STATE OF INDIANA HOUSE OF REPRESENTATIVES, March 6, 1965. Hon. Senator BIRCH BAYH, Chairman, Senate Constitutional Amendmnts Subcommittee, Senate Office Building, Washington, D.C. DEAR SENATOR BAYH: It has come to my attention that the Senate Subcommittee on Constitutional Amendments, of which you are chairman has opened hearings on amending the Constitution to allow States to apportion one house of their legislatures on a geographical basis. The thesis that cities are not receiving their rightful representation is, in many instances, a valid one. However, a large majority of the bills introduced into this session of the Indiana General Assembly have concerned benefits for the residents of our two large metropolitan areas. This argument then takes on some basic fallacies since the wishes of the metropolitan delegations are generally accepted by their rural colleagues in the legislature. Therefore, in order to protect residents of rural areas, it is essential that one house of the legislature be apportioned on a basis other than population. There are before this session of the Indiana General Assembly house resolutions asking Congress to amend the Federal Constitution in these areas of legislative apportionment. I have pledged to support these measures and have vigorously done so. It is my hope that your committee will return to Indiana and the other States the right to determine their own political subdivisions. Thank you very much for your consideration, and loyal representation of the people of Indiana. Very truly yours, JOHN A. RUBY, State Representative, Rush and Shelby Counties. STATE OF MONTANA HOUSE OF REPRESENTATIVES. Billings, Mont., March 22, 1965. Senator BIRCH BAYH, DEAR SENATOR BAYH: After reading the news reports of the two representatives from the Montana Legislature who appeared last week to testify before your subcommittee, I have concluded that as a member of the 39th Legislative Assembly of the State of Montana, I should make clear to your subcommittee that there is a substantial faction among the legislature, particularly in the house, that feel that the Supreme Court was absolutely correct in its one-man, one-vote decision. The proposals to overcome the Supreme Court decisions with respect to reapportionment of the State legislatures, whether by constitutional amendment or by constitutional convention, are extremely dangerous because they constitute a positive breakaway from the idea of representative government. The proposals advocate that a small minority of our population be given in effect a veto power over legislation at the State level. It is interesting to me that most of the persons active in pushing these proposals are the same persons who looked on many Federal programs as un-American; but in my political experience this is the most un-American proposal that has ever been advanced. It is not democratic; rather it proposes an oligarchy and its danger cannot be overestimated. One should never lose sight of the rectitude of the Supreme Court decisions. Any person, fair minded, who reads the decision, and the facts which led the Supreme Court to their respective decision, has to conclude that the Supreme Court had no choice to act but in the way that it did. As the Court commented, we have a right to vote, a right to have our vote counted, and a right to have our vote counted equally. Any deterioration of any of these important facets of our voting right would be a serious deterioration, and an erosion, if not a corrosion, of our right to participate in the Government. I hope your subcommittee will keep in mind that S.J. Res. 4 and 5, which passed the State senate in Montana rather handily, but which had a very narrow morgin in the house, were passed by an assembly that even then had been determined by a Federal three judge court to be illegally constituted and malapportioned. A substantial number of us maintain that resolutions passed by such illegally constituted bodies have no valid force where they purport to continue their own illegality. Your subcommittee should do the honorable thing and turn down these proposals to amend the Federal Constitution. The Federal Constitution is meant to grow and to breathe; it should not be stifled. Respectfully submitted. Very truly yours, JOHN C. SHEEHY. STATEMENT BY WILLIAM F. SWINDLER, PROFESSOR OF LAW, COLLEGE OF WILLIAM AND MARY The constitutional amendment proposed in S.J. Res. 2 (Cong. Rec. for Feb. 2, 1965, 1769) is fundamentally at variance with (1) the entire tenor of constitutional amending processes since 1798, when amendment XI was ratified, and with (2) the policy statements contained in the constitutions of virtually every State of the Union, on the subject of equal representation for all citizens in the electoral process. (1) The proper function of the amending process applied to the Constitution of the United States is the product of national experience since the Constitution itself was adopted in March 1789. 