We are not necessarily always going to enact legislation which will be the popular will, as the Court apparently is not, according to the interpretation of the gentleman from Kansas.

I would like to suggest that it is our responsibility in the Senate, and perhaps in the House committees, also, to determine policy, whether the interpretation by the Court of the Constitution, as the circumstances of our Nation change, the best policy for our country. If we do not think so, then it is our responsibility through the amendment procedures, as pointed out by the Congressman from Kansas, to change the Constitution to conform with what we think is the best policy. I think we are in error, really, if we expect the Court not to change its position from time to time, just as we, as individual Members, find ourselves changing our positions on issues. As the country changes, I think the one great thing about our Constitution is that it is not an inflexible document, unable to meet problems that were unforeseen by our forefathers, but rather, it can be changed and interpreted.

I have a great deal of sympathy with the position of the gentleman from Kansas, because I think we need to give our State legislatures the maximum amount of leeway.

Mr. DOLE. I might add I have no quarrel with the Supreme Courtas I made it clear in my statement-for it should not be my policy or the policy of anybody else in the legislative body just to criticize the Court. They have the right to make any decision, but we have the right and obligation and a responsibility, under the Constitution, also, if we feel the decision is wrong, to comment on it, give it considered judgment and take whatever action Congress thinks is necessary. Senator BAYH. This, of course, is the line of action you suggest that we follow.

I just want to emphasize again I do not think we strengthen, but rather damage our Government when we get involved in a debate between one branch of our Government and another. We have really come a long way with the tribranch system, and we are not going to change it.

I appreciate your comments and anything additional you would like to put into the record, please feel free to do so.

Mr. DOLE. I think these matters must be determined on the basis of where we are from. I cannot comment on what may be popular in Maryland or Indiana. In Kansas, we have a State senate apportioned on a strict population basis. Our State house of representatives, is constituted so that each county where 250 votes were cast in the last general election shall have 1 seat in the house. Each of the 105 Counties has 1 seat. There are 20 additional seats which go to the most populous counties. We feel, and most Kansans do, that we have a balanced system. We see no reason to further change this system. I am not speaking as a Republican or as somebody living in a rural area but feel this is true generally.

Therefore, that this approach, where the people themselves will be the final judges, should certainly allay the fears of anyone whom might feel that a dominated legislature, by rural or urban groups, would give somebody the short end of the shaft. There would truly be a oneman, one-vote situation.

Senator TYDINGS. Does Kansas have a present system for refer endum?

Mr. DOLE. No.

Senator TYDINGS. So it could not be submitted.

Let me ask you another question, Congressman, if I might. Do you think there should be any restriction on the factors which a State legislature could take into consideration as a qualification for voting for that one house of the legislature?

Mr. DOLE. I think it would be very diflicult to attempt to enumerate the factors in any amendment, because I think we recognize that wa are living in a changing world, and what might be a valid factor today might not be a valid factor 10 years from now, or it might b a valid factor in Maryland today and would not be a valid factor in Kansas today.

I think you are aware of many of them that have been discussed-accessibility, area, geography, economics. I happen to represent a congressional district that has 58 counties in it. It is larger than the State of Ohio, it is larger than the State of Pennsylvania, it is larger than the State of New York, and I recognize some of the dif ficulties when we talk about accessibility. I do think that it is a factor that should be considered. I just cannot communicate with my district by going on television or radio, as some people do in urban areas. It takes me 3 weeks just to cover the district and spend 3 hours in each courthouse. So I think this is a proper factor to be considered, accessibility and area and geography.

Senator TYDINGS. Do you think it should have any judicial review? Mr. Dorr. Yes; in fact, as mentioned in my statement. I am not trying to strip the Court of any authority they should properly have. I would be the first to say some of the Stites need nudging in this field. There has been completely disproportionate represent tion. But again, in areas where there is balance the people should decide whether or not they think it is fair.

Senator TYDINGS. As the States, most of the States, are apportione today. I think it is basically at least in my State, it is the rural are which have control of at least one house of the legislature. A minority. I think 14 percent of the people in our State, control our Stat senate. If the amendment were adopted, conceivably and for ene reason or another, our State senate or our legislature should, all of a sadden, reapportion itself and say-there are facts I would not know, but they might do away with the representation of our rural areas altogether, or may be 1 percent or something like that. Would you think that would be a desirable situation to have happen?

