AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961-CLOTURE MOTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070020-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 20
• Publication Date: September 10, 1964
• Content Type: OPEN SOURCE

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-41
The Senate met at 12 o'clock meridian,
and was called to order by the Acting
President pro tempore (Mr. METCALF).
The Chaplain, Rev. Frederick Brown
Harris, D.D., offered the following
prayer:
Lord of all being, who holdest the
world in Thy hand, and to whom all
souls are dear: At another day's noon-
tide, as representatives of the public
trust come to counsel for the Nation's
good, by their dedication make them
worthy of these days of world destiny.
In this quiet moment, emptied of the
strife of tongues, lifting our eyes to far
horizons above the rampart confusions
of the present, may today be seen in its
true perspective.
Give us to discern that so often the
things that disturb and agitate us most,
and which loom so clbse to our eyes, are
like the grass which groweth up: In the
niorning, it flourisheth and groweth up;
In the evening, it is cut down and with-
ereth. Save us, we pray, from the
paralysis of mistaken magnitudes.
Grant us a constant awareness of eternal
principles, white and winning, whose
paramount and permanent constancy
arches the ages.
We ask it in the name whose truth is
the same yesterday, today, and forever.
Amen.
THE JOURNAL
On request by Mr. MANSFIELD, and by
unanimous consent, the reading of the
Journal of the proceedings of Wednes-
day, September 9, 1964, was dispensed
with.
EXECUTIVE SESSION
Mr. MANSFIELD. Mr. President, I
move that the Senate proceed to the
consideration of executive business, to
consider the_nominations on the Execu-
tive Calendar.
The motion was agreed to; and the
Senate proceeded to the consideration
of executive business.
EXECUTIVE REPORTS OF COMMIT-
TEE ON ARMED SERVICES
Mr. McINTYRE. Mr. President, from
the Committee on Armed Services, I re-
port favorably the nominations of 10 Re-s
serve colonels and 4 Reserve brigadier
generals for promotion to the grade of
brigadier general and major general, re-
spectively, in the Army Reserve; 1 brig-
adier general and 4 colonels for tempo-
rary appointment in the Army to the
grade of major general and brigadier
general, respectively; and Prof. John
Robert Jannarone for appointment as
dean of the Academic Board of the U.S.
Military Academy. I ask that _ these
Senate
THURSDAY, SEPTEMBER 10, 1964
names be printed on the Executive
Calendar.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so
ordered.
The nominations are as follows:
Brig Gen. William Welby Beverley, U.S.
Army, and sundry other officers, for tempo-
rary appointment in the Army of the United
States;
Col. Arthur Frank Brandstatter, Military
Police Corps, and sundry other officers, for
promotion as Reserve commissioned officers
of the Army; and
Prof. John Robert Jannarone, U.S. Military
Academy, for appointment as dean of the
Academic Board of the U.S. Military.
Academy.
Mr. McINTYRE. In addition, I report
favorably 457 promotions in the Navy in
the grade of captain. Since these names
have already appeared in the CONGRES-
SIONAL RECORD, in order to save the ex-
pense of printing on the Executive Cal-
endar, I ask unanimous consent that
they be ordered to lie on the Secretary's
desk, for the information of any Senator.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so ordered.
The nominations are as follows:
Paul A. Adams, and sundry other officers
of the U.S. Navy, for temporary promotion
to the grade of captain.
The ACTING PRESIDENT pro tern-
pore. If there be no further reports of
committees, the nominations on the Ex-
ecutive Calendar will be stated.
NATIONAL LIBRARY OF MEDICINE
The Chief Clerk proceeded to read sun-
dry nominations in the National Library
of Medicine.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent that these nomi-
nations be considered en bloc.
The ACTING PRESIDENT pro tern-
pore. Without objection, the nomina-
tions will be considered en bloc; and,
without objection, they are confirmed.
NOMINATION PASSED OVER
The Chief Clerk read the nomination
of Robert Sargent Shriver, Jr., of Illi-
nois, to be Director of the Office of Eco-
nomic Opportunity.
Mr. MANSFIELD. Over, Mr. Presi-
dent.
The ACTING PRESIDENT pro tern-
pore., Without objection, the nomination
will be passed over.
PUBLIC HEALTH SERVICE
The Chief Clerk proceeded to read
sundry nominations in the Public Health
Service, which had been placed-on the
Secretary's desk.
The ACTING PRESIDENT pro tern-
Pore. Without objection, these nomina-
tions will be considered en bloc; and,
without objection, they are confirmed.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent that the Presi-
dent be immediately notified of the con-
firmation of these nominations.
The ACTING PRESIDENT pro tem-
pore. Without objection, the President
will be notified forthwith.
LEGISLATIVE SESSION
On motion by Mr. MANSFIELD, the Sen-
ate resumed the consider ion o 1 Zs
lative business.
AMENDMENT OF FOR N T-
ANCE ACT OF 1961?CLOTURE
MOTION
The Senate resumecl.the consideration
of the bill (H.R. 11380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
Mr. MANSFIELD. Mr. President, a
parliamentary inquiry.
The ACTING PRESIDENT pro tem-
pore. The Senator from Montana will
state it.
Mr. MANSFIELD. Do I understand
correctly that the time is limited, to be
divided between the distinguished minor-
ity leader, the Senator from Illinois [Mr.
Malcom], and the distinguished Senator
from Pennsylvania [Mr. CLARK], or some
Senator representing him?
The ACTING PRESIDENT pro tem-
pore. The Chair is about to make a
statement on that subject. It is the un-
derstanding of ,the Chair that the Sen-
ator from Minnesota [Mr. HuacamaY]
will have charge of the time of the op-
ponents.
In view of the unanimous-consent
agreement controlling the time until 1
p.m. today on the so-called Dirksen-
Mansfield reapportionment amendment
to H.R. 11380, the Foreign Assistance Act
of 1964, the Chair lays the bill before'the
Senate.
Under the agreement, the Senator
from Illinois [Mr. D/RKSEN] has control
of time for the proponents, and the Sen-
ator from Minnesota [Mr. HUMPHREY]
for the opponents.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent, pending arrival
of the Senator from Minnesota [Mr.
HUMPHREY], that the Senator from Wis-
consin IMr. Paoxmiaz] be placed in
charge of the time for the opponents.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Time is running.
Mr. PROXMERE. Mr. President, I
yield 5 minutes to the Senator from Idaho
[Mr. CHURCH].
Mr. CHURCH. Mr. President, as the
issue before the Senate is of some mo-
21225
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21226 CONGRESSIONAL RECORD ? SENATE -
ment, I believe that I should state brief-
ly the reasons why I have Concluded to
vote against the pending cloture mo-
tion.
In the past, I have voted for cloture
only after the most extended debate has
taken place, and after every aspect of
the issue in question has been exhaus-
tively explored. I have favored the
blocking of further debate only when
it had become irrefutably clear that no
other, less drastic course could enable
the Senate to reach a vote. In the in-
stant case, neither sufficient time has
elapsed, nor has enough evidence been
assembled, to warrant the imposition of
cloture upon either of these grounds. It
must be said, at the very least, that this
cloture motion is premature.
But I would be less than candid if I
were to account for my vote upon these
procedural objections alone. There are
also substantive reasons why I cannot
vote for cloture on this issue, either now
or later. They can be summed up sim-
ply enough: I do not favor the Dirksen
rider.?
I have pondered the matter; I have
reviewed the debate; I have considered
the precedents. I have concluded that,
regardless of how one approaches it, the
Dirksen rider is wrong. It is wrong to
force a vote upon it without benefit of
committee hearings; it is wrong to at-
tach it to the foreign aid bill, where it
has no place, and thus to attempt to
coerce the consent of the President. But,
above all, it is wrong on its merits, be-
cause it seeks to suspend the Constitu-
tion of the United States as that docu-
ment relates to the right of each citizen
to have representation in his State legis-
lature which is as equal as possible to
that of all other citizens of his State.
I do not believe- that it is within the
power of the Congress to suspend the
Constitution, either in this, or any other
particular. If the Dirksen rider were to
pass, I believe that it would be promptly
struck down by the courts. The folly
of our action would then be matched by
its futility.
Even if one were to assume, for the
purpose of argument, that the Dirksen
rider might somehow be upheld as a valid
exercise of congressional power, under a
forced interpretation of article III, sec-
tion 1, conferring power upon Congress
to establish "such inferior courts as the
Congress may from time to time ordain,"
or of article III, section 2, giving the Su-
preme Court appellate jurisdiction
"with such exception, and under such
regulations as the Congress shall make,"
how could one defend the wisdom of
exercising such authority for the pur-
pose of suspending a constitutional
right?
It is no answer to say that the rider
will suspend the right to equal repre-
sentation for a period of only 2 years.
If we can cross this threshold, what is
then to prevent us from extending the
suspension for another 2 years, or for 5,
or indefinitely?
Nor is it an answer to say that the
suspension is justified in this special case,
in order that the legislatures of the var-
ious States might have time to deliberate
whether to ,comply with the constitu-
tional requirement for reapportionment,
or to avoid it altogether by changing the
Constitution through amendment. If
the Constitution can be suspended by
Congress to permit its amendment, it is
nothing more than the instrument of
Congress, having a stature little different
from that of an ordinary statute.
This cannot be permitted.
? For, if this were to come to pass, the
independence of our judiciary to give
force and effect to the Constitution will
be thoroughly undermined, and the
checks and balances upon which our
system of government has long rested
will be placed in the gravest jeopardy.
The very underpinnings of the Consti-
tution itself will be destroyed, as its effi-
cacy, together with all its precious guar-
antees of individual freedom, will de-
pend, from day to day, upon the shifting
sands of congressional acquiescence.
What is really at issue here is the Con-
stitution of the United States, fortified
by an independent judiciary, and inter-
preted, in the last analysis, by the Su-
preme Court.
It is not possible to be a fair-weather
friend of the Constitution, upholding it
when a given Court decision receives gen-
eral approval, but denying it when a de-
cision proves unpopular. I concede that
there is widespread disapproval in my
State, in the rural and mountain areas,
of the Supreme Court's reapportionment
decisions. But I cannot forsake my al-
legiance to the Constitution, nor my oath
to support it, on this account.
I, myself, would prefer to _leave the
question of legislative apportionment to
the people of each State, provided that
the people themselves, in each case, are
furnished with the opportunity to ratify
their system by majority vote through
a popular referendum. This would place
the decision directly in the hands of the
people, where sovereignty properly re-
sides.
The ACTING PRESIDENT pro tem-
pore. The time of the Senator from
Idaho has expired.
Mr. PROXMIRE. Mr. President, I ask
unanimous consent that the Senator
from Idaho may proceed for 1 additional
minute.
The ACTING PRESIDENT pro tem-
pore. Without objection, the Senator
from Idaho is recognized for 1 additional
minute.
Mr. CHURCH. Mr. President, I would
support a constitutional amendment de-
signed to accomplish this objective.
Such is the remedy we should seek. It,
is the only course of action which com-
ports with the system of law?and the
method of government?which we have
traditionally maintained.
The Congress, to be sure, can initiate
such an amendment, or any other it sees
fit to adopt, and the amendment may
then be ratified either by special con-
ventions called for the purpose, or by
the legislatures of three quarters of the
States. But, in the meantime, the Con-
stitution cannot be set aside. Unless
and until it is changed by amendment, it
must be observed as the supreme law
of the land.
September 10
Because the Dirksen rider represents
an attempt to set aside the Constitution
for a 2-year period, insofar as reappor-
tionment is concerned, it is inherently
defective, and, in my judgment, un-
worthy of support. Therefore, I shall
vote against this move to invoke cloture
in order to force a vote -upon it. And
if cloture is approved, I shall then vote
against the Dirksen rider itself.
This does not mean that I also oppose
the sense of Congress resolution which
has been submitted by the senior Senator
from New York [Mr. JAvrrs] and the
junior Senator from Minnesota [Mr. Mc-
CARMY]. To express our opinion, as a
guideline for the courts, that reasonable
time should be given the State legisla-
tures to comply with the -constitutional
requirement for reapportionment, is, in
my judgment, an entirely appropriate
exercise of congressional discretion. The
resolution does not undertake to set aside
the Constitution, or to interfere with the
power of the courts to implement or en-
force it. I intend, accordingly, to vote
for the resolution, should the opportu-
nity arise.
