Prior to the Reynolds v. Sims, a State legislature could, within limits, I am sure, change the apportionment of seats in the legislature without going to the people. Now, this of course has been one criticism of Senator BAYH. I forgot to mention the fact that whatever action the State takes would be subject to the referendum of the people, which is one prerequisite which was not necessary Senator MILLER. But a very important consideration, Mr. Chairman, because some of the critics, who I am afraid have not done their homework by at least reading the proposed constitutional amendment, have suggested that if the Congress should pass this S.J. Res. 2, that it will go out to some State legislatures which are still malapportioned, and that they will ratify this and perpetuate themselves in office. Well, now, this just could not possibly happen. Let's just suppost that S.J. Res. 2 is approved by the Congress and it goes out to some legislature that we will all agree is malapportioned. Now, in order to ratify this, those legislators have got to make a decision. If they do nothing, then it is going to be a oneman, one-vote situation in both houses of the State legislature, so they are out of a job anyhow. If they do ratify it, then at least one house will be on a one-man, one-vote basis, and the only way that members of the other house could perpetuate themselves in office would be if the people of their State, in a general referendum, wanted it that way. That is why I say I think that those who are sincere in wanting a one-man-one-vote basis to prevail in both houses are in a most indefensible position when they suggest that they do not want the people of the State to decide that fact for themselves with respect to the second house. Senator BAYH. May I propose one question which we discussed at some length, which the opponents advance so we can get into the record, the reply to this argument by the Senator from Iowa. The opponents are concerned about the preservation of certain basic rights that belong to each individual citizen in this country. which cannot be taken from the individual by a vote of a majority or two-thirds. For example, the right to hold property, freedom of speech, the right, as they say, to equal representation in the halls of our legislative bodies. What is the Senator's reply to the question that could be raised following this line of thought that if a majority, in a referendum, are given through this constitutional amendment the right to take away part of the representation of an individual citizen, that they could also, following the normal constitutional amendment procedure, which requires a two-thirds vote of both houses of Congress and ratification by three-fourths of our legislatures, also take away the right of a certain religious group to hold public office. How does the Senator reply to this argument? Senator MILLER. I am delighted that you ask that question, Mr. Chairman, because I think that it is a very important question and it has been raised, I know, by some opponents, and I do not question their sincerity at all. But what they fail or where they miss the mark, is that there is a difference between the one-man-one-vote doctrine right let's call it, and the right of freedom of speech or freedom of worship. The difference is that freedom of worship prevails at the State, the local, the county, the city, and the Federal level. But quite obviously, the right to one man one vote does not prevail at the Federal level. Otherwise the U.S. Senate would be on a one-man-one-vote basis. So that I would suggest to the chair that is a fundamental difference between these two rights. And I think they miss their mark when they suggest that the right to have a one-man-one-vote doctrine apply in State legislative proceedings as the same and the same category or in the same status as freedom of worship and other basic inherent rights of the people set forth in the Constitution. If they are right, Mr. Chairman, if they are right in this, then of course we might as well all go home and have the U.S. Senate elected on a one-man-one-vote basis. And I do not know of very many people who would care to do that. Senator BAYH. Is the Senator implying he feels there is an analogy, then, between Federal representation an State representation. Senator MILLER. I know that I have some of my colleagues who advocate S.J. Res. 2 who will disagree with me on this point. But down through the years in which I have participated in this reapportionment problem, I must say I have never been persuaded to use the Federal analogy. I think that there is a difference. I think there is a difference be tween the fact that the composition of the Congress is set forth in the basic Constitution document, and the fact that the equal protection of the law's clause relates only to States, and came along later on as a constitutional amendment which relates only to States and has nothing to do with the Federal Government or the Federal Congress. So I have never used the fact that we have one house on area basis and one house on population in the Federal Congress as a basis for arguing that therefore we should have the same thing in the State