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REAPPORTIONMENT OF STATE LEGISLATURES

WEDNESDAY, MARCH 3, 1965

U.S. SENATE,
ŞUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:17 a.m., in Room 318, Old Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Bayh, Tydings, Dirksen, Hruska, and Fong.

Also present: Larry Conrad, chief counsel; Clyde Flynn, minority counsel.

Senator BAYH. Will the Subcommittee on Constitutional Amendments hearing on reapportionment please come to order.

I would like to ask my colleagues for their consent to waive the normal precedent in which the members of the committee make statements before any witnesses, so that the distinguished senior Senator from Vermont, Senator Aiken, may make his brief statement, and then attend some other business. Without objection, it is so ordered. STATEMENT OF HON. GEORGE D. AIKEN, A U.S. SENATOR FROM

THE STATE OF VERMONT Senator AIKEN. I wholeheartedly support Senate Joint Resolution 2.

I favor the submission of a constitutional amendment which if approved by three-fourths of the States would give any State the right to base membership of one house of a two-house legislature on factors other than population alone.

I further favor the requirement that this amendment be voted upon by the people themselves in each State.

The issue today does not seem to be on the merits of the amendment itself but rather on the question of whether the people themselves will be permitted to make the decision.

It seems incredible that there are those who would deny anyone the right to vote on a matter so vitally affecting our form of government.

To deny the people the right to vote on the amendment embodied in Senate Joint Resolution 2, would, in effect, express the belief that the people of the United States are no longer capable of governing themselves.

Such a denial would hold that Lincoln was in error when he spoke of "government of the people” and “by the people," and that what he really should have said was simply “government for the people.”

The intensity of the opposition to this amendment indicates conclusively that those who would deny the vote are satisfied that if given

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the chance the people would vote to retain control over their own State governments.

I am not so sure that the people of 38 States would vote approval of the amendment but I am sure that if they are denied the opportunity we will have sustained serious deterioration in our democratic form of government.

It has been claimed that the submission of the proposed amendment would be a reflection on the U.S. Supreme Court or even destroy its power to perform its functions as intended by the Constitution.

Such a Claim is sheer arrogance.

The Supreme Court did not of itself ordain that representation in both houses of a State legislature should be based on population alone.

The Court found that under the U.S. Constitution, as interpreted by the Court, both houses of a State legislature must be based on population alone.

While I personally believe that Justice Harlan's dissent is a more accurate finding, I can in no way concede that the amendment embodied in Senate Joint Resolution 2 is a reflection on the Court since it is to be submitted in accordance with article V of the Constitution itself which no court and no recognized authority has ever held to be unconstitutional and which is in fact the very basis of such freedoms as the American people enjoy today.

So, Mr. Chairman, the question embodied in Senate Joint Resolution 2 is not primarily one of reapportionment of State legislatures.

It is not a matter of restricting the jurisdiction of the Supreme Court.

It is simply a question of whether democracy as we have known it has served its purpose and must now give way to a more concentrated form of government in which the voice and will of the people is not to be considered.

I have faith that this committee is not yet ready to abandon the basic concepts of a government which has served us well.

I ask that the people be given the opportunity to vote on this amendment.

Thank you.
Senator Bays. Thank you very much, Senator Aiken.
Do any of the members of the committee desire to ask questions?

As chairman of the subcommittee, I would like to make a brief statement, suggesting a ground rule or two which, of course, will be completely within the authority of the committee, collectively and individually, to follow or not to follow.

Today we begin a comprehensive hearing on a subject that goes to the heart of our form of government, namely, the apportionment of our State legislatures.

Apportionment is the means by which the people of our Nation are given representation in the lawmaking bodies of our land. If apportionment in our Nation's lawmaking bodies is distorted, as a natural consequence, the voice of the people will be distorted.

Our purpose here is to determine what constitutes distortion of the will and the voice of the people in terms of methods of apportioning our State legislatures.

We are not concerned in these hearings with congressional apportionment. In the national legislature, we are bound by clear constitutional mandate to apportion one House solely on the basis of population. The other House gives equal voice to each State composing our Union.

There can be no question that this, as any other part of our Constitution, is the subject of constitutional amendment if any Member of the Congress desires to follow this course of action. I personally take a dim view of changing our national legislative procedure, and feel that most of my colleagues would join me. And so as not to get this confused, I suggest that we confine our attention, as the resolutions before the committee do, to the apportionment of our State legislative bodies alone.

Recent Supreme Court decisions have held that State legislatures, unlike the Congress, must be apportioned on the asis of population as the controlling factor. A number of our States, however, have been apportioned on the basis of the so-called Federal analogy--with one House apportioned on the basis of population and the other apportioned on other factors-geographic or economic factors, for example.

First let me say that in my opinion, the committee should proceed with the recognition of the validity of the Supreme Court's decision in this area. Once the Supreme Court of the United States has decided, its decision is a fundamental part of the law of the land. I for one see no purpose whatsoever to be served by heaping vilification or doubt on the Supreme Court of the United States. They interpret the law and the Constitution; it is our duty to determine policy.

Our role as legislators is not to debate whether the majority of the Supreme Court was legally correct, or whether those who wrote dissenting opinions were legally correct. Debate along these lines might constitute an interesting academic exercise, but would accomplish little or nothing of a constructive nature.

