ment. Furthermore, the way to obtain just laws, is to require that laws be equal in operation. Where legislators are true representatives of the people of their State they tend to be vigilant in their response to the wishes of the electorate.

Several questions occur immediately in the consideration of the proposed amendments. One, do the proposals measure up to sound constitutional standards? Two, do they introduce various problems and potential abuses, in trying to avoid the one-person, one-vote requirement? Three, do they permit or inhibit the kind of flexibility which a constitution should afford?

Some who have not carefully studied malapportionment fail to realize how vast its influence is in the legislative process. However, once you have malapportionment, the effect is not merely upon the election of the particular representative but it carries through and pervades every part of the legislative process, so that all legislation coming before a legislative body elected on the basis of malapportionment is directly affected by that process. Thus the citizen who is discriminated against by the malapportionment is either inadequately represented in the consideration and vote as to all legislation affecting him or those like him in the constituency or, in some cases, his interest is completely without representation. For this reason malapportionment does much more far-reaching damage than the violation of other constitutional rights where the effect is limited to a particular transaction or matter.

In the consideration of these proposed amendments it should not be overlooked that majority rule is one of the American contributions to the philosophy of government, and that the one-person, one-vote requirement of the Constitution implements that contribution while making the legislative body truly representative. In the process now going on whereby representative government is being restored to its representative character in the legislative chamber, we can expect that such legislative bodies will again be worthy of serving a free people. There are those who may argue that the proposed amendments merely give the opportunity for majority rule, and therefore should not be objectionable. The matter, however, is not that simple. Without the initiative and referendum the question can be formulated by a legislature with a majority occupying their offices only by reason of the malapportionment that they have been able to maintain. Under the proposals it would be most difficult to present the questions in a form where the people had a fair choice between one-person, one-vote and other possible formulas for representation. Even if it can be assumed that a group of officeholders maintaining themselves under malapportionment would present the questions fairly, and with a further assumption that in any event you would require action by a constitutional convention of the State rather than the legislature maintained in power by malapportionment, nevertheless I do not hesitate to suggest that a great deliberative body like the Senate of the United States should not offer the opportunity to a majority of the body politic to change the present eminently fair system of one person, one vote into a governmental structure where gerrymandering or combinations favoring rural, suburban, or urban areas could exercise the power of the majority to deprive one or both of the other groups of their fair proportion of representation. In so doing, they would at least partially disenfranchise the individual voters of such a group.

To apply this to specific cases, it would be most regrettable if, by these proposals, the Senate of the United States made it possible for the majority of the voters in the State of New York to perpetuate the present condition where New York City with 8 million people has been allowed to elect only 90 legislators, and upstaters with 7 million people have elected 118 representatives. Or to preserve in California a situation where Los Angeles County with a population of over 4 million has been allowed only 1 State senator while the counties of Inyo, Mono, and Alpine, with a total of 14,014 residents have the same representation.

Under our Constitution as interpreted by the decisions of the Supreme Court, these conditions may not be continued.

However, only by these proposed amendments or some other changes in the Constitution allowing for such discrimination in this basic right of fair representation could it continue. But let us turn to some other examples. In the State of Nebraska, which I know much about, the discrimination has regularly been against the city of Omaha, and the majority of the people live outside that city. But is there anything right or desirable about giving that majority the power under the Constitution of the United States to make the vote of each resident of Omaha equal to only a small portion of that of the voters living outside of the city of Omaha? What is there about the residents outside of such a city that should cause the Senate of the United States to grant the power to the majority who do live outside of that city to reduce the voting rights of those within the city in that manner? In the recent case, the Court found the malapportionment to be discriminating toward Omaha compared with areas outside of that city.

