Mr. HANSON. For all practical purposes, Senator, the ultimate source of authority-I do not know whether we can properly use the word "ultimate," but the source of practical authority, which is what will count, will be with the legislatures proposing referendums to the people.

Senator HRUSKA. You do not attach much importance to the vote of the people itself?

Mr. HANSON. I attach a great deal of importance to the vote of the people, Senator. This is in part the reason why I consider the submission of the question to a majority of whether, in all subsequent questions to be decided as far as legislation is concerned, the majority should rule to be most unwise.

Senator HRUSKA. Let me stop you there, because you are getting into the category of so many witnesses. They say if we are going to consult a vote of the people for this purpose, we are going to consult them for all legislative purposes, and you use the words "all propositions.”

Mr. HANSON. No. Senator, you misunderstand me.

Senator HRUSKA. We are talking about the proposition allowed by this S.J. Res. 2.

Mr. HANSON. I think you misunderstand my response, and I am sorry; I was not sufficiently precise.

What seems unwise is the submission to a majority of the question which is, in a sense, the question that will be put in a State seeking to implement S.J. Res. 2, whether in the composition of one house of the State legislature and consequently-or as a consequence of thatin the votes that will be taken on stubstantive legislative matters in the legislature, whether a majority as represented by the members of the legislature should have the power to rule. It is the submission of this kind of question to which I object.

Senator HRUSKA. I know you object to it. But who would you have make that decision?

Mr. HANSON. I would not have anybody make it. I would have the decisions of the Supreme Court stand as they are.

Senator HRUSKA. Is it on the basis that the rule in Reynolds v. Sims is wise and should not be changed? Is that not it?

Mr. HANSON. That is correct.

Senator HRUSKA. You want to deny to the people the opportunity to overrule Reynolds v. Sims in part? Mr. HANSON. That is correct. Senator HRUSKA. Well, that is fine.

Because then, you see, we come Those who are so enthusias tic for it do not want to give that man a chance to vote for it. Mr. HANSON. To the contrary.

to that proposition of one man, one vote.

Senator HRUSKA. They do not want to give that man a chance to vote whether Reynolds v. Sims should stand.

Mr. HANSON. What we want, Senator, is to permit each man to reain his power.

I think in my initial statements, I gave a couple of illustrations to uggest why I think it is unwise to permit a referendum on the application of Reynolds v. Sims to a house.

Senator HRUSKA. If you do not mind my interrupting just a little bit, Professor, we have gone into the wisdom of it a good deal. You

have in your statement and we have commented on it all the time, but can we get an answer to this question which I asked? If SJ Res. 2 is not adopted, the people of this Nation in the several States will be denied an opportunity to have a popular vote within their State on whether or not Reynolds v. Sims should be modified within their State. Do you agree with that?

Mr. HANSON. I agree that the effect of S.J. Res. 2 is to permit & majority of the people to modify Reynolds v. Sims, and I agree that is

Senator HRUSKA. That is half of the answer. Without S.J. Res. 2 they will have no opportunity. They can have no opportunity to modify Reynolds v. Sims.

Mr. HANSON. No more opportunity than they have to modify Brown against the Board of Education, nor should they have.

Senator HRUSKA. They should not have the right to have a char to revise Reynolds v. Sims within their own State?

Mr. HANSON. No more than Brown versus the Board. To me, it is just as unwise to submit to a majority vote in a State of the Union the question as to whether there should be a segregated school as to submit to reference of the people whether every individual citizen should be entitled to full representation in his legislature.

Senator HRUSKA. Had the decision of Reynolds v. Sims been the other way, what would your solution to that problem have been? Mr. HANSON. To spend probably another 10 years working with ny State legislature.

Senator HRUSKA. It would be another constitutional amendment. would it not?

Mr. HANSON. I do not believe that I have every seriously proposed a constitutional amendment on the subject.

Senator HRUSKA. You would not?

Mr. HANSON. It is confutable, but I have not.

Senator HRUSKA. I know you have not, but if Reynolds v. Sims had been decided in favor of the States instead of in favor of the Government, what would your action have been?

