tional proposals to the people by the legislature be considered in connection with this amendment. Senator BAYH. On the matter of apportionment. Senator KUCHEL. Yes, sir. Senator BAYH. I trust there are no further questions. I want to thank the Senator from California for letting us have the benefit of his knowledge. Senator KUCHEL. Thank you, sir. Senator BAYH. Congressman McCulloch, who was originally scheduled to be a witness this morning, has a conflicting committee meeting in the House, and will be unable to be with us. There are some members of the subcommittee who have found it impossible to be here, but who would like to submit statements. I would like to ask my colleagues to give their consent at this time to have those placed in the record at an appropriate place. If there are no further questions and no further business to transact Senator DIRKSEN. Mr. Chairman, I would suggest that the text of the four joint resolutions before the subcommittee be made a part of the record. Senator BAYH. I ask that they appear at an appropriate place. Senator DIRKSEN. I think we probably ought to include the Supreme Court decision in the case of Reynolds v. Sims as an appendix to the record. Senator BAYH. Without objection, it is so ordered. I would like to also ask unanimous consent to have the testimony of the distinguished Senator from Pennsylvania, Senator Scott, put into the record at this time. (The statement of Senator Scott follows:) MARCH 3. 1965. SENATOR SCOTT TESTIFIES ON LEGISLATIVE REAPPORTION MENT Mr. Chairman, I appreciate being afforded this opportunity to testify in behalf of proposals to amend the Constitution of the United States to permit one house of a State legislature to be based in part at least on factors other than population, particularly if that be the desire of the State's citizens as expressed by majority vote in a statewide referendum. A constitutional amendment embodying the principle just enunciated is necessary because of the Supreme Court's rulings last June that both houses of a bicameral State legislature must be elected from districts of substantially equal population, that is to say, on the basis of "one man, one vote." I dispute these decisions because they amount to an invasion and transgression of the right of the people of a State to determine how they want to be represented in their legislatures. While seductively appealing as a slogan and as an ideological battle cry, "one man, one vote" suggests that people be treated as numbers and statistics instead of as individual human beings. What is at stake here is not equal representation, as suggested by the slogan "one man, one vote," but fair representation. Not only do individuals per se deserve representation, but individuals in the context of the areas wherein they reside. I am not asking that trees and open fields be represented on a par with people, but I am suggesting that people in certain areas and the problems and interests they share cannot be ignored in constructing a system of fair representation. This principle underlies our Federal system of representation whereby the U.S. House of Representatives is apportioned on the basis of population whereas the U.S. Senate is based on area considerations. The American system of representative Government is far more complex than the simple structure suggested by the slogan "one man, one vote." Given the many interests and groupings and shades of opinion present in our pluralistic society, achieving fair representation of all these elements is not an easy undertaking. Equality as an abstract ideal may be noble. In the practical world of our political system, however, fairness must be the standard in developing system of representation for our people. That surely was the standard guiding the drafters of the Constitution as they considered the structure of the Congress of the United States. Prof. Robert G. Dixon, Jr., of the George Washingon University Law School, cogently summarized the case of fair representation in testimony last August before the House Committee on the Judiciary. He said: "The difficulty is that reapportionment has been approached on too simple a basis and the basic issue has been mischaracterized. The aim should be to achieve fairness, balance, and diversity in representation, along with majority rule. But the Supreme Court has tended to view reapportionment cases as being simple civil rights cases involving the personalized right of the individual voter to cast a vote which will have 'equal weight' with the votes of all other voters. In a sense, of course, these cases do involve voting. But this simple characterization by the Court misses the crucial point that in apportionment cases the personal civil right of the voter is intertwined with large, overriding questions concerning representation; i.e., concerning political philosophies and practices of representation in a dynamically democratic public order, in which groups are as relevant as individuals." And so, Mr. Chairman, I urge approval of a constitutional amendment embodying the principle enunciated at the outset of my statement and contained in several of the amendments pending before this subcommittee. I happen to be a cosponsor of Senate Joint