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Moreover, Senate Joint Resolution 2 would allow such a scheme to be fixed upon the approval of one vote, taken at one time, without any periodic review as to its feasibility or fairness guaranteed.
Senate Joint Resolution 44 would likewise permit nonpopulation factors to be considered for one house of a bicameral legislature and reasonable nonpopulation factors for a unicameral legislature. (It is not clear whether this means the factors for the former may be unreasonable) but it would require decennial confirmation by the people by referendum.
Senate Joint Resolution 38 would permit in a bicameral or multicameral legislature, one house to be constituted by adopting another reasonable system of representation with the approval of a majority of the electorate, provided review be permitted periodically. Presumably the Supreme Court ultimately would have the responsibility of deciding what is another reasonable system of representation and what is periodic review.
These resolutions do not contain the potential degree of wholesale repudiation of the 14th amendment in the representative process, and are not open to the objection that they could shackle upon future generations the judgment of today as to the value of a city man's, suburban housewife's, or farmer's vote, but I believe they contain the same basic weakness of permitting a majority of men to decide a minority of men shall have less voice in their common government.
Moreover, in providing that only one house can violate the principle of one man, one vote, all these proposed amendments are silent as to the power of that house. Apparently Senate Joint Resolution 38 would not allow the principle of equality to be abridged, in case of unicameral legislatures, but it, too, does not consider the stranglehold one house could have over another, and the government as a whole.
I do not think any of these schemes workable or desirable; I do not think we should cut down the 14th amendment; I think we should trust in the first instance the electorate and rely on the constitutional and judicial safeguards that are available to protect minority interests. I think we should be very reluctant to enshrine a principle of inequality in our Constitution.
HAROLD GILL REUSCHLEIN,
Dean, The School of Law, Villanova University. Senator TYDINGS. Thank you very much. I was particularly interested in your comments about the application of States responsibilities, and resistance in the areas of amending or revising State constitutions, short legislative sessions, and inadequate salaries. I think you put your finger on it when you indicated that among the prime functions one of the prime results of such a constitutional amendment would be to slow down any State reforms in this general area and to ultimately break down the Federal system more.
I would like, on behalf of the committee, to thank you very much, sir, for taking an entire day out of your busy schedule to come down and be with us, but we appreciate it. We think this record is very important. We think that this constitutional issue is one of the most important to be before this Congress in this century.
I do appreciate your being with us, sir.
(Whereupon, at 1 o'clock p.m. the committee recessed, to reconvene at 2 o'clock p.m. on the same day.)
Senator Tydings. We welcome you here, Mr. Flynn. I know it is a long way from the University of Utah. We appreciate your being with us this morning.
STATEMENT OF PROF. JOHN J. FLYNN, COLLEGE OF LAW,
UNIVERSITY OF UTAH
Mr. Flynn. Thank you, Senator. It is a long way from tai But the distance is not quite that far with today's modern jet, what perhaps has an impact on the topic before the committee.
I have a rather long statement which I think I will not bore you wt. by reading, but I would like to insert it into the record some 3 pages-being both a lawyer and a teacher I guess because he is one to perhaps say too much, too long.
My basic argument, or point, in opposition to Senate Joint Resolution 2, the apportionment amendment, is slanted from a slightly different angle than I think the committee has had before. That this; namely, while I don't feel the trend toward centralization of Federal power, or have any value judgment to make about that treni. I think that Senate Joint Resolution 2 will certainly hasten the trec toward the centralization of power in the Federal Government.
Now, my point is further complicated by the fact that I tend to make a specialty out of the subject of federalism, and also out of the subje: of constitutions and State government, which I am afraid not **** many people in this country have paid much attention to for the las
My basic background for this topic is that I have done research E it at the University of Michigan, on the topic of federalism as it relates to State antitrust laws, research on the topic of federalism in Afro Japan, Italy, the Soviet Union, and also in the Commonwealth nations. and finally the teaching of a seminar on State constitutional law.
Senator TYDINGS. Professor, would you speak a little more slow and perhaps a little closer to the mike? We want to hear whateve; you have to say. It is important to us.
Mr. Flynn. It is my hope to place the question of reapportionne? in its proper perspective; namely, as it affects federalism in th: country.
