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that the Court was very careful to recognize that we did have different States with numerous different problems in this area, and that a good-faith attempt to try to reach the problem on the basis of one person one vote and make adjustment for special needs of a State would be recognized as something reasonable under our Camistitution and its requirements.
So I do not think that the Court would be hide-bound about tha: matter.
But if it was done in such a way as to try to continue some kiri of a program of malapportionment rather than a good faith attemp'. I think then there would be difficulty about it.
Senator Tydings. Thank you very much, Mr. Ranking. You wers very kind to take time out of your busy schedule. I commend you at your interest and the splendid record you have had in Gorernmer' service while Solicitor General of the United States.
Mr. RANKIN. Thank you, it is a pleasure to be here.
Senator TYDINGS. I understand that Dean Reuschlein has a tran that he wishes to catch. Ordinarily we would recess for lunch : 12:30. But we appreciate the effort you have made to come here. sr we will hear you now, if you will come forward, sir.
STATEMENT OF HAROLD GILL REUSCHLEIN, DEAN, SCHOOL OF
LAW, VILLANOVA UNIVERSITY Dean REUSCHLEIN. Thank you, Senator Tydings. I appreciate the courtesy in letting me appear now rather than to have to wait.
I think I should say at the outset that I am not here as any pro fessed authority on the law of the Constitution, but rather simply athe dean of a law school who teaches jurisprudence or legal philosophr. and in great part also as a citizen of a State in which I have labor rather long and not with entire success, to say the least, in trying to achieve constitutional revision.
I should like to be rather brief. The statement which I have is fairly brief. Then I should like to add just a little bit which has come along since, due to reflection on my part.
Senator TYDINGS. You have sat through these hearings, hare Fit not?
Dean Ret'sCULEIN. Yes, sir, I have.
Senator Tydings. I would be interested in your comments, par ticularly on the argument which Senator Hruska has made repeatedly--namely, if the people of the United States desire to limit the voting rights of certain other people, if a majority of them do so, it is all right because the majority rules in a democracy. I would appreciate your comments. You have heard the long colloquy and dialog het when Senator Hruska and the witnesses. I would appreciate your think! along these lines.
Dean REUSCHLEIN. Well, Senator, it seems to me a fallacious g«. sumption that the majority does determine the fundamental character of our Government. "This was not done in the original instance. It is true that people were permitted to speak on a scheme, and even there the ratifiers of the Constitution originally were rather a select group.
I think if we pursue Senator Hruska's position we end up with the assumption that a majority can never be wrong, and that a minority does not need protection against it.
I think we cannot identify the people as simply being the majority. And that, I think, is the basic fallacy which he makes. The minority also are part and parcel of that people.
It is difficult for me to escape the conclusion that we just cut the minority out of all expression by this device.
I think the real evil in the proposed legislation, Senate Joint Resolution 2, is that it throws the question or permits State legislatures to throw the question at the voters in such a way that it just insures that all the people are not going to have the opportunity to speak.
I think it goes to that fallacious analogy also to the Federal system. I think it is basically invalid on that score—that it assumes the complete identity of the concept of the people or all the people with the majority.
Senator TYDINGS. Let me direct another question to you.
You are, I think, as one of our foremost legal scholars, familiar with some of the testimony before our committee which consistently has been, particularly from some of the Western States, that because of the language of Reynolds v. Sims, if you had a situation where there was a mountain range or a large body of water was intersecting an otherwise homogeneous political area—that because of the narrowness of Reynolds v. Sims no apportionment scheme would be con<titutional which took into account any unusual geographical factor.
I wonder if you would comment on that, on the Reynolds v. Sims decision, in that light.
Dean REUSCHLEIN. Well, if I recall the pronouncement of the Court correctly, it seems to me that we do not have here a little one-person, one-sote requirement. It seems to me that in every reference which the Court has made to the business of reapportionment by the State, there has been language in the nature of a kind of saving clause__"sub stantially" this kind of scheme. "Substantially” is admittedly a weasel word, but in a sense we must thank God for weasel words they do enable us to escape literalism.
I think there is enough flexibility under the decisions to permit of come discretion, some latitude, whether there is real reason to exercise
Senator TYDINGS. I am glad to hear you say that, because that is one point which has been bothering the chairman of our subcommittee, Senator Bayh, for some time. That is why I propounded the question (o Mr. Rankin, and that is why I am delighted to have his judgment on it, because I think it is an important question and a valid one.
Dean REUSCHLEIN. I do not propose to read the statement which I submitted to you. It seems to me that no further purpose is served hr that. But I would just like to punctuate it with a brief further statement.