Mr Dory. No, this is, maybe, one reason we may need judicial review. Th's could be a protection to either an urban or a rural area ft's were to happen.

Senator TYDINGS. Well, under the language of your section 1-you do not "rovide for indicial review!

Mr. Dora No: I mentioned on page 2 that it is implicit.

Senator TypINGS. Do you think it should be written in here? Mr. Don Well, if there is any doubt about it, perhaps it should be, Senator FYDINGS. Certain problems come up, Bocause I think there probably are Stares now where an prban area has control of both honses of the legislature and has a great majority of the people of the

1

State. Conceivably, they could, as a result of this amendment, apportion, put 90 percent of the representatives of their one house of the legislature from, say, one large metropolitan area without taking into account the fact that 20 percent of the people of the State came from farming areas. They could completely freeze them out and without Some sort of guideline, with an amendment such as this, which just point blank says that nothing shall prohibit a State from apportioning the membership of one house on factors other than population, it leaves a little question as to, first of all, whether the Court could initiate judicial review, No. 1, because this is an amendment adopted after the 14th amendment; and No. 2, if they did undertake judicial review, what factors could they consider in view of the broad language of these constitutional amendments?

Mr. DOLE. I do think we would be getting into difficulty if we tried to enumerate factors, for example. In our State, for example, Sedgewick County, Wichita, Kans., has all or part of 9 of 40 State senators. There are five from Wichita and four others that have a part of that County. So there are 9 out of the 40 State senators all, or in part, from one county. There are 104 other counties that divide the remaining

31.

On the house side there is a sort of balance and I think the people in Wichita and other urban areas generally are pleased with it.

When we talk about home rule for cities, I think the same argument could be used that we should provide at least some representation for every county. Perhaps in some respects, the home rule argument ould be used to argue the case for a rural county representation in State legislatures.

Senator TYDINGS. Let me ask you one other question. Take your Section 1 on page 1, which reads

Nothing in the Constitution of the United States shall prohibit a State having a bicameral legislature from apportioning the membership of one house of its legislature on factors other than population.

Now, in your judgment, if you added another phrase after "on factors other than population." a phrase such as this, "provided that pop. lation shall be considered," would that distort it?

Mr. DOLE. You mean factors in addition to population?

Senator TYDINGS. You see what I am getting at?

Mr. DOLE. Yes.

Senator TYDINGS. But in your judgment, if you had something like at which would give the Court something to hang onto, that would bot destroy the thrust of your amendment?

Mr. DOLE. No.

Senator BAYI. Does the Senator from Nebraska have any questions to ask?

Senator HRUSKA. Yes, just one or two.

Pursuing the line of questions that were started by the Senator from Maryland, there has been some concern today that unless there is some guideline such as that referred to by Senator Tydings, we might invite caprice or prejudice in this kind of a constitutional endment. Does the gentleman from Kansas see any such abuse in the last 175 years in the legislative apportionment that would give ny foundation to this misgiving and fear? Has there been a situation, for example, where some State would say nobody but red

headed farmers having at least 12 white geese will be eligible to vote for Senators to the State legislature? Or only oyster fishermen or only black bass fishermen, or only sheepherders? Has there been any such extreme situation in the last 175 years-let us say the last 200 years? The apportionment of legislatures by factors other than population did not start in 1787. It was with us 100 years before that. Mr. DOLE. I would think so. I have studied this rather carefully and of no instance, there may have been one or two, but I know of none. Senator HRUSKA. Rather than get into the business of setting guidelines it would certainly be better to leave things as they are subject to further amendments, that the popular vote must approve the plan. I think we can give credit to people for being intelligent and not capricious or prejudicial.

Would the gentleman from Kansas have any comment on that?

Mr. DOLE. No, you made a very fine statement. I want to make it a part of mine.

No, I certainly have confidence in the people in Kansas. I do not want anybody to be fearful, either and feel this perhaps is a serious question in the minds of many, and I am certain it is in the mind of Senator Tydings.

