Governor, just a couple of questions. I know what your answer is, but in your judgment, if we adopted the Dirksen amendment, would that take precedence insofar as the reasonableness of factors is concerned on reapportionment over the 14th and 15th amendments? Justice CALDWELL. Yes, sir; I think it would. Senator TYDINGS. I felt that that was the thrust of your testimony. Let me ask you something else. In your Florida constitution, do you have a provision which requires automatic, regular, periodic reapportionment of either house? Justice CALDWELL. On a 10-year basis. The constitution requires review of the situation once each 10 years. Senator TYDINGS. In both houses? Justice CALDWELL. Both houses. Senator TYDINGS. Does it actually direct the legislature to reapportion or not? What does it do? Justice CALDWELL. Yes; but there is some division of opinion about how compulsory that requirement is and it has been observed in the breach as well as in the observance. Senator TYDINGS. The reason I ask you that, Governor, is we have the same provision in the Maryland constitution and the legislature has even gone so far as to put the matter on referendum in the State of Maryland to determine whether or not the people wanted the State reapportioned and when they said yes, the legislature still-and I was a member of the body-disregarded it. I was wondering whether Florida had that same history, too. Governor, one problem which bothers me, assuming that the constitutional amendment is passed and ratified, before a State such as my own, Maryland, or another State which is badly malapportioned, takes any effort to reapportion itself, do you feel that a legislature could reasonably be expected, once this amendment is adopted, a legislature which is already badly apportioned, could they reasonably be expected to make any effort to reapportion one house? Justice CALDWELL. Yes; I think you can expect them to make a good-faith effort. But of course, you always have the human factor of voting oneself out of office. It is a compulsive sort of condition. Senator TYDINGS. It is almost too much to ask. Justice CALDWELL. It makes it very difficult. Senator TYDINGS. For that reason, let me ask you one final question: Do you feel that there would ever come a time when the legislature, by its apportionment of one house, could be so completely unreasonable as to be subject to judicial review or not? I know we have asked you questions all around that? Justice CALDWELL. As I read the Federal Constitution, my answer would be subject to State judicial review but not by Federal judicial review. Senator TYDINGS. But you do think that it would be subject to judicial review in the State? Justice CALDWELL. Yes, I do. Senator TYDINGS. And in your State now, in your State constitution, do you have a bill of rights or similar type of thing? Justice CALDWELL. Quite similar to that found in most States. Senator HRUSKA. I add my words of pleasure with the honor that comes to us for having such distinguished visitors. We are grateful for your presence. It has been suggested, Mr. Justice, that you always have the human factor of an officeholder not wanting to vote himself out of office. Therefore, perhaps one house of the legislature would be reluctant to reapportion itself. Is that of any consequence whether this amendment is adopted or not? If they do not reapportion, the Federal Court will do it for them; is that not true? Justice CALDWELL. Yes, that is true. Senator HRUSKA. If they are laggard, they can be laggard and the Federal Court will then step in and there will be that compulsion from this external source. None of these resolutions will, in and of themselves, repeal Reynolds v. Sims. That stays as the law of the land; does it not? Justice CALDWELL. Yes, sir. Senator HRUSKA. It is not until the people of the State speak and say, "We want to change Reynolds v. Sims by basing one house on factors other than population," that the change will occur. You have testified, Mr. Justice, that you do not recall any issue of any great importance having been decided on the basis of sectionalism in the State of Florida. How is the senate of the State constituted? Justice CALDWELL. There are 45 members, with no county of the State having more than 1 senator. There are senatorial districts involving as many as, oh, three or four, perhaps even five, I am not sure, counties. I suspect that as constituted now, the rural areas substantially dominate the membership of the Senate. Senator HRUSKA. How much of a factor is that in the record of good decisions on major issues? Justice CALDWELL. Amazingly, there has been a complete absence of sectionalism or of one interest against the other when it comes to the settling of important legislation having to do with education or elections or law enforcement or what not. I do not know whether that condition is peculiar to the State of Florida or not. But as I said a moment ago, I have never seen the first instance in which legislation of major importance has ever been affected by the sectional factor. Senator HRUSKA. My question is this: Can the lack of sectionalism be attributed in part to the power that might be exerted by the ruraldominated senate? Justice CALDWELL. Not up to this point, no; but I can see where it might be a factor in the future. Senator HRUSKA. Suppose that domination is erased so that the domination