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litically difficult problems is that the States have not handled then in the first instance. The increasing crush of business before Corgress threatens the future of that body in the eyes of some, and it is time the States take up their share of the burden of government.

My late uncle James Murray-was a Senator from Montana. He told me before he died that one of his greatest problems in the Senate was keeping up with the crush of business-not the type of business De thought the Senate shoulld be faced with, but the business of me things, little things, that kept coming from the States, and then maja legislation which the States should have handled in the first place

. The ramifications of State inability because of malapportionment and also because of outmoded structures of government are I thins. to say the least, complicated and far ranging.

I think it is clear that State failure has played a major role in t’s seemingly inexorable trend toward centralizing government power : the hands of the Federal Government.

Although it may seem ironic, Senate Joint Resolution 2 will hasten this trend by maintaining the States in the moribund position the have occupied since at least the depression era of the 1930's.

Thus I make this plea to the committee and to Congress to stop step back and look what you are doing to a fundamental tenet of the American system-Federalism.

Senate Joint Resolution 2 is perhaps advantageous to certain ir terest groups. I know this well, since I was raised in a rural area :) Massachusetts. Also it may be helpful to one or more political partie in a particular State. It may also be reassuring to the future of the political careers of dedicated individuals who have and who are ne serving our Nation in the finest sense.

The sacrifice is much more than this. The sacrifice is much more even than the civil liberties of individuals whose votes may be dilutei The sacrifice is the ultimate destruction of the States and the principi of federalism. I would ask all those who support it-and incidentalis I note that they are the ones who have been constantly calling it's our attention-is Senate Joint Resolution 2 worth the price. I think it is not.

(The full statement of Mr. Flynn follows:) Mr. Chairman, members of the committe, I am John J. Flynn, assistant for fessor of law at the College of Law, University of Utah. My interest in the matter before this commitee stems from 2 years of research and the writing a book at the University of Michigan Law School Legislative Reserach Center on the subject of federalism as it relates to State antitrust laws; research the topic of federalism in Africa, Japan, Italy, the Soviet Union, and Germans and a study of State constitutional law and the teaching of a seminar in State constitutional law at the University of Utah.

My interest in the reapportionment problem, federalism and Senate Join: Resolution 2 has been shared and stimulated by two fellow members of the Itab law faculty, Professors Alfred C. Emery and William J. Lockhart, Jr. Mar! of the thoughts contained in this statement are derived from them and I would like to take this opportunity to thank them for assistance in preparing this statement

I. INTRODUCTION It is my hope to place the question of reapportionment in its proper persper tive as a portion of the larger problem of federalism. We are all familiar with the belief in this country that our traditional Federal form of government is it jeopardy. On the one hand a vocal and sincere viewpoint has been arguing the the Federal Government is composed of a greedy, power-hungry clique in Waste ington bent upon the destruction of something called “States rights." I wou'd

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eject out-of-band this charge and, furthermore, question just what constitutes States' rights.” To be perfectly frank, I am not sure a State has any contitutional rights except the right not to be deprived of its equal representation n the Senate. What really is meant by the concept of States rights is the notion hat our Federal system contemplates a large scope of governmental power that vill be exercised by the States. States have powers, not rights, under our ystem of government.

This difference in terminology is not a mere quibble over words. The word right implies a duty in others to observe the claim of the person or organization hat has acquired the right. The concept of power, on the other hand, implies he responsibility of the person or organization claiming the power to first exrcise it and secondly, exercise it wisely. It is precisely because of the fact that Jur States have been allocated a large number of powers in our Federal scheme ind will not or, because of their own constitutional limitations, cannot exercise hose powers, that a second group is calling for the abolition of the States as ndependent units of governmental policymaking.

The belief that the States serve no useful function, provide havens for abuse of political power, engage in wasteful duplication of effort and are havens for grafting politicians seems to be growing rapidly in the academic world, in the nind of the urban citizen, and in the mind of minority groups without a voice in State government. The trend toward centralization of governmental power in the hands of the Federal Government is a manifestation of this growing belief.