1. The first 10 amendments, popularly known as the Bill of Rights, were ratified within 21⁄2 years of the adoption of the Constitution itself, in December 1791. The first session of the first Congress prepared these amendments (along with two others which failed of ratification) for submission to the people in response to the proposals and requests of the people of several of the States submitted in the process of adoption of the Constitution. They were intended as guarantees of fundamental privileges of the people of the United States; it is worth noting that the first nine of these amendments were limitations upon the National Government with respect to the people of the Nation, while the 10th was a policy statement reiterating that powers not delegated to the United States were reserved to the States or to the people. 2. The only amendment specifically limiting the governmental functions of the United States was amendment XI, ratified in January 1798. Its intention was specifically to overturn the majority opinion of the Supreme Court of the United States in the case of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1792) and to deny the suability of States of the Union by private persons. 3. Amendment XII was one of several housekeeping amendments, the necessity for which was demonstrated by the difficulties in the electoral process for the presidency originally proposed in article II, section 1 of the Constitution which resulted in the reference of the election to the House of Representatives in 1801. This amendment was adopted in September 1804. 4. More than half a century was to pass before any more amendments were ratified-until the three Civil War and Reconstruction measures which became the XIII (ratified December 1865), XIV (ratified July 1868) and XV (ratified March 1870). All three were, in their original import, additions to the Bill of Rights in that they established further specific guarantees of personal liberty for the people of the United States. Among its many other jurisprudential ramifications, amendment XIV was significant for laying a specific restraint upon the States in the matter of denial to citizens of the United States of their privileges and immunities, or to any person of due process or equal protection. Amendment XIII was specifically necessitated by the opinion of the Supreme Court in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857). 5. The Supreme Court decision in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, modified on rehearing, 158 U.S. 601 (1895), was overturned by amendment XVI, ratified February 1913. This was one of four amendments which reflected the temper of the so-called "Progressive movement" in State and National politics of this period; the others were XVII (ratified May 1913), XVIII (ratified January 1919) and XIX (ratified August 1920). The amendments insuring popular election of U.S. Senators and the electoral franchise to women as citizens of the United States, were two further additions to the guarantees represented in the Bill of Rights. The restrictive proposal on personal liberty reflected in amendment XVIII reflected the reformist fervor of the late 19th and early 20th centuries; but its total failure as a function of the national Constitution was attested by amendment XXI (ratified December 1933) which repealed it. The juxtaposition of amendments XVIII and XXI may be taken as a caveat against the use of the amending power to lay restraints upon the privileges of the people of the United States. 6. Amendment XX (ratified February 1933) was, like XII, a "housekeeping" change in the governing process recommended by experience. Amendment XXII (ratified March 1951) was, like XI, a limitation upon the Government process upon which opinion at the time, as now, has been divided. Amendments XXIII (ratified April 1961) and XXIV (ratified February 1964) substantially broadened the electoral franchise and thus further enlarged the privileges of citizens of the United States first enumerated in the Bill of Rights. Viewed in this perspective, it may be state that of the 22 operative amendments to the Constitution ratified since 1789, 17 (I–X, XIII-XV, XVII, XIX, XXIII, and XXIV) have been essentially guarantees of the rights of the people of the United States; three (XII, XVI, and XX) have revised or extended the processes and powers of the National Government; and only two (XI and XXII) have limited the functions of National Government. It is fair to say that the wisdom of both the latter has been called in question by contemporary and subsequent generations. It is also worth noting that in several cases the amendments to the Constitution of the United States have laid specific limits upon the powers and funetions of the States in the Federal system. Attention has already been directed to the familiar language of amendment XIV, while XVII and XXIV are more recent examples of the same effect. One may also recall the principle exemplified in XVIII and XXI, negativing the use of the amendment process to take away a privilege or liberty of citizens of the United States. The conclusion to be drawn from this anlysis of the amending process. in the opinion of this writer, is that the process is most appropriate and effective when applied to the expanding delineation of rights and privileges of the people of the United States, or in modernization or confirmation of the powers and funetions of the Government of the United States. The lesson of political history, set out in the experience of amendment XVIII, is that the amending process is improperly applied when it seeks to take away a right or privilege of the people of