Mr. President, I ask unanimous con-
sent that there appear hereafter the text
of the Dirksen rider and of the Javits-
McCarthy sense-of-Congress resolution
so that all who are interested may read
and compare them.
There being no objection, the texts of
the Dirksen rider and of the Javits-Mc-
Carthy sense-of-Congress resolution
were ordered to be printed in the RECORD,
as follows:
S. 3069
(Mr. DIRKSEN (for himself, Mr. EASTLAND, Mr.
LAUSCHE, and Mr. STENNIS) introduced the
following bill; which was read twice and
referred to the Committee on the Ju-
diciary)
A bill to amend title 28, United States Code,
to provide for a temporary stay of pro-
ceedings in any action for the reapportion-
ment of any State legislative body
Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled, That (a)
chapter 21, title 28, United States Code, is
amended by adding at the end thereof the
following new section:
"? 461. Stay of proceedings for reapportion-
ment of State legislative bodies
"Upon application made by or on behalf
of any State or by one or more citizens
thereof in any action or proceeding in any
court of the United States, or before any jus-
tice or judge of the United States, in which
there is placed in question the validity of
the composition of any house of the legisla-
ture of that State or the apportionment of
the mernbership thereof, such action or pro-
ceeding shall be stayed until the end of the
second regular session of the legislature of
that State which begins after the date of
enactment of this section, and the court may
make such orders with respect to the con-
duct of elections as it deems appropriate ex-
cept that no order shall be inconsistent with
any apportionment made pursuant to refer-
endum. The court shall not deny any per-
son or persons the right to make such appli-
e-ation."
(b) The chapter analysis of that chapter is
amended by adding at the end thereof the
following new item:
"461. Stay of proceedings for reapportion-
ment of State legislative bodies."
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1964 CONGRESSIONAL RECORD -- SENATE
AMENDMENT No. 1234
Amendment intended to be proposed by Mr.
JAvrrs (for himself and Mr. MCCARTHY)
to the amendment (No. 1215) intended to
be proposed by Mr. Draws= (for himself
and Mr. MANSFIELD) to H.R. 11380, an act
to amend further the Foreign Assistance
Act of 1961, as amended, and for other
purposes
Strike out all on and after line 1, page 1,
and insert in lieu thereof the following:
"SEC. 402. It is the sense of the Congress
that in any action or proceeding in any court
of the United States or before any justice
or judge of the United States in which there
Is placed in question the validity of the com-
position of any house of the legislature of
any State or the apportionment of the mem-
bership thereof, adequate time should be
accorded (1) to such State to conform to
the requirements of the Constitution of the
United States relating to such composition
or apportionment consistently With its elec-
toral procedures and proceedings and with
its procedure and proceedings for the amend-
ment of the constitution of such State, and
(2) for consideration by the States of any
proposed amendment to the Constitution of
the United States relating to the composi-
tion of the legislatures of the several States,
or to the apportionment of the membership
thereof, which shall have been duly sub-
mitted by the Congress to the States for
ratification."
Mr. PROXMIRE.' Mr. President, I
yield 1 minute to the Senator from
Rhode Island.
Mr. PASTORE. Mr. President, the
senior Senator from Rhode Island will
vote against cloture and' will vote to lay
the Dirksen amendment on the table.
He will vote to lay the amendment on,
the table for the simple reason that it
does not belong in the foreign aid bill.
This is an unfair attempt to force up-
on the President of the United States the
dilemma of accepting the amendment or
vetoing the foreign aid bill and calling
Congress back into session.
The ACTING PRESIDENT pro tern-
pore. The time of the Senator has .ex-
pired.
Mr. PASTORE. May I have 2 addi-
tional minutes?
Mr. PROXMIRE. Certainly.
The ACTING PRESIDENT pro tem-
Pore. The senior Senator from Rhode
Island is recognized for an additional 2
minutes.
Mr. PASTORE. Mr. President, this is
an important piece of legislation. I re-
alize that it raises many practical ques-
tions that should be resolved. But. there
is no better place for these questions to
be -resolved than in committee hearings.
There have been no committee hearings.
Without stating all of my reasons for
opposing the Dirksen amendment, a very
cogent argument is made against the
Dirksen amendment and against the ap-
plication of cloture in an editorial which
appeared in the Washington Post this
morning. I cannot state the case better
than it is stated in this editorial.
Therefore, Mr. President, I ask unani-
mous consent that the editorial pub-
lished in the Washington Post of Sep-
tember 10, 1964, entitled "Rotten-Bor-
ough Retreat" be printed at this point in
the RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
No. 173-8
ROTTEN-BOROUGH RETREAT
Senator, DMIESEN'S cloture motion comes
before the Senate today with two strikes
against it, In the first place sponsors of the
motion have failed to show that this is a
proper occasion for the limitation of debate.
In the second place, the end which they seek
to attain would be highly detrimental to the
American system of government.
Cloture is an essential device to cut off
discussion after all the arguments have been
heard, thus enabling the Senate to work its
will on an issue that is properly before it.
In the present case, however, the arguments
have not all been heard. On the contrary,
this scheme to upset the Supreme Court's re-
apportionment decisions was hatched in se-
Crecy and rushed out of the Judiciary Com-
mittee without hearings. In these circum-
stances extended debate on the floor is neces-
sary to alert the country to what is in the
wind.
Full debate is further justified by the sly
tactics employed to thwart the President's
veto power. Instead of submitting the issue
to be determined on its own merits, Mr.
DIRKSEN is determined to attach his court-
curbing bill as a rider to the foreign-aid
bill. This would be an easy way of getting
it before the House and of forcing the Presi-
dent to sign it or risk destruction of the
foreign-aid program. Certainly there is no
obligation on any Senator to support cloture
in furtherance of this highly irregular pro-
cedure. The limitation of debate is a device
to curtail the abuse of power?not to pro-
mote it.
On the merits of the Dirksen-Mansfield bill
behind the cloture motion the case is equally
clear. Senator DOUGLAS accurately charac-
terized this measure when he said: "I be-
lieve that what we are asked to do is to
suspend for an indeterminate time the con-
stitutional guarantee of the equal protection
of the law, and to deny this protection to in-
dividuals who may wish to obtain it."
The Supreme Court has found many State
legislatures to be so badly malapportioned
that they cannot be reconciled with the
"equal protection" requirement. These rul-
ings have unquestionably become the law
of the land. It is not the function of Con-
gress to set aside that law, even temporarily,
or to thwart its operation. The spectacle of
Congress trying to use its legislative power
to deny or temporarily nullify constitutional
rights which the Supreme Court has clearly
upheld is such' a serious encroachment upon
the orderly division of powers that even ex-
traordinary measures would be justified to
defeat it.
There is much controversy, to be sure, over
the soundness of the Court's edict that both
houses of the State legislatures must be ap-
portioned on the basis of population. This
is a matter for extended national soul-
searching. The next Congress will be free,
if it wishes, to propose a constitutional
amendment after exhaustive hearings, analy-
sis and debate. Meanwhile, however, Con:.
gress should not seek to short circuit judi-
cial decisions or to prejudice a great national
issue by resorting to irregular procedures of
its own.
It should also be clear to everyone who
probes into this controversy that the "rotten
borough" system must go. Senator DOUGLAS
and others have provided an abundance of
details to show how grossly unrepresentative
most of our State legislatures have become.
The practical effect of the Dirksen pro-
posal would be to keep this system in op-
eration?temporarily through restrictions
upon the courts and then through a consti-
tutional amendment which would enable the
"rotten borough" legislators to perpetuate
their hold upon the State legislatures for-
ever.
The whole problem needs to be debated,
not from the viewpoint of irritations over
21227
a Court decision, but with the object of res-
cuing the State governments from the ma-
laise into which they have fallen. The Dirk-
sen way, like the Tuck bill passed by the
House, would be merely a retreat back to-
ward the "rotten borough" system. The
Senate can begin its march in the other di-
rection by voting down the cloture motion.
Mr. PROXMIRE. Mr. President, I
yield 2 minutes to the Senator from
Michigan.
The ACTING PRESIDENT pro tern-
pore. The Senator from Michigan is
recognized for 2 minutes.
Mr. HART. Mr. President, as I indi-
cated earlier, it is my intention to vote
against cloture. I was delighted to hear
the senior Senator from Rhode Island in-
dicate his intention?which is mine?to
vote to table the amendment if the ap-
propriate motion is made.
I should like to make one point very
clear. As a member of the Committee
on the Judiciary, I believe the Senate
should understand that there is not one
single line of testimony, not one witness,
not one piece of paper that was prepared
in the careful atmosphere of a commit-
tee, on which the judgment of the Senate
can be based. While I have not been
here very long, it would be my suspicion
that this is a most unprecedented proce-
dure. A matter which raises the gravest
of constitutional questions is sought to
be presented to the Senate without a
single moment of hearings.
It is not unfair to suggest that those
who seek to have the Senate adopt this
amendment wanted to avoid hearings be-
cause the hearings would have made the
case?which those of us in floor debate
have been seeking to establish in the past
few days?that the course that is pro-
posed to be taken is extremely unwise.
A written constitution which provides
rights for people is worth exactly the
cost of the paper on which it is printed if
there is no independent 'judicial review
available to insure the delivery of those
rights. Many nations in the world have
magnificent sounding written constitu-
tions. They are worth precisely what I
have indicated?the cost of the paper on
which they are printed. They lack an
Independent judiciary review to insure
that the rights announced in the Con-
stitution are, in fact, available to them.
I suggest that the long-term effect of
the course advocated by the proponents
of this amendment would be to have a
Nation in which our Constitution would
continue to read magnificently, but it
would be a Constitution for which there
would be no judicial relief available.
Mr. PROXMIRE. Mr. President, I
yield 3 minutes" to the Senator from New
Mexico.
Mr. ANDERSON. Mr. President, I am
going to vote against invoking cloture on
this reapportionment rider. Yesterday
I set forth at length my reasons for op-
posing the Tuck bill and the Dirksen
amendment. I cited the historical and
philosophical basis for apportioning
seats in State legislatures on the basis of
population with particular reference to
the inequities that exist in the appor-
tionment of the State senate in New
Mexico.
On several occasions in the past I have
sponsored resolutions to liberalize the
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21228 CONGRESSIONAL RECORD ? SENATE
rule by which the Senate might invoke
cloture. To date those efforts?and I
have had support from many other
Senators?have been unsuccessful. But
I continue to believe that cloture should
be invoked only after an appropriate
amount of time for thorough debate and
analysis of an issue has passed.
We spent 78 days earlier this year on
the civil rights bill and that was more
than enough time for Members to deter-
mine the pros and cons in this case. We
have been discussing the Dirksen amend-
ment for 10 days, but I think we are only
now arriving at the point where there is
an increasing understanding of just what
the Dirksen amendment would do to our
System of government and to the repre-
sentational rights of large numbers of
our citizens. The fundamental issue
confronting us was set out, I believe,
quite clearly by the Chief Justice of the
United States in his June 15, 1964, opin-
ion when he said:
The weight of a citizen's vote cannot be
made to depend upon where he lives. Legis-
lators represent people, not trees or acres.
Legislators are elected by voters, not farms
or cities or economic interests. As long as
ours is a representative form of government,
and our legislators are those instruments of
government elected directly by and directly
representative of the people, the right to
elect legislators in a free and unimpaired
fashion is a bedrock of our political system.
Mr. President, it is very interesting to
note that the financial journals write
about the growth factors in stocks.
They are very much interested in pre-
serving the growth factors. We talk
about the growth factors of our Cities
and the growth factors of the wilderness
areas. We do not seem to worry about
the growth factor in the legislative
bodies.
I wonder what is so foreign to our
ideas of the growth factor in legislative
bodies, and the growth factor for wil-
derness areas and for cities.