legislatures. Senator BAYH. The Senator's argument is on a much more stable ground, if I may say so. Let me ask one other question. In the first sentence of S.J. Res. 2 it reads as follows: The right and power to determine the composition of a legislature of a State and the apportionment of the membership thereof shall remain in the people of that State. There has been some testimony to the effect that this could be interpreted as removing all right of judicial review for apportionment--even to the one house that would be required on the one-manone-vote basis. First of all, does the Senator so interpret this sentence in that way, and if so, does he feel that it should be changed? How does the Senator feel about that? Senator MILLER. Well, Mr. Chairman, if I had felt that that would the interpretation of it, I would not have my name appended to resolution. Senator BAYH. The Senator still feels that there should be judicial w, particularly as far as the one house that is one man, one vote, en after the adoption of S.J. Res. 2? or MILLER. Oh, yes; I might say, Mr. Chairman, that I am he many members of the Congress who has believed that the Federal courts should have jurisdiction over the question of whether or not equal protection of the laws is denied by reason of legislative apportionment problems. I do not share the belief of some of our colleagues that the Supreme Court or other Federal courts have no business in this area-if that is what the Chair is getting at. But I do want to make it clear that interpreting this section 1, the first sentence of which the chairman has just read, I think we must read what follows. I think the reading of the entire section 1 makes it quite clear that it would strain the interpretation of section 1 to suggest that there would be no judicial review in this matter. I would say this, though, Mr. Chairman, that if there are any doubts on this subject, if there are any doubts, reasonable doubts-of course, somebody can always bring in a case-but I am talking about reasonable doubts based upon the best judgment of not only the committee staff, but also the Department of Justice-then I think that clarifying language or perhaps a change in language ought to be done. I do not want to be a party to something that is going to provide a lot more litigation. Now, I would like to respond, if I might, to an earlier point that the chairman made, before I leave, if I could. There is no intention behind this second amendment that I suggested this afternoon to do away with ad hoc cases. I just want to do away with some that I believe are unnecessary in light of the Dorsey case. The question of whether or not there is a discrimination against a racial minority or a discrimination against a political minority can involve a tremendous amount of litigation. If we can avoid that by simply saying each legislator is elected from his own legislative district by the people in that district, and the district will be composed on a one-man-one-vote basis, I think that we have done a service to the people. Now, there is no question but what if S.J. Res. 2 is adopted, along with my amendment, there are going to be numerous ad hoc cases, because the chairman well knows that there are all kinds of permutations and combinations in implementing the one-man-one-vote doctrine; whether or not if 47 percent of the people theoretically control one house of the legislature then that satisfies the one-man-one-vote basis; whether or not a discrepancy of populations of the districts within one house can exceed 112 or 2 to 1. There are many of these things that have to be looked at on an ad hoc basis, and no constitutional amendment we propose can do away with these. Senator BAYH. I was just trying to point out it is going to be rather difficult to do anything with constitutional language that is going to avoid all ad hoc cases. I appreciate the Senator's comment. We would appreciate any language that you might have implementing your proposed amendment, so that the committee might study it specifically. Senator MILLER. Thank you, Mr. Chairman. I will do that. Senator BAYH. Please do. Senator MILLER. This is not contained in S.J. Res. 2. I might say that I think it should be. difference is that freedom of worship prevails at the State, the local, the county, the city, and the Federal level. But quite obviously, the right to one man one vote does not prevail at the Federal level. Otherwise the U.S. Senate would be on a one-man-one-vote basis. So that I would suggest to the chair that is a fundamental difference between these two rights. And I think they miss their mark when they suggest that the right to have a one-man-one-vote doctrine apply in State legislative proceedings as the same and the same category or in the same status as freedom of worship and other basic inherent rights of the people set forth in the Constitution. If they are right, Mr. Chairman, if they are right in this, then of course we might as well all go home and have the U.S. Senate elected on a one-man-one-vote basis. And I do not know of very many people who would care to do that. Senator BAYH. Is the Senator implying he feels there is an analogy, then, between