the United States. Applied to the amendment proposed by S.J. Res. 2, the proposal may be condemned as an attempt to use the amending power to the derogation of rights and privileges of the people of the United States. That these are rights protected by the Constitution of the United States as against infringement and limitation by the States has been established by the Supreme Court in the decisions extending from Baker v. Carr, 369 U.S. 186 (1962), to Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). These cases having established the right to equal representation, in all elements of American Government, as a constitutional privilege of the people of the United States, the proposal to withdraw from these people all or part of such privilege is inconsistent with-nay, hostile to-the rationale of constitutional amendment throughout all our history. (2) When reference is made to the policy position assumed by the constitutions of the several States on the matter of fair and equal representation in the electoral process, one may readily confirm the observation of the Supreme Court of the United States that a manifest contradiction exists between the constitutional language and the statutory practice of the several States. Thus, in Baker v. Carr, 369 U.S. 186 (1962) the Court found that the State constitutional provision for apportionment based on population could only be effectuated by legislative initiative, since popular initiative was not an electoral process available to the State's voters. Denial of equal protection by State action (or inaction) was thus discernible within the context of the State's own constitutional rationale and on the face of the State legislature's record of frustrating the constitutional protestation. In Reynolds v. Sims, 377 U.S. 533. 545 (1964), the Court continued to demonstrate the discrepancies between the apparent disposition of the State constitution and the actual situation vis-a-vis apportionment. Alabama's constitutional provision for legislative apportionment based on successive decennial census return was found by the Court to have been ignored for six successive census periods, with the result that "population growth and shifts had converted the 1901 [apportionment statute] *** into an invidiously discriminatory plan ***." In the case of New York's constitutional provisions-repeatedly described as having a historic concern for population accommodation-the Court found that the formulas for apportionment "are so explicit and detailed, the New York Legislature has little discretion, in decennially enacting implementing statutory reapportionment provisions * **" (WMCA, Inc., v. Lomenzo, 377 U.S. 633, 646 (1964)). Maryland's constitutional prescription, too, the Court found so rigid that the best-intentioned legislative effort could not bring an equitable apportionment in terms of equally weighted voting right (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 662-664 (1964). Virginia's constitutional requirement was condemned for failure to compel legislative redistricting on an equitable population basis (Davis v. Mann, 377 U.S. 678, 685–690 (1964)). And constitutional formulas which fix apportionment on population bases which are themselves inequitable, whether backed by long history like Delaware's (Roman v. Sincock, 377 U.S. 695, 705–708 (1964)), or recently ratified by popular vote like Colorado's (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 734-737 (1964)), must likewise fall before the equal protection standard. Alabama's constitution provides that "representation in the legislature shall be based upon population" (Ala. const. art. XVIII, par. 284), that each county is entitled to at least one representative but the rest of the lower house is to be apportioned equitably (Ala. const. art. IX, par. 199), and that the senatorial districts are to be divided equitably on a population basis (Ala. const. art. IX, par. 200). In practice, the Court found that members representing 25.1 percent of the State's population actually controlled the senate, and 25.7 percent of the people elected a majority of the house (Reynolds v. Sims, 377 U.S. 533, 545–551 (1964)). In New York, the percentage of population controlling the lower house was found to be 37.1, and controlling the senate, 40.9 (WMCA, Inc. v. Lomenzo, 377 U.S. 633, 646-648 (1964)). In Maryland the upper house was controlled by 14.1 percent of the people, and the lower house by slightly less than 25 percent (Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 664-666 (1964)). Virginia's senate was under the control of 41.1 percent of the population, and the lower house was under the control of a slightly smaller percentage (Davis v. Mann, 377 U.S. 678, 688-699 (1964)). In Delaware, 21 percent controlled the senate and 28 percent the house, notwithstanding a 1963 amendment by which the constitution purportedly was brought into line with the rationale of Baker (Roman v. Sincock, 377 U.S. 695, 705-708 (1964)). Finally, in the case of Colorado's 1962 amendment, the lower house majority is now controlled by 45.1 percent of the population, while 33.2 percent are in control of the senate (Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 726-729 (1964)). The proposal set out in Senate Joint Resolution 2, in the light of both Federal