I think none of these schemes-I am referring now to other resolutions, such as Senator Church's and Senator Javits'-I think none of these schemes are 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. We ought to be very reluctant to enshrine a principle of inequality into our Constitution.

(The complete statement of Dean Reuschlein follows:)

STATEMENT BY HAROLD GILL REUSCHLEIN, DEAN, SCHOOL OF LAW, VILLANOVA

UNIVERSITY

Mr. Chairman and members of the subcommittee, it is a distinct honor to present to 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 grossly unequal representation given to some electoral districts in relation to others, both in the election of State and Federal representatives. It would be tedious to review the facts of such malrepresentation since they have been reported 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 examination of these inequalities. The Court has ultimately concluded that the equal protection clause of the Constitution compels the equal weighting of each voté case, 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 re sulting 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 systems; 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 inequities, 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 may 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 precedent for urban representatives when (as is easily possible even with existing distortions) they come to dominate State legislatures, and State constitutional conventions.

Simply put, governmental and legal theories which uphold unequal representation 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 have 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 destroy the interests of the educated, virtuous, and propertied classes. (Some may think these fears have been proved justified.) But as democracy advanced in England it became clear that old values could not be maintained at the experse of an unequal, manipulated franchise. In our country the franchise itself has not been, with certain notable exceptions, usually the focus of attack of the who fear the possible domination of the minority by the majority. In some instances a minority, or what fears it may become a minority, has enacted er supported electoral systems to weaken the representation of the feared majority Most frequently, however, the minority has had recourse to our peculiar American institution of a written constitution limiting the majority, and our independent judiciary capable of reviewing the acts of the majority. Mary State constitutions expressly prohibit special legislation favoring or discrimina 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 pro tection and due process of law to protect themselves from the tyranny majorities.

Such protection is by no means perfect, and in many areas is patently inad quate, but it would hardly reinforce such protection to overrule the Supreme Court either by legislation or amendment when it attempts to give effect to such concepts.

We must also recognize that we do not have in this country two divergent interests, urban and rural, or even three, considering the newest group to suf in between them, suburban. We have multiple and exceedingly complex a terests. We have the interests of laboring men, urban or rural; of bankers, or manufacturers, or doctors, even the very small group, law professors, and miniscule group, law deans. One individual is at any time a member of a number of majorities and minorities. No system of restrictive representation can reflect each interest. Only an exceedingly complex and undemocratic system of multiple franchises, such as was tried in England could hope to do so. O multiple interests are reflected in particular votes on particular legislation. A minority on a particular piece of legislation must (if it is constitutional) g way to the majority. But this is far different from saying a minority m give way to the majority's view of the strength of the minority's voice on al legislation.

Lastly, I would like to comment on the fact that this body is constituted on a principle other than one man, one vote. This body is the result of the peculiar strengths and problems of federalism. Of course any Federal or confederated body must in some way reflect its Federal character. The States, however are not confederations of towns, cities, counties, or parishes. They are site? governmental units devoid of any Federal character and thus not at all e sitating a body such as this.

I should now like to address myself to the particular legislation under cmsideration. As you might gather, I hope, from my prior remarks, I feel at legislation or constitutional amendment in this area unwise. But I am par 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 clause of the 14th amendment should be totally inapplicable to composition and appor tionment of the legislature. Could the people of the State constitute the legs lature on racial, religious, ethnic, or sexual grounds? Insofar as such a const tutional amendment would repeal the 14th, it could be so interpreted. I woul 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 whee legislature, if unicameral.

What factors? As I pointed out above the great surge to urbanism may that even under present standards the majority of a State legislature as well 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 say tat 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 unicameral house, the whole legislature.

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.

Dean REUSCHLEIN. Thank you, Senator.

Senator TYDINGS. We will recess now until 2 o'clock.

(Whereupon, at 1 o'clock p.m. the committee recessed, to reconvene at 2 o'clock p.m. on the same day.)

AFTERNOON SESSION

Senator TYDINGS. We welcome you here, Mr. Flynn. I know it is 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 Uta But the distance is not quite that far with today's modern jet, which perhaps has an impact on the topic before the committee.

I have a rather long statement which I think I will not bore you wit by reading, but I would like to insert it into the record-some 27 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 Res lution 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 trend. I think that Senate Joint Resolution 2 will certainly hasten the treac 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 for many people in this country have paid much attention to for the las 50 years.

My basic background for this topic is that I have done research it at the University of Michigan, on the topic of federalism as it relate to State antitrust laws, research on the topic of federalism in Afr 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 reapportionme 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 view 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 this minority groups, that big governments no longer serve a useful purpose. The reason for this belief has been the failure of the States: do their job. This failure may be predicated on two basic premis First, the States are unresponsive to the demands of the major': of the people living in the States; secondly, the States are const tionally unable to do their job, because their constitutions were draf at a time, namely about 1880, and they copied one another quite a when the philosophy of government was that government should the least amount of work possible.

Now, with the coming of the New Deal, the philisophy of gover ment, particularly at the Federal level, shifted dramatically. Gor ernment was no longer just a policeman. Government became t necessary tool in carrying out social policy. However, the State

th their outmoded State constitutions, and also with their malapporned legislatures, were unable to respond to the call, and also unwillg to respond to the call.

Now, the economic disaster of the depression made abundantly ar, I think, the fact that we are no longer a mere union of 48 States, that time-50 now-for the purpose of conducting foreign affairs, d a few other common topics of consideration. We are today a ghly integrated Nation, with 20 million people moving from one ate to another each year. Old allegiances are breaking down, culral differences are breaking down. There has been a demand upon e Federal Government to do things which we commonly would think as being the primary job of the States.

Now, I won't go over the reapportionment decision, because I am t primarily interested in the method by which the States-the Sureme Court reached a determination that the States must apportion oth houses of their legislature in accord with a standard requiring sentially one-man one-vote.

However, I do think there is an interrelationship of these decisions ith the fact that State government has not been fulfilling its job. irst, because State legislatures are unresponsive to the needs, the deands, the desires of the majority of the people living within a State. onsequently, the people of that State turn to the Federal Government hopes of having the Federal Government do the things that they eel they need.

Secondly, of all the State constitutions I have studied, and this is Imost all 50 in this country, the legislature plays a significant role the amending and revising process leading to constitutional reform. Now, I would hope that this committee and Congress could possibly ake 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 he 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 oday. This is rather strong language, I admit. However, the California 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 as 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 effect.

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 Utah, and also I know in Idaho, in which the malapportioned legisla