On the one hand, today, I think we have a vocal and sincere vier. point, making an argument, that there is a clique here in Washington out to destroy States rights. While I don't agree with that viewpoi.. I think the failure of the States has been the primary reason for t.* centralization of governmental power in the Federal Government.
There is a growing belief-I am not certain how public this is yetbut it certainly is true in the academic world, and also in, I thins. minority groups, that big governments no longer serve a useful pur pose. The reason for this belief has been the failure of the States do their job. This failure may be predicated on two basic premius
First, the States are unresponsive to the demands of the majority of the people living in the States; secondly, the States are consti tionally unable to do their job, because their
constitutions were draft, at a time, namely about 1880, and they copied one another quite a b. when the philosophy of government was that government should d the least amount of work possible.
Now, with the coming of the New Deal, the philisophy of govert ment, particularly at the Federal level, shifted dramatically. (OT ernment was no longer just a policeman. Government became t necessary tool in carrying out social policy. Howerer, the States
with their outmoded State constitutions, and also with their malapportioned legislatures, were unable to respond to the call, and also unwilling to respond to the call.
Now, the economic disaster of the depression made abundantly clear, I think, the fact that we are no longer a mere union of 48 States, at that time-50 now-for the purpose of conducting foreign affairs, and a few other common topics of consideration. We are today a highly integrated Nation, with 20 million people moving from one State to another each year. Old allegiances are breaking down, cultural differences are breaking down. There has been a demand upon the Federal Government to do things which we commonly would think of as being the primary job of the States.
Now, I won't go over the reapportionment decision, because I am not primarily interested in the method by which the States-the Supreme Court reached a determination that the States must apportion both houses of their legislature in accord with a standard requiring essentially one-man one-vote.
However, I do think there is an interrelationship of these decisions with the fact that State government has not been fulfilling its job. First, because State legislatures are unresponsive to the needs, the demands, the desires of the majority of the people living within a State. Consequently, the people of that Štate turn to the Federal Government in hopes of having the Federal Government do the things that they feel they need.
Secondly, of all the State constitutions I have studied, and this is almost all 50 in this country, the legislature plays a significant role in the amending and revising process leading to constitutional reform.
Now, I would hope that this committee and Congress could possibly take the few minutes necessary to turn to their State constitutions. For example, the California Senator TYDINGS. 'I didn't hear you. Mr. FLYNN. I would hope this committee, and Congress, before passing on this resolution, would take the time to turn and look at State constitutions. The reason is this: malapportionment means that the legislatures of the States have a vested interest in maintaining the State constitutions in the sorry shape they are in today.
I might even go to the point of saying the asinine shape they are in today. This is rather strong language, I admit. However, the Cali. fornia constitution, for example, some six times longer than the Federal Constitution--and it grows by something between 10 and 20 amendments per election year, statewide election—this has constitutionally made the States unable to act. For example, such provisions 28 60-day sessions for State legislatures, biennial meetings, the complete destruction of executive power by State constitutions, makes the States unable to respond even if they were really reapportioned. Now, this amendment to the Constitution would have this adverse
Senator TYDINGS. You are speaking of the proposed rotten borough amendment, the Dirksen amendments?
Mr. Flynn. Yes. Of all the State constitutions I have studied, the legislature plays a significant role in amending and revising the State constitution. Now, in the past 2 months we have had experience in Trah, and also I know in Idaho, in which the malapportioned legislature in one case made it extremely difficult to call for State constitc tional reform—in the case of Idaho, blocked State constitutiona. reform.
I think anyone on the scene could have easily attributed it to be basic fact-namely, that the State legislature was unwilling and in ( case in outright opposition to constitutional reform, even though I was drastically needed.
So there is a vicious circle arising here, in which on the one hands malapportioned legislature controls the reworking of State constica tions, and yet, on the other hand, the malapportioned legislature unwilling to change the things that make the States unable to a". and, therefore, stop the trend, if that is what the supporters of Sens'r Joint Resolution 2 are interested in-stop the trend toward centra zation of governmental power in the Federal Government.