Mr. HANSON. Well, as I said, I think my first line would be to try to use whatever I had in the way of dissenting opinions to do two things: One would be to say to the legislatures, "All right, the Suprem Court has now said that this is a political question and it is in your lap and we have to come to some kind of a resolution here," and I would try to do the best that I could. In fact, I did this all the time that I was filing in the courts, and our committee was filing in the courts. We succeeded in getting a little improvement through one house. And I suppose ultimately we would have gotten a little improvemen through both houses, through operating politically in the State.

The other thing I expect we would have regrouped and, depending on the size and the majority, we may well have tried through the courts again.

Senator HRUSKA. You tried to get that improvement in the State by way of a constitutional amendment, did you not?

Mr. HANSON. We had to in Maryland, because the rotten boroughs are frozen into the constitution. We did not have any alternative. Senator HRUSKA. Yet for people who believe that Reynolds v. Sim should be modified, you do not want them to have that chance to do

it, do you? You do not want the people to have a chance to modify Reynolds v. Sims when it favors you, but you want to retain and will take advantage of every political opportunity to overcome it. Mr. HANSON. I play by the rules of the game.

Senator HRUSKA. No; you do not. You apply one set of rules to you if the decision is bad in your judgment. If Reynolds v. Sims had had a different result, you would have made a political issue out of it and said, "The people of Maryland will decide by a popular vote whether Reynolds v. Sims will apply or whether it will not apply.

Mr. HANSON. Oh, no, Senator. Wait a minute. If Reynolds v. Sims had gone the other way, I doubt very sincerely that it would have said malapportionment is constitutional. Probably it would have upheld the Colegrove rules of Justice Frankfurter of just keeping hands off and saying nothing about the merits of this at all. But this is a different situation.

Now, one other situation is considerably different. This would have left in the States in the State constitutions and subject to State constitutional interpretation the question of both the rights and powers of people and legislatures as respect these questions. I have no compunctions whatever about using the referendum in a State on a State constitutional question. I have great reservations, however, about using the referendum in a State on a national constitutional issue. Senator HRUSKA. That is not what is being done by a referendum. Under our S.J. Res. 2, it would be a referendum for a vote of the people to determine whether their State constitution should be amended. That is all. The same thing you would contend for if Reynolds v. Sims went the other way.

Mr. HANSON. But what S.J. Res. 2 does is provide a selective repeal of part of the equal protection, or the meaning of the equal protection clause of the 14th amendment.

Senator HRUSKA. I say categorically it does no such thing. It does not selectively repeal it.

Mr. HANSON. I must categorically disagree.

Senator HRUSKA. It simply gives the people of each State a chance to make a selective application of Reynolds v. Sims, very limited in fashion.

Mr. HANSON. And thus selectively repeal the application of the 14th amendment to their State.

Senator HRUSKA. That is why I say you do not play the game by the same rules. You want the opportunity to amend the State constitution if the Reynolds against Sims went the other way, but you want to deny to the people of your own State the opportunity to amend their constitution to obviate a part of the Reynolds against Sims decision because it went your way. That is exactly the situation. In all fairness, do you not think that is true?

Mr. HANSON. No, Senator; in all fairness, I do not quite.

Senator HRUSKA. Then tell me how the people of Maryland can pursue the same course to ge their objective; namely, a legislature with one house having bases of apportionment other than population. How can they pursue it?

Mr. HANSON. They cannot under the present

Senator HRUSKA. But you would under your situation?

Mr. HANSON. Nor do I think they should be able to pursue it. Senator HRUSKA. But you cannot very well contend that you are playing the game by the same rules.

Mr. HANSON. I think so. The Constitution has been interpreted by the Supreme Court. Those are the rules by which I play and whi I support.

Senator HRUSKA. Had only one vote shifted or had the majority been the other way, that would have been the Constitution. You won have had an opportunity to have taken action to obviate that decisie by amending your State constitution. You want to deny that right to people who are opposed, even the opportunity to propose it?

Mr. HANSON. As I tried to explain, Senator, the decision of Req olds against Sims is on the merits of the issue.

Senator HRUSKA. Merits of what?

Mr. HANSON. Merits of the issue of representation.

