Mr. HUTCHINSON. But under the provisions of Resolution 1, where he would send a name down and say, "Take it," he would still have to deal with the party leadership in Congress making sure that they would take it.

Mr. MATHIAS. But let me say I believe that the range of the consideration that he would have to give to the opinions of others would be considerably narrowed when he is the prime initiator of this movement. Mr. HUTCHINSON. Another question of just a practical consideration, Mr. Mathias.

Do you really think that the Senate of the United States would happily support a proposition like this calling for a joint convention approach in which it must be conceded that the relative weight of every Senator is drastically reduced?

Mr. MATHIAS. Well, of course, under the existing provisions for electing a President in case of vacancy by failure in a regular election the Senate doesn't have any vote at all, so this is giving them more play than they would have in the contingency already provided by the Constitution.

Mr. HUTCHINSON. Yes, but under the present provisions of the Constitution, in the election of a President by the House of Representatives, each State has only one vote, so the situation isn't, as I see it, just the way you described.

Mr. MATHIAS. It is not entirely parallel, but the Senate does not play a part in that.

Mr. HUTCHINSON. That is true.

The CHAIRMAN. If I might ask one question.

Mr. CHELF. Yes, sir.

The CHAIRMAN. I take it when there is an election by the Congress of a Vice President by the majority of those present and voting, in the Constitution wherever the Congress selects a President, the vote is by States. You wouldn't have it by States, would you?

Mr. MATHIAS. No, sir; just a simple majority.

The CHAIRMAN. It is also in the States by secret ballot. That is, they have a ballot box, and they have blank ballots, as I understand it. and each Member from each State votes but doesn't register his vote because his vote is by States. You wouldn't have anything like that? Mr. MATHIAS. No, sir. Let me say I have not gone into any of that detail here. I think it could very properly be provided by the Congress in implementing such a provision, but my own view would be that you could have-if a secret ballot were desired-one ballot box with the votes for your particular candidate and under rules that would be prescribed by the joint session for its own conduct.

The CHAIRMAN. Suppose the Congress doesn't give a majority to the nominee of the President. Would the President then have the right to offer another nominee?

Mr. MATHIAS. Of course, the President would not under this ar rangement, strictly speaking, be having a nominee, but let us suppose that the President has let it be known that he would prefer someone who would not receive a majority. Certainly this would be part of the informal negotiation which I think would inevitably take place, and there would be no limitation on the President's informal suggestions as to the people that he would prefer to see become Vice President. The CHAIRMAN. Thank you.

Mr. CHELF. Mr. St. Onge?
Mr. ST. ONGE. No questions.
Mr. CHELF. Mr. McClory.

Mr. MCCLORY. I think the gentleman has made a clear distinction between the motives which exist between when a President selects a running mate in a convention and the motives which would be present under circumstances such as we are considering here where there is a vacancy in the office of the Vice President.

With regard to that part of the bill, would this veto be an absolute veto, or would it be subject to being overridden by the House?

Mr. MATHIAS. No, it would be an absolute veto. I don't think you would want to impose upon the President a Vice President who was totally repugnant to him. I think you would have to give the President an absolute veto in this case.

Mr. McCLORY. With regard to your statement, on page 4 of your testimony where you question the wisdom of the detailed provisions in House Joint Resolution 1 insofar as the subject of disability is concerned, you indicate that if the selection of a Vice President is in accordance with your recommendations that you are not concerned about those details.

Mr. MATHIAS. Well, let me say again that I am somewhat motivated in the testimony I have given today by a rereading of Madison's "Journal of the Constitutional Convention," and by the very probing examination that was made by the members of the Constitutional Convention into the probable human reaction to exposure to situations in which power was at stake, and I think we can profit a great deal by the example of the Constitutional Convention in being very careful as to what we are doing here, because we are touching upon the exercise of tremendous power, probably in times of great emotion, great national emotion, and I think we owe it to ourselves, both to our ancestors and our posterity, to deal very deliberately with this subject.