I therefore intend ,to vote against
cloture at this time on the theory that
we need these growth factors in our leg-
islative bodies.
Mr. LAUSCHE. Mr. President?
Mr. PROXMIRE. I yield 1 minute to
the Senator from Ohio.
Mr. LAUSCHE. Mr. President, while
the opponents of the Dirksen amend-
ment have made no serious effort to pre-
sent their arguments, and have allowed
other subjects to be considered by the
Senate, neverthless I am of the opinion
,that the time is not now justly at hand
to shut off further debate.
I favor the Dirksen amendment, and
will at a proper later time vote for clo-
ture, if the debate continues.
Mr. PROXMIRE. Mr. President,
would the distinguished minority leader
agree to use some of his time now? We
have already used much of our time.
It would be very helpful if the distin-
guished minority leader could use some
of his time now. We know that he, being
on the affirmative, should have the last
speech. But it would be helpful if he
could speak now.
Mr. DIRKSEN. Certainly.
The ACTING PRESIDENT pro tem-
pore. How much time does the minority
leader yield to himself?
Mr. DIRKSEN. Mr. President, I yield
myself 15 minutes.
The ACTING PRESIDENT pro tem-
pore. The Senator from Illinois is rec-
ognized for 15 minutes.
Mr. DIRKSEN. Mr. President, seldom
has an important issue been presented to
the Senate that has been so confused and
obfuscated in debate. And seldom has
there been an issue where there has been
such misplaced emphasis as on the mat-
ter that now engages the attention of
the Senate.
It has been alleged on the floor, and
in editorials; that this is an attack on the
Court. I could use an inelegant term to
describe those allegations. But I shall
content myself with saying that noth-
ing could be further from the truth.
It is said that the issue involved here
is one man?one vote. That is not the
issue. Any legislature in the land can
provide for one Man?one vote if it
undertakes to do so.
It has been said?and I have read it
in the columns?that this proposal is
designed to save the legislative skins of
some of our State legislators. I believe
that Mr. Roscoe Drummond ought to
know better than to promote a column
on that subject.
It has been said that this is a rotten-
borough approach. My colleague from
Chicago, the senior Senator from Illinois
[Mr. DOUGLAS), ought to know. If ever
there was an example of one metro-
politan area undertaking to dominate a
legislature, it will be found there.
It has been said' hat no hearings have
been conducted. There was no hearing
on the Lausche amendment when the
UN bond issue was before the Senate.
No hearings were held on the ,amen&
ment which removed Indonesia from any
benefits under foreign aid. ,All of those
questions were resolved on the floor of
the Senate. It is merely a question of
circumstance.
Finally it was said that we were acting
too hastily, and it was said that we ought
to rely on the amending process.
All this started in 1962 with the Baker
against Carr case in Tennessee. The
only issue in that case was whether or
not the case was justiciable in the courts.
That was the only question that was de-
cided.
But then came the case of Reynolds
against Sims, and with that case the
damage started. As a result, that doc-
trine has been applied to six States, and
it will apply to all the rest of them. As
Senators contemplate the picture, they
will know that time will run out.
That was the reason for the amend-
ment. It was on the 23d of July that I
Introduced a Joint resolution providing
for a constitutional amendment-24
Senators were sponsors and cosponsors
of that joint resolution. But we could
see at once that there would be no op-
portunity to launch a constitutional
amendment in the time that remains for
the Congress to be in session; the process
would take a longer time.
It is sheer nonsense to say that the
proposal is an attack upon the Supreme
Court of the United States. With re-
spect to hearings, I have so indicated.
With respect to haste, the three-judge
September 10
court in Colorado gave the legislature 15
days to come into being at the call of the
Governor and to reapportion one of their
bodies, only to have their own supreme
court declare the measure unconstitu-
tional.
Senators talk about haste. Fifteen
days were allowed to get a legislature to-
gether and do- the kind of job that was
done. I should like to know who wishes
to talk about haste. If Senators will ex-
amine the New York picture, they will
see that one election is held to elect
members of the legislature for a period
of 1 year, when their constitution calls
for a 2-year term, the second year an-
other election, and then a third election,
notwithstanding the New York constitu-
tion, before they go back on a 2-year
term basis.
We talk about haste. The decision of
the Supreme Court did not come down
until June of this year. We had to-make
the best of the time factor since the clock
and the calendar were running out.
Justice Harlan, in his dissenting opin-
ion, which blew the majority out of the
water, said on page 32 of his opinion that
we can forget about any stay from here
on unless something is done. So another
44 States will come under the Federal
hammer merely because the Court inter-
preted the 1st section of the 14th amend-
ment and completely ignored the 2d
section and all the historical background
that was applied in 1866, not only in this
body, but also in the House of Repre-
sentatives.
What is the basic issue? It is a ques-
tion of whether the Constitution em-
powers the Court, the Congress, or any
other agency of Government to deter-
mine how a State legislature shall be
composed. That is the issue, and noth-
ing else. It involves the State-Federal
Union or the Federal-State Union, any-
way we might wish to put it, and if any-
one wishes to be made knowledgeable on
the subject, I suggest that he go back and
read what Representative Bingham of
Ohio had to say with respect to the 2d
section of the 14th amendment for there
it is clear as crystal as to what the Con-
gress intended. It did not intend to in-
fringe the rights of the States when
dealing with suffrage in their own States.
Justice Harlan said that this procedure
goes far beyond the authority of the
Court. and is actually an interposition
Into a legislative field.
I was rather interested in a comment
that Judge Learned Hand, a great jurist,
made with respect to the Supreme Court.
He spoke of the Court's tendency to "be-
come a third legislative chamber." That
is precisely what was done in the Rey-
nolds case.
There probably has been no greater
student of the Constitution than Prof.
Edward Corwin, late professor of juris-
prudence at Princeton University, who
spoke of "the aggressions of the Court."
The situation is precisely in that cate-
gory, and Congress will have to deal with
the question.
The amendment before the Senate is a
breather. It is nothing more. We had
no choice on the question. Our resolu-
tion was submitted, but how could we do
something about it before the present
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CONGRESSIONAL RECORD ? SENATE
session of the Congress adjourned? It
would have to go through two commit-
tees and two Chambers before it could
be launched, and then it would have to
be ratified by the States before it could
become effective. The shortest period
for any amendment to the Constitution
to become a part of the Constitution
would be 7 months. Obviously, if 3-
judge courts should start working in the
other 44 States, the damage would be
done and it would be difficult indeed to
retrieve it. So we had no course left ex-
cept the approach that we have taken.
What would the Mansfield-Dirksen or
the Dirksen-Mansfield amendment do?
An action must be pending in a Federal
court; otherwise, there are "no dice."
The amendment would not affect State
courts at all. An application could be
filed for a stay of proceedings. It would
ot throw the proposal out the window.
t could keep us in a state of suspension.
Who could file the application? .A
tate, a Governor, an attorney general,
member of the legislature of a State,
or other parties in interest.
Incidentally, my colleague from Illi-
ois [Mr. DOUGLAS] made a great point
of the fact that if we amended the Con-
stitution, we would still have to go back
to malapportioned legislatures. I sug-
gest that Senators read the amendatory
ortion of the Constitution, which pro-
ides that amendments may be ratified
y legislatures or conventions, and it is
up to the Congress to determine what
anguage shall go into that kind of res-
olution. How long shall this last? So
long as there is a public interest, and in
he absence of highly unusual circum-
stances, that there be one State election
nor to January 1, 1966, and that there
be a reasonable opportunity for the State
egislature to work its will, if it so de-
ires, in a regular session, in order to
ure the problem that is before us.
I have made it as manifest as I could
--
n public and private statements and on
he floor of the Senate that I contem-
late and have contemplated initiating
uch a constitutional amendment in the
ew Congress in January. I am not in-
ensible to what must be done, but a
ime element is involved. When we
peak about haste, we must be in a hurry
f we are to meet the problem before
ongress adjourns and Members go out
n the hustings for the campaign. No
ther agency in Government can do it,
except the Congress. With respect to
this amendment and what was said a
moment ago about engrafting it into the
foreign aid bill, I should say that 3 weeks
ago I went to the President of the United
States. I submitted proposed language
to him. I talked to him in private.
There was a session of an hour and a
half. I said, "I will not take you by
surprise. I want you to know what is
going on." So he is fully advised about
it. I made it clear that this proposal
would be of no value unless it were put
on a measure that was going to the
President's desk.
Mr. President, that is not an unusual
proceeding. It has been done a good
many times. Suppose we managed to
get before the Senate the Tuck bill,
which has already passed the House.
What dO Senators think would happen
to it at the White House? It would be
vetoed. I know that.
Mr. PASTORE. Mr. President, will
the Senator yield?
Mr. DIRKSEN. I yield.
Mr. PASTORE. Should the President
be denied that privilege? Should he
have on the auction block the foreign
aid bill because he does not like the
rider?
Mr. DIRKSEN. Oh, I know legisla-
tive techniques. I have not been around
here for 32 years without knowing the
score. I said to the President, "I am
going to put it on the foreign aid bill.
I want to do so in order that it may be
at your desk for either signature or
veto."
The ACTING PRESIDENT pro tern-
pore. The time of the Senator has ex-
pired.
Mr. DIRKSEN. I yield myself 5 min-
utes more.
What is the use of going through an
exercise in futility? What is the use
of going through such procedure unless
results are obtained? We must be rather
practical when we start on this course.
So? there we are. I was advised that
this "baby filibuster," as it is called by
the distinguished majority leader, is to
be continued. That is all right with me,
because this issue will be here to be
voted on, unless a substitute is accepted.
There has been proposed an amendment
to the amendment. It is a sense of the
Congress resolution.
Mr. McCLELLAN. Mr. President, will
the Senator yield at that point?
Mr. DIRKSEN. I yield.
Mr. McCLELLAN. May I inquire
whether, it is the Senator's intention or
his contemplation, if this little filibuster
to which he refers continues after the
vote today, assuming cloture is rejected,
to file another cloture petition at a later
date, say in a few days perhaps? The
Senator says that his amendment is to
be voted on sometime before this session
ends.
Mr. DIRKSEN. I might.
Mr. McCLELLAN. Will the Senator
yield further? -
Mr. DIRKSEN. Yes.
Mr. McCLELLAN. The question of
voting for cloture gives me some con-
cern. I have been against it. I am still
against cloture as a legislative weapon.
But the Senate, on the 10th of June,
this year, employed cloture as a weapon
to compel the enactment of the civil
rights law?a law that I opposed and
that my people opposed?a law that I
think is unconstitutional, a law that I
think will be of great detriment to this
country. If cloture is to be used and
adopted as an instrument, as a weapon,
in legislative battles in the Senate,
against me and my State, although I
deplore the use of it, the logic of such
circumstances may very well compel me
on occasions to vote for cloture and thus
make use of the same weapon as that
with which I have been stabbed.
If cloture is to become the practical
procedure for the U.S. Senate, then in
order to make my vote most effective in
representing my State I may desire to
21229
use it against those who employ it
against me.
So, on a second cloture petition on
this measure, I may vote for it.
I may not vote for cloture today, but
I am not always going to maintain the
position that, irrespective of what the
practice may become and what prece-
dents may be established in using this
weapon, I shall continue to refrain frbm
using it.
Mr. DIRKSEN. I have heard intima-
tions from the opponents of the Dirksen-
Mansfield amendment that this discus-
sion would continue. Very well. I can
remain here until Christmas. I can stay
here until the 3d of January, when the
89th Congress will come in, if that is the
way to reach a vote. But I helped on
two occasions to break filibusters. The
first one was on the commimidations
satellite bill. I got on my knees on this
side to beg Members to vote for cloture.
Mr. PASTORE. Mr. President will the
Senator yield?
Mr. DIRKSEN. Not at the moment.
My friend will thank me for that.
Mr. PASTORE. Oh, I will not.
[Laughter in the galleries.]
The ACTING PRESIDENT pro tem-
pore. The guests in the galleries will
please remain in order.
Mr. DIRKSEN. Oh, Mr. President, I
do not mind if they snicker a little.
