AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070025-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 25
• Publication Date: September 14, 1964
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2014/02/21: CIA-RDP66B00403R000300070025-6
/964 CONGRESSIONAL RECORD --,SENATE,
to form a coalition of nations and people
on the basis of mutual respect, coopera-
tion, and self-interest which will give us
a counterforce to Nasser.
The real problem in the Middle East
is that while we are playing ball? with
Nasser and getting exactly nowhere, and
allowing him to do with our resources
whatever he chooses in order to buttress
his adventures. We are not building up
any aggregation of nations or peoples in
the Middle East in order to meet the
situation which may be created if Nasser
finally cuts loose 100 percent and really
makes himself the danger to trade and to
the whole Middle East which he is capa-
ble of becoming.
I urge the State Department, based
upon the notice served upon us in this
Alexandria meeting, to get about the
business of dealing with what will be
the next crisis after the crisis which we
have had?probably they will be overlap-
ping in the Middle East?which is com-
ing up the pike, as far as anyone can see,
as sure as fate.
A nation like ours, with all its re-
sources and power, cannot stand by and
wait until crises break. We may be faced
with two, three, or more crises in the
world at one and the same time. The
way to handle those in our case is not
to step away from them but to meet
4" them, because in that way we can head
off far worse disasters than crises. So
I urge the President of the United States
to take a personal hand in what is hap-
pening in the Middle East now. I be-
lieve the State Department is inclined to
pursue a policy of appeasement and of
placating Nasser on the theory that it
will get results. It has not gotten them
up until now. The situation is technical-
ly peaceful, but this is a very temporary
state, and the dangers are overwhelming.
Here is one area in which we can head
off a real conflagration by acting with
intelligence now. That is the reason I
have spoken today in the light of news
reports which indicate the fact that a
storm is brewing in the Middle East and
we had better batten down the hatches
and handle our resources in such a way
as to deal with it.
Mr. President, I suggest the absence of
a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER/. Wt
objection, it is so ordered.
called Dirksen-Mansfield reapportion-
ment amendment to the foreign-aid bill.
I wish to state, because I think it is
important to clarify it, the basis upon
which we have acted and exactly what
we are trying to effect, as I understand
it.
First, we must appreciate that when we
deal with the Supreme Court of the Unit-
ed States, we are dealing with a com-
pletely coordinate branch of Govern-
ment. In the give and take here the
other day, my distinguished colleague
and personal friend, the minority leader
[Mr. DIRKSEN], spoke of a supplication
by the Congress to the Court.
One supplicates a superior?he does
not supplicate an equal. Neither can one
dictate to an equal or order an equal.
This is a- very important dictinction
which must be made. One deals with an
equal as an equal. One can express to
an equal one's opinion, deeply held, and
which one considers persuasive. One can
expect that the equal will listen to? that
opinion, and have every right in good
faith to ask that the equal act on that
opinion, unless some strong reason to the
contrary can be demonstrated.
If the equal will not act in accordance
with that opinion, there is not much one
can do about it at that level. But there
are other things that can be done if one
is unhappy about it, because certain re-
lationships exist, either relationships of
money?which was evidenced in the dis-
satisfaction with respect to raising sal-
aries for members of the Supreme
Court?or in some other direction. But
upon the fundamental point of coordi-
nate power, the Supreme Court has such
power.
Whether my judgment in that respect
is important ox germane or relevant at
all, believe the Supreme Court decided
these reapportionment cases under the
14th amendment in the only way in
which it could have decided them, under
the modern concepts. of constitutional
law.
Where does that leave us? We are a
legislature, to which the decision in the
case of Baker against Carr, and as it af-
fected many State legislatures, has come
as a matter of first impression. That
had not been the law before the decision
in Baker against Carr, as we understood
it. Those last words are critically im-
portant. This doctrine is not written
in letters of fire in the heavens which
were suddenly pulled apart to reveal it
to the earth. This is a situation which
tures in the Minds of nine judges
and in which they, as we do, seek the
support of the American people. They do
not have to say so, and they do not cam-
paign, but, for all practical purposes,
that is what it comes down to.