and State constitutional history, fundamentally contradicts the uses of the amending process to deny to the people of the United States a right which is inherent in the American system of government. The farct that in practice over a substantial period of time the States of the Union have fostered processes of legislative apportionment which have nullified the guarantees endorsed in their own constitutions, only emphasizes the basic truth in the adjudication on the subject since Baker v. Carr: The stated constitutional ideal of equality of representation must be rescinded because it is not true, or it must be lived up to because it is true. In either case, an amendment to the Constitution of the United States is an irrational and dangerous precedent for the reforming of the constitutional theory set out in the State constitutions. RUTGERS STATE UNIVERSITY, THE EAGLETON INSTITUTE OF POLITICS, Hon. BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: I write as a member of the New Jersey Committee for Fair Representation in opposition to the amendments sponsored by Senator Dirksen and others which would allow one house of a State legislature to be based in part on factors other than population. These amendments are dangerously phrased. The clause "nothing in this Constitution shall prohibit the people from apportioning one house of a bicameral legislature upon the basis of factors other than population," goes further than the mere removal of the appellate jurisdiction of the Supreme Court in cases of apportionment. It opens the way for States to disregard previously constitutionally guaranteed civil and property rights when apportioning their legislatures. A citizen might be deprived of his vote without recourse because of factors such as race, color, creed, national origin, economic or social status. "If liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in government to the utmost" (Aristotle, "The Politics," book IV). Since there are no standards set down for nonpopulation factors, the door is left open to all kinds of discrimination. Instead of condemning such discriminatory and un-American concepts, this amendment authorizes and, indeed, may encourage the use of discriminatory and arbitrary standards. One house not representative of the people would impede the development of State policies to deal with the increasing economic and social problems of our industrial and urban society. Beyond this, the position adopted by the Supreme Court in Reynolds v. Sims and other relevant cases is inherently more just, more democratic, and more equitable than the proposed modification. In any system based on population, there are sufficient gaps between theory and practice to prevent outright, consistent majority rule. In a State like New Jersey, in the neglect of State and local problems by the legislature, one can see plainly the evils growing out of a senate built on rotten boroughs. Nothing in the record suggests to me that they deserve constitutional sanction. Deep-seated governmental problemspublic finance, education, mass transit, urban blight-have cooked to cinders on the back burner while members of our malapportioned senate ignored them. Modification of the present constitutional rulings of the Supreme Court would represent "a retrograde step in the rear of democracy" and, I fear, a threat to the social gains of the last generation. Sincerely, PAUL TILLETT, Professor of Political Science. OREGON STATE SENATE, Salem, March 8, 1965. Senator BIRCH BAYH, Washington, D.C. DEAR SENATOR BAYH: A few weeks ago I was the principal opponent of a Senate joint resolution which was brought to the floor of our State senate asking for an amendment to the U.S. Constitution allowing a State to apportion one house of its legislature on factors other than population provided that a majority of the electorate approved such an apportionment. I do not know any relevant factors for apportionment of State legislatures other than people. We. in Oregon, have had fair apportionment since 1952 and in my judgment all sections of our State have been fairly represented including those areas of lesser populations. Indeed, eastern Oregon, which is the least populated section of our State, has provided three senators who have shared the senate presidency for 8 of the last 10 years. I share the belief of the U.S. Supreme Court that the right to vote includes the right to have one's votes as effective and meaningful as that of any other citizen. Since this is an individual right, the majority should not be able to take it away. Indeed, to allow a majority of the people to apportion one house of the legislature on a factor other than population could result in total disenfranchisement of the Negroes in the South or disenfranchisement of any other minority within a State including a geographical minority. I am advised that the U.S. Senate is considering S.J. Res. Nos. 2, 38, and 44, all of which are similar to Oregon State S.J. Res. No. 1. I would respectfully urge the Congress to reject any resolution which dilutes the principal of one man, one vote, and I ask that this letter be included in the March 3-5 and March 9-11 hearing record of the subcommittee on constitutional amendments of the Senate Judiciary Committee. Respectfully yours, DON S. WILLNER, State Senator. |