The ACTING PRESIDENT pro tem-
pore. The Chair has the responsibility
to maintain order.
Mr. DIRKSEN. I know that.
I got on my knees and begged Mem-
bers on this side of the aisle to vote for
cloture. I hope My friend will approve.
He nods his head "yes."
What is proposed is provided for under
rule XXII. I am operating under the
rules of the Senate; and I believe I know
what the rules are. The opponents can
take their time, but this amendment will
still be here. They can offer a substi-
tute. A substitute has now been pro-
posed. It is a sense of the Congress
resolution. I cannot lay my hand on it
at the moment, but it expresses the
'sense of the Congress that the Supreme
Court ought to give adequate time.
Is it not wonderful for this legislative,
coordinate branch of government to get
on its knees and say to the Court, "Please
Mr. Court, be gracious, be graceful.
Let us give them adequate time"? We
are asked to beg a little. I do not pro-
pose to beg, because that demeans the
dignity and authority and equality of
this branch of government.
The ACTING PRESIDENT pro tem-
pore. The time of the Senator has ex-
pired.
Mr. DIRKSEN. Mr. President, how
much time have I remaining?
The ACTING PRESIDENT pro tern-
pore. The Senator has 8 minutes re-
maining.
Mr. DIRKSEN. I yield myself 1 addi-
tional minute.
After all, it was no accident that the
legislative branch was provided for in
article I of the Constitution. As Presi-
dent Monroe once said, "It is by all odds
the most important branch in all the
Government, because of the powers that
have been conferred on it."
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21230 CONGRESSIONAL RECORD ? SENATE
Mr. President, that is the story. I said
yesterday there will be a vote on the
ainendment one way or the other, or on
a substitute, but it is going to be the
business. I stood aside for the social
security bill. Yesterday I had to say to
our very gracious and self-effacing ma-
jority leader, for whom I have the deep-
est affection, that I cannot permit put-
ting this amendment aside any longer,.
for the Appalachia bill or any other
purpose.
The ACTING PRESIDENT pro tem-
pore. The time of the Senator has ex-
pired.
Mr. DIRKSEN. I yield myself 1 more
minute.
When we are through with the vote
on cloture, and when we are through
with the Mansfield resolution on the
McCloskey matter, and the Williams
substitute, we shall be back on foreign
aid and this amendment will be the
pending business. The opponents can
talk as long as they like, but it will still
be here, and this issue will have to be
resolved.
The country is watching, because it
was alerted to this.issue, starting in 1962,
after the Supreme Court decision in
Baker against Carr. The legislative con-
ference of the Council of States made
this one of the major matters on its
agenda.
Mr. PROXMIRE. Mr. President, I
yield 2 minutes to the Senator from New
Jersey [Mr. CASE].
? The ACTING PRESIDENT pro tem-
pore. Will thr. Senator suspend for a
moment until the Senate is in order?
Mr. CASE. Mr. President, I shall vote
against'cloture on the Dirksen-Mansfield
amendment. The real question before
us is not cloture but whether the people
of the several States shall have the right
to govern themselves or shall be com-
pelled to accept the dictates of a rela-
tively small minority.
Mr. PASTORE. Mr. President, will
the Senator speak louder, so that we
may hear him?
Mr. CASE. The reapportionment de-
cisions of the Supreme Court involve
problems which have given real concern
to me as they have to many others.
Ideally, the political question of how
State legislatures are constituted would
be much better left to the States them-
selves. But, in the face of obvious mal-
'apportionment resulting from popula-
tion growth and shifts, many State leg-
islatures have deliberately failed to act.
And those affected have no effective re-
course other than the courts.
Mr. PASTORE. Mr. President, will
the Senator speak so that we can hear
him?
Mr. CASE. I wish I had the vocal
organs of the Senator from Rhode Is-
land. I shall have to ask that he do his
best to increase his hearing power to
that of his vocal power, because today I
am not able to speak much louder.
Mr. President, I have not been so hon-
ored for many years as to have the
orator of the Democratic Party sitting
at my feet. This is indeed a real switch.
[Laughter.]
In my own State, when the legislature
called a constitutional convention In
1947, it. specifically provided "that the
convention shall in no event agree upon,
propose or submit to vote of the people;
either separately or included among
' other provisions, any provision for
change in the present territorial limits
of the respective counties, or any pit-
vision for legislative representation other
than" the existing basis.
The ACTING PRESIDENT pro tem-
pore. The time of the Senator has ex-
pired.
Mr. CASE. Mr. President, I ask for
2 more minutes.
Mr. PROXMIRE. Unfortunately we
are rather short of time. I yield 1 more
minute to the Senator from New Jersey.
Mr. CASE. There is merit to the
point that in some cases the lower Fed-
eral courts have acted with what seems
to be too great haste and have not given
State legislatures sufficient time to db a
decent job of reapportionment.
The States are not, however, helpless
in this situation. Surely the courts
would not arbitrarily refuse appropriate
relief in this respect upon the applica-
tion of States endeavoring to bring their
legislative apportionment into compli-
ance with the Supreme Court's holding.
And, in any event, the admitted pur-
pose of the Dirksen-Mansfield amend-
ment is not to permit more time to com-
ply with the Supreme Court's reappor-
tionment decisions. Its purpose is to
give time for the adoption of a consti-
tutional amendment which would make
it unnecessary for any State to reappor-
tion its legislature, regardless of inequal-
ities, however great, in representation
of the total population.
There -Would be considerable justifica=
tion for this if the constitutional amend-
ment were to be passed upon by the peo-
ple themselves. But there is no inten-
tion that the matter should be submitted
to the people of the several States. The
effect of the Dirksen-Mansfield amend-
ment is to make it possible for the State
legislatures as now constituted to ap-
prove a constitutional amendment de-
signed to enable them to perpetuate their
present composition and cut off any re-
course either to the people or the courts.
Mr. President, back in 1923 Chief Jus-
tice Hughes came to Columbia University
to pay tribute to Chancellor James Kent.
He made a memorable speech. It in-
cluded this observation on the realities
of democratic living: -
Democracy must be its own savior, and
security is to be found, if at all, not in the
denials of the right of participation in the
affairs of government, but in education, pub.-
lic discussion, and the self-imposed restraints
of an intelligent and justice-loving people.
There is no shorter way.
I repeat that the real question before
us is not cloture It is whether or not
the people of the several States shall
have the right to govern themselves.
Accordingly, I have come to the con-
clusion that r cannot support the Dirk-
sen-Mansfield move.
Mr. PROXMIRE. Mr. President, I
Yield 4 minutes to the Senator from
Tennessee.
Mr. GORE. Mr. President, the issues
raised by the pending amendment are
of great importance to the American
September 10
people. The amendment involves the
fundamental question of representative
government at the State leVel. It in-
volves, also, the concept of separation of
powers, which is a hallmark of our form
of National Government.
In my view, the amendment in its
present form should not be enacted into
law.
Recent court decisions directing, and
in some cases effecting, reapportionment
of State legislatures, have had a serious
impact upon orderly procedure 'in our
elective processes.
Mr. PreSident, when reapportionment
is so long delayed that representation
becomes so disproportionate that Los
Angeles County in California, with a pop-
ulation of 6 million people, larger than
that of any 1 of 40 States, elects? only
1 member of the senate in the State
legislature while another senatorial dis-
trict in the same State with only 14,000
people elects 1 senator, something has
gone seriously awry with representative
government. -
These decisions have been contro-
versial, and to some extent disruptive;
but they are predicated on findings that
apportionnient of representatives in the
State legislature in such States is so
grossly inequitable as to deprive citizens
adversely affected thereby of their con-
stitutional rights. The denial of consti-
tutional rights is a serious matter. It is
one which the courts cannot ignore.
Even so, I find considerable merit in,
and I have considerable sympathy with,
a proposal to provide State legislatures
a reasonable period of time in which to
make their apportionment and to make
adjustment and accommodation to the
Supreme Court decisions.
But we are not privileged to reach a
decision upon that basis. The propo-
nents have been perfectly candid in say-
ing that they seek an interim period dur-
ing which a hasty amendment may be
made to the U.S. Constitution, in part, by
the action of legislatures which have
been held to be grossly disproportionate
and unconstitutional.
Such a constitutional amendment
might seek to freeze into existence, per-
haps for all time to come, the grossly
disproportionate, inequitable, and de-
clared unconstitutional existing appor-
tionment in certain legislatures.
This I cannot support.
Mr. President, there is nothing sinister
about proposing a constitutional amend-
ment. That is the procedure provided
for changing our fundamental law. A
constitutional amendment may be pro-
posed and acted upon whether or not
there is a stay in judicial proceedings
affecting apportionment.
The fact remains, however, that if ju-
dicial proceedings are stayed, as proposed
in the amendment, a constitutional
amendment submitted to the States for
ratification would be acted upon in some
States by legislatures which would al-
ready have been judicially determined to
be unconstitutionally apportioned. A
State legislature resisting change in its
apportionment might well be disposed to
ratify a constitutional amendment which
would permit perpetuation of its exist-
ence, even though such action would be
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Ye.
1-964.,
CONGRESSIONAL CONGRESSIONAL RECORD ? SENATE
contrary to the wishes of a majority of
the people of that State. A constitu-
tional amendment ratified by legisla-
tures, some of which are unconstitu-
tionally apportioned, would not serve the
cause of representative government.
Moreover, in my view, the pending
amendment is potentially a dangerous
precedent in that it would constitute ac-
tion by Congress to inject itself deeply
Into the area reserved by the Constitu-
tion to the judiciary. Some have argued
that the Supreme Court in its decisions
has undertaken to usurp the prerogatives
of Congress in the legislative field.
However that may be, it seems to me that
' the pending amendment would certainly
put Congress into the field of administra-
tion of justice.
? The amendment is sweeping in its
terms. It directs our judges as to how
they shall rule on petitions that may be
filed in cases already decided, in cases
that are pending, and in cases not even
commenced: The courts are directed as
to the type of judgment they shall render
unless "highly unusual circumstances"
which are nowhere defined or spelled out
are found to exist. If it is appropriate
for the Congress to so dictate to the
courts on this question, future Con-
gresses may well find it appropriate to
dictate to the courts on other questions.
Should such practice become common,
we shall have lost one of the corner-
stones of constitutional government.
The question immediately pending is
the issue of limiting debate on the
amendment. I have never voted for clo-
ture. This is not to say that there are
no circumstances under which I would
regard limitation of debate as being war-
ranted and necessary. But in my opin-
ion, such action should be taken only
when overriding considerations of the
national interest make the need there-
for both clear and compelling.
The right of free and full debate in
the Senate is essential to careful,
deliberative, legislative process. A vote
for cloture is tantamount to approval of
the pending question in its present form.
Recent experience has demonstrated
that meaningful changes in a legislative'
proposal are not feasible after cloture
is invoked.
In my view, the pending amendment,
in its present form, does not meet the
test of clear and compelling national
need which would justify invoking clo-
ture. On the contrary, for the reasons
I have stated, I believe -adoption of the
amendment would be Unwise. Accord-
ingly, I, shall vote against cloture.
The ACTING PRESIDENT pit tern-
pore. The time of the Senator has
expired.
Mr. PROXMIRE. Mr. President, I
yield 1 minute to the Senator from
Missouri.
Mr. SYMINGTON. Mr. President,
after thorough study, I support cloture
on the Dirksen-Mansileld amendment.
In a brilliant address on the subject
of reapportionment and the rights of
States to reapportion themselves, the
distinguished senior Senator from Cali-
fornia [Mr. KIICHEL] stated it was his
view that the people of each State them-
selves should have the continuing right
to determine at the polls what basis they
wished to use in creating their legisla-
tive districts. He stated that as a mat-
ter of policy he favored a constitutional
amendment preserving to the people of
each State a continuing constitutional
authority to decide the basis of their
State legislative reapportionment as
they themselves may choose, with ap-
propriate judicial systems te-prevent a
frustration of their authority.
I am much impressed with this sug-
gestion; and when he submits such an
amendment, I shall be glad to cosponsor
it.
