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“It is a question of whether we, the people, will permit an appointed agency of our Government to rise up and devour us.

“It is a problem of the centralization of Federal power.

"It is a matter of whether we in this Nation shall succumb to dictation by the Court.

“It is a matter of whether we shall settle our important political questions through open, thorough public discussion and vote, or whether it shall be done hastily, in a court, or anywhere else, with six people making the decision.

“This is a test of whether there is one Government in Washington, D.C., or whether there are also 50 State governments; it is a test of whether the form of government belongs to the people, or to the Supreme Court; it is, indeed, a test of whether the government belongs to the people and is a government with the consent of the governed, or whether it is a government of centralized power without the consent of the people.

*2. Second, see that everyone recognizes that if this is to be a battle, it will be a struggle between big-city machines and the rest of the country.

“It is not a farm-city fight. If this is a fight between citizens, it is a battle between counties and big cities; between the people and machine politics and ward leaders—and then, only if the big-city machine leaders chose to make it so by endorsing this action of the majority six.

*Yours is a positive action to preserve the local functions of government where you can govern best-and to keep these functions as we the people want them.

"3. Third, get your State, and all States, to call for a constitutional convention.

"One way to amend the Constitution is to start with a constitutional convention, which can be called if two-thirds of the States (34) ask for it. This is a direct action that you can take-and you can see that it gets done in your State by talking with your State representative right at home.

4. Fourth, get Congress to pass a resolution putting a constitutional amendment before the States in a referendum. This is another way to amend the Constitution if three-fourths of the States (38) ratify the amendment.

*A simple resolution has been proposed by Representative McCulloch, of Ohio, and the general assembly of States. It says: '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, if the citizens of the State shall have the opportunity to vote upon the apportionment. And any State may determine how governing bodies of it subordinate units shall be apportioned.'

*This puts the question before the people twice:

** First will be a vote on the constitutional amendment. This permits States to vote on the question of whether they want to reserve for themselves the power to apportion their own legislature.

"Second will come an opportunity for the people to vote on any apportionment plans that might come up in the State.

*Let that 'one-man-one-vote' be on State apportionment--that is what we are asking for: That each man be allowed to vote whether apportionment of State legislatures shall be done by his State in its own political wisdom, or whether it shall be done by the Court, satisfying only the theories of six men.

“Fundamentally, we ask that the people have the opportunity to make the decision on this question. Surely, this is what democracy and representative government is all about. And who can be opposed to the people exercising this right to vote on the issue? If anyone is opposed, now is the time to find out who it is.

“). Fifth, get Congress to pass a staying action on the majority six Court decision until the people have an opportunity to express themselves through a constitutional convention or through a constitutional referendum on a congressional resolution,

*The courts are running full tilt to get apportionment wrapped up under their Adict before the people have time to act. Others will help thein. You are fighting a race against time.

“Last August the House of Representatives in Washington passed the Tuck hil by an overwhelming majority. That bill would have denied all Federal courts jurisdiction over matters dealing with State legislative apportionment.

"This was killed in the Senate as a rider on the foreign aid bill. Then a Dirksen-Mansfield rider was proposed to buy time.' This proposal would have provided a partial stay on the Court action so that there would be time to perinit States to vote on a constitutional amendment. This bill was lost, primarily through a filibuster of four Senators.

"Senator Aiken commented: 'It is significant that virtually all of the Senator taking part in the filibuster were from States with cities of 1 million and over: cities that are overwhelmingly in debt and are constantly seeking new sources revenue either from taxes or public grants.'

"Two of the leaders of the filibuster were Senator Douglas, from Chicago, and Senator Clark, from Philadelphia. They didn't want the people in the States to have an opportunity to express themselves in a constitutional amendment refer endum. It is interesting that these Senators, who plead that the majority shond rule, resorted to a filibuster to keep the majority of the Senate from voting on the issue of whether to 'buy time' so that the States could vote by a three-fourtbe majority rule on whether to keep apportionment as a State matter.

“6. Last, you can launch a personal and group educational program to see that people—not just farmers, but others as well—understand what is inrolved in this Court action. Read it; study it; write about it; talk about it; make speech about it. Do this, not just through your State office or the national office; but right where you live. You can make it your personal No. 1 project for 18. nothing is more important to you and to all the people in your community, your county, and your State.

"You can call on and meet with your State representatives; your county cocials: your local township and political officials. There shouldn't be a singltownship in the State of Iowa that doesn't have a full-scale half-day or full-143 meeting on this in the next few weeks.

"And what is done in Iowa should be done in every State in the Union. “If you will do this, there will be no question about the outcome.

"Anything less than this is losing faith with the people who, through extrelit sacrifice, courage, God-given wisdom, and loss of life built this privileged Vatican for us through colonial oppression, frontier travail, and the agony of great war which harvested our young men-the price that others have paid for our liberty and freedom. Anything that we can do, will not be enough to pay for the priceless privilege that is ours."