will rest in the metropolitan areas. Might that in due time in some issues result in sectionalism? Justice CALDWELL. Yes, I think it would for this reason: The urban areas are almost completely uninformed about the problems of the rural areas. The converse is not true. The people from the rural areas do move into the urban areas and inform themselves of their problems, but the people from the urban areas are seldom found out in the rural areas. And I am inclined to think that with urban domination, you would not have the same complete absence of sectionalism. Senator HRUSKA. Of course, if there were domination in both houses by the metropolitan areas the balance which now exists would be lost, would it not? Justice CALDWELL. I think that is true. I think the balance would be definitely lost. Senator HRUSKA. Mr. Justice, we have heard again and again in this hearing room that there are certain fundamental rights that cannot be changed. We get into the right to vote, freedom of religion and freedom of the press, and so on. Do you know of any provision in the Federal Constitution that the people in the States, cannot amend with the exception of the provision which says that no State can be deprived of two Senators without its consent? Do you know of any provision in that Constitution that cannot be changed? Justice CALDWELL. No, sir; I do not. Senator HRUSKA. I am not getting into the matter of advisability or good judgment. Is there anything in the Constitution which cannot be amended by the procedures described in article 5, with that one exception I mentioned? Justice CALDWELL. I think you put your finger there on an extremely important question, which needs to be always kept in mind. That is if that Constitution is to be changed, it should be changed in the manner set forth in the Constitution itself. To do otherwise is simply to resign the political policies of the Nation into the hands of people who are not elected by and not responsive to the people themselves. I think when you do that, you are approaching a very hazardous condition. Senator HRUSKA. Mr. Justice, you have referred to the great body of opinion within this Nation which has rebelled at the application of Reynolds v. Sims and related decisions. That is cited as one of the reasons why the Congress should take action, to submit one of these resolutions to the legislatures of the State. Included in the expression of opinion by many people in America are the actions of State legislatures which have petitioned for a constitutional convention. If you had a choice between a constitutional convention for the purpose at hand and the submission of a constitutional amendment to the legislatures, would you have any preference? Justice CALDWELL. I think I would follow the constitutional convention route. But I should like to say that in whatever route you take, on this matter of basic policy, basic constitutional change, the ultimate responsibility should be left up to the people to settle for themselves. They ought not to be left with the feeling of having been deprived of a fundamental right without a voice. I think it is extremely important from the standpoint of the general morale of the people of the country. Senator HRUSKA. The doctrine of popular sovereignty still should live in your judgment? Justice CALDWELL. Yes, sir. Senator HRUSKA. There are those who have testified here that they should shudder at the thought of a constitutional convention. "Any thing can happen," they say. If it be a wide open convention, goodness only knows what wickedness it might perpetrate. Justice CALDWELL. Now, wait, if your reference was to a constitutional convention within the States Senator HRUSKA. No, my reference was to a Federal constitutional convention. Justice CALDWELL. No, no; I think that is impractical. I do not think it would be possible, as a practical matter. Senator HRUSKA. When you said you prefer a constitutional convention, you did not have in mind at that time a Federal constitutional convention? Justice CALDWELL. No, no; under the machinery provided by the Constitution, I think it is utterly impractical. I do not believe you can go that route. Senator HRUSKA. My question had to do with the resolutions of the States, I think some 22 in number, who are calling for a constitutional convention to amend the Constitution. As between that method and the method of submitting a proposed amendment to the Constitution for the legislatures to adopt, which would you prefer? Justice CALDWELL. It must go to the legislatures. Now, in the original contemplation of this question of constitutional amendments, I am afraid the Founding Fathers did not go very far and look into the practical aspects of the calling of the Constitutional Convention. The reason the States petitioned for the calling of a Federal constitutional convention is because they had no choice. They do not want that. They are simply taking that route as the only route open to them under the Constitution as it is written now, in the hopes that the Congress will see that it would be impractical and that the Congress would, of its own motion, then submit the amendment to the legislatures of the States. I do not think for a moment that you could set up a constitutional convention that would do the job at the Federal level. Senator HRUSKA. It has never been tried, has it? Justice CALDWELL. No; it has not