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Mr. GRAHAM. No, sir; not under-my understanding of the Supreme Court's ruling, they have told us in Missouri, unless we reapportion under this one-man, one-vote formula that the Federal courts will do it for us.
Senator HRUSKA. They will do it for you?
You say you simply cannot understand why any man who believes in representative government would not be eager to vote for S.J. Res. 2.
We have had witnesses who have not been very eager, and they have said, "No."
One, for example, said that "Referendums are not necessarily the perfect tools of democracy, as we have seen so recently in a California referendum on fair housing. They may more often be a means by which the controllers of communications and those who are able to pay the huge costs of the TV and newspaper propaganda can manipulate the voters.” Do you agree with that view?
Mr. GRAHAM. No, sir.
Mr. GRAHAM. Well, in my statement I said I believe in representative government. I believe that the people, through the ballot box, have the understanding, and with some prodding, perhaps, the motivation to be interested in their government. I have full confidence in their ability under such a proposal, if it is submitted to the people
, and it is adopted by three-fourths of the States—that the people will be reasonable in the exercise of their legislative apportionment. And I think they have the right to make this determination. The majority rules, after all. We have not a democracy-we have a republican form of government. We have majority rule, but we recognize minority rights.
Now, there are many who think we should have a democracy. 1 am not one of those. I like a republican form of government that we are guaranteed under our Constitution. I hope it continues. 1 don't know whether that answers your question or not, sir.
Senator HRUSKA. Yes, you have. You have indicated your beliet on that subject. It certainly is not a cynical belief, nor is its defeatist belief. The thing that has bothered me in those who eri dence a lack of faith in the people is if that lack of faith will be implemented, to whom shall we turn for the purpose of making thi decisions that are necessary in governing a country! Will it be to six men out of a nine-man Supreme Court, will it be a President, o will it be the Speaker of the House?
Where will it be—if you take it out of the hands of the people Where is it going to be? The answer has not been forthcoming in satisfactory way.
Thank you very much, Mr. Speaker, for coming.
This is a clear and direct voice from one of the laboratories of Stati government out of 50. We are grateful that you have taken the tim to be here.
Mr. GRAHAM. Thank you, sir.
Senator Barn. Thank you, Mr. Speaker. We would appreciat once again if you can help supplement the record.
Mr. GRAHAM. I will see you get the information, Mr. Chairman. Senator Bary. Thank you. We would appreciate it very much.
I would like to ask unanimous consent to include in the record at this time the letter from our newly elected colleague, Senator Fannin, from Irizona, in which he encloses documents which have been sent to him by the Arizona Legislature. Without objection, that will be included. (The document referred to follows:)
UNITED STATES SENATE,
February 25, 1965. Hon. BIRCH BAYH, 1.8. Senate, Washington, D.C.
DEAR BIRCH: Enclosed is a copy of house concurrent memorial 1 which was passed by the 27th Arizona Legislature and signed by the Governor on January 29, 1965.
This memorial reffects the opinion of the representatives and senators elected by the voters of Arizona to serve in the legislature. It is transmitted to you as chairman of the Subcommittee on Constitutional Amendments of the Judiciary Committee.