I think that the very thought that this backward-looking measure could become the 25th amendment to the Constitution ought to strike prror in the minds of thoughtful citizens.
If I read our constitutional history right, it seems to me that the institutional amendments have invariably expanded the basic rights of citizens. This would be, I believe the first constitutional amendment in American history to reduce the basic rights of citizens. And the difficulties which States are having in dealing with such critical isse 3 as housing and transit and welfare matters generally would be multiplied if grossly inequitable patterns of representation are to be extbedded in the Constitution.
Another point I should like to emphasize is that the proposed amer.dments would, I believe, perpetuate a cruel hoax upon the millions who with good reason have been led to believe that voting rights ledlation can secure for them an equal voice in Government. Their votes would be rendered useless by inequitable apportionment.
After all, the wording of the amendment proposed by Senate Jur: Resolution 2 places the entire responsibility for the composition of State legislatures in the States themselves. There is no reason by certain States could not constitute one house on the basis of race u property or economic position.
A third idea I should just like to emphasize is this.
For years now State legislatures have been hamstrung by antiquated procedures and by rural domination. They have been crippled by such plagues as short legislative sessions, mandatory adjournment date, low salaries, ancient and unworkable constitutions, and inadequate staffs.
Encouraging changes are in evidence, since the Supreme Court began its prodding a few years ago.
Some State legislatures have made real progress in reapportionment and reform.
This proposed amendment would, I believe, call a halt to the strengthening and the modernization of State legislatures. It wou throw a roadblock in the way of all this one of the most salutary recent tendencies in American political life.
Then I would like to touch just momentarily again on the suggesties that State legislatures should mirrow the Federal system whereby the Senate is elected on a basis other than population. The analogy is a false one. Every State has a right to two Senators irrespective of 2 size. But counties areas, and economic or other interest groups with: States have no corresponding rights. Representation in a state legislature is a citizen's right, it is not subject to a decision of the majority. This proposed amendment would authorize just such deprivation of rights by a majority decision.
Finally, the growth of an urban society, with ever-increasing and difficult problems crying for solution, has severely strained outmodel legislatures.
More seriously, public confidence in our outmoded legislatures has been seriously eroded.
There is no doubt but that this failure of State government is greatly responsible for the concentration of power in the Federal system, because the Federal system seems better able to deal with urban issues. This situation has fathered and nurtured a growing cynicism bordering on despair on the part of city dwellers, as tú whether their political institutions can cope with the troublesome pruda lems of metropolitan living.
The passage of the proposed amendment can only make matters worse. It would embed inequality, it would embed social futility into the Constitution. And this, I think, no thoughtful citizen cas desire.
I think none of these schemes I am referring now to other resoluions, such as Senator Church's and Senator Javits'-I think none of hese schemes are workable or desirable. I do not think we should ut down the 14th amendment. I think we should trust in the first nstance the electorate and rely on the constitutional and judicial afeguards that are available to protect minority interests. We ought o be very reluctant to enshrine a principle of inequality into our Constitution.
(The complete statement of Dean Reuschlein follows:) TATEMENT BY HAROLD GOL REUSCHLEIN, DEAN, SCHOOL OF LAW, VILLANOVA
UNIVERSITY Mr. Chairman and members of the subcommittee, it is a distinct honor to present o this distinguished subcommittee my views with regard to Senate Joint Resolution 2 and similar proposals.
One of the salient facts of American political life for over two centuries was the rossly unequal representation given to 'some electoral districts in relation to thers, both in the election of State and Federal representatives. It would be edious to review the facts of such malrepresentation since they have been reorted again and again in the press, in scholarly comments, and in the opinions of the Supreme Court itself.
Starting with Baker v. Carr in 1962 and concluding recently with Reynolds v. Sims and its companion cases in 1964, the Supreme Court undertook an examinaion of these inequalities. The Court has ultimately concluded that the equal irotection clause of the Constitution compels the equal weighting of each vote ase, and therefore also compels electoral systems which do not grant greater representation to some electoral districts than to other similar districts. If the Franchise itself must be granted on a theory of equality, the representation reulting from this franchise must also reflect the same constitutional mandate.
The inequalities which existed and exist were occasionally the creation of pecular features of the political organization of the States, such as county unit ystems; very occasionally they might reflect a conscious attempt to reflect considered judgment about weighting various local interests, most frequently they were a result of legislative inertia in the face of dramatic shifts of and growth in population. Frequently the inequities were in direct violation of existing State constitutional mandates.
The net effect of the inequalities was generally to grant substantially greater representation to rural areas than to urban, and in some instances to create electoral units shockingly similar to England's rotten boroughs. The decisions of the Supreme Court have attempted to redress the balance, to remove the in"quities, and proceed upon the assumption that each member of the electorate is entitled to an equal voice in selecting those who are able to represent him, and equal representation in the legislature itself.
