In effect, that is just about what they said. And that is what makes it not inconceivable that they may on some future occasion say— Well, the 14th amendment does supersede these other things, it means oneman-one-vote, it was proved afterwards, and that is the later expression of the people on the subject. That is why I would think that would be one of the greatest arguments for enabling the States to express themselves in a popular vote, so that they will say what the Constitution is. Senator DOMINICK. I entirely agree. Senator HRUSKA. As I remember it, this country does not belong to the Congress, to the Supreme Court, or even to the Government-it belongs to the people. We pride ourselves in having that kind of system of government. Senator DOMINICK. I know that the great State of Nebraska has the only unicameral legislature is it the only one? Senator HRUSKA. Yes, it is the only one. now. It is about in its 30th year Senator DOMINICK. Assuming that the people in that legislature had equal population within their districts, if they are districted, and I think they are, there would be no reason, if Nebraska were satisfied with this, for her to change her system at all. But the people might want to vote on it. Senator HRUSKA. They did vote in 1962 on a formula which gave 20 percent weight to territory and 80 percent to population. It was overwhelmingly approved and everybody understood it. Nobody contends that in Nebraska a sector of the voting population was denied the right to a ballot. They all had an opportunity to vote, and they -did. But the three-man court there said No, that is no good, the Supreme Court says: you people do not know what you want, you do not know what is good for you. The Supreme Court said that. Senate BAYH. If Senate Joint Resolution 2 becomes a part of the Constitution, this would negate the 80-20 formula, would it not? The way I understand it, this applies only to a second house of the legislature. Senator DOMINICK. They could vote on a two-house system. Senator BAYH. Yes. But if they maintained a unicameral legislature, the one house would have to be on a population basis. Senator HRUSKA. No, it would not. The language in the second sentence of Senate Joint Resolution 2 reads as follows: Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population or from giving reasonable weight to factors other than population in apportioning a unicameral legislature. Certainly in a State where about 25 percent of the people reside in one metropolitan county which has only 500 square miles, and the entire State has over 77,000 square miles, it can be argued that to give a 20-percent weight factor to area and 80 percent to population is entirely reasonable. It is what the people want. I believe they should be given a chance to vote that way. If they reaffirm that stand, they should be given a chance to govern themselves in that way. The same thing applies to every other State. Senator HRUSKA. It has been argued that the Court could not touch the electoral system, nor could it touch the representation in the Senate, for example, because the body of the Constitution provides two Senators for each State. There is a further provision that that particular apportionment cannot be changed without a vote of the State. However, isn't it true that the Supreme Court, dependent on the 14th amendment, could conceivably say in the future, "Yes, all of these substantive rules are contained in the Constitution, but they were all changed and modified by the later approved 14th amendment, and therefore the Senate of the United States should be one-man one-vote." Is that conceivable? Senator DOMINICK. I think it is entirely conceivable. It makes an argument that follows right along in historical sequence. I cannot conceive of any court doing this. But I could not conceive of them jumping into the middle of our State legislative problems, either. So I could be wrong. Senate BAYH. Let me ask my colleagues to let me have the benefit of their thinking. Aren't we dealing with-to use a discussion that the Senator from Nebraska and I have had before-aren't we in the apportionment of U.S. Senators dealing with a specific reference in the Constitution, whereas in the 14th amendment we are dealing with a more general broad principle as far as representation is concerned? And it seems to me rather difficult to assume that a broad general reference could be used to negate a specific reference that had been made in the original Constitution concerning the fact that there were two U.S. Senators, and this was part of the compromise in which the smaller States gave up their sovereignty in joining in the great Union and the larger States did too. Senator DIRKSEN. The only problem there is the dissenting opinion of Justice Harlan he goes back and picks up the debate in both the House and Senate in connection with the 14th amendment. And if anything was lucid and perfectly clear as to what the framers of that amendment intended, they made it clear in the Congress of that time. That is the reason such severe language was used in connection with those dissenting views. I can well understand what possessed them, after reading that dissenting opinion, and the implications of the language of the 14th amendment, as the framers at that time intended it should be construed. Senator BAYH. Yes. But they did not intend in the 14th amendment to deal with the possibility of putting the U.S. Senate on a one-man one-vote basis. Senator DIRKSEN. That is quite correct. Senator HRUSKA. But isn't it true that they did make crystal clear, and repeated it several times, that this 14th amendment was not to apply to State legislatures? Now, that was expressed. There isn't any question-because the print is on the pages. It is perfectly plain. Now, that is as express, it seems to me, as any provision in the Constitution itself. Yet it was totally disregarded. The Supreme Court said Well, they didn't know what they were doing, and even if they did, we know better now, a hundred years later. In effect, that is just about what they said. And that is what makes it not inconceivable that they may on some future occasion say Well, the 14th amendment does supersede these other things, it means oneman-one-vote, it was proved afterwards, and that is the later expression of the people on the subject. That is why I would think that would be one of the greatest arguments for enabling the States to express themselves in a popular vote, so that they will say what the Constitution is. Senator DOMINICK. I entirely agree. Senator HRUSKA. As I remember it, this country does not belong to the Congress, to the Supreme Court, or even to the Government-it belongs to the people. We pride ourselves in having that kind of system of government. Senator DOMINICK. I know that the great State of Nebraska has the only unicameral legislature is it the only one? Senator HRUSKA. Yes, it is the only one. now. It is about in its 30th year Senator DOMINICK. Assuming that the people in that legislature had equal population within their districts, if they are districted, and I think they are, there would be no reason, if Nebraska were satisfied with this, for her to change her system at all. But the people might want to vote on it. Senator HRUSKA. They did vote in 1962 on a formula which gave 20 percent weight to territory and 80 percent to population. It was overwhelmingly