REAPPORTIONMENT OF STATE LEGISLATURES TUESDAY, MARCH 9, 1965 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, Washington, D.C. The subcommittee met, pursuant to recess, at 10:05 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding. Present: Senators Bayh, Dirksen, Hruska, and Fong. Also present: Larry Conrad, chief counsel; and Clyde Flynn, minority counsel. Senator BAYH. The subcommittee will please come to order. Our first witness this morning is the distinguished senior Senator from New York, Senator Javits. Senator, it is good to have you with us this morning. We are anxious to have your views so we may incorporate them in the record. STATEMENT OF HON. JACOB K. JAVITS, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator JAVITS. Thank you, Mr. Chairman. May I say that we are extremely fortunate that this particular subcommittee with this particular chairman is hearing this very complex matter, because I consider it one of the most important facing the Nation. When an issue like this one begins to take hold in the States, it will make a very material difference to the future of the country and will also, in my judgment, give the people the sense, which is so important, that government has the capacity for keeping abreast of the times. Most people have an idea that government congenitally lags way behind the actualities of life. The one significant factor in this matter which should and I know will be, in the minds of the subcommittee-and I am from a big city and say this advisedly-is that approximately 70 percent of the people now live in the great cities, in about 50 percent of the large cities which have roughly half a million in population or more. In 10 years, that figure is going to be 80 percent. The whole American concept that virtue, thrift, capacity, character, are born on the farm, which had a lot of validity in the early days, now has to be revised. The reapportionment issue is perhaps as interesting and dramatic a symbol of its revision as there is before us. 239 There is still lots of character and stability and wisdom in our rural areas and we thank our common Providence for that. But the great bulk of the independence of the Nation in terms of a people expressing itself, has to come from the cities. This is what the subcommittee is considering on the reapportionment issue which deals essentially wit the power of the cities. So with that background, Mr. Chairman, I am here to testify in support of S.J. Res. 44, which I introduced on February 8 to amend the Constitution to permit the people of a State to determine in one-man-one-vote statewide referendum whether they wish to have one house of their State legislature apportioned on a basis other than population alone. I have long believed that urban and suburban areas are entitled to fairer treatment than they have in the apportionment of many State legislatures. This principle underlay the 1962 decision of the US Supreme Court in Baker v. Carr, in which, for the first time, juris diction was asserted in the Federal courts to test the fairness of State legislative apportionment under the equal protection clause of the 14th amendment. That principle became explicit in the Court's landmark decision last year in Reynolds v. Sims, holding, in the exercise of that new jurisdiction, that both houses of State legislatures must be apportioned on a population basis; that is, on a one-man-one-vote basis. Now, Mr. Chairman, I wish to state that I thoroughly agree wit and subscribe to the doctrine of Baker v. Carr and Reynolds v. Sim and in all the things I shall say here, I wish to be taken as subscribing to and associating myself with that doctrine. So that if, in any way I have departed from it in what I propose, I hope the subcommitte will bring me, as well as what I propose, back to that course. I do feel completely consistent with Reynolds v. Sims and the line of decisions which that presaged. At the same time I do feel that the people of each State are entitled to the same option-and I am choosing my words carefully-which was the will of the people of these United States when they wrote the Constitution. In short, this is the only way in which we can take account of the fact that the Supreme Court one-man-one-vote decisions came at a time in our history when the people of each State no longer had this option of writing a Constitu tion ab initio and making one house apportionable on a basis other than population. The essence of my amendment is-and it is important to get its essence, because we can always work out words-witho interfering with, reducing, or depreciating the power of the Court to deal with the question of the representation of the citizens of each State in its legislature, to give the people of each State an optica equivalent to that which the people of these United States had wher they wrote the Constitution of the United States. That is my purpose and as I say, if I have not accomplished it, then I invite any ideas to how it may be accomplished, for I think that is the best public policy. This public policy must be tied into the proposition that decennially, the United States takes a census, and that as the population base shifts even further from rural to urban areas, an opportunity should be afforded for the people to review even the exercise of this option. Now, this is a different situation from that which faced the United States, because under the Federal compact, you were dealing with a whole nation and no matter how the population shifted, it was