I have yet to be convinced that the States have outlived their function in our Federal system of government. But, my belief that the States still have a meriCorious role to play in our system and can contribute to the preservation of the American system is being shaken by the view of a growing minority calling for the abolishment of State government. The one thing I am certain of, however, is that the decline of State government is, in large part, caused by the failure of the States to exercise their powers and fulfill the responsibilities assigned to them under our Federal system of government; and, it is in this light that Senate Joint Resolution 2 must be viewed. Will it arrest the decline of State power, or accelerate the decline of State power?

It seems clear that Senate Joint Resolution 2 will hasten the decline of State government. Those supporting the resolution out of a sincere belief that it will stop or reverse the trend toward centralized Federal power and preserve State independence may find this statement rather startling. If I may be permitted a few moments to explain, I am sure the statement may become stark reality rather than a seeming attempt at Jesuitical logic.


Over the last five of six decades there has been a decline in the power of State government and a corresponding increase in Federal power. The reasons for this trend in our Federal system have been basically twofold, (1) necessity, and (2) the failure of the States as effective instruments of government.


The Civil War marked the end of a long era in the adjustment of the relationship of the two major sources of governmental power in this country, both sourles occupying the same geographical area and both sources governing the same people. During this period of history the State and Federal governments strug. gled to accommodate the conflict developing because of two diverse sources of governmental power occupying the same geographical area and governing the same citizens. The evolution of this struggle through the courts, the campaigns for the presidency and the halls of Congress to the battlefield of the Civil War has been traced many times; and, while the Civil War settled the issue of national supremacy once and for all, it did not settle the question of FederalState relations in other spheres. This became clear after the Civil War with the impact of the industrial revolution. Both sources of governmental power struggled to control that revolution, while the Supreme Court-generally espousing the philosophy of laissez faire and rugged individualism-blocked State and Federal attempts to regulate the explosion of industrialization. Cases arose where the Court invalidated national legislation on the grounds that it trampled on the reserved powers of the States. (See e.g., Adkins v. Children's Hospital, 261 U.S. 525 (1923); Hammer v. Dagenhart, 247 U.S. 251 (1918); Twiss Lawyers and the Constitution: How lata Faire Came to the Supreme Court (1942)). When a State attempted to per ment identical legislation on the local level, the Court held that the rette powers of the States could not deal with the problem because the Constituti prohibited State interference with contractual rights and interstate con Ler, required the States to observe strict standards of economic due process and a protection. (Leisy v. Hardin, 135 U.S. 100 (1890); Lockner 1. New York ! U.S. 45 (1905)).

Consequently, a limbo of governmental power existed in many areas the g* take for granted as legitimate and necessary areas of positive government not tion. It is interesting to note, however, that necessity dictated the urboldne several major Federal statutes and the exclusion of State power during ** phase of federalism. Even while the Supreme Court was compartmentai governmental powers and carving out an exclusive area for State action, it a setting aside areas of exclusive Federal control. This result was usnally achiel by the Court striking down State legislation and Congress filling the mid exclusive Federal legislation. For example, regulation of railroads in regulation struck down, Wabash, St. Louis and Pacific Railway v. Iixrux, U.S. 557 (1886); National Government assumed regulation, Interstate ('one, Act, 24 Stat. 379 (1887), as amended, 49 U.S.C. sec. 1 et seq. (1958)) regulat**** interstate motor carriers (State regulation struck down, Buck v. Inime, C.S. 307 (1925); National Government assumed regulation : Motor Carries of 1935 : 49 Stat. 543, 49 U.S.C. sec. 301 et seq. (1958) ) ; reçulation of patur.' transmission (State regulation struck down, Missouri v. Kansas Natural Gai! 265 U S. 298 (1924); National Government assumed regulation. Natural Ga.. of 1938, 52 Stat. 821, as amended, 15 U.S.C. sec. 717, et seq. (1958)); retu of electrical power transmission (State regiuation struck down. Publicita Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927), National Guteren" assumed regulation, Federal Power Act of 1935, 49 Stat, 847, as amende! U.S.C. sec. 824 et seq. (1938); and the interstate sale of milk produts regulation struck down. Balducin v. dcelig, 294 C.C. 511 (1935); Nailona!s ernment assumed regulation, Agricultural Marketing Agreement Act of 13 Stat. 246, as amended 7 U.S.C. sec. 601 et seq. (1958)) were all tak na exclusively by the Federal Government. The increasing economic interdepeno ence of the Nation and the complexities of government regulation dem* action by 1 government rather than 48.