I am reluctant, of course, to attack or oppose a suggestion which comes to this committee with such a fine pedigree as House Joint Resolution 1, but I do feel that in this situation we have got to examine it very, very carefully.

Mr. McCLORY. We have heard other testimony. We heard testimony this morning, for instance, with respect to the form of the Constitution and the advantages which occur with a brief statement which is then supplemented by appropriate legislation, and I would gather from your paragraph that you would favor the shorter or briefer statement in the Constitution, with the flexibility that would be present, then, through legislation.

Mr. MATHIAS. That is right. To be more specific in my answer to the gentleman's previous question, I think that the combination of giving a President the power to nominate his heir and, at the same time, giving the heir at least a part of the power to depose the President, sets in play some of the very classic situations which the framers of the Constitution would examine most carefully for their analysis of what the probable human reaction would be, and I think this is one of the dangers of House Joint Resolution 1, that you are doing twothings which will have opposite reactions, and I think they could be explosive, given the right combination of circumstances and personalities and conditions.

Mr. McCLORY. In other words, if we recommended House Joint Resolution 1 and the States ratified it and it didn't work the way it was intended, then the problem of a complete new constitutional amendment would arise instead of a simple amendment of a statute which the Congress could take action on promptly.

Mr. MATHIAS. That is precisely correct.

Mr. McCLORY. That is all, Mr. Chairman.

Mr. CHELF. Mr. Tenzer?

Mr. TENZER. The question was answered about the absolute veto, and I understand your position on that.

When you selected 3 days within which to exercise the veto on the part of the person discharging the duties and functions of the President, you were thinking in terms of speed and dispatch for disposing of the problem.

Mr. MATHIAS. That is right.

Mr. TENZER. Do you envisage any such delay that might be occasioned by the joint session adopting its own rules?

Mr. MATHIAS. Yes; I think there could possibly be such delay and, of course, as the chairman of the committee has indicated, you might have a further delay from the situation that the person elected by the Congress, by the joint session, might not be acceptable to the White House, and you might have two or three go's at this thing before you arrived at some candidate who was acceptable at both ends of Pennsylvania Avenue.

Mr. TENZER. Might I ask a further question of the witness?

This question was raised with earlier witnesses, and I would like to have your views on the question as to who would preside at such joint session.

Mr. MATHIAS. The Speaker would preside. That had been my contemplation.

Mr. TENZER. So the statement is this is the legislative intent we are developing here.

Mr. MATHIAS. Yes.

Mr. TENZER. Would you put that in the amendment?
Mr. CHELF. It is in the bill, in section 2:

The Speaker of the House of Representatives shall preside *

Mr. TENZER. I am sorry.

Mr. MATHIAS. Line 13 on page 2.

Mr. TENZER. Would the problem of delay in the adoption of rules be cured by the possibility that each of the Houses would meet separately? Mr. MATHIAS. Well, that could create its own delays, and I believe that you would have a more efficient system, a more democratic system-notwithstanding the objections suggested to the Senate's participation-I believe you would have a situation that would be better understood by both the participants and by the country at large in having a joint session, which would be the electoral college for this

purpose.

Mr. TENZER. I appreciate the reply, because if there were to be a selection by the Congress, I would prefer a joint session, myself. Thank you.

Mr. CHELF. Mr. Conyers?

Mr. CONYERS. Thank you, Mr. Chairman.

I would like to inquire of our colleague how strongly he feels that his proposed resolution must look toward a constitutional amendment, and whether or not through statutory legislation we might accomplish the same thing?

Mr. MATHIAS. Well, I have examined the Constitution closely on this question, and I think that you can at least make a good argument that we are already vested with the authority to supply this deficiency in our system by statute, but I am guided to some extent by the testimony which we had the other day from the Attorney General of the United States, and by other eminent legal authorities that the state of the law is such that it will be only a constitutional amendment which will gain us the universal kind of acceptance which would be so necessary in this situation where the command of the Armed Forces depends on this, and you must have the unquestioned obedience of the Armed Forces to the unquestioned civil authority. All of these questions are of such tremendous importance that if there is any doubt. expressed by eminent authorities, such as the Attorney General, I think we have got to resolve those doubts in favor of certainty, and certainty is only provided by a constitutional amendment.