I think the key to breaking into this vicious circle that has aris: at the State level is malapportionment. Without a reapportion legislature, all those interested in State constitutional reform, are also those who may be interested in stopping the trend toward central.zation of Federal power will be unable to carry out the necessary reforms.
It has been my thesis that State government is fast approaching. point of no return, a juncture presenting the alternatives of either assigning the States in practice if not in name to the junk heap of oc? history, as unworkable instruments of government, or we are at ths: point now where we should take steps to pump new life and vitalit into State governments. Senate Joint Resolution 2 will hastent alternative of restoring State government, and, consequently, the principle of federalism in this country.
I will go further and make the observation that we are in a tradi tionally transitional stage in federalism-namely, the shift from * operative federalism into a state of what I would call administrative federalism. By administrative federalism I mean that type of federi ism practiced in Italy, South Africa, and the Soviet Union. In this type of federalism, the central government initiates, finances, and coe trols all domestic affairs, and the constituent parts of the Nation, the States in our case, serve only as administrative agencies to carry out th centrally initiated, financed, and controlled policy. This has already happened in such areas as highway and welfare. This session of Congress has carried the trend a bit further on education. And I hasten to add I don't necessarily agree with the trend. But I think those who are supporting Senate Joint Resolution 2 should think twice about the impact of this amendment upon federalism. They support the consignment of the States as relics to the museum of governmenta institutions.
This is an effective means to achieve that end. Mr. Chairman, at this point perhaps I could address myself to some of the questioning that was going on before our adjournment for lunch i
I have a great deal of difficulty with Senator Hruska's position tha the U.S. Constitution starts with the words "We the people" and therefore we the people should have the right to amend the Constitution.
First, I think Solicitor General Rankin, and also Mr. Marshall pointed out that we in this country pride ourselves on not holding referendums on basic rights.
Secondly, the language of the particular proposed amendment that I have before me, which I think is substantially the same as all the others, says this:
Nothing in this Constitution shall prohibit the people of apportioning one house of a bicameral legislature upon the basis of factors other than population.
This particular sentence would deprive the courts of judicial review. Even if we had reapportionment at this particular point in our history, in a short 10 years we would be back in the same position we have been in for the past 50, without any means for rectifying it.
For example, the population of our present cities might well be represented in State legislatures. But 10 years from now I want to be certain that the individuals who move out of the city will not be deprived of representation. Consequently, Senate Joint Resolution 2 would have the affect of doing what was done 50 or 60 years ago namely, depriving the courts of judicial review and freezing apportionment as it is today.
Another problem I have with Senator Hruska's position is that the Constitution does not say we the people reserve the right to ourselves to amend the Constitution. It says we the people of the United States, and then if we jump to article 5 of the Constitution, "invest the power to amend the Constitution not solely in ourselves, but also in the Congress of the United States."
This is the genius of any amending process, and the reason for it is this-hasty amendments, ill-considered amendments, amendments perhaps a majority of our population may wish will not be hastily enacted, and hastily attached onto the Constitution.
The Constitution does vest responsibility for amending the Constitution in this body, the U.S. Senate. It is my belief the U.S. Senate, its Members, have the obligation and responsibility not to pass the buck to the States and to the people of the States. Therefore the Members of this body have the duty to weigh the wisilom of these amendments.
The particular point I would like to emphasize—and I would like perhaps to preface it with these comments--I have no political ax to grind or no vested interests to protect.
These amendments, in my estimation, would mean the end of State government in this country-not tomorrow, perhaps, not next year, but in the long run I believe that the constiutional amendments proposed before this committee will have the affect of keeping State legisIntures in the sorry conditon they have been in, keeping State executive branches in the sorry condition they have been in, as well as the judicial branches of State legislatures.
We will continue the process we have witnessed in the last 40 to 50 years of States not responding to the wishes of their people and therefore not fulfilling their responsibility.
I think it has been quite evident for the past six decades, quite apparent for the last three decades, Federal power and control are grow. ing and State power is diminishing. I think this fact should be readily apparent to every member of this committee who is beleaguered by the demands of constituents which should be handled at the local level and who finds himself in a politically difficult position of deciding controversial matters not handled in the first instance by the States. And the very reason the Senate and House are faced with those po