At the same time, two more subtle, yet equally important, developments l). to appear. The shift of population from rural areas to urban areas besos the older States began rewriting their constitutions. The several new S. entering the Union at this time simply copied these new constitutions of States. The shift in population grew and left State representational sobe outmoded and has resulted in the grotesque disparities revealed by the me reapportionment cases. The drafting of new constitutions at this point L history turned ont to be particularly unfortunate. Not only did these * tions freeze apportionment schemes into State constitutions, but they ale the 1880 philosophy of government into State constitutions. That philus may be summarized in the oft-quoted cliche that “that government governs least, governs best." This philosophy is readily apparent on the # of almost every State constitution. They are riddled with debilitatis ** visions rendering State government impotent to deal with modern-das prist's

This second phase of federalism, which witnessed the impact of the indian revolution, the drafting of State constitutions and the urbanization of Nation ended with the depression. The third phase of federalisme or Fedde State relations—began with the New Deal. And it was then that the netna for the growth of Federal power became apparent to all.

The economic disaster of the depression made abundantly clear the fact America was no longer a mere union of 48 independent political entities to together for limited purposes. The economic interdependence of the ti and its emergence from isolationism demanded centralized Federal parsel! the control of interstate corporations and labor unions ; centralized coninu mitigate the impact of the economic dislocation of the few upon the many, 1:a centralized control for the maintenance and support of a large militar es lishment to prosecute hot and, subsequently, cold war. Congress, with its H based upon population and its Senate elected by a majority of the people, was 2" to respond to the call of a popularly elected chief executive and take affirmativa action. But the States, where political control was vested in the hands to rapidly dwindling minority and where governmental power was hamstrung by outmoded State constitutions were unwilling and unable to react to the call for action. The inability of the States to react has continued down to the present day and is inseparably bound up in the question of reapportionment.



The failure of the States to assume their responsibilities and exercise their powers may be assessed on several basis. The most important reasons for the obvious failure of the States may be traced to three fundamental factors: (a) Malapportionment resulting in unrepresentative and therefore unresponsive State government; (b) outmoded State constitutions; and (c) the failure to develop a two-party system at the State and local level based on ideological grounds rather than “interest grounds." 1a) Malapportionment The reapportionment decisions of the Supreme Court, particularly Baker v. Carr and Reynolds v. Simms, have been condemned as an unjustified invasion of "States rights" meaning-I take it--the power of a State to apportion its own legislature. My belief and the basic reason I am opposed to Senate Joint Resolution 2 is that the reapportionment decisions represent a major attempt to stem the tide of loss of State power. To the extent that the reapportionment decisions can make State government more responsive to the needs of State citizens, then to that extent the need for Federal intervention is minimized.

The historical basis of the reapportionment decisions is perhaps overly familiar to you by now. As you are aware, most State constitutions require that the legislatures be apportioned on some plan proportionate to the population of the district. In nearly every State, some variation, usually based on area, is allowed in one or both of the houses. Nevertheless, the basic formula refers to a population ratio. When the States were primarily rural in population composition, the ratio formula vested control in rural areas. However, with industrial development, there has been a dramatic shift in population from rural to urban

Notwithstanding constitutional commands to reapportion regularly every decade or less, most State legislatures did not reapportion themselves for many decades, and through this calculated inaction have managed to maintain rural control of both houses. The result of application of these archaic formulas to the present distribution of population is a crazy quilt apportionment that has 09 justification other than whatever merit can be found in committing legislative power to a rural minority.

When appeal after appeal to the legislatures failed citizens of urban majorities, they appealed to State courts for relief. And, when State courts failed to remedy this injustice in spite of the clear violation of State constitutions, the urban majorities turned to the Government they have been turning to for almost 30 years—the Federal Government.

