphasizes the basic truth in the adjudication on the subject since Baker v. Carr: The stated constitutional ideal of equality of representation must be rescinded because it is not true, or it must be lived up to because it is true. In either case, an amendment to the Constitution of the United States is an irrational and dangerous precedent for the reforming of the constitutional theory set out in the State constitutions. RUTGERS STATE UNIVERSITY, THE EAGLETON INSTITUTE OF POLITICS, Hon. BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: I write as a member of the New Jersey Committee for Fair Representation in opposition to the amendments sponsored by Senator Dirksen and others which would allow one house of a State legislature to be hased in part on factors other than population. These amendments are dangerously phrased. The clause "nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population," goes further than the mere removal of the appellate jurisdiction of the Supreme Court in cases repealed it. The juxtaposition of amendments XVIII and XXI may be take as a caveat against the use of the amending power to lay restraints upon the privileges of the people of the United States. 6. Amendment XX (ratified February 1933) was, like XII, a "housekeeçeng” change in the governing process recommended by experience. Amendment XXII (ratified March 1951) was, like XI, a limitation upon the Governmest process upon which opinion at the time, as now, has been divided. Amendments XXIII (ratified April 1961) and XXIV (ratified February 1964) substantially broadened the electoral franchise and thus further enlarged the privileges of citizens of the United States first enumerated in the Bill of Rights. Viewed in this perspective, it may be state that of the 22 operative amendment to the Constitution ratified since 1789, 17 (I-X, XIII-XV, XVII, XIX. XXIIL and XXIV) have been essentially guarantees of the rights of the people of the United States; three (XII, XVI, and XX) have revised or extended the proc esses and powers of the National Government; and only two (XI and XXIIhave limited the functions of National Government. It is fair to say that the wisdom of both the latter has been called in question by contemporary and s sequent generations. It is also worth noting that in several cases the amendments to the Constit tion of the United States have laid specific limits upon the powers and fun tions of the States in the Federal system. Attention has already been directed to the familiar language of amendment XIV, while XVII and XXIV are mort recent examples of the same effect. One may also recall the principle exem plified in XVIII and XXI, negativing the use of the amendment process to take away a privilege or liberty of citizens of the United States. The conclusion to be drawn from this anlysis of the amending process, in the opinion of this writer, is that the process is most appropriate and effective when applied to the expanding delineation of rights and privileges of the pepir of the United States, or in modernization or confirmation of the powers and for tions of the Government of the United States. The lesson of political history set out in the experience of amendment XVIII, is that the amending process a improperly applied when it seeks to take away a right or privilege of the proper of the United States. Applied to the amendment proposed by S.J. Res. 2, the proposal may be condemned as an attempt to use the amending power to the derogation of rights and privileges of the people of the United States. That these are rights protected by the Constitution of the United States as against infringe ment and limitation by the States has been established by the Supreme Cer in the decisions extending from Baker v. Carr, 369 U.S. 186 (1962), to Lunare Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). These cases having established the right to equal representation, in all elements of Americt: Government, as a constitutional privilege of the people of the United States, the proposal to withdraw from these people all or part of such privilege is izce sistent with-nay, hostile to-the rationale of constitutional amendment throarkout all our history. (2) When reference is made to the policy position assumed by the consti's tions of the several States on the matter of fair and equal representation in the electoral process, one may readily confirm the observation of the Supreme Cour of the United States that a manifest contradiction exists between the coestina tional language and the statutory practice of the several States. Thus a Baker v. Carr, 369 U.S. 186 (1962) the Court found that the State constitutiona provision for apportionment based on population could only be effectuated at legislative initiative, since popular initiative was not an electoral process avai able to the State's voters. Denial of equal protection by State action for th action) was thus discernible within the context of the State's own constitutive as rationale and on the face of the State legislature's record of frustrating the constitutional protestation. In Reynolds v. Sims, 377 U.S. 533, 545 (1964), the Court continued to derse strate the discrepancies between the apparent disposition of the State rumst tution and the actual situation vis-a-vis apportionment. Alabama's evesty's tional provision for legislative apportionment based on successive dervar al census return was found by the Court to have been ignored for six suevesa, fa census periods, with the result that "population growth and shifts had evevertet the 1901 [apportionment statute] *** into an invidionsly discriminatee plan ***" In the case of New York's constitutional provisions—reparedit described as having a historic concern for population accommodation—the Const * found that the formulas for apportionment “are so explicit and detailed, the New York Legislature has little discretion, in