I trust this memorial will be not by the subcommittee in its consideration of proposals relating to the reapportionment of State legislatures. In that regard, my office will make no further requests of the subcommittee's time at the hearings you have scheduled next month. Sincerely,
PAUL J. FANNIN,
U.S. Senator. STATE OF ARIZONA,
OFFICE OF THE SECRETARY. C'SITED STATES OF AMERICA State of Arizona, 88:
I, Wesley Bolin, Secretary of State, do hereby certify that the attached document is a true, correct, and complete copy of House Concurrent Memorial 1, 1st regular session, 27th legislature; that I am the official of the State of Arizona having custody and control of the original of said copy and the legal keeper thereof. In witness whereof I have hereunto set my hand and affixed the great seal of
the State of Arizona. Done at Phoenix, the capital, this 2nd day of
February, A.D. 1965. SEAL)
Secretary of State. HOUSE CONCURRENT MEMORIAL 1 A CONCURRENT MEMORIAL REQUESTING THE CONGRESS OF THE UNITED STATES OF AMERICA TO CONVENE A CONSTITUTIONAL CONVENTION TO PROPOSE AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO APPORTIONMENT OF OXE HOUSE OF STATE BICA MERAL LEGISLATURES AND OF MEMBERSHIP OF GOVERNING BODIES OF SUBORDINATE UNITS OF THE STATES To the Congress of the United States of America: Your memorialist respectfully represents :
Whereas the Supreme Court of the United States has ruled that membership in both houses of a bicameral State legislature must be apportioned according to population and has thus asserted Federal judicial authority over the basic structure of government in the various States; and
Whereas this rule denies to the people of the respective States the right to establish their legislatures upon the same pattern of representation deemed advantageous for the Congress of the United States and provided by the Federal Constitution; and
Whereas this action of the Supreme Court goes so far as to restrict the ability of the citizens of the respective States to designate the manner in which they shall be represented in their respective legislatures thereby depriving the people of their right to determine how they shall be governed ; and
Whereas the implications of this action by the Supreme Court raise serious doubts as to the legality of the present form of the governing bodies of many subordinate units of government within the States.
Wherefore your memorialist, the House of Representatives of the State of Arizona, the Senate concurring, prays:
1. That the Congress of the United States convene a constitutional convention for the purpose of proposing an amendment to the Constitution of the United States, as follows:
“ARTICLE "SECTION 1. Nothing in this Constitution shall prohibit any State which shall have a bicameral legislature from apportioning the membership of one house of such legislature on factors other than population, provided that the plan of such apportionment shall have been submitted to and approved by a vote of the electorate of that State.
"SEC. 2. Nothing in this Constitution shall restrict or limit a State in its determination of how membership of governing bodies of its subordinate units shall be apportioned.
"SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within 7 years from the date of its submission to the States by the Congress." be it further
Resolved, That if Congress shall have proposed an amendment to the Consti tution identical with that contained in this memorial prior to June 1, 1965, this application for a convention shall no longer be of any force or effect : and by it further
Resolved, That a duly attested copy of this memorial be immediately trans mitted to the Secretary of the Senate of the United States, the Clerk of the House of Representatives of the United States and to each member of the Con gress from this State.
Passed the House January 20, 1965, by the following vote: 58 ayes, 19 nays 3 not voting.
Passed the Senate January 21, 1965, by the following vote : 25 ayes, 1 nay 2 not voting.
Approved by the Governor, January 29, 1965.
Senator BAYH. I would also like to point out that the number o witnesses which desire to be heard and the length of time being spen on each witness has extended beyond what we had originally antici pated. I feel it will be necessary to have additional days of hearing
I will ask the committee staff to prepare a schedule which wil be circulated to the members of the committee, and contact the wit nesses involved.
We are just having more people that want to testify than we origi nally anticipated.
Senator HRUSKA. Mr. Chairman, may I make this observation: do believe the chairman is doing a terrific job in presiding over thes hearings. There hasn't been the slightest bit of evidence of impatieng on his part. I am gratified, because this is a weighty and a ver important decision. I think in justice to the Senate, as well as th other body and the public generally, this thorough study of this sul ject is a virtual necessity. I want to commend the chairman for con ducting these hearings with such great tenacity and sound judgmen
Senator Barh. As the Senator knows, some of the questions I hay asked, to quote the normal communications media statement, do no necessarily represent the interest of the sponsor. But I feel we mu make a complete record. And, at the same time, you and I and othe members of this subcommittee who have the responsibility of ferretin out the facts have other senatorial duties which preclude us from sittin here every hour of the day. And we will try to take this int consideration.
We will reconvene at 2:15.
(Whereupon, at 11:55 a.m., the subcommittee recessed, to reconvene at 2:15 p.m., the same day.)
Senator BAYH. The committee will please come to order.
We are honored to have as our first witness this afternoon the distinguished Senator from Nevada.