But this malapportionment has not been limited to the States referred to. In Maryland, Baltimore has been allowed only six State senators regardless of its size, and in Pennsylvania, Philadelphia has received the same treatment. Regardless of how large it has grown, Providence, R.I., has been allowed to elect only one-fourth of the total number of State senators, and in Portland, Oreg., with a growth of 230 percent since the last reapportionment in 1910, that city has not been granted a single additional senator. In Texas, Dallas and Houston have 1 representative for each 175,000 persons, but in the smaller counties 30,000 people have 1 representative. This disproportion has not been confined to the large cities. It has also extended to many medium and smaller sized communities. The discrimination has been so bad that it has been found in 31 percent of 42 States studied, and only 17 of 67 cities studied were represented in proportion to their population. With such abuses not only threatened, but actually hav ing been maintained over a very long period of years, those who advo cate that a majority should be allowed to reestablish and maintain such malapportionment should have a very heavy burden to try to persuade this body that it should have any part in assisting them. Now turning to specific objections to the opposed amendments. Let us first consider the possibility of denial of judicial review under them. The first sentence of Senator Dirksen's amendment could be read to deny to the Federal judiciary and possibly to any of the States judiciary the power to consider questions relating to the composition of the State legislature, or the apportionment of its membership, Some State courts now abstain from such considerations on the ground

that they are not justifiable questions. This is an especially objectionable possibility in view of the record that establishes that State legislatures rarely correct malapportionment abuses without compulsion. The second point is the question of the risk of discrimination in composition of the legislature under the proposals. Discrimination in the criteria for membership may be opened up by the use of the word "composition" in Senator Dirksen's amendment. This term makes possible standards based on political, racial, religious or economic considerations.

Third is the possibility of discrimination in the actual apportionment. The second sentence of Senator Dirksen's proposed amendment reveals a total absence of standards for apportionment of one house on a basis other than population. Thus the amendment could invite attempts at districting based upon racial criteria, or criteria having racial or other discriminatory elements. In such a manner it might be used to try to undermine the safeguards of the 15th amendment.

Another question is the possibility of minority rule in the unicameral legislatures under the proposals. By the terms of the proposed amendment population-based apportionment would not even be required in a unicameral legislature.

An additional query is, What the effect of voter approval may be under the proposals and once having such approval would it freeze the apportionment? There may be those who are reassured when first disturbed by the unlimited scope of Senator Dirksen's amendment by the requirement of approval of the proposed non-population-based reapportionment by a majority of those voting on the issue. As suggested above, however, voter approval may be only a recognition that the apportionment proposed is merely an improvement over the existing apportionment, and no proof of satisfaction with the apportionment voted on. The voter may be persuaded to accept the proposal as better than what he has. However, after the vote has been taken the claim can be made that once the public approved the apportionment judicial review is precluded. Thus it might produce a stalemate in needed apportionment and other matters.

Furthermore, as suggested above, no adequate reason has been presented why the Congress should be a participant in providing a system whereby even a majority should be allowed to partially disenfranchise some of our citizens. This would be unquestionably a denigration of the entire democratic process.

With regard to review, some might suggest that Senator Church's proposal requires that "review be permitted periodically" but the proposal has no standard for the manner or the frequency of the review that is to be provided.

Finally, it would seem wise for the Senate to take its time about approving any such proposed amendment. A step as serious as amending the Constitution always should require the greatest of care. One which gives any group of citizens the power to legally dilute the vote of other citizens in the democratic process should never be approved until overwhelmingly supported by both reason and necessity. At the very least, action should be postponed until such time as all of the various State legislatures have proceeded with, and completed the correction of the malapportionment which has so generally existed

throughout the county. Certainly the Congress should not indirect support by these proposals the efforts of State legislators to presen their jobs through the means of malapportionment which has bec such a spectacle in a case like New York, California, Hawaii, and Jar others throughout the country.

In view of the support for the Court's decisions by the people a the country according to some of the polls, and the reasonable as tion that with greater understanding there will be an overwhel public opinion in favor of one person, one vote, it would seem entire reasonable to postpone action on any proposals so fundaments an least until such time as you had newly constituted legislatures elete after valid reapportionments, and had the opportunity to e whether there is any real support for such proposals by others t those who expected to gain special personal advantage from ma's portionment. During such time there would also be the opportu to observe both houses of the legislature apportioned in accorda with population, in action, and determine from experience the tribution that bicameralism can continue to make in our Fede system. The Supreme Court, in Reyonlds v. Sims, suggested that t cameralism would still serve to assure "mature and deliberate sideration of, and to prevent precipitate action on, proposed legislatio measures." (377 U.S. 576.) With bicameralism permitting houses» different size, legislators in one house could be selected from distri where narrower interests might hold sway than in the larger distri for the other house. There is also the possibility of "floterial" de tricts with multimember composition. Bicamerialism would perm a balance to be achieved from one house with a short term and other with a long term of office. Because the State legislative bodie are relatively small as compared with the U.S. House of Represent tives, there is leeway for apportionment by population without exce sive size of the legislative bodies.