decennially enacting implementing statutory reapportionment provisions * *" (WMCA, Inc., v. Lomenzo, 377 U.S. 633, 646 (1964)). Maryland's constitutional prescription, too, the Court found so rigid that the best-intentioned legislative effort could not bring an equitable apportionment in terms of equally weighted voting right (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 662-664 (1964). Virginia's constitutional requirement was condemned for failure to compel legislative redistricting on an equitable population basis (Davis v. Mann, 377 U.S. 678, 685–690 (1964)). And constitutional formulas which fix apportionment on population bases which are themselves inequitable, whether backed by long history like Delaware's (Roman v. Sincock, 377 U.S. 695, 705-708 (1964)), or recently ratified by popular vote like Colorado's (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 734–737 (1964)), must likewise fall before the equal protection standard. Alabama's constitution provides that "representation in the legislature shall be based upon population" (Ala. const. art. XVIII, par. 284), that each county is entitled to at least one representative but the rest of the lower house is to be apportioned equitably (Ala. const. art. IX, par. 199), and that the senatorial districts are to be divided equitably on a population basis (Ala. const. art. IX, par. 200). In practice, the Court found that members representing 25.1 percent of the State's population actually controlled the senate, and 25.7 percent of the people elected a majority of the house (Reynolds v. Sims, 377 U.S. 533, 545–551 (1964)). In New York, the percentage of population controlling the lower house was found to be 37.1, and controlling the senate, 40.9 (WMCA, Inc. v. Lomenzo, 377 U.S. 633, 646–648 (1964)). In Maryland the upper house was controlled by 14.1 percent of the people, and the lower house by slightly less than 25 percent (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 664–666 (1964)). Virginia's senate was under the control of 41.1 percent of the population, and the lower house was under the control of a slightly smaller percentage (Davis v. Mann, 377 U.S. 678, 688-699 (1964)). In Delaware, 21 percent controlled the senate and 28 percent the house, notwithstanding a 1963 amendment by which the constitution purportedly was brought into line with the rationale of Baker (Roman v. Sincock, 377 U.S. 695, 705-708 (1964)). Finally, in the case of Colorado's 1962 amendment, the lower house majority is now controlled by 45.1 percent of the population, while 33.2 percent are in control of the senate (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 726–729 (1964)). The proposal set out in Senate Joint Resolution 2, in the light of both Federal and State constitutional history, fundamentally contradicts the uses of the amending process to deny to the people of the United States a right which is inherent in the American system of government. The farct that in practice over a substantial period of time the States of the Union have fostered processes of legislative apportionment which have nullified the guarantees endorsed in their own constitutions, only emphasizes the basic truth in the adjudication on the subject since Baker v. Carr: The stated constitutional ideal of equality of representation must be rescinded because it is not true, or it must be lived up to because it is true. In either case, an amendment to the Constitution of the United States is an irrational and dangerous precedent for the reforming of the constitutional theory set out in the State constitutions. RUTGERS STATE UNIVERSITY, THE EAGLETON INSTITUTE OF POLITICS, Hon. BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: I write as a member of the New Jersey Committee for Fair Representation in opposition to the amendments sponsored by Senator Dirksen and others which would allow one house of a State legislature to be based in part on factors other than population. These amendments are dangerously phrased. The clause "nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population," goes further than the mere removal of the appellate jurisdiction of the Supreme Court in cases of apportionment. It opens the way for States to disregard previously enstitutionally guaranteed civil and property rights when apportioning ther legislatures. A citizen might be deprived of his vote without recourse beca of factors such as race, color, creed, national origin, economic or social stat "If liberty and equality, as is thought by some, are chiefly to be found 2 democracy, they will be best attained when all persons alike share government to the utmost" (Aristotle, "The Politics," book IV). Since there are no standards set down for nonpopulation factors, the door left open to all kinds of discrimination. Instead of condemning such discrInatory and un-American concepts, this amendment authorizes and, indeed m encourage the use of discriminatory and arbitrary standards. One house by representative of the people would impede the development of State poleiss deal with the increasing economic and social problems of our industrial urban society. Beyond this, the position adopted by the Supreme Court in Reynolda v. 8-m and other relevant cases is inherently more just, more democratic, and r~ equitable than the proposed modification. In any system based on populati e there are sufficient gaps between theory and practice to prevent outright, sistent majority rule. In a State like New Jersey, in the neglect of State 17 local problems by the legislature, one can see plainly the evils growing out of i senate built on rotten boroughs. Nothing in the record suggests to me that they deserve constitutional sanction. Deep-seated governmental problem »– public finance, education, mass transit, urban blight-have cooked to cinders the back burner while members of our malapportioned senate ignored the