Senator Bible, we are looking forward to having your thoughts. STATEMENT OF HON. ALAN BIBLE, A U.S. SENATOR FROM THE
STATE OF NEVADA
As a cosponsor of Con. Res. 37, I appreciate the opportunity this committee has given me to speak on the question of legislative apportionment. While I have cosponsored Resolution 37, I offer my support to any similar resolution which will give the people of the individual States the right to determine the composition of at least one house of its legislature.
The State of Nevada has a legislature patterned after our Federal Government. I might interpolate and say it has not always been that way. In recent years, it has been patterned after the Federal system. This system is presently under attack by the Supreme Court which in recent decisions has declared that the system denies a majority of the citizens of Nevada equal protection of the laws as guaranteed by the Constitution.
In the landmark case of Baker v. Carr, decided early in 1962, a divided Court, in a plurality of opinions, held that malapportionment of seats in a State legislature, as distinguished from seats in the House of Representatives, is not to be viewed as presenting a political question then the validity of the former is challenged on the basis of the equal protection clause of amendment 14. This decision which paved the way for the succeeding cases on the issue of apportionment, constituted a major departure on the part of the Court from its previously traditional attitude that such issues amounted to “political questions” and Kere therefore, nonjusticiable. This is to say that until Baker v. Carr, the Court regarded the problem of malapportionment to be strictly of legislative cognizance, and simply not amenable to judicial development.
Perhaps, the reason for this departure may be best explained as judicial restraint being supplanted by obvious and overriding needs of the individual. The political situations which gave rise to Baker v. Cort, Reynolds v. Sims, and various other reapportionment cases offered clear-cut examples of a minority exercising political control through the device of malapportionment. One can hardly condone a legislative system which has refused to reapportion since 1793 or which allows 5 percent of a population to elect 48 percent of that population's representatives. In this respect, my own State of Nerada's record was not good and is not good. The malapportionment there is something that I am certain must be corrected. It may be true that the Court did substantial good in calling public attention to these injustices. It is also true, it seems to me, that the structure of a State's political system is a subject which concerns the people of that State, and is not a logical or legitimate area for Federal judicial intervention.
There is an unquestioned need for reform. However, there also remains the question as to what seat of power shall do the reforming. It is the legislative function to determine the policy, the executive function to implement that policy, and the judicial function to determine the constitutionality of that policy. In the reapportionment decisions the Court has, in effect, if not in fact, attempted to accomplish a political reform by way of amendment to the Constitution. In this regard, my views correspond with those of Mr. Justice Harlan in his various dissenting opinions when he states that
The vitality of our political system, in which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform and that when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amendment process.
Thus, it becomes apparent that the reapportionment decisions represent a two-pronged attack on certain fundamental concepts of American constitutional government as it has been traditionally defined. First, the Court abandons the principle of "checks and balances" by entering an area which, by its own definition, is political and should belong exclusively to the legislative branch.
Second, it abrogates the basic tenets of federalism by patently disregarding a State's sovereign right to determine its own political system. Perhaps, Mr. Justice Stewart correctly states the result of this recent judicial intrusion when he says in the case of Lucas v. Colorado
it stifles values of local individuality and initiative vital to the character of the Federal Union which it was the genius of our Constitution to create.
After taking jurisdiction of State apportionment cases, the Court moved swiftly to the conclusion that the equal protection clause made any legislative scheme unconstitutional which was based on any factor other than population, this being so, even though a majority of people gave their overwhelming support to the contrary as the Colorado case indicates. I am sure you heard on this in depth from Senator Dominick of Colorado, the day before yesterday. As that case indicates, the Court rested its decisions on a single inflexible standardone man, one vote.
I think it is worthwhile to pause and briefly comment on the Colorado case, since that case represents the extreme application of the oneman, one-vote standard. In 1962 the State of Colorado reapportioned and generally reconstituted its legislature. Accordingly, one house was based strictly on the theory of equal representation and clearly comported with the concept of one man, one vote. However, what principle of representation was to prevail in the other house was referred to the people, and they adopted a form which considered factors other than representation; but in no way could frustrate the will of the majority of the electorate. The Supreme Court, nonetheless, struck this down as a device denying equal protection of the laws. This result, though a logical extension of the standard set by the