This issue can objectively be discussed and should be objectively discussed and kept out of the realm of partisan politics or urban or rural politics. But I think we are entitled to the rights of a minority and I speak of the rural minorities of this country. Again, this is the most important domestic issue we have in the 89th Congress in my opinion. Some who are so concerned about rights of certain people should be interested in this. Our approach offers a possibility in some areas of the South to protect the very rights many talk about.

Senator HRUSKA. There is one part of the proposed amendment in the House which is not to the liking of this Senator. It excludes any provision for unicameral legislatures.

Mr. DOLE. Yes.

Senator HRUSKA. It is my hope that when you, as a member of the steering committee, get back over to the other body, you will read with great sympathy the language contained in S.J. Res. 2. It says that reasonable weight to factors other than population in apportioning a unicameral legislature should be allowed. It would have two protective devices: First of all, the vote of the people. Such a vote was taken in my State in 1962, giving 20 percent of the weight to geography in apportioning; second, it would be subject to judicial review.

Mr. Dour. I might add, we are meeting at 10 o'clock in the morning, our steering committee, and I shall certainly discuss this. It should be considered very seriously and added to our efforts on the House side.

Senator HR SKA. I make that suggestion not because Nebraska is the only State with a unicameral legislature. There may be other States that will want to adopt a unicameral. It has much to recommend for a smaller State, and one as homogeneous in population as Kansas, Nebraska, the Dakotas, and others.

Also, this further proposal: There has been some concern expressed that the first sentence of S.J. Res. 2 means there could be no judicial review. It is not so viewed by the author of the resolution. Senator Dirksen testifed bere yesterday. I shall not repeat the testimony.

He said that it is not his intention. This Senator, again, is hopeful that we can eliminate that sentence so that any misgivings predicated upon it will also be eliminated.

There is no desire on the part of the sponsors of S.J. Res. 2, that I know of, to eliminate judicial review. Therefore the provisions of S.J. Res. 2, if it becomes a part of the Constitution, can be reviewed by the courts. Your proposal in the House does not have a corresponding

sentence.

Mr. DOLE. No; my reference to it being implicit in the languageperhaps it is not. Perhaps it should be clarified.

Senator HRUSKA. Well, Marbury v. Madison has been observed for years now. I do not imagine that the fact that it is not spelled out expressly in this proposal is going to cancel it.

Senator BAYH. Any further questions?

If not, I want to thank you very much for taking your time to journey over here and give us the benefit of your opinion, Congressman Dole.

I see we have another distinguished Member of the other body, the distinguished Congressman from Missouri, Congressman Ichord. Will you come up, please, Congressman Ichord?

STATEMENT OF HON. RICHARD H. ICHORD, A REPRESENTATIVE IN CONGRESS FROM THE EIGHTH CONGRESSIONAL DISTRICT OF THE STATE OF MISSOURI

Mr. ICHORD. Thank you, Mr. Chairman, and members of the committee.

I know by now your ears are probably ringing with the words of the Senators from Idaho and Iowa and others and with the words of our Justice Stewart and Justice Harlan, and the other cases concerning State legislative reapportionment, Mr. Chairman, so I will not take time to read my entire statement. I believe copies have been filed with the committee.

I would want to say that I am a strong proponent of S.J. Res. 2 and I have introduced a constitutional amendment dealing with this matter in the House.

I was concerned with Baker v. Carr away back in 1963 and wrote a newsletter on the subject then, a week after the opinion was first handed down, to my constituents. But I had no idea that the Supreme Court would go as far as it has in the cases of Reynolds v. Simms, the New York case, and the Virginia case. And in August, I appeared before the Democratic platform committee to testify for a measure in our platform for a constitutional amendment. I ran into pretty much of a hotbed. The committee hearing me was about 8 to 1 against me, and some of the members of the panel took great issue with me for attacking the Supreme Court.

I might say that I do not consider my position an attack upon the Supreme Court itself. I am, however, very much concerned with the trend and tenor of these decisions. I think that they have destroyed a basic and revered concept of constitutional government. And, more important, I submit that the Supreme Court has not interpreted the Constitution and it has amended the Constitution by judicial decree. That is the aspect of the decisions which terrifies me.