Mr. PROXMIRE. Mr. President, I
yield 3 minutes to the Senator from
Connecticut.
Mr. RIBICOFF. Mr. President, the
Dirksen amendment should be opposed
for two very simple reasons. First, it
stands on the most doubtful constitu-
tional basis. Second, it is being pressed
to bring about a result that is plainly
unconstitutional.
The first point rests on a doctrine
which is normally urged with much force
by Members of this body. - That is the
doctrine of separation of powers. It is a
keystone of our, form of government.
We in this body are rightfully concerned
that the legislative power be, as article
I of the Constitution prescribes, vested
in the Congress. We should be equally
concerned that, as article III prescribes,
the judicial power shall be vested in our
courts.
Yet the Dirksen amendment seeks to
blur these constitutional principles. For
the first time we are being asked to sus-
pend by legislative action the enjoyment
of constitutional rights. We are being
asked to tell the Federal judiciary that
the equal protection clause of the 14th
amendment is to be temporarily sus-
pended.
For the courts themselves to take such
action would be unwise. Far better to
proceed as they are doing on a case-by-
case adjudication of the individual prob-
lems that may be encountered in each
of the States. But for Congress to im-
pose it own ideas of the proper func-
tioning of the judicial process is not
only unwise, it raises constitutional is-
sues of the' most serious magnitude.
If there are those who disagree with
? the Supreme Court's interpretation of
the 14th amendment, the remedy is
amendment- of the Constitution. But
the proponents of the Dirksen rider are
not content to follow the procedures
which the Constitution prescribes for
amendment. They ask us to invade the
judicial area and tamper legislatively
with the vindication of constitutional
rights. That is a strange stance to be
taken by those who claim to be defend-
ers of the Constitution.
The second objection is even more
tesic. Those supporting the Dirksen
amendment concede with candor that
their ultimath purpose is to have the
Constitution amended to reverse the
Court's apportionment decision. Of
course they have a right to press for
such an amendment. But they have
no right to have their proposed amend-
ment adopted by unconstitutional means.
Yet that is what they seek to do in the
course they are now urging us to follow.
21231
The plain purpose of the Dirksen rider
is to freeze the State legislatures in their
present unconstitutional setup so that
these malapportioned legislatures will
be the ones that vote on whether to
adopt a new constitutional amendment.
This is unwise, unfair, and unconstitu-
tional.
The Supreme Court has ruled on the
application of- the 14th amendment to
State legislatures. That decision should
now be promptly carried out, as most -
of the States are trying to do in an or-
derly fashion. Then when State legis-
latures are reapportioned on the basis
of population, it will be time enough to
consider whether the Constitution itself
should be changed.
Mr. DOUGLAS. Mr. President, I hope
the cloture motion will be decisively de-
feated. It should be defeated for at least
three reasons.
First, only a little over 30 hours have
been taken in discussing the completely
extraneous Dirksen-Mansfield amend-
ment to the foreign aid bill?which has
been sprung upon this body without any
prior hearings having been held before
a Senate committee. In contrast, the
opposition to the civil rights bill was
given nearly 3 months in which to de-
bate before a cloture motion was in-
yoked and three Senate committees had
held many days of hearings on sections
of that bill.
And yet the proposed Dirksen-
Mansfield amendment, and the forces
which it would set in motion, are just
as important and perhaps even more im-
portant than the civil rights bill. The
amendment would freeze indefinitely ac-
tion under the Supreme Court's decisions
on fair apportionment and would
suspend indefinitely an important in-
dividual right guaranteed by the Con-
stitution. Time is needed to alert, not
merely Congress, but also the country,
to the issues involved. In fact, we have
yet to understand the full implications
and the proponents have failed to give
evidence in support of their charges that
the -amendment would prevent chaos.
There has already been a significant
awakening of public opinion and there
will be more if the discussion is only
allowed to proceed.
Secondly, Mr. President, when the first
Supreme Court decisions on this subject
were handed down in 1962, they began
to remedy one of the worst abuses of our
political system; namely, the gross under- ,
representation in the State legislatures
of our metropolitan areas. In using that
term, I include suburban areas as well
as urban areas..
Fifty years ago, those areas included
less than one-third of the population.
Today they include nearly two-thirds.
In future years, they will include three-
quarters. Yet until the Supreme Court
issued its first decision in March 1962,
ver few reapportionments had been car-
ried out by the various State legislatures.
Gross abuses abounded, and still abound,
in all sections of the country, and in vir-
tually every State. This has been fully
documented in material which has been
placed in the RECORD during the course
of this debate. But the State legislatures
had, in the main, refused to cure these
abuses. The Supreme Court, in my opin-
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21232 CONGRESSIONAL RECORD ? SENATE
ion, was completely correct in ruling that
citizens could not be guaranteed the equal
protection of the laws, which is their
right under the 14th amendment, unless
they were granted substantially equal
representation in the very legislatures
which made the laws.
Under the stimulus of these decisions,
some States are beginning to make "prog-
ress in reapportionment; and if they are
allowed to operate, much further progress
will be made.
But the Dirksen-Mansfield amendment
would stop all this. It would prevent the
court orders from going into effect for
an indeterminate period?certainly to
January 1, 1966, and probably appreci-
ably beyond that.
During this time, my colleague from
Illinois [Mr. DittxsErrl has stated with
admirable frankness that it is his inten-
tion and that of his supporters to initiate
a constitutional amendment which, if
ratified, would forever prohibit the courts
from ordering such a reapportionment.
If such an amendment were submitted
to the States, the present badly appor-
tioned State legislatures could then ratify
it with a rush, and seal the present abuses
into effect in perpetuity.
, As the urban and suburban popula-
tions increased both absolutely and rela-
tively, as they will, they would still be
under the domination of decreasing rural
minorities. This is what lies at the end
of the road; and unless we defeat the
cloture motion by a decisive vote, it is
likely to happen.
Finally, the right to the equal protec-
tion of the laws is a constitutional right.
It cannot be superceded temporarily. If
temporary suspension of constitutional
rights is permitted in matters of repre-
sentation, why can it not be done in the
future so far as free speech, a free press,
and trial by jury is concerned? Does
Congress have the right to reverse and
suspend decisions of the Supreme Court?
Should it try to do so? How can such
action be reconciled with the jurisdiction
given to the Federal courts under article
III of the Constitution over all cases un-
der the Constitution? I believe that we
do not possess that supremacy and that
we should not seek it.
In conclusion, let us not muffle the
trumpets which sound the alarm upon
the battlements of the metropolitan
areas. The forces which would seek to
abridge the individual liberties of the
great majority of Americans are not only
at the gate, but are at the point of hav-
ing their way. Rather, allow the clear
notes of those trumpets to sound forth
the notes of the truth, ? so that all may
hear and have an adequate opportunity
to decide.
The ACTING PRESIDENT pro tem-
pore. Six minutes remain before the
close of-the debate.
Mr. PROXMIRE. Mr. President, has
all time on the side of Senators opposing
cloture expired?
The ACTING PRESIDENT pro tem-
pore. The time of the opponents of the
cloture motion has expired. The junior
Senator from Illinois has 6 minutes re-
maining; then the debate will be closed.
Mr. DIRKSEN. Mr. President, I lis-
tened to the distinguished Senator from
Tennessee [Mr. Goxe] speak about vin-
dicating abuses. The answers lie in the
States. It is proposed, thrdugh the Su-
preme Court, to take a shortcut and not
do the job that should have been done
by Tennessee. I am familiar with what
has happened there. It has lasted for
nearly half a century. Why did not the
people get on their high horse and go to
the legislature to have the job done, in-
stead of going to the Supreme Court of
the United States?
My friend from Connecticut [Mr. R113I-
COFF] speaks of constitutionality. I do
not know how much of an authority he
is; but I do know that on the day we
left Senator MANSFIELD'S office, Archi-
bald Cox, the Solicitor General, from the
Department of Justice, and Nicholas
Katzenbach, Deputy Attorney General,
put the stamp of approval upon this
amendment so far as constitutionality
is concerned. The Senate can take its
choice as to where it wants to go from
here.
The debate will continue, either on
this amendment or on a substitute. I do
not know how long it will require; frank-
ly, I do not care. If my friends from
Pennsylvania, Illinois, Michigan, and
Wisconsin care to carry on this "baby"
filibuster; it will be quite all right with
me. I shall be present all the while. But
that would push the adjournment of this
Congress well into the future. If cloture
does not prevail today, there will be
another opportunity to vote on cloture,
and I think before too long. Then per-
haps the Senate will wish it had put an
end to this interminable discussion. _
A point was made the other day about
how much time had been devoted to hear-
ings and discussions. I had our assistant
secretary on this side of the aisle clock
the Senate all of Tuesday afternoon,
starting with 3 o'clock. This is the way
the attendance ran, by 15-minute quart-
ers: Nine on the floor of the Senate; two
on the floor; three on the floor, two on
the floor, five on the floor. If Senators
were so much interested in having a full
measure of debate, why was not the
Chamber full of Senators at the time?
Evidently they had fixed their minds, by
dint of newspaper articles and disser-
tations. They know what the issue was;
and the issue is very simple. The people
will not be confused when we get back
home. They will know what the issue is.
It is whether the Federal Government or
the Supreme Court is going to ignore sec-
tion 2 of the 14th amendment, which is
an integral part of that amendment, as
has been demonstrated by the opinion of
Mr. Justice Harlan, and then move in
and, by judicial fiat, determine how the
States shall compose their legislatures.
I shall not be a party to such procedure.
I shall rest the case there. No amount
of sophistry, no amount of discussion, no
fancy words will obscure the issue, be-
cause it will be before the people. This
is not a "rotten borough" amendment,
as my friend from Chicago says. I have
before me a little pamphlet entitled,
"Is Daley going to control the legislature
of the State of Illinois?" This is going
to be an issue not only in my State, but
In other States, as well.
So Senators may take their choice. Let
September 10
the discussion continue, if they please.
Let the "sense of Congress" resolution
be offered as an amendment. But, oh
what a business it will be tc stultify this
branch of the legislature, to have it get
on its knees and say, "Please, Mr. Court,
do give the States adequate time. Please,
Mr. Court, do not be so capricious; do
not be so arbitrary."
I will not do it, because I have pride
in this branch of the Government, which
is coequal with any other. I do not pro-
pose to surrender its dignity or its im-
portance in the governmental scheme.
That is all I have to say.
Mr. MANSFIELD. Mr. President, will
the Senator from Illinois yield me one-
half minute?
Mr. DIRKSEN. Mr. President, I ask
unanimous consent that the Senor
from Montana may proceed for one-
half minute.
The ACTING PRESIDENT pro tern-
pore. Without objection, the Senator
from Montana is recognized for one-
half minute.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent to have printed
in the RECORD a statement I made rela-
tive to the Mansfield-Dirksen amend-
ment on August 13, 1964, in the CONGRES-
SIONAL RECORD, on pages 18871 and 18872.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
Mr. MANSFIELD. Mr. President, I listened
with great interest, as I always );lo, to the
remarks of the distinguished minority leader
today, regarding the pending ,amendment.
He said, at one point, that the purpose of the
amendment was to buy time, and that the
purpose of the additional time was to enable
the Congress and the States to enact a con-
stitutional amendment to overturn the de-
cision -of the Court in Reynolds against
Sims.
I wish to say that I agree with the dis-
tinguished minority leader when he says that
this amendment is to provide time, because
there have arisen in several States situations
which require additional time to be properly
worked out in an orderly manner. However,
I do not agree that the purpose, of the addi-
tional time is to allow the passage of a con-
stitutional amendment to overturn the Rey-
nolds decision. In the first place the time
allowed by this amendment, which will in
most cases end at the conclusion of the first
State legislative session after the election
this November, will probably not be long
enough to complete the processes required
for the adoption of a new constitutional
amendment.
Second, although I thoroughly agree that
the States should have the opportunity to
vote on a constitutional amendment allow-
ing them to apportion their own legislatures
as they see fit, I do not believe this chance
to vote must come while the State legisla-
tures are still apportioned as they are today.