In Baker v. Carr the Supreme Court abandoned the 1946 position it had taken in Colegrove v. Green. Quite simply, the Court held the issue of whether representational schemes in State legislatures violated an individual's right to equal protection of the laws presented a justiciable issue. In Colegrove the Court had beld it would not consider the issue, not that it could not hear the issue. In Baker v. Carr the Court decided it would hear the issue. Incidentally, Baker v. l'arr did not constitute as great a departure from precedent as some have argued. Essentially, the Court agreed with the position taken by many State supreme courts on the justiciability of issues raised by State reapportionment formulas, holding that a court would consider the question if it were presented. (For a collection of State cases recognizing that a State's apportionment scheme presents justiciable issue; that is, an issue a court is capable of hearing, deciding, and noriding a remedy for, see Goldberg, the Statistics of Malapportionment, 72 Tule Law Journal 90, 101-104 (1962).)

Of course, the Court's decision opened the way to attack apportionment schemes in almost every State. I confident these decisions have been carefully examined by this committee, particularly the Supreme ont decisions of June 15, 1964, and there is no need for further analysis of those decisions. Suffice it to say that these decisions require that both houses of a State legislature be apportioned on a population basis. My interest is not so much in the Court's reasoning process in arriving at this result, but in the implications of these decisions and what Congress should or should not do about those implications. But before reaching these questions, permit


me a moment to digress to the second reason for State inaction-outmodel ** constitutions. (0) Outmoded State constitutions

Most State constitutions are relics of the era of popular mistrust 19 hostility toward government; and it is not strange that this distrust is rezu. ? apparent on the face of many State constitutions. Executive power fragmented among several popularly elected officials with the result ++ affirmative executive action is impossible. In fact, one may ? whether most States have a chief executive at all, since most State Cok, tions vest an individual with the title of "Governor" but with little or > power to carry out the responsbilities the popular mind attributes to title. More often than not, executive power is vested in a troika of el** officials or a similar unwieldy vehicle of administration which renders State leaderless, except in such important areas of exclusive gubernatris power as issuing a proclamation declaring State Pickle Week.

State legislatures are hamstrung by long lists in State constitutions of . they cannot do. Time limits are arbitrarily put on the length of legica: sessions, usually corresponding with the height of agricultural inactivity. :many legislatures restricted to holding meetings once every 2 years State constitutions set the amount of compensation to be paid State legisk! usually in terms corresponding to 2 months' livery costs plus $5 a week 1890 boardinghouse costs. And most State constitutions have strange lim. tions on qualifications for office.

One may also question whether many States have a legislative bran" government in the normal sense. The philosophy that government is a 2-4 sary evil rather than a positive instrument of society so pervades State stitutional provisions governing legislatures that it is not surprising many of them serve as oratorical societies or places to introduce friert. relatives to the galleries, while legislative deliberation is limited to '. stamping proposals of State agencies and public-minded or private-x . special-interest groups. Is it any wonder that Federal action has tau" place to fill the vacuum created by the inactivity and poor record of most . legislatures?

Attempts to analyze the crippling provisions of State constitutions that r the fulfillment of State responsibilities impossible would be endless constitutional provisions governing the judiciary, elections, apportionment ing and finance, State administrative agencies, corporations, local govern and an infinite number of other basic fields of State government read like statutes of the latter part of the 19th century rather than the constitutio a modern and viable State government. A careful reading and analysis of constitutions, done by all too few of us, would make readily apparent one the major reasons for the decline of State power. So long as the Fet-Government continues to operate on a broad and flexible constitution cap of accommodating change in the world around us and on a philosophy government is an instrument to accomplish the ends of society, while S.. governments operate on a 19th century statute masking as a constitutin a philosophy that government is no more than a policeman and a necessary?? we may expect the continuation of the centralization of governmental power the Federal Government. (c) Interrelationship of representationally unresponsive State gorernment

constitutionally disabled State government Of all the State constitutions I have studied, the legislature plays a signi: : role in the amending and revising process leading to constitutional retos Consequently, to the degree malapportionment results in unresponsive Sol'. government the chances for necessary State constitutional reform are ditt " In State after State constitutional reform has been thwarted by legisia. inaction. Just as many of our citizens have felt compelled to turn to the Federa Government for assistance in such fields as urban renewal, civil rights. Ina transportation, welfare, and education because State government is threr: sive, so they have turned to the Federal Government because State goverli is unable. Nonrepresentative State legislatures have perpetuated disabled S government by refusing to overhaul the creaking structure of State constirut: To the unresponsiveness of State government may be added the consti:0* i • inability of State government to satisfy the needs of State citizens, as a them for the trend toward Federal growth.

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