approved and everybody understood it. Nobody contends that in Nebraska a sector of the voting population was denied the right to a ballot. They all had an opportunity to vote, and they did. But the three-man court there said No, that is no good, the Supreme Court says: you people do not know what you want, you do not know what is good for you. The Supreme Court said that. Senate BAYH. If Senate Joint Resolution 2 becomes a part of the Constitution, this would negate the 80-20 formula, would it not? The way I understand it, this applies only to a second house of the legislature. Senator DOMINICK. They could vote on a two-house system. Senator BAYH. Yes. But if they maintained a unicameral legislature, the one house would have to be on a population basis. Senator HRUSKA. No, it would not. The language in the second sentence of Senate Joint Resolution 2 reads as follows: Nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population or from giving reasonable weight to factors other than population in apportioning a unicameral legislature. Certainly in a State where about 25 percent of the people reside in one metropolitan county which has only 500 square miles, and the entire State has over 77,000 square miles, it can be argued that to give a 20-percent weight factor to area and 80 percent to population is entirely reasonable. It is what the people want. I believe they should be given a chance to vote that way. If they reaffirm that stand, they should be given a chance to govern themselves in that way. The same thing applies to every other State. Senator DOMINICK. In one situation in our State, in the mountainous areas, we have one State senator, which is now required in order to get equal population, representing an area which geographically is bigger than most of the New England States. In addition to that. there is no method of travel except by going around an entire mountain range and coming up the same way, because there is no path you can get over it. So this was required by the Supreme Court decision here when we had it before, giving a little weight to geography, so that we could have some continuity of interest and contiguity of access, and economic factors, in the district that a person was trying to represent. Senator BAYH. If there are no further questions, I want to thank the Senator from Colorado for helping to clarify this issue. I notice for the record the presence of the distinguished Senator from Nebraska. Do you care to make a statement at this time? Senator HRUSKA. No. Senator BAYH. The distinguished Senator from California, Senator Kuchel, is with us. We would appreciate very much if you would let us have the benefit of your wisdom on this important matter. STATEMENT OF HON. THOMAS H. KUCHEL, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator KUCHEL. Thank you very much. Mr. Chairman, I believe that a constitutional amendment should be submitted by Congress for ratification at the State level which would permit the people of a State to determine whether or not they desire one house of a bicameral State legislature to be apportioned on other than a strict population basis. Let me phrase it another way. I favor a constitutional amendment giving the people of each State the continuing right at the ballot box, under continuing judicial review, to apportion one house of a bicameral legislature on factors other than population alone. For these reasons, I have been very glad to join as a coauthor my colleague the Republican leader in the Senate in sponsoring Senate Joint Resolution 2, now sponsored by some 40 of our colleagues. On June 15, 1964, in Reynolds v. Šims and several related cases, the Supreme Court of the United States found it had no choice and I agree it had no choice but to apply the principle of one-man-one-vote in accordance with the spirit of the equal protection of the laws clause of the 14th amendment to our Constitution. In brief, after years of failure by many State legislatures to resolve questions of malapportionment in their own State, the Court found it had no choice but to take the course which it did. I interpolate, for example, Mr. Chairman, that when the Supreme Court of the State of Alabama found that the Legislature of Alabama had for over half a century and more failed, neglected, or refused to reapportion its legislative branch, in accordance with the provisions of the Alabama State constitution, but that it went on to find that there was nothing which the State supreme court of their State could do, you had a glaring and regrettable example of a wrong without a remedy, which American citizen I am glad the U.S. Supreme Court corr A constitutional vacuum clearly existed, as that great document did not specify the representational relationship which should exist between the citizens of a State and its State legislature. I have long been impressed with the wisdom uttered by Justice Brandeis when he dissented in New State Ice Co. v. Liebmann (285 U.S.262 (1932)): To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the Federal system that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold. Both in governmental organization and in the policies which it seeks to carry out, a State should have the opportunity, if its people so desire, to serve as a laboratory and to experiment with the relationship between the elected and the electorate which might best fit its needs. Thus, Congress has a duty to render a decision on basic policy by submitting a constitutional amendment dealing with apportionment to permit the people in each State to decide on a continuing basis what form of legislative representation they desire. The people may, if they desire, choose the criterion of one-man-onevote. It is possible that because of overriding historic, geographic, economic, and other factors in their State, that they would wish to select a system of apportionment which adequately takes such factors into account. But let the choice be the peoples', provided, of course, that the system selected does not violate other constitutional and statutory guarantees such as those prohibiting discrimination because of race, color, religion, national origin, or sex, among others. Any reapportionment provision of the Constitution must, of course, continue to be subject to judicial review in its use by the people of the several States as to reasonableness and as to fidelity with constitutional guarantees. Difficult questions arise as to the application of the one-man-one-vote principle below the State legislative level (such as a county board of supervisors or local school board) and deviation from its application in a unicameral situation. I do not believe any amendment we submit to the States should prohibit this principle from being applied in these situations. While I recognize the desire for stability in governmental institutions, my personal view is that we should not limit the time period during which the people of a State would have the opportunity to decide or to reconsider the advisability of apportioning one house on other than a population basis or of reconstituting the legislative districts. Practically, the decennial census will largely limit such considerations. In California and other Western States, the initiative and referendum provide a means by which the people can decide fundamental issues such as the one now before us. An initiative measure, designed |