In conclusion, it would seem to be seriously inadvisable to ad any of these proposed amendments, or to permit a return to the flexibility and unfairness which for so long characterized the appe tionments in many of the States. I also wish to respectfully sug that it is quite unwise to diminish Federal constitutional guarante under the equal protection clause of the 14th amendment, and it sho be kept in mind that whenever you introduce exceptions to the pr visions of that clause you may be leading eventually to whittling awa its vital constitutional guarantees.

I thank you for the opportunity of appearing before you concer this matter and may I call to your attention the gravity to freene everywhere of making it possible, as these proposals do, to take ai from any citizen his guarantee of equal treatment as it is protected he our Constitution.

Senator TYDINGS. Thank you very much, Mr. Rankin.

According to my recollection, you were Solicitor General of the United States when the decision was made in Baker v. Care in th Supreme Court, is that correct?

Mr. RANKIN. That is correct.

Senator TYDINGS. I congratulate you on your efforts there.

If some version of the proposed Senate joint resolution should pa in the Senate, would you feel that the provision of the proposed const

tutional amendment which applied to ratification by States-do you feel that it would be stronger if, rather than having the amendment ratified by the State legislatures, as presently malapportioned in some instances if the constitutional amendment should be ratified by State convention elected on a fairly apportioned basis? Do you think that would be an improvement if such an amendment were passed?

Mr. RANKIN. I think it would be a material improvement.

I would like to address myself to questions I heard Senator Hruska ask, if I may-and with my great respect and confidence in him-I appreciate he is trying to evaluate this matter fairly and justly, and decide what is the right thing, not only for him to do personally, but for the Senate of the United States to do, and I am satisfied that in his only approach to it.

I return to the question he asked about what is wrong about allowing the people to vote on this kind of a question. To me it is wrong for a deliberative body, like the Senate, with its great reputation and standing, both with our people and throughout the world, to submit this kind of a question to the people for determination, because it gives them an opportunity to decide to discriminate within the State against one group of people and in favor of others.

Now, I think that in this area of amending the Constitution the Senate is in the position of our Founding Fathers, in which they were trying to decide-do we have a good Constitution, is it a provision that we should desire the way it is, and should we open it up to the determination by the people that by amendment they grant to some portion of the citizenry less rights than they now have.

I would be very gravely disturbed in my great confidence in the Senate of the United States, my respect for its Members through long experience in working with them, and in the Federal Government if, for instance, they would ever submit an amendment to the people to modify or change the first amendment. I do not think the Senate of the United States would do it. I have confidence that the people of the United States would vote to adhere to and retain the first amendment.

But I think it would look as though the Senate of the United States thought there was something wrong with the present Constitution and that amendment, if it would ever submit it for such consideration. Now, the problem is much deeper in this area, because the people here have demonstrated, through the legislatures, at least, a disposition to discriminate against some of the people within their States. And I cannot see anything desirable or proper or wise about allowing the people of my home State, and Senator Hruska's home State, of Nebraska, the opportunity to decide we shall now, today, or next month, or indefinitely in the future discriminate against the city of Omaha, as our State has done, history shows it, in the apportionment of legislators to our legislature. I do not think that is right. And I think the people of Omaha, those I know, at least, are just as good voters and citizens as any in Lincoln, where I used to live, or other places in the State that we both know so well.

I do not know the problem so well about Oregon and why the State of Oregon would discriminate, as it has, against Portland.

I just think it is wrong that they should be given an opportunity, if they have such a disposition, to do it.