Resolution 2, introduced by Senator Dirksen, but I want it clearly understood that I am not wedded to every word therein. In fact, I would like to see the first sentence of the Dirksen resolution eliminated since I construe it to mean that the courts have no jurisdiction in apportionment cases. I reject that notion and endorse the Supreme Court's holding in Baker v. Carr. But I strongly support the principle enunciated in the Dirksen and other pending resolutions, and for that reason, I hope that the subcommittee will favorably report a proposed amendment to the Constitution. Senator BAYH. We will stand aside, then, if there is no objection, until 10 o'clock tomorrow, when we will continue with the hearings. (Whereupon, at 11:30 a.m., the committee was recessed, to reconvene at 10 a.m., Thursday, March 4, 1965.) REAPPORTIONMENT OF STATE LEGISLATURES THURSDAY, MARCH 4, 1965 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding. Present: Senators Bayh, Tydings, and Hruska. Also present: Larry Conrad, chief counsel; Clyde Flynn, minority counsel. Senator BAYH. The subcommittee will please come to order. Our first witness this morning is the distinguished Senator from Illinois, Senator Douglas, who has a statement to submit to the committee. We are glad to have you with us, Senator. STATEMENT OF HON. PAUL H. DOUGLAS, A U.S. SENATOR FROM THE STATE OF ILLINOIS Senator DOUGLAS. Mr. Chairman, I appreciate the opportunity to testify before this subcommittee. I oppose any amendment to the Constitution which would restrict or reduce the rights of citizenship. These are individual rights guaranteed by the Constitution, and the denial or reduction is no less objectionable whether accomplished by the dictation of a single tyrant, an oligarchy, or a majority. Consequently, I am unequivocally opposed to the amendments befor you introduced by Senator Dirksen, Senator Javits, and Senator Church (S.J. Res. 2, S.J. Res. 44, and S.J. Res. 38 and 39). SENATE JOINT RESOLUTION 2 MAY BE THE STALKING HORSE There is no question, of course, that the amendment proposed by Senator Dirksen is the most objectionable. But at the outset, I wish to suggest to my colleagues of the subcommittee and of the Senate that they not be so concerned with the obviously unconstitutional, unworkable, and unfair provisions of the Dirksen amendment that they ignore the fundamental faults of all these proposed amendments. I would go so far as to suggest that the Dirksen amendment may be considered the "stalking horse" of those who wish to preserve the rotten borough system in the State legislatures of the United States. It violates the rights of individual citizens and is so potentially destructive of representative government that one can realistically fear that its improve ment will attract the attention of Senators to the neglect of the fundamental and overriding wrongs which the substitute proposals share with it. ALL THE PROPOSED AMENDMENTS SHARE THE SAME WRONGS The two fundamental wrongs which they all share are easily stated. First, they would, in their most perfect form, permit a bare majority of the voters participating in a referendum to deny to individual citizens, others, and themselves, the right to equal representation and to the equal protection of the laws. I submit that no majority of whatever size has the right to deprive citizens of the United States of their right to the equal protection of the laws, any more than a majority can properly deny them their freedom of speech or of religion. Second, they would continue or establish, in practice, minority rule over the State governments by giving control of one house of the legislature, and hence a veto, to the overrepresented rural areas. THE 14TH AMENDMENT GUARANTEES EQUALITY UNDER THE LAW Mr. Chairman, while I am not a constitutional lawyer, I have studied the Constitution and I believe I can read it with understanding. Although some of our colleagues would like to deny or ignore it, the 14th amendment to the Constitution is as much a part of the fundamental law of the land as is any article or other amend ment. The 14th amendment, and I hope I will not bore the committee by quoting again this fundamental law, provides first: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This means that citizenship is national as well as being a State matter, and second, that no distinctions are drawn between citizens. There are no second-class citizens. All are first-class citizens with the same and equal rights under the law. Section 1 of the 14th amendment also provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws." That is the basic law of the land: No State shall deny to any person within its jurisdiction the equal protection of the laws. THE EQUAL PROTECTION OF THE LAWS REQUIRES THAT BOTH HOUSES OF A LEGISLATURE SHOULD BE BASED SUBSTANTIALLY ON POPULATION As Senators know well, the Supreme Court of the United States has held in a series of decisions, beginning with Baker v. Carr in 1962, that the apportionment of State legislatures is a question for the Federal courts to consider and that both houses of a State legislature must be based substantially on population under the constitutional guarantee to citizens of the equal protection of the laws. |