Senator HRUSKA. That is what we would ask the people of ‚” State

Mr. HANSON. There would never have been a Reynolds agains Sims to go the other way if the Supreme Court had held against jurisdiction in Baker v. Carr. So they would never have been a quest for the people to vote on.

Senator IIRUSKA. No; but the people of Tennessee in that case, l. «d Baker v. Carr continued as the law of the land, the people of Tente see would be able to change their constitution. They could have 1 proposal made and put on the ballot. If enough of them supported it and enough members of the legislature supported it, they put it on the ballot. They would be able to work their will by popular sovereignty on that proposition. But under your position you wi to deny the people of Tennessee the right to say, "Yes, we want to vote on this question."

Mr. HANSON. What I want is to permit every citizen of Tennesse and every citizen of Maryland, whatever the feelings of a majority of the people in those respective States or any other State, to have now and for his life and for his posterity the right of being represented equally with every other citizen of his State. I just cannot see anything wrong with that, and I just cannot see why a majority should be abr to tell me if I am the only man in Maryland who wants to be fairly represented that "No, you cannot be fairly represented because you are not the right kind of factor other than population."

Senator HRUSKA. Let me ask you, then, whether or not that is a rejection of popular sovereignty.

Mr. HANSON. I reject the wisdom of submitting to the people

Senator HRUSKA. Let us not say wisdom. That is not what I said: I said the right of people to vote on questions by popular sovereignty. Mr. HANSON. They have a right to vote on what is submitted to ther Senator HRUSKA. Exactly, but not under your position. You will not let them vote on that.

Mr. HANSON. Not everything is submitted to them, even that. Senator HRUSKA. Let us not talk about everything. This particular thing.

Mr. HANSON. All I want to do is maintain the status quo.
Senator HRUSKA. You will not allow them to vote on this particular

one.

Mr. HANSON. All I want to do is maintain the status quo.

Senator HRUSKA. Exactly; you do not want to allow the people a chance to vote on this issue.

Mr. HANSON. That is quite right.

Senator HRUSKA. Now we understand each other. You reject the idea of popular sovereignty.

Mr. HANSON. No, I reject the idea of voting on this question.

Senator HRUSKA. It is probably a matter of semantics, but it is the popular sovereignty doctrine; as applied to this particular proposition, that you do not want to give a chance to be exercised.

Mr. HANSON. The popular sovereignty doctrine, Senator, as invented did not contemplate the idea of direct representation by the people except on the question of whom they should elect.

Senator HRUSKA. Now, let us wait a minute. How do you explain referenda then?

Mr. HANSON. I explain referenda as they developed in the United States by some of the difficulties that arose in dealing with the legisla

tures

Senator HRUSKA. That is popular sovereignty.

Mr. HANSON. Many of the people advocating referenda were advocating them on the basis of popular sovereignty, yes. I am not sure they were absolutely correct in so doing.

Senator HRUSKA. In other words, you do not favor submitting to the people by popular vote propositions that they consider they would like to have a chance to vote on?

Mr. HANSON. I think many people, and I include myself, people with an egalitarian and majoritarian and popular sovereignty point of view, found the efficacy of the referendum of some dubious quality. Senator HRUSKA. Of course, you define popular sovereignty as the idea of voting for candidates for office. Is that not exactly what they are doing here under S.J. Res. 2?

Mr. HANSON. No, they are not voting for candidates for office at all they are voting on whether their votes should count equally in voting for candidates.

Senator HRUSKA. No, they are voting on the method by which they shall select their candidates, are they not?

Mr. HANSON. Yes; as to whether their votes will count equally. Senator HRUSKA. You say that if you were the only one who wanted a one man, one vote, that the majority would not or should not be able to deprive you of it?

Mr. HANSON. That is correct.

Senator HRUSKA. How, then, do you explain the fact that every time we have a constitutional amendment proposed, it must have a twothirds vote? Is that one man, one vote? There must be more than two Senators for any constitutional amendment as opposed to one who would be against it. Is that one man, one vote?

Mr. HANSON. It is one Senator, one vote.

Senator HRUSKA. One Senator, one vote, in what way? You take a half vote away by requiring two-thirds rather than a simple majority.

Mr. HANSON. You provide a procedural rule for the protection of the minority. This, I think, gets very much to the nub of what is at stake.