been tried and I would certainly be fearful of the consequences if it were tried. Senator HRUSKA. Is there an initiative and referendum law in Florida? Justice CALDWELL. No, sir; we do not have one. Senator HRUSKA. Of course, if this resolution becomes a Federal constitutional amendment, there would be the necessity for a vote of the people on any plan that would base one house on factors other than population. It would be necessary for the plan to provide machinery so that the people could vote on that measure? Justice CALDWELL. Yes. Senator HRUSKA. The lack of a referendum law in a State is not serious in this regard. It is a deficiency that can readily be corrected. Justice CALDWELL. That would be no obstacle at all in Florida. Senator HRUSKA. Thank you, very much. Senator BAYH. Justice and Senator, we are very grateful that you have taken the time to help compile the record before the subcommittee. Senator HOLLAND. Thank you, very much. Our next witness is Mr. Hale Champion, who is before us to present the views of Governor Brown and I trust will feel free to let us have any thoughts that he might have on the subject as the director of finance of the State of California. STATEMENT OF HALE CHAMPION, CALIFORNIA STATE DIRECTOR OF FINANCE, FOR EDMUND G. BROWN, GOVERNOR OF CALIFORNIA Mr. CHAMPION. I will be glad to do that, Senator. Mr. Chairman and members of the subcommittee, I appreciate the courtesy of your subcommittee to Gov. Edmund G. Brown of California in permitting me to appear here today on relatively short notice as his official representative. What I am about to read is his own statement on the subject of a constitutional amendment to provide for and control apportionment of State legislatures. This is the Governor's statement: As Governor of California, which, as the most populous State, has almost 10 percent of the Nation's total population, I have special reason to appeal to you today. California, just as each of the other 49 States, is unique and has unique problems. But because California is the largest of these unique units, its unique problems are larger. And since size inevitably results in complexity, those larger problems are extraordinarily complex. We are additionally confronted by a rate and constancy of immigration unmatched in human history, a growth that feeds and nourishes these complex problems. When we come, as we have today, to one of the most difficult of these problems, legislative apportionment, we have still another factor with which to contend. The great range and variety of California's geography and the uneven, and often expensive mismatching of population and resources. Almost everything we need we have, but what is needed in the south is often available only in the north; what is required to build great coastal cities must come from the sparsely settled mountains, and even the deserts must slowly be converted into fertile valleys to provide enough food and fiber for all the other areas of California. I do not intend to discuss all this in detail here today. I know that non-Californians are perhaps understandably less concerned about our great splendors and our lesser miseries than we ourselves. I have repeated these generalizations only because I think they are a necessary background for those who would like to understand how most Californians feel about the matter now before you. What I have to say about apportionment is remarkably close to what Senator Kuchel has already told you, and I think that fact is significant. I am a Democrat, he is a Republican. In this instance, I believe we represent a great and stillgrowing consensus in California on what should be done as a result of the U.S. Supreme Court rulings on apportionment of State legislatures. My recommendations are not all embodied in the proposed constitutional amendment you are now considering, but they could easily be fitted into that measure or any of a number of others. As Senator Kuchel did, I offer ways in which to make that measure acceptable-indeed highly desirable-to Californians. My recommendations are three in number, and I would stress that each bears with sufficient weight on the two others that, in my judgment they are not separable. First, I would endorse the principle that each State be given a qualified right under a constitutional amendment to apportion one of two houses of its legislature without fully meeting the one-man-one-vote test now established by recent rulings of the U.S. Supreme Court. Second, I would insist that one of the restrictive qualifications be that the people of each of the 50 States be given the opportunity long denied in many of the States to pass directly on questions of apportionment by initiative and referendum-an opportunity which Californians have both had and exercised on a number of occasions. That right should be reserved to the people of each State by the Federal Constitution as a condition precedent to apportionment of one of the two houses of any State without full adherence to the one-man-one-vote rule. Third, I would also restrict the use of this new constitutional privilege to States which could meet stringent requirements embodied in the same constitutional amendment requirements which would guarantee that the electorate of the State concerned was not limited by reason of sex, race, creed, color, economic status, or other comparably irrelevant factors. |