That would give an alleged malapportioned
State legislature the power to validate itself,
the right to pass upon its own validity, and
- the ability to perpetuate itself indefinitely.
That does not seem just to me. I am cer-
tainly in favor of giving the people the op-
portunity to vote as they wish on such a pro-
posed constitutional amendment. But when
that vote comes, it should be on the basis
of one man, one vote, as required by the
Reynolds decision.
May I say also that, in my opinion, this
amendment does not make the granting of
the stay mandatory along the percentage
stated by the distinguished minority lead-
er?the figure, I believe, was 99% percent?
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1964 CONGRESSIONAL RECORD SENATE
but considerably, very considerably less?
perhaps 75 to 25 especially in those States
well on the way to a successful and consti-
tutional apportionment.
Mr. President, in the amendment before
us, everything I am sorry to say?is not as
we would like it to be. It is not all black,
nor is it all white. There are shades of
gray. Men of good will and men who be-
lieve in the Constitution can find a meeting
of the minds if they will set themselves to it,
and if they will not make up their minds
before they have a chance to look up the
facts and to evaluate the picture.
Last June the Supreme Court of the
United States handed down its decision in
the historic case of Reynolds against Sims.
The decision held that equal protection of
the laws, which is guaranteed by our Con-
stitution, required, in the election of a State
legislature, that each person in a State have
the same value assigned to his vote as every
other person. This was stated in the now
famous phrase, "one person, one vote."
Since that time the district courts of the
United .States and the State governments
have endeavored to carry out this require-
ment of the Constitution as speedily and
with as little confusion as possible. Gener-
ally these efforts have been sliccessful. In
several cases, however, because of the de-
mands of time and the nearness of the fall
election, the actions taken have been dis-
ruptive upon these particular States govern-
ing and electoral procedures. It is clear
this result was not intended by ,the Su-
preme Court which warned against hasty
actions of reapportionment where the State
election machinery was already in'process.
We are met, therefore, with a situation
not totally intended or expected and it is a
situation which, I believe, the Congress can
and should make some attempt to ease,
within the bounds of its constitutional
power to do so. ?
The design of the original Dirksen amend-
ment was to put off for two meetings of the
State legislatures in any State involved in
the apportionment problem, the implemen-
tation of the Court rule. In the meantime,
supporters of that amendment hoped that
a constitutional amendment could be
achieved. But, of course, that is a far cry
from the proposal which is before the Sen-
ate today. It is as different as day is from
night. In my opinion, the first amendment
was clearly unconstitutional. This one, I
believe, is constitutional. As a result of the
efforts put forth by the joint leadership, the
attorneys attached to the Senate, and the
Deputy Attorney General, Mr. Nicholas deB.
Katzenbach, we think we have come up with
something which is within the requirement
of the law, which recognizes the decision of
the Court, which does not try to overturn
that decision. It does seek through the use
of a brief stay where it is necessary to bring
about a settling of a situation which has
developed to serious proportions in various
States.
There is a need for flexibility. No Member
of this body will gainsay that fact in view of
What is happening in such States "as Okla-
homa, New York, and Colorado.
The amendment which Senator DIRKSEN
has introduced, and of which I am a cospon-
sor, in my judgment is a great improvement
over those proposals which would have, in
effect, suspended the constitutional right of
equal protection for an extended period of
time. The amendment is, under section 5
of the 14th amendment, an exercise of the
congressional power to enforce and imple-
ment by appropriate legislation the require-
ments . of that 14th amendment. The
amendment offered by the Senator from Illi-
nois and myself merely attempts to estab-
lish an orderly procedure in the carrying
out of the constitutional requirement of the
Reynolds against Sims decision in a situa-
tion where some congressional guidance may
be helpful. This amendment is not in any
way an attempt to overturn or subvert that
decision. The basic purpose of this amend-
ment is to allow the States one election and
one session of the legislature which could be
before or after that election, so that the
States might be given a chance to solve
their own apportionment problem. If at the
end of that limited period the State has not
by its own governing processes met the con-
stitutional requirement, then section (d) of
the amendment requires the district courts
to do it for them. Furthermore, the stay of
action suggested by this amendment is to
be measured in terms of the public interest.
In the opinion of many, the public interest
and the requirements of orderly government
necessitate the States having this oppor-
tunity. But the amendment provides that
even this chance need not be given where
highly unusual circumstances would indi-
cate that it should not be.
There are many who will not be satis-
fied with this amendment, and I can only
say to them that there are also many who
were not to be satisfied by anything else.
In my opinion we have not by this amend-
ment interfered with the decision of the
Court but have instead helped to imple-
ment it in a way which will in the long
run add strength to its meaning. It would
seem to me that the malapportionment: or
misbalance, which existed in some States un-
til this time has been indefensible, In one
State, for example, I am informed that every
voter in one county had the equivalent
power in State elections of 100 voters in an-
other.
In other States, the State legislatures had
failed to redistrict and reapportion them-
selves for many decades despite the plain
requirement of their own constitutions to
do so.
To those who say that governing initiative
in this country has passed from the States
to the Central Government, I point out that
perhaps this is one of the reasons why. A
free people will not long respect nor patient-
ly submit to an unresponsive government.
Insofar as some State governments have
been grossly malapportioned, it is likely also
that they have been unresponsive. It may
be that in the end the requirement for fair
apportionment in the State governments will
bring about a resurgence of strong influence
by State governments upon our Nation's af-
fairs.
Mr. PROXMIRE. Mr. President, will the Sen-
ator yield?
" Mr. MANSFIELD. I yield.
Mr. PROXMIRE. The Senator has made a
very constructive and helpful statement. It
begins to give the kind of meaningful judi-
cial discretion which is mighty important if
we are to have an amendment that is not
unconstitutional and is workable. I deeply
appreciate the fine statement which the Sen-
ator has made.
I should like to add one further point.
It seems to those of us who believe in one
man, one vote that we should not delay ap-
portionment. We should proceed. There are
situations such as that in Oklahoma that
from a practical standpoint are very difficult.
That is why I offered the pending amend-
ment, the Proxmire amendment to the Mans-
fleld-Dirksen amendment. This would pro-
vide that the stay, in court action for the
period necessary, shall not?I repeat, not?
be deemed to be in the public interest in the
absence of highly unusual circumstances.
But under such circumstances, a court
might find in Oklahoma that the highly un-
usual circumstances would make a stay wise
and necessary. There may be difficulties
which would cause enormous inconvenience
and great difficulty for those running.
It seems that the amendment I have just
called up would turn the proposal around
21233
and make it' in fact as different as night and
day from the other proposal. It would still
rely on the one man one vote principle. It
would say to the court that the court should
not stay reapportionment except under un-
usual circumstances that would cause great
difficulty to those involved. I commend the
Senatorifrom Montana, our majority leader,
for his very helpful statement, which is a
characteristic of his whole attitude. I appre-
ciate it very much.
Mr. MANSFIELD. I am deeply grateful to the
distinguished Senator from Wisconsin for his
remarks.
I point out that when we try to reach an
agreement which will be satisfactory to a ma-
jority of the Members of this body, it is not
an easy task. We spent many days since last
Thursday?in effect, until yesterday after-
noon?trying to draft an amendment which
would uphold the powers of the Court and
at the same time bring relief tc; those States
which are in distress because of the Court'
decision which had been handed down.
I did not get all that I wished in the
amendment. The distinguished minority
leader did not get all that he wanted. But
we arrived at a consensus in the gray area
which we thought would face the situation,
which would recognize that the courts had
powers which should be adhered to, but
which also recognized a situation which af-
fected several of the States of the Union, and
in which the need for some alleviation
seemed to be very apparent.
We have done our best. We hope that the
Senate will understand the spirit in which
we carried on these bipartisan negotiations.
In response to a statement made by a Sen-
ator earlier today, I wish to say that the ne-
gotiations were not carried on in secret. I
am sure that every Senator knew about what
the leadership was doing. The press re-
ported our doings quite carefully. We did
not rush out and give them bulletins every
hour on the hour, because we were trying to
do a constructive and workmanlike job. We
think we have accomplished that. It was
not easy, but we have laid our proposal be-
fore the Senate and now it is for the Senate
to decide.
Mr. DIRKSEN. Mr. President, in
connection with my remarks, I ask
unanimous consent to have printed in
the RECORD a letter to the editor of the
New York Times written by Morris D.
Vorkosch, chairman, Department of
Public Law, Brooklyn Law School, on
August 6, 1964; also an article written
by Robert N. Wilkin, a distinguished
jurist, and published in the New York
U.S. News & World Report in, its issue
of August 24, 1964, entitled, "A Noted
Jurist Says, 'Repeal the 14th Amend-
ment.'"
There being no objection, the articles
were ordered to be printed in the REC-
ORD, as follows:
[From the New York Times, Aug. 8, 19641
CONGRESS VERSUS THE COURTS--POSITION ON
DTRIESEN BILL DELAYING REDISTRICTING
UPHELD
To the L'srros:
Your August' 6 editorial on "Congress
versus the Courts" flays a legally dead horse,
albeit the politicking aspect makes sense.
You write that Senator Dmicssx's bill to
delay the reapportionment of State legisla-
tive districts, pursuant to the Supreme
Court's decision, raises "grave questions of
the division of authority between the legis-
lative and judicial branches," that the bill
"ought not to be railroaded through" Con-
gress, and that it amounts to "legislative
blackmail, not deliberation."
Your final sentence mentions, however,
that the reapportionment "timetables for
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21234 CONGRESSIONAL RECORD ? SENATE September 10
change fixed by Federal judges in many
States are so immediate" that hostile Con-
gressmen feel they have no choice but "to
act with [such] indecent speed before ad-
journment."
First, on the division of authority:
There are instances too numerous to list,
that Congress may not only overrule judi-
cial decisions (and this is found especially
In the area of interstate commerce), but
that the Court invites Congress so to do.
CONSTit u ifONAL AUTHORITY
Furthermore, the Constitution divides the
Supreme Court's power into appellate and
original jurisdiction, and article III gives
to Congress the ability to control the former.
For example, in 1867 Congress broadened
the Supreme Court's appellate jurisdiction;
the following year McArdle's writ of habeas
corpus came up on appeal under this broad-
ened power and the Court assumed jurisdic-
tion; in"-early March of 1869 the case was
argued and taken under advisement; in late
March Congress, notwithstanding the Presi-
dent's objections, repealed its 1867 legisla-
tion and the Supreme Court thereupon dis-
missed the appeal for lack of jurisdiction.
Additionally, Congress may control the
High Court through the number of justices
sitting thereon. For example, in 1870 the
Legal Tender Acts were invalidated by a 4 to
3 decision; the same day President Grant
sent two nominations to the Senate to fill
vacancies on the bench; the two new jus-
tices combined with the minority to over-
rule, in 1871, the earlier decision and uphold
the law (this description is simplified).
Finally, congressionally proposed amend-
ments may overrule Supreme Court deci-
sions, as witness the 11th and 16th amend-
ments, and a Civil War may likewise over-
rule another decision, as with the Dred Scott
case of 1857.
LEGISLATIVE SPEED
Second, on the railroading and blackmail
aspects: There are many instances of speed
in the legislative process, and the famous
100 days of 1933 are still fresh in our minds.
So, too, have amendments to the Constitu-
tion been speedily proposed and adopted,
e.g., the 12th (7 months) , the 17th (12
months), the 19th (15 months), the 20th
(11 months) , the 21st (10 months)..
In 1932 the Norris-La Guardia Act with-
drew from the Federal judiciary all jurisdic-
tion over injunctions in labor disputes save
as these otherwise provided. Since then
Congress has relaxed these barriers in cer-
tain instances, e.g., the Taft-Hartley and
Landrum-Griffin Acts, but the early statute
is still effective.
There are many instances where "riders"
have been attached to legislation whereby
congressional desires in particular instances
have been thereby effectuated.
Regardless of the policy reasons (on which
I express no personal view) , Congress does
not deserve to be castigated as you do.
Moarus D. FORICOSCH,
Chairman, Department of Public Law,
Brooklyn Law School.