There are those who fear that in the process of correcting inequities the Supreme Court has laid the foundation for potentially greater inequities: that rather than shifting the balance, the scales are now weighted to cause a different but equally disastrous imbalance.
I sympathize with such fears; it is possible that with ever-expanding urban and suburban populations, represented on an equal population basis with evershrinking rural, small-town and farm populations, urban values and interests Lay dominate, and rustic values which have long been part of our heritage may recede. The fear of the city is at least as old as Jefferson, but harmonization of urban and rural values cannot be accomplished by denying the existence of the city and suburbs, and relegation of their populations to the role of secondclass citizenship. Legislative manipulations with representational schemes may at best be just a stalling maneuver, and at worst set an unfortunate prece. dent for urban representatives when (as is easily possible even with existing distortions) they come to dominate State legislatures, and State constitutional
Simply put, governmental and legal theories which uphold unequal representa. tion could be a weapon in the hands of the city and suburban representative as they have been in the hands of farm and rural representatives.
At each stage in the democratization of the electorate, similar problems here been faced. In England during the 19th century a chief concern of politica. thinkers was whether or not the process of the widened franchise would destru the interests of the educated, virtuous, and propertied classes. (Some trai think these fears have been proved justified.) But as democracy advances in England it became clear that old values could not be maintained at the elbes of an unequal, manipulated franchise. In our country the franchise itself t24 not been, with certain notable exceptions, usually the focus of attack of th who fear the possible domination of the minority by the majority. In mos instances a minority, or what fears it may become a minority, has enacted « supported electoral systems to weaken the representation of the feared majoriy
Most frequently, however, the minority has had recourse to our pectie American institution of a written constitution limiting the majority, and c independent judiciary capable of reviewing the acts of the majority. Mas' State constitutions expressly prohibit special legislation favoring or discrimi ing against particular areas or political units of a State. Both at the Federa and State levels minorities have frequent recourse to the concept of equal pipar tection and due process of law to protect themselves from the tyranas majorities.
Such protection is by no means perfect, and in many areas is patently inada quate, but it would hardly reinforce such protection to overrule the Supre Court either by legislation or amendment when it attempts to give effect to su concepts.
We must also recognize that we do not have in this country two diverges interests, urban and rural, or even three, considering the newest group to su In between them, suburban. We have multiple and exceedingly compler 2 terests. We have the interests of laboring men, urban or rural ; of banken, a manufacturers, or doctors, even the very small group, law professors, a: miniscule group, law deans. One individual is at any time a member 1 number of majorities and minorities. No system of restrictive representatie can reflect each interest. Only an exceedingly complex and undemocratic sces of multiple franchises, such as was tried in England could hope to do sa 08 multiple interests are reflected in particular votes on particular legislation minority on a particular piece of legislation must (if it is constitutional6.** way to the majority. But this is far different from saying a minority in give way to the majority's view of the strength of the minority's voice wa legislation.
Lastly, I would like to comment on the fact that this body is constituted cei principle other than one man, one vote. This body is the result of the permis: strengths and problems of federalism. Of course any Federal or confederas body must in some way reflect its Federal character. The States, however are not confederations of towns, cities, counties, or parishes. They are sill" governmental units devoid of any Federal character and thus not at all levy sitating a body such as this.
I should now like to address myself to the particular legislation under (ve sideration. As you might gather, I hope, from my prior remarks, I feel als legislation or constitutional amendment in this area unwise. But I am pas ticularly disturbed by some features of the proposed resolutions.
In Senate Joint Resolution 2, it is proposed that the right and power to deter mine the composition of the legislature of a State and the apportionment of the membership thereof shall remain in the people of the State. Surely it is not the intention of Congress to suggest that the provisions of the equal protection class of the 14th amendment should be totally inapplicable to composition and appor tionment of the legislature. Could the people of the State constitute the le. lature on racial, religious, ethnic, or sexual grounds? Insofar as such a caze tutional amendment would repeal the 14th, it could be so interpreted. I woord hope it would not, but surely it should not be open to question.
More fundamentally, this resolution would permit factors other than popula tion to be taken into account for one house of a bicameral, or for the wb** legislature, if unicameral.
What factors? As I pointed out above the great surge to urbanism way I si that even under present standards the majority of a State legislature as well as the majority of the State's population may be urban. Such an urban majority could for instance take as a reasonable factor, not only population, but saya assessed property. If such a criterion were adopted the urban majority could practically disenfranchise the rural minority in one house or in the State with it unteumeral house, the whole legislature.