APPENDIX E

DOCUMENTARY EVIDENCE THAT GUARANTEE OF A REPUBLICAN FORM OF GOVERNMENT

SUPPORTS STATE "LITTLE FEDERAL" SYSTEMS The records of the Federal Constitutional Convention and The Federalist Papers clearly indicate that the delegates felt that they were formulating a "pp publican” form of government and that they considered the then existing States to have a republican form of government. Also the records show that the concept of a two house legislature, at both Federal and State level, with one of the house based on population was closely related in the delegates' minds to the concept of a republican form of government.

The compiler of the basic standard reference, The Records of the Federal ('06vention. Max Farrand states in his The Framing of the Constitution of the United States (Yale University Press, 1913, p. 74) that:

"It having been agreed to proceed upon lines of somewhat radical reform, the questions with regard to the nature and extent of the reorganization became important. As involving fundamental principles, the subject of the composition of the legislature quite naturally provoked the most discussion. That the legis lature should consist of two houses was readily and unanimously accepted. Mason voiced the general opinion very well when he said a few days later that 'the mind of the people of America * was unsettled as to some points: but * In two points he was sure it was well settled. 1. In an attachment to Republican Government. 2. In an attachment to more than one branch in the Legislature. There is a tradition that Thomas Jefferson some 2 years later, upos his return from France, was protesting to Washington against the establishmet of two houses in the legislature. The incident occurred at the breakfast table. and Washington asked: Why did you pour that coffee into your sa ucer?" "Th cool it,' replied Jefferson. “Even so,' said Washington, 'we pour legislation into the senatorial saucer to cool it.''

Jonathan Elliott in his Debates on the Federal Constitution at p. 216 of vol. II (Lippincott 1936) reports on George Mason's belief referred to by Farrand abore as follows:

"He believed the mind of the American people, as elsewhere, was unsettled as to some points, but settled as to others. In two points he was sure it was well

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settled-first, in an attachment to republican government; secondly in an attachment to more than one branch in the legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exception to the establishment of two branches in the legislature are the State of Pennsylvania, and Congress; and the latter the only single one not chosen by the people themselves. What have been the conseInences? The people have been constantly averse to giving that body further powers." (Also found in Farrand's Records of the Federal Constitution, Yale University Press, revised 1937 edition, vol. I, p. 339, based on Madison's account of June 20, 1787.)

Numerous other delegates, including Madison and Hamilton, referred to the objective of the Convention as being a republican form of government. In fact, Connecticut in appointing three delegates specified that they were, “to discuss upon such alterations and provisions agreeable to the general principles of republican government as they shall think proper to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union." (Quoted in Farrand, The Framing of the Constitution, p. 33).

"Madison asserted in the Convention, and Hamilton repeated after him, that they were now to decide for ever the fate of republican government.'" (Farrand, The Framing of the Constitution, p. 61).

Madison and Hamilton gave their definitions of a Republic in The Federalist Papers which they wrote urging State ratification of the Constitution. Hamilton wrote that:

"A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

"The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest : secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

“The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." (The Federalist, edited by Henry Cabot Lodge, G. P. Putnam's Sons, 1888, p. 57.)

Madison writing in The Federalist compares the Government proposed in the Constitution with the republican form and states that the Federal House of Representatives is like one branch at least of all the State legislatures in the following terms:

"On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves. The duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions. The House of Representatives is periodically elective, as in all the States; and for the period of 2 years, as in the State of South Carolina. The Senate is elective, for the period of 6 years; which is but 1 year more than the period of the Senates of New York and Virginia." * (The Federalist, p. 234.)

D-spite Madison's support as a then “hig state" delegate, of the minority viewpoint in the Convention, basing both Houses of the Congress on population and “wealth", he on several occasions recognized that it was a common practice in republican forms of government to base a second house on factors other than population. For example. Farrand's Records on June 6, at page 134 (based on Madison's own account of the Convention) Ioads: Madison considered an election of one branch at least of the Legislature by the people Immediately, as a clear principle of free Government .. *" (italic added for emphasis).

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JOE C. CARR, ET AL. Mr. Justice Frankfurter, whom Mr. Justice Harlan joins, dissenting (excerpts).