Federal representation an State representation. Senator MILLER. I know that I have some of my colleagues who advocate S.J. Res. 2 who will disagree with me on this point. But down through the years in which I have participated in this reapportionment problem, I must say I have never been persuaded to use the Federal analogy. I think that there is a difference. I think there is a difference between the fact that the composition of the Congress is set forth in the basic Constitution document, and the fact that the equal protection of the law's clause relates only to States, and came along later on as a constitutional amendment which relates only to States and has nothing to do with the Federal Government or the Federal Congress. So I have never used the fact that we have one house on area basis and one house on population in the Federal Congress as a basis for arguing that therefore we should have the same thing in the State legislatures. Senator BAYH. The Senator's argument is on a much more stable ground, if I may say so. Let me ask one other question. In the first sentence of S.J. Res. 2 it reads as follows: The right and power to determine the composition of a legislature of a State and the apportionment of the membership thereof shall remain in the people of that State. There has been some testimony to the effect that this could be interpreted as removing all right of judicial review for apportionment-even to the one house that would be required on the one-manone-vote basis. First of all, does the Senator so interpret this sentence in that way, and if so, does he feel that it should be changed? How does the Senator feel about that? Senator MILLER. Well, Mr. Chairman, if I had felt that that would be the interpretation of it, I would not have my name appended to this resolution. Senator BAYH. The Senator still feels that there should be judicial review, particularly as far as the one house that is one man, one vote. and even after the adoption of S.J. Res. 2? Senator MILLER. Oh, yes; I might say, Mr. Chairman, that I am one of the many members of the Congress who has believed that the Federal courts should have jurisdiction over the question of whether or not equal protection of the laws is denied by reason of legislative apportionment problems. I do not share the belief of some of our colleagues that the Supreme Court or other Federal courts have no business in this area-if that is what the Chair is getting at. But I do want to make it clear that interpreting this section 1, the first sentence of which the chairman has just read, I think we must read what follows. I think the reading of the entire section 1 makes it quite clear that it would strain the interpretation of section 1 to suggest that there would be no judicial review in this matter. I would say this, though, Mr. Chairman, that if there are any doubts on this subject, if there are any doubts, reasonable doubts-of course, somebody can always bring in a case-but I am talking about reasonable doubts based upon the best judgment of not only the committee staff, but also the Department of Justice then I think that clarifying language or perhaps a change in language ought to be done. I do not want to be a party to something that is going to provide a lot more litigation. Now, I would like to respond, if I might, to an earlier point that the chairman made, before I leave, if I could. There is no intention behind this second amendment that I suggested this afternoon to do away with ad hoc cases. I just want to do away with some that I believe are unnecessary in light of the Dorsey case. The question of whether or not there is a discrimination against a racial minority or a discrimination against a political minority can involve a tremendous amount of litigation. If we can avoid that by simply saying each legislator is elected from his own legislative district by the people in that district, and the district will be composed on a one-man-one-vote basis, I think that we have done a service to the people. Now, there is no question but what if S.J. Res. 2 is adopted, along with my amendment, there are going to be numerous ad hoc cases, because the chairman well knows that there are all kinds of permutations and combinations in implementing the one-man-one-vote doctrine; whether or not if 47 percent of the people theoretically control one house of the legislature then that satisfies the one-man-one-vote basis; whether or not a discrepancy of populations of the districts within one house can exceed 12 or 2 to 1. There are many of these things that have to be looked at on an ad hoc basis, and no constitutional amendment we propose can do away with these. Senator BAYH. I was just trying to point out it is going to be rather difficult to do anything with constitutional language that is going to avoid all ad hoc cases. I appreciate the Senator's comment. We would appreciate any language that you might have implementing your proposed amendment, so that the committee might study it specifically. Senator MILLER. Thank you, Mr. Chairman. I will do that. Senator BAYH. Please do. Senator MILLER. This is not contained in S.J. Res. 2. I might say -1 that I think it should be. |