Mr. CONYERS. Thank you very much.

Mr. CHELF. Mr. Grider?

Mr. GRIDER. I would like to ask the gentleman from Maryland a couple of questions.

It seems to be implicit in section 1 of your amendment that in the event the President-elect were to die before his inauguration, that the Vice-President-elect would assume the Presidency.

My question is whether or not that is the prescribed procedure and, if so, where do you find that authority?

Mr. HUTCHINSON. Isn't it in the 20th amendment?

Mr. MATHIAS. I will yield to counsel for that.

Mr. COPENHAVER. It says in section 3 of the 20th amendment:

If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice-President-elect shall become President.

Mr. GRIDER. That sure answers that question.

Mr. MATHIAS. It shows you how dependent we are upon the very valuable legal staff which serves this great committee.

Mr. GRIDER. I would like to ask you one other question. You have become rather technical in setting forth the contingencies under which the office of Vice President would become vacant-for example, in the event of the assumption by the Vice President of the office of President.

I would like to ask the gentleman what the advantage is in delineating all the different contingencies under which the office would become vacant? Why would it not be desirable to simply say when the office of the Vice President becomes vacant?

Mr. MATHIAS. Perhaps the gentleman might refer to the line to which you have reference.

Mr. COPENHAVER. It is line 3; isn't it?

Mr. GRIDER. Beginning on the second page, line 3, "because of the death or removal from office," and so on, all the way down through line 13.

Mr. MATHIAS. We adopted that language in drafting this proposal which is fairly parallel to the existing language in the Constitution, and perhaps counsel might read from the Constitution the relevant articles.

Mr. COPENHAVER. Article II, section 5, I believe talks about the death or removal from office of the President.

Mr. MATHIAS. I think the only intervention here would be the death of a Vice-President-elect from the standard language of the original portion of the Constitution.

Mr. CHELF. Are there any other questions by counsel?

Thank you very much, Mr. Mathias. We certainly do appreciate your interest in this matter. You have been a great help not only by your contribution today, but by your previous diligent attendance and the very searching questions which you have propounded.

We were to hear next the Honorable Edward Roush from Indiana. Is Mr. Roush in the room?

If not, will the Honorable Michael A. Musmanno, justice of the Supreme Court of Pennsylvania, come forward.

Let me say that we are glad to have you here, and appreciate your attendance today. Your fame has preceded you in many parts of not only this land but in many, many others.

Mr. MUSMANNO. Thank you very, very much. May I proceed? Mr. CHELF. Yes; please do.

STATEMENT OF HON. MICHAEL A. MUSMANNO, PENNSYLVANIA SUPREME COURT JUSTICE

Mr. MUSMANNO. Mr. Chairman, as a student of proposed amendments to the Constitution of the United States for over 30 years, I prepared a constitutional amendment on presidential inability and succession, together with provisions on the office of the Vice President. At my request, this constitutional amendment was introduced in the Senate by the distinguished Senator Pastore, under Senate Joint Resolution 34, and in the House by my friends, Congressmen Holland, Fulton, and Moorhead under House Joint Resolution 118, House Joint Resolution 154, and House Joint Resolution 220, respectively.

I now formally withdraw these Senate and House joint resolutions from the consideration of Congress because I firmly believe that your constitutional amendment, Mr. Chairman, House Joint Resolution 1, which coincides with Senator Bayh's amendment, Senate Joint Resolution 1, ideally meets the situation which has aroused the fears of the Nation for decades.

What happens if the President is disabled to the extent that he ostensibly cannot perform the duties of his office? Under Senate Joint Resolution 1 and House Joint Resolution 1, the President may declare his own disability or, if conditions make this impossible, the Vice President, with the concurrence of the majority of the President's Cabinet, may announce the disability. When the President's disability ostensibly ends, he will, on his own declaration, resume his presidential duties. If a majority of the Cabinet, plus the Vice President, believe the President still to be disabled, the Congress will decide the issue.