The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only 5 years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between pop ation and legislative representation a wholly different matter from denial of the franchise to individuals because of race, color, religion, or sex. Such a massive repudiation of the experience of our whole past is asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court's "judicial power" not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well in pair the Court's position as the ultimate organ of “the supreme law of the land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court's authority--possessed neither of the purse nor the sword--ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachmedi

. in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

A hypothetical claim resting on abstract assumption is now for the first time made the basis for affording illusory relief for a particular evil even thought it foreshadows deeper and more pervasive difficulties in consequence. The claim is hypothetical and the assumptions are abstract because the Court does not vouchsave the lower courts-State and Federal-guidelines for formulating specific definite, wholly unprecedented remedies for the inevitable litigations that today's umbrageous disposition is bound to stimulate in connection with politically mo tivated reapportionments in so many States * * *

To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, bowever flatteringly, omnicompetence to judges. The Framers of the Constitution persistently rejected a proposal that embodied this assumption and Thomas Jeffer son never entertained it * * *

In effect, today's decision empowers the courts of the country to devise that should constitute the proper composition of the legislatures of the 50 States

We were soothingly told at the bar of this Court that we need not wort! about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a statewide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies : sorry confession of judicial impotence in place of a frank acknowledgement that there is not under our Constitution a judicial remedy for every political mischief for every undesirable exercise of legislative power. The framers carefully and with deliberate forethought refused so to enthrone the judiciary. ation, as in others of like nature, appeal for relief does not belong here. Ampeg] must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope

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In sustaining appellants' claim, based on the 14th amendinent, that the district court may entertain this suit, this Court's uniform course of decision over the years are overruled or disregarded. Explicitly it begins with Colegrove v. Green, supra, decided in 1946, but its roots run deep in the Court's historic adjudicatory process.

Colegrove held that a Federal court should not entertain an action for declaratory and injunctive relief to adjudicate the constitutionality, under the equal protection clause and other Federal constitutional and statutory provisions, of a State statute establishing the respective district for the State's election of Representatives to the Congress. Two opinions were written by the four Justices who composed the majority of the seven sitting members of the Court. Both opinions joining the result in Colegrove v. Green agreed that considerations were controllilig which dictated denial of jurisdiction though not in the strict sense of want of power. While the two opinions show a divergence of view regarding some of these considerations, there are important points of concurrence. Both opinions demonstrate a predominant concern; first, with avoiding Federal judicial involvement in matters traditionally left to legislative policymaking; second, with respect to the difficulty--in view of the nature of the problems of apportionment and its history in this country-of drawing on or devising judicial standards for judgment, as opposed to legislative determinations, of the part which mere numerical equality among voters should play as a criterion for the allocation of political power; and, third, with problems of finding appropriate modes of relief-particularly, the problem of resolving the essentially political issue of the relative merits of at-large elections and elections held in districts of unequal population.

The broad applicability of these considerations--summarized in the loose shorthand phrase, “political question"-in cases involving a State's apportionment of voting power among its numerous localities has led the Court, since 1916. to recognize their controlling effect in a variety of situations. (In all these cases decision was by a full Court.) The “political question" principle as applied in Colerove has found wide application commensurate with its function as “one of the rules basic to the Federal system and this Court's appropriate place within that structure." Rescue Army v. Municipal Court, 331 U.S. 549, 570. In ColeOrore v. Burrett, 330 U.S. 804, litigants brought suit in a Federal district court challenging as offensive to the equal protection clause Ilinois' State legislative appurtionment laws. They pointed to State constitutional provisions requiring decennial reapportionment and allocation of seats in proportion to population. alleged a failure to reapportion for more than 15 years—during which time extensive population shifts had rendered the legislative districts grossly 11mual--and sought declaratory and injunctive relief with respect to all elections to be held thereafter. After the complaint was dismissed by the district court, this court dismissed an appeal for want of a substantial Federal question. A similar district court decision was affirmed here in Radford v. Gary, 3.32, C.S. 991. And of. Remmey v. Smith 342 U.S. 916. In Tedesco v. Board of Superrixorx, 339 L'.S. 940. the Court declined to hear, for want of a substantial Federal question, the claim that the division of a municipality into voting districts of mequal population for the selection for councilmen fell afoul of the 14th amendment, and in C'0.1 v. Peters, 342 U.S. 936, rehearing denied, 343 U.S. 921, it found no substantial Federal question raised by a State court's dismissal of a claim for damages for “devaluation" of plaintiff's vote by application of Georgia's countyunit system in a primary election for the Democratic gubernatorial candidate. The same Georgia system was subsequently attacked in a complaint for declaratory judgment and an injunction: the Federal district judge declined to take the requisite steps for the convening of a statutory three-judge court; and this Court, in Hartsfield v. Sloan, 357 U.S. 916, denied a motion for leave to file a Petition for a writ of mandamus to compel the district judge to act. In MarDougall v. Green, 335 U.S. 281, 283, the Court noted that. "to assume that political pwer is a function exclusively of numbers is to disregard the practicalities of povernment," and, citing the Colegrore cases, declined to find in “such broad constitutional concepts as due process and equal protection of the laws," id., at 284, a warrant for Federal judicial invalidation of an Illinois statute requiring as a condition for the formation of a new political party the securing of at least 200 signatures from each of the 50 counties. And in South v. Peters, 339 U.S. 276, another suit attacking Georgia's county-unit law, it affirmed a district court

dismissal, saying:

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