It seems to me that it should be the goal of this committee to decide whether the bedrock law of our land, the Constitution, should be changed to better serve the interests of all of our people now that the Supreme Court has interpreted the Constitution in this area.

Our role, indeed, our obligation, is to determine whether the interests of the Nation are best served by keeping the Constitution intact or by changing the bedrock law of the land.

I want to emphasize again it is our responsibility to make policy.

If we conclude that apportionment of State legislatures should be based on population as a controlling factor, we will recommend no change in the Constitution.

If, on the other hand, we determine that the voice of the people, in some instances, can best be heard by permitting apportionment based on factors other than population in one house of our State legislatures, we will, of course, recommend the change.

Let me repeat: any effort on the part of witnesses to use these hearings as a springboard for vilification of the Supreme Court of the United States will be firmly quashed by the chairman. I see little to be gained and much to be lost if we have witnesses that attempt to follow this course of action.

For my part, the committee will be earnestly searching for a reasonable middle ground, an area of agreement which will permit proper and undistorted representation for the majority, yet reasonable autonomy for States to apportion themselves.

The three proposals for constitutional amendments before this committee all propose, in different ways, that one house of bicameral State legislatures bé apportioned on factors other than population, provided that the apportionment plan is provided by the people of the State in question in a popular referendum.

We will hear from Members of Congress, Governors, members of State legislatures, legal scholars, political scientists, farm groups, labor groups, business groups, and others.

I think that it is important for the members of the committee to mnintain open minds on this issue until all the facts are in, for it is an issue in which many of the facts appear to be in considerable dispute.

Perlinps the first question we shall have to answer is this: Is it possible to apportion States on a basis other than population without improperly dill'using the voting power of the majority?

Another question: In terms of the Federal analogy, are the political subdivisions of a State really analogous to the political subdivisions of the Nation !

We shall hear extensive argument on both sides of those questions.

Yet we cannot deny that there are many examples in our history demonstrating how easily the will of the majority can be thwarted through abuses in apportionment. I think that it is only fair to point out at this time that I think one of the things that prompted the Supreme Court's decision in the first place was the fact that we had many State legislatures that had made no attempt whatsoever to apportion properly even one house. I think this abuse led to the Supreme Court decision,

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OPENING STATEMENT BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMEND

MENTS, HEARINGS ON REAPPORTIONMENT, MARCH 5, 1965 Today we begin comprehensive hearings on a subject that goes to the heart of our form of government—the apportionment of our State legislatures.

Apportionment is the means by which the people of our Nation are given representation in the lawmaking bodies of our land. If apportionment in our Nation's bounding bodies is distorted, the voice of the people will be distorted.

Our purpose is to determine what constitutes distortion of the will and voice of the people in terms of methods of apportioning our State legislatures.

We are not concerned in these hearings with congressional apportionment. In the National Legislature, we are bound by clear constitutional mandate to apportion one House solely on the basis of population. The other House gives equal voice to each State composing our Union. [Subject of constitutional amendment-review.)

Recent Supreme Court decisions have held that State legislatures, unlike the Congress, must be apportioned on the basis of population as the controlling factor. A number of our States, however, have been apportioned on the basis of the so(alled Federal analogy—with one House apportioned on the basis of population and the other apportioned on other factors-geographic or economic factors, for example.

First, let me say that in my opinion the committee should proceed with the recognition of the validity of the Supreme Court's decisions in this area.

Our role as legislators is not to debate whether the majority of the Supreme Court was legally correct or whether those who wrote dissenting opinions were legally correct. Debate along these lines might constitute an interesting academic exercise, but would accomplish little or nothing of a constructive nature.

Our role-indeed, our obligationis to determine whether the interests of the Xation are best served by keeping the Constitution intact or by changing the bedrock law of our land.

If we conclude that apportionment of State legislatures should be based on population as the controlling factor, we will recommend no change in the Constitution. If, on the other hand, we determine that the voice of the people in ne instances can best be heard by permitting apportionment based on factors other than population, in one house of a State legislature, we will recommend a change.

Any effort on the part of witnesses to use these hearings as a springboard for vilification of the Supreme Court of the United States will be firmly quashed hy the chairman.

For my part, this committee will be searching for a reasonable middle groundan area of agreement which will permit proper and undistorted representation for the majority-yet reasonable autonomy for States to apportion themselves.

The three proposals for constitutional amendments before this committee all propose, in different ways, that one house of bicameral State legislatures be apportioned on factors other than population, provided that the apportionment plan is approved by the people of the State in question in a popular referendum.

We will hear from Members of Congress, Governors, members of State legislatures, legal scholars, political scientists, farm groups, labor groups, business groups, and others.

I think that it is important for the members of the committee to maintain open minds on this issue until all the facts are in, for it is an issue in which many of the facts are in dispute.

Perhaps the first question we shall have to answer is this: Is it possible to apportion States on a basis other than population without improperly diffusing ihe voting power of the majority?

Another question: In terms of the Federal analogy, are the political subdivisions of a State really analogous to the political subdivisions of the Nation ?

We shall hear extensive argument on both sides of both questions.

Yet, we cannot deny that there are many examples in our history demonstrating how easily the will of the majority can be thwarted through abuses in apportionment [Prompted Supreme Court decision.]

Should this committee act, it should act in accordance with the proposition that no man shall be denied his right to proper representation because of his race,

Tred or station in life. Should this committee act, it should act in accordance with the belief that the people of a State, not only its representatives-should

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