BROOKLYN, August 6, 1964.
[From U.S. News & World Report, Aug. 24,
1964]
A NOTED JURIST SAYS, "REPEAL THE 14TH
AMENDMENT"
(By Robert N. Wilkin, U.S. District Judge,
retired, Northern District of Ohio)
(NorE.?Once again the 1Tnited States is
embroiled in controversy involving the 14th
amendment?and how it is interpreted by
the, U.S. Supreme Court. Here, a former
Federal judge looks at the history of this
amendment and finds it responsible for some
dangerous trends.)
Our country is confused and distressed by
two prevalent but opposed tendencies. One
is a trend to centralization of all political
z
power in 'the National Government. The
other is a trend toward control of all govern-
ment by mass emotion and public demon-
strations. People generally are divided into
factions that support one or the other tend-
ency; and some people, without awareness
of the inconsistency, support both tenden-
cies.
Both movements, however, are willful rath-
er than lawful. They lead therefore to irra- -
tional and violent conduct.--Centralization
of power leads to tyranny, and mass emo-
tion produces anarchy.
If these two evil tendencies are not cor-
rected, the American Republic will go the
way of the Roman Republic. The symptoms
of disintegration today are the same as they
were during the last century before the ad-
vent of the Roman Empire.
The only way in which these evil trends
can be arrested is by a return to and restora-
tion of constitutional government. That
can be accomplished lawfully only by a con-
stitutional amendment.
The U.S. Supreme Court has been the
spearhead of the centralization of power in
Washington. It has assumed final jurisdic-
tion over such controversial problems as
prayers in public schools, integration in
State schools, apportionment of representa-
tives in State legislatures, and determination
of what is or is not obscene and immoral
in public pictures and printed publica-
tions?problems which the Constitution and
first 10 amendments "reserved to the States,
respectively, or to the people."
Many proposals for constitutional amend-
ments have been made with the purpose of
nullifying the objectionable decisions of the
Court, but such procedure would not be sat-
isfactory. It would be useless to cancel sep-
arate decisions if the statements on which
the Court based its decisions were left in
the Constitution. Such procedure would
produce a crazy quilt- of constitutional law.
Since the Court has based its assumption
of authority on the 14th amendment, that
article should be repealed or its pertinent
language deleted.
First, it is necessary to analyze and un-
derstand what the Supreme Court has done,
and how it was accomplished. The analysis
Is somewhat technical and tedious, but no
good can be accomplished until the conch-
-tions and their cause are clearly understood.
The first amendment, adopted at the time
of the ratification of the Constitution, states:.
"Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof."
The 2d sentence of- the 14th amend-
ment, which was proclaimed as a part of the
aftermath of the War Between the States,
says: "No State-shall make or enforce any
law which shall abridge the privileges or
immunities of citizens of the United States,"
etc.
Although the 14th amendment did not ex-
pressly amend or repeal the 1st amendment,
the Supreme Court's interpretation has the
effect of inserting the words "or a State," so
that the 1st amendment is made to read,
"Congress or a State shall make no law," etc.
The sole intent and purpose of the 14th
amendment was to protect the colored popu-
lation and secure suffrage to the freedmen.-
The effect, however, of the Supreme Court's-
decisions is to extend Federal jurisdiction
into the fields of religion and education and-
impose-restrictions on States rights.
Although the Court admitted that volun-
tary prayer in public schools was not "an
establishment of religion," it held that au-
thorized prayer was unconstitutional because
it might lead to establishment of a religion
The Supreme Court then completely ignored
the following phrase in the first amendment
which inhibits a law "prohibiting the free
exercise" on religion.
The Court also disregarded section 1 of
article I, which says: "All legislative powers
herein granted shall be vested in a Congress
of the United States, which shall consist of
a Senate and House of Representatives." It
is clear that a provision of law which extends
Federal jurisdiction into a field where for-
merly it did not exist is a legislative act.
The peace and civil order of the Nation has
been disturbed and life kept in turmoil by
controversy and strife that surges over and
around such questions as:
What is the propriety or benefit of prayer
in public schools?
What is the possibility or use of efforts to
Integrate different races by law?
What is the proper method of apportion-
ing representatives in State legislatures?
What is obscene and immoral?
Consideration of the problems raised by
these questions impels the inevitable conclu-
sion that they involve personal, local, social,
and State conditions which are different at
different times and places. A just solution
therefore cannot be made by a decree or com-
mand issued out of the National Capital.
Specific questions require specific answers.
The effort for overall control is prompted by
the arrogance of ignorance, is unjust and, in
the end, futile.
Current events are revealing to open and
fair minded citizens that the real, basic ques-
tion is: What authority has the Supreme
Court or the National Government to inter-
fere in such matters?
"ERROR OF FEDERAL INTERVENTION"
A cursory analysis of the specific problems
reveals the error of Federal intervention. It
Is impossible to separate religion and public
action. Religion is an inherent condition of
human life. Religious feeling and practice
exist wherever humanity is found. Religious
feeling and discipline distinguish humanity
from the rest of creation.
When the lawful authorities of a -State or
a local community offer a plan for some vol-
untary religious expression in public schools,
and that plan is acceptable to an overwhelm-
ing majority of citizens and is approved by
the trial and appellate courts of the State,
why should a majority of the judges of the
U.S...Supreme Court overrule the action of
the State and local authorities and hold at
naught the desire of the people of the com-
munity at the request of one or two atheists
or zealots?
At a time when our technological and ma-
terialistic age needs so urgently spiritual en-
lightment and the moral discipline of re-
ligion, why should the Court issue a decree
"prohibiting the free exercise thereof"?
There may be a community where secular-
ism is so strong and religious bigotry so
rife that it would be-inexpedient to try to
establish any form of prayer or other re-
ligious exercise for public schools. In such
a community, public authorities should not
favor any religious ceremony. On the other
hand, there are many communities where
religious feeling is so strong and religious
tolerance so general that some form of re-.
ligious exercise could be established without
any substantial dissent.
In any event, therefore, the problem should
be solved in the local community, and na-
tional controversy and strife would be
avoided.
Segregation en masse and integration en
masse are both wrong for the same reason.
They are efforts to settle the controversial
problems as a whole on a racial basis. The
position and treatment of a citizen of any
race should be, and is generally, controlled
by his personal worth and merit, and local
conditions. When Government grants citi-
zenship and maintains courts of law to which
ciitzens can appeal for protection of their
political rights, it has done about all that
should be expected. If it attempts more, it
becomes paternalistic and socialistic.
Experience warns against governmental in-
terference in social relationships. Govern-
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1964 CONGRESSIONAL RECORD? SENATE
ment can, at times of need, improve eco-
nomic conditions by maintaining a public-
works program in fields where private in-
dustry cannot enter, but, if it goes beyond
that, it develops into state capitalism or
comniunism and free enterprise is then
suppressed.
The Negroes were brought to this continent
against their will, but their presence here
has not been without blessings. Some in-
dividuals have made great progress and have
been respected and honored. As a race, how-
ever, they could hardly attain a development
in 300 years which it took other races 3,000
years to attain. As a race they have citizen-
ship and should be given political equality
and fair economic opportunity, but they
should not expect to be coddled or pampered.
Misguided reformers, burdened by messianic
and martyr complexes, should cease their
emotional drives and insurrections.
The Supreme Court has assumed authority
to determine for all the country what is not
lewd or lascivious, and to restrain State and
local authorities from efforts to protect their
communities from what State courts had
designated as 'filth for profit." The Supreme
Court evidently ignores the element of truth
in the ancient, but somewhat cynical and
paradoxical, saying that "morality is a mat-
ter of geography." It is apparent that what
might be a proper exposition or publication
for an association devoted to the science of
psychology or criminology or art would not
be proper for a boys' or girls' preparatory
school. It is also apparent that standards
of morality and esthetics differ in different
communities.
Now, that the Supreme Court has assumed
control of apportionment of representatives
In State legislatures and also the administra-
tion of criminal law by State courts, it be-
comes doubtful whether there are now any
powers "reserved to the States respectively,
or to the people." By what the late Judge
Learned Hand referred to as the Court's
tendency to become "a third legislative
chamber," and what Prof. Edward Corwin
(late professor of jurisprudence at Princeton
University) designated as "the aggressions
of the Court," the status of the States in the-
Union becomes about the same as the status
of counties in the States.
A TREND "CONTRARY TO THE CONSTITUTION"
Careful analysis and detached deliberation
reveal that the trend of recent events is
contrary to the spirit and letter of the origi-
nal Constitution and universal principles of
natural law. Public opinion is aroused and
there is grave apprehension that the dual
nature of government by the Nation and
the States, and the balance of powers among
legislative, executive, and judicial depart-
ments are being undermined. There is wide
fear that the Constitution and government
of law are being eroded.
Those who champion the Court's usurpa-
tion by interpretation argue that such power
Is necessary in order to effect needed re-
forms. A prominent columnist recently ad-
vocated that such power is absolutely re-
quired when reform is needed and other
government agencies fail to act. It was, of
course, implied that the Court would deter-
mine when reform was needed and other
branches had failed. Such political sophistry
was emphatically 'rejected by the Founding
Fathers. Washington said, "The spirit of
encroachment tends to consolidate the
powers of all departments in one, and thus
to create, whatever the form of government,
a real despotism." Adams, Jefferson, and
Madison expressed the same opinion in al-
most the same terms.
Currently the daily newspapers are report-
ing public demonstrations that create
counterdemonstrations and violence, riots
that destroy life and property, bomb-throw-
No. 173-9
ing, secret murders and insurrections by sit-
down, lie-down-and defiance of law and re-
sistance against law-enforcement officers.
Conditions today recall the statement made
by a perceptive and courageous statesman
2,000 years ago, during the disintegration
of the Roman republic. He said:
"Laws are made to be men's defenses not
only against others but against their own
emotions. They are man's safeguards against
man's passions.
"Whenever in the past the great bulwark
of the law has been weakened, the conse-
quences have been invariably calamitous. If
by any act it should now be seriously im-
paired, the danger is that it may be ultimate-
ly completely overthrown, to the disaster of
all within the state."
That pronouncement was abundantly con-
firmed by subsequent events. Unfortunate-
ly, however, history reveals that one genera-
tion seldom heeds or profits by the expe-
rience of preceding generations. ?
THE SPECIFIC REMEDY: REPEAL ,
The prevalent trends to despotism and to
anarchy are causing general expressions of
alarm and regret, but there is little agree-
ment as to a remedy. Since the Supreme
Court has decided that it has authority to
make the controversial decisions, there is no
other court to which an appeal can be made
for a reversal. To indulge in denunciation
and disobedience only adds to the general
lawlessness. The champions of civil order
must proceed by lawful means, and the Con-
stitution specifies the only method avail-
able. Article V provides that a movement
for amendment may be initiated by two-
thirds of both Houses of Congress or by the
legislatures of two-thirds of the several
States.
Three former Presidents?Hoover, Truman,
and Eisenhower?many Congressmen, editors,
and commentators have suggested constitu-
tional amendment as the proper and neces-
sary remedy. There has been no specifica-
tion of the exact terms or purpose of such
an amendment. Since the Court has based
its assumption of authority on the 14th
amendment, the specific remedy would seem
to be the repeal of that amendment.
Such a movement would require time,
effort, and education. If the issue is clearly
defined, its purpose can be accomplished
just as the 18th amendment was repealed
by the 21st amendment.
The proposal to repeal the 14th amend-
ment would be favored and supported by
many citizens. That amendment has never
had the respect and reverence accorded to
the original Constitution and its Bill of
Rights. The 14th amendment was prompted
in great part by vindictiveness toward the
vanquished Southern States. It was part of
the same policy that motivated the carpet-
baggers and their deplorable conduct in the
South. The repeal Would in a way be an
act of belated justice.
Fiirthermore, respected historians have
maintained that the 14th amendment never
was adopted in accordance with the,require-
ments of the Constitution. When Congress
passed the resolution declaring it adopted,
the legality of proceedings in some States
was questioned, and some States had re-
pealed their resolutions of approval before
the action by Congress. The country should
welcome another opportunty to act on the
amendment. Repeal would naturally be _
favored in the Southern States, and it would
be approved in many Northern States, where
there is strong opposition to further central-
ization of pOwer in Washington.