still within the contex of a nation. Here you are dealing with a State and the State probably can be, according to the organs of government which we created, somewhat more flexibly responsive to these population adjustments than can the United States. So I have tried to find, perhaps inartistically, some way in which the people, in addition to exercising the option on one occasion, could decide whether they did or did not wish to change that choice upon the occasion of future decennial censuses. Now, I have done that by making the whole mechanism permissive. The people of a State may choose, in a statewide referendum to make one house apportionable on a nonpopulation basis and the people may in that same referendum choose to review their plan every 10 years, or they may choose not to include that in their referendum, in which case, by amendment does not require them to do it. In essence, this is the plan which I have proposed. It will be noted that my amendment differs from that of Senator Dirksen, for whom I have the highest and warmest regard as my leader in the Senate and as a very distinguished Senator, in that I have omitted the first sentence of his amendment. The reason for my omission is that I believe that it was necessary to omit that sentence in order to preserve in the courts the jurisdiction which inheres now in the Supreme Court under Reynolds v. Sims. As I was very desirous of preserving that jurisdiction, I found it necessary to introduce a different amendment. from that of Senator Dirksen. That is not to say that Senator Dirksen's amendment excludes the jurisdiction of the Court. I do not. frankly, know whether it does or does not. But I do know that it raised the question in my mind. It apparently raised the question in the minds of other lawyers, and in order to resolve any doubt on that subject, I thought it was best for me to introduce my own amendment which would make crystal clear the preservation of the Court's authority. Senator BAYH. Will the Senator yield for just a moment and forgive the intrusion into his statement. This point that you have just mentioned, the impact, the ultimate consequences of this first sequence of the Dirksen amendment has been brought to question before the subcommittee by several witnesses. Indeed, the members of the committee. have posed the question when it has not been raised by the witnesses. In Senator Dirksen's opening statement, he made it clear that it was not his intention to have this consequence. Nevertheless, I must Say I think there is a great deal of room for interpretation of this language. Is it the fear of the Senator from New York that any constitutional amendment adopted, should not remove the jurisdiction of the Court in this area. That is your specific reason for excluding the first sentence? Senator JAVITS. Exactly right. I might point out that we now have before us—and I am sure the committee has seen it, but if it has not, I would like to offer it for the record-a study of the Association of the Bar of the City of New York on this whole question by what I consider to be a very distinguished committee. Now, it may be thought odd that I should offer it, because they come out against all amendments, including mine. But nonetheless, I think the learning which is contained in this report and the opinions of these lawyers is very well worth the consideration of the subcommittee. Senator BAYH. We do have a copy of this. If there is no objection, I would like to ask that this be included in the record following his statement. Senator JAVITS. Fine. If the Chair would allow me, I would like to ask that, because it is New York and my own bar association, though they disagree with me. Senator BAYH. The Chair will ask unanimous consent to accept the request on the part of the Senator from New York to have this made a part of the record. Without objection, it is so ordered. Senator JAVITS. I thank the Chair. (At this point, the report referred to is as follows:) Proposed Constitutional Amendments and Jurisdictional Limitations on Federal Courts With Respect to Apportionment of State Legislatures BY THE COMMITTEE ON FEDERAL LEGISLATION INTRODUCTION This Report discusses (a) certain proposed amendments to the Constitution which would have the effect of permitting representation in at least one house of a state legislature to be apportioned on the basis of factors other than population, and (b) certain bills to end the jurisdiction of the federal courts in appor tionment cases. I. PROPOSED CONSTITUTIONAL AMENDMENTS Supreme Court Decisions. On March 26, 1962, the United States Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), held that a challenge to the apportionment of representation in a state legislature presented a justiciable question under the Equal Protection Clause of the Federal Constitution of which the federal courts had jurisdiction. Thereafter, the Supreme Court, in Reynolds v. Sims, 377 U.S. 533 (1964), and other cases decided on June 15, 1964,1 held that the Equal Protection Clause required both houses of a bicameral state legislature to be apportioned substantially on the basis of population-the so-called one man, one vote rule or equal-population principle. In this Report, 1 WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Committee For Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713 (1964). On June 22, 1964, per curiam decisions were handed down by the Supreme Court in another group of apportionment cases on the authority of the June 15, 1964 decisions. |