Modification of the present constitutional rulings of the Supreme Court ws. represent "a retrograde step in the rear of democracy" and. I fear, a thre to the social gains of the last generation. Sincerely, PAUL TILL ETT, OREGON STATE SENATE, Senator BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: A few weeks ago I was the principal opponent of a Se ate joint resolution which was brought to the floor of our State senate asking for an amendment to the U.S. Constitution allowing a State to apportion of house of its legislature on factors other than population provided that a majasire of the electorate approved such an apportionment. I do not know any reler factors for apportionment of State legislatures other than people. We, in Oreget have had fair apportionment since 1952 and in my judgment all sections of ce State have been fairly represented including those areas of lesser population a Indeed, eastern Oregon, which is the least populated section of our State, a provided three senators who have shared the senate presidency for 8 of th« last 10 years. I share the belief of the U.S. Supreme Court that the right to vote includes the right to have one's votes as effective and meaningful as that of any other citizen. Since this is an individual right, the majority should not be able to tes it away. Indeed, to allow a majority of the people to apportion one house of th legislature on a factor other than population could result in total disenfranche ment of the Negroes in the South or disenfranchisement of any other minor within a State including a geographical minority. I am advised that the IS Senate is considering S.J. Res. Nos. 2, 38, and 44, all of which are similar* Oregon State S.J. Res. No. 1. I would respectfully urge the Congress to rejecte any resolution which dilutes the principal of one man, one vote, and I ask this letter be included in the March 3-5 and March 9-11 hearing record of subcommittee on constitutional amendments of the Senate Judiciary Committe Respectfully yours, DON S. WILLNER, State Senator Senator BIRCH BAYH, THE UNIVERSITY OF TEXAS, Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: Thank you for your letter of May 7. I think that the clearest and simplest way for me to express my opinion on the matter of the Supreme Court's decisions relating to the reapportionment of State legislatures is to say that I support them. Just over 2 years ago I was asked to write an article on the decisions of the Supreme Court in the 1961 term. As a result I spent a good deal of time considering the original decision in this series, Baker v. Carr. It was not easy for me to express a view so different from that stated eloquently and at length by my old friend Mr. Justice Frankfurter, particularly since his dissenting opinion in Baker was apparently the last opinion that he was able to write. But I did, after considerable thought and research, come to the conclusion that he was wrong and the majority of the Court was right. I have read with interest, and with as much care as I could devote to them, all of the subsequent decisions of the Court on reapportionment, including the group of cases decided on June 15, 1964. While I agree that it is possible to develop a rational argument contrary to the majority holding in one or two of these cases, I firmly believe that the decisions are in accordance with the best traditions of the American political and constitutional system, and that they will be so viewed a generation from now. I am, of course, familiar with the argument that a State should be allowed to have a different basis of apportionment for its senate from the population basis followed in the State house of representatives. I also know that some rational and learned men talk of the "Federal analogy," but I believe now, as I did when I first thought about the problem at some length, that this analogy is totally "inapposite and inappropriate." Neither counties nor groups of counties are at all similar in their legal position to the States of American Union. Moreover, there has never been, so far as I have been able to discover, a division in the American Senate as between States of very small population and States of large population. On the other hand, all of the proposals for giving counties or groups of counties with small population a representation in State senates proportionately greater than areas of large population seem to be either crude or sophisticated ways of discriminating against the urban vote. I have been unable to discover any good reason why voters living in thinly settled areas should have the equivalent of from 2 to 100 votes while those living in cities or suburbs have the equivalent of a single vote. As I undrestand it, the problem of serious disparities has developed since about 1890, when major population changes in this country began to be evident. It appears to me that the Supreme Court, in Baker v. Carr and the subsequent reapportionment cases, was simply doing what many State legislatures have refused to do; i.e., recognizing the nature and significance of the shifts in population, and requiring the State legislatures to reapportion in order that traditional principles of justice and equality would be recognized in the distribution of legislative seats, as well as the rights of the individual citizens to cast their votes and have their votes counted. I am enclosing a reprint of the relatively brief article I wrote on the work of the Supreme Court in its 1961 term. As I have already stated, I have been unable, after reading both dissenting and majority opinions in more recent cases, as well as some of the law review and other literature bearing on this subject, to find any substantial flaw in the statement concerning the decision of the Court in that article, so far as it relates to American traditions and the values of the present day. Sincerely yours, BENJAMIN F. WRIGHT. |