RESTORING GOVERNMENT?OF LAW
The repeal of the 14th amendment would
restore constitutional government, govern-
ment not of men but of law, and local self-
21235
government?and national disrupting con-
troversies would subside.
The National Government, however, could
still render great public service by maintain-
ing and expanding public works programs,
devoted mainly to conservation and develop-
ment of natural resources, but not com-
peting with private industry or suppressing
individual initiative. Such program would
Improve the economic conditions of all
races. They would tend to place idle men
on idle land, and, by training dependent
citizens in the crafts of science and arts of
husbandry, they would create independent
citizens of respectability. The popular vor-
tex, which the Founding Fathers feared
and which now threatens civil order, would
be converted to a spiral of improvement that
would support a law-abiding community.
Such developments as the Muskingum
Conservancy District [in Ohio] have proved
that National State' and local agencies,
private corporations and individuals can
work together harmoniously for the public
welfare, national economy and individual
security without loss of political freedom.
They have demonstrated that scientific capi-
talism, with its regard for the dynamic spirit-
ual power of religion, can be much more
beneficial than can atheistic communism.
People who have lived in both the South
and the North know that there are communi-
ties in Virginia, Tennessee, the Carolinas,
Florida and other States that have much
better race-relations-than the Northern cities
have been able to establish since the great
Influx of Negroes to the industrial centers.
The further industrialization in the South,
development of natural resources and tech-
nical education will extend the better racial
relations of the advanced and enlightened
communities to the retarded and undevel-
oped localities, if the self-appointed reform-
ers cease their intrusion and imposition and
direct their efforts to improvement in their
home communities.
It is a hopeful sign that people of intelli-
gence and character, who make and express
public opinion, are beginning to understand
that lawful and constructive programs and
work will do more good and less harm than
factional demonstrations, racial drives, in-
surrections and riots. "The Federalist,"
which John Fiske [the historian] said "is the
greatest treatise on government that has ever
been written," proclaimed that "it is the
reason, alone, of the public, that ought to
control and regulate the government. The
, passions ought to be controlled and regulated
by the Government."
Whoever breaks away from the law is a
runaway; whoever defies the law is an out-
law; whoever resists or attacks a law-enforce-
ment officer is an enemy of society?he
abandons all right to protection by the law;
he is still, however, subject to the punish-
ment which the law imposes for the protec-
tion of society.
The ACTING PRESIDENT pro tem-
pore. All time has expired.
It now being 1 hour after the meeting
of the Senate today, the Chair, under the-
rule, preparatory to placing before the
Senate the cloture motion on the so-
called Dirksen-Mansfield amendment to
the Foreign Assistance Act of 1964, di-
rects the Secretary to call the roll for a
quorum.
Mr. DOUGLAS. Mr. President-
The ACTING PRESIDENT pro tern-
pore. The Senate will be in order.
Mr. DOUGLAS. Mr. President, is this
a call for a quorum or is this a call for
the yea-and-nay vote?
The ACTING PRESIDENT pro tern-
pore. This is a quorum calV
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21236
CONGRESSIONAL RECORD? SENATE
Mr. DOUGLAS. I thank the Chair.
The Chief Clerk called the roll, and the
following Senators answered to their
names:
Aiken
Allott
Anderson
Bartlett
Bayh
Beall
Bennett
Bible
Boggs
Brewster
Burdick
Byrd, Va.
Byrd, W. Va.
Cannon
Carlson \
Case
Church
Clark
Cooper
Cotton
Curtis
Dirksen
Dodd
Dominick
Douglas
Eastland
Edmondson
Ellender
Ervin
Fong
Fulbright
[No. 563 Leg.]
Gore Moss
Gruening Mundt
Hart Muskie
Hartke Nelson
Hayden Neuberger
Hickenlooper Pastore
Holland
Hruska
Humphrey
Inouye
Javits
Johnston
Jordan, N.C.
Jordan, Idaho
Keating
Kuchel
Lausche
Long, Mo,
Magnuson
Mansfield
McCarthy '
McClellan
McGovern
McIntyre
McNamara
Mechem
Metcalf
Miller
Monroney
Morse
Morton
Pearson
Pell
Prouty
Proxmire
Randolph
Riblcoff
Robertson
Russell
Salinger
Saltonstall
Scott
Simpson
Smathers
Smith
Sparkman
Stennis
Symington
Talmadge
Thurmond
Tower
Walters
Williams, N.J.
Williams, Del.
Young, N. Dak.
Young, Ohio
Mr. HUMPHREY'. I announce that
the Senator from Washington [Mr.
JACKSON] , the Senator from Wyoming
[Mr. McGEE], and the Senator from
Texas [Mr. YARBOROUGH] are absent on
official business.
I also announce that the Senator from
Louisiana [Mr. LONG] is absent on official
business.
I further announce that the Senator
? from Massachusetts [Mr. KENNEDY] and
the 1'Senator from Alabama [Mr. HILL]
are absent because of illness.
Mr. KUCHEL. I announce that the
Senator from Arizona [Mr. GOLDWATER]
is necessarily absent.
The ACTING PRESIDENT pro tern-
Pore. A quorum is present.
A quorum being present, the Chair, in
further pursuance of the rule, submits
to the Senate, without debate, the ques-
tion, Is it the sense of the Senate that
the debate shall be brought to a close?
On this question, the yeas and nays are
required by the rule, and the clerk will
call the roll.
The legislative clerk called the roll.
Mr. HUMPHREY. I announce that
the Senator from Louisiana [Mr. LONG],
is absent on official business.
I also announce that the Senator from
Alabama [Mr. HILL], and the Senator
from Massachusetts [Mr. KENNEDY] are
absent because of illness.,
I further announce that the Senator
from Washington [Mr. JACKSON], the
Senator from Wyoming [Mr. McGEE],
and the Senator from Texas [Mr. YAR-
BOROUGH] are necessarily absent.
I further announce that if present and
voting, the Senator from Louisiana [Mr.
LONG], and the Senator from Washing-
-ton [Mr. JACKSON] would each vote
"nay."
Mr. KUCHEL. I announce that the
Senator from Arizona [Mr. GOLDWATER]
is necessarily absent.
The yeas and nays resulted?yeas 30,
nays 63, as follows:
Aiken
Allott
Bennett
Boggs
Carlson
Cooper
Cotton
Curtis
Dirksen
Dominick
Anderson
Bartlett
Bayh
Beall
Bible
Brewster
Burdick
Byrd, Va.
Byrd, W. Va.
Cannon
Case
Church
Clark
Dodd
Douglas
Edmondson
Ellender
Ervin
Gore
Gruening
Hart
Goldwater
Hill
Jackson -
[No. 564 Leg.]
YEAS-30
Eastland
Fong
Fulbrig,ht
Hickenlooper
Holland
Hruska
Jordan, Idaho
Mansfield
Mechem
Miller
Monroney '
Morton
Mundt
Pearson
Prouty
Saltonstall
Smathers
Smith
Walters
Williams, Del.
NAYS-63
Hartke Nelson
Hayden Neuberger
Humphrey Pastore
Inouye Pell
Javits Proxmire
Johnston , Randolph
Jordan, N.C. Ribicoff
Keating Robertson
Kuchel Russell
Lausche Salinger
Long, Mo. Scott
Magnuson Simpson
McCarthy Sparkman
McClellan Stennis
McGovern Symington
McIntyre Talmadge
McNamara
Thurmond
Metcalf Tower
Morse Williams, N.J.
Moss Young, N. Dak.
Muskie Young, Ohio
NOT VOTING-7
Kennedy Yarborough
Long, Mo.
McGee
September 10
from Delaware [Mr. WILLIAMS], and I
had a colloquy in the office of the ma-
jority leader. I was willing at that time,
because of the urgency of the matter,
to have the pending business temporarily
laid aside in order to dispose of both the
Williams substitute and the Mansfield
resolution dealing with the McCloskey
matter. But, at the same time, I made
it abundantly clear that foreign aid
would not be set aside for, any other
measure.
I would have to object. And if a Mo-
tion were made, I would have to do the
best I could to defeat the motion until
consideration of the Dirksen-Mansfield
amendment and the foreign aid bill has
been concluded.
I believe the distinguished Senator
from New York [Mr. Jam's] proposes to
offer a substitute. I am quite opposed
to it. But, that is neither here nor there.
Mr. JAVITS. Mr. PreSident, will the
Senator yield?
Mr. RUSSELL. Mr. President?
The ACTING PRESIDENT pro tem-
pore. The Senator from Montana has
the floor. Does the Senator yield?
Mr. MANSFIELD. I yield to the
Senator from New York.
Mr. JAVITS. Mr. President, I pro-
pose to offer a substitute for the Dirksen
The ACTING PRESIDENT pro tem- amendment, and then stand aside, pur-
pore. Two-thirds of the Senators pres- suant to the commitments of my own
.
ent and voting not having voted in tl_iej' leader, so that other measures may be
affirmative, the cloture motion is rejected
considered.
ORDER OF BUSINESS
Mr. MANSFIELD. Mr. President, in
accord with the half pledge or promise
made to the Senate on yesterday, I
should like at this time to ask unanimous
consent to call up the resolution which
I introduced, unless the distinguished
Senator from Delaware [Mr. WiLLIAms]
wishes to have his resolution considered
first..
I make the last comment because, if
I remember correctly, when the Senator
from Delaware submitted his resolution
yesterday, he had not determined then
whether it would be offered as a substi-
tute or as an original resolution.
Mr. JAVITS. Mr. President, will the
Senator yield?
Mr. MANSFIELD. Mr. President,
could I get an answer first?
Mr. WILLIAMS of Delaware. Mr.
President, I am willing to offer it as a
substitute for the resolution of the dis-
tinguished majority leader.
Mr. MANSFIELD. Fine.
'The ACTING PRESIDENT pro tem-
pore. The 'Unfinished business is the so-
called Dirksen-Mansfield amendment.
Does the Senator desire to have it laid
aside?
'Mr. MANSFIELD. Yes, because of the
promise made yesterday that on the
completion of the cloture vote, the Sen-
ate would be given an opportunity to
vote on the two resolutions which were
submitted yesterday afternoon.
Mr. DIRKSEN. Mr. President, when
this matter was discussed yesterday af-
ternoon, the majority leader, the dis-
tinguished Senator from Montana [Mr.
MANSFIELD], the distinguished Senator
I should like, if it is in order, and
agreeable to the Senator from Montana
[Mr. MANSFIELD], to offer a substitute On
behalf of the senior Senator from Min-
nesota [Mr. HUMPHREY] , the junior
Senator from Minnesota [Mr. Mc-
CARTHY], and me, to be laid before 'the
Senate in place of the pending business.
Mr. RUSSELL. Mr. President, I ob-
ject. If there is no other way, I object.
The ACTING PRESIDENT pro tern-
pore. The question before the Senate
is the unanimous-consent request of the
Senator from Montana to temporarily
lay aside the pending business--
Mr. RUSSELL. I object.
The ACTING PRESIDENT pro tern-
pore. Objection is heard.
Mr. RUSSELL. Mr. President, I was
trying to get into the discussion before
It got beyond this stage, in order that we
might ascertain what the real purpose
is with respect t& the so-called Mans-
field-Dirksen substitute.
As I stated here yesterday, this has
been a "powder puff" filibuster up to now.
Only a feather duster has been used to
attempt to break it. /
I wish to know whether it is proposed
to try to obtain a vote on the Dirksen-
Mansfield amendment, or whether it is
proPosed that it shall be laid aside until
the Senate is driven by necessity to lay
the amendment on the table. I believe
that there should be a test of strength
in the Senate that will indicate whether
or not afly substantial number of Sen-
ators think that the Senate should pro-
ceed with the Mansfield-Dirksen pro-
posal. I am supporting that proposal,
although I am not altogether happy
about it. I -think it is about as weak a
proposal as I have seen in some time,
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