I see a great analogy between the re-
apportionment decisions and the deci-
sion in the landmark case of Brown
against Board of Education, the famous
civil rights decision, as it related to seg-
regation in the public schools. Prior to
the decision of the Supreme Court in
1954 in the public school desegregation
cases, the doctrine of Plessy against Fer-
guson had been the law of the Nation
so far as we all knew. That case had
held that separate but equal facilities
AMENDMENT OF FOREI N SSIST-
ANCE ACT OF 19.1
The Senate resumed the consideration
of the bill (H.R. 11380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
Mr. JAVITS. Mr. President, I should
now like to address myself to the dmend-
ment in the nature of a substitute, which
has been offered by the junior Senator
from Minnesota [Mr. McCAarirY] , the
senior Senator from Minnesota [Mr.
HUMPHREY] and myself to the so-
21377
fulfilled the constitutional mandate of
equal protection of the laws under the
14th amendment.
That concept began to be changed in
many cases and in many ways before the
Brown case decision, but in the final
analysis it was the Brown case which
made the change solid as a position for
the country to observe. The Court
realized it, as well as we did, and in that
case provided that in the decrees of the
lower courts, accommodation should be
given to compliance, in the famous words,
"with all deliberate speed."
In the apportionment cases, the Court
did not provide that standard, spcifically ;
but even there the Supreme Court did
say that it expected some time must
elapse until the legislatures could con-
form to this standard, which the Court
had now enunciated in these cases. It
contemplated that time would elapse,
that good faith to comply would be recog-
nized by the lower courts, and that the
process would then proceed to take a
measurable period of time. After all, the
State legislatures have existed as long as
the Republic. This decision had just
come down after more than a century
and a half of practice which did not
accord with that decision. That was the.
status of Jaw prior to that decision.
Where does the Congress come in?
We come in in two ways. First, the low-
er courts have acted, in the judgment of
many, including myself, with undue pres-
sure upon the States?again I empha-
size the word "undue"?and have in some
cases required what, when we are dealing
with the States, is a somewhat undigni-
fied procedure.
For example?and I have given these
examples before, but I shall repeat them
here to illustrate my point?in the case
of the State of New York, the Court has
bobtailed the legislators' terms from 2
years to 1 " year. It has provided for,
three elections in 3 years, instead of the
normal number of elections, which would
be two in that period of time. It has
provided that the terms of office be cur-
tailed. That, to most citizens, seems like
rather an overstrong use of the Court's
power when dealing with a State.
In the case of the State of Vermont,
the Court has forbidden the legislature
to transact any business, except to deal
with reapportionment, no matter what
the needs of the State may be. Again,
I believe that to the normal citizen this
seems an overly strong use of the Court's
power when dealing with a State that is
trying to change a situation which has
persisted for 160 or 170 years.
That is the .first point.
'? We wish to call to the Court's atten-
tion the fact that we believe the way the
lower courts have carried out the Su-
preme Court's decision in these mandates
and in other cases is oppressive. The
Supreme Court has full power to correct
the situation. It is a matter of judgment
as to what is reasonable.
It seems to me, therefore, that we have
a right to express ourselves as to what
is reasonable, in our judgment, or to
urge upon the Court that we consider a
? number of things that are going on to be
unreasonable.
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- 21378 CONGRESSIONAL RECORD SENATE
The second point is that we .have a
right to press upon the Court the fact
that We may wish to do some things
under the Constitution to deal with this
situation, which may not be entirely con-
genial to the point of view of citizens in
many States. For example, many citi-
zens find it difficult to understand?
though perhaps we, as historians, might
understand it?why the U.S. Senate can
. be organized on a basis not of population
and the other House on the basis of
population, but the individual States,
even if their people so elect?which I em-
phasize, cannot have the same privilege.
I believe that in many States, even in
States that have very heavy concentra-
tions of people in the cities and suburbs?
like my own?that is likely to be the
-result when, as, and if the question is
submitted to the people.
If we should with reasonable celerity
submit such a constitutional amendment
to the people of the United States,' an
amendment which would permit the citi-
zens of the individual States to opt, if
they choose, to set up one house on a
basis of other than population, there is
no reason why we cannot turn to the
Court and say, "We are starting a process
which will make a change in the situation
that you have interpreted. Give us a
reasonable opportunity, first, to pass it
through Congress and, second, to see
how it takes with the States."
At this point I come to the interpreta-
tion of the sense resolution which my
colleagues, Senators McCAarny and HUM-
PHREY, and I have presented to the Sen-
ate. The important point about that res-
olution is that, while it seeks an oppor-
tunity to do thee things, it does not ask
for a stay until they are done; nor does
it imply that they will be done. It does
not imply that Congress will author and
submit a constitutional amendment. It
does not imply that the State legislatures
will act to conform, in a way satisfactory
to the Court, to the individual decrees or
to the principles which the Court has laid
down in its decisions.
All it says is this: Do not give us a stay
for the whole time span necessary to ef-
fectuate -these acts, because we do not
know whether they will be effectuated.
Neither do we know that individual leg-
islatures or Congress itself will proceed
with celerity in doing what might be done
under these provisions of the resolution
to which I am referring. All that we
say to the Court is': "This is what we
have in contemplation. Go along with
us, step by step. As we make progress,
give us time to make more progress. If
we fall down and fail to make -progress,
then you can stop the process at any
stage, either for any State or, so far as
we are concerned, for a constitutional
amendment."
What does that mean practically? It
means the following: Congress_ will re-
turn in January 1965. The Senator from
Illinois [Mr. DIRKSEN] has a constitu-
tional amendment proposal. Represent-
ative McCuLLocn has a constitutional
amendment proposal. I shall introduce
as my own, in a few Minutes, a revised
draft of the McCulloch proposal. I shall
ask that it remain at the desk for a week
for cosponsorship.
I dO-not favor the Dirksen constitu-
tional amendment, because I do not be-
lieve the legislatures ought to be allowed
to decide for themselvet whether one
house in each legislature should be ap-
portioned on a basis other than that of
population. I believe that only the peo-
ple of each State should decide that ques-
tion, and that any constitutional amend-
ment should be only permissive in char-
acter. To show my good faith, I shall
introduce such a proposed constitutional
amendment myself today.
Congress will return in January. The
various proposed constitutional amend-
ments will be before us. They may or
may not be reported by committees.
They may or may not be acted on by
Congress. But our resolution says to the
Supreme Court: "If we do move into this
situation and act with respect to it with
\reasonable celerity, then, as we go along,
you will go along." This does not mean,
necessarily, 1, 2, 3, 4, 5, 6 months, or a
year. The Court should judge when it
wants to continue with us, giving us an
opportunity to correct this situation or,
at least, to make available the means for
correction, and when it wants to quit.
As the Court goes along with us, we will
go along with it. It seems to me that
that is the only way in which we can
deal with two coordinate bodies in a
great Federal system such as ours.
The same is true of the States. We
say to the Court': "The States have now
learned what is desired. Give the States
a reasonable opportunity to reappor-
tion." The Court might say, "All right.
We will wait 3 months. See what you
can do. If we are satisfied that the
States are proceeding in good faith and
are submitting the proposal to the peo-
ple, we might wait 3 months more, or ,
3 months after that."
The sense of the resolution we have
presented is that we will have informed
the Court as to our intentions and de-
sires;so that that will become an element
of good faith on our side as well as on the
side of the Court. The Court would re-
tain the power. We would not give the
Court power or deny it power. Nor would
we be giving ourselves power or denying"
ourselves power. There is no presump-
tion of different or greater powers that
either we or the Court would have, or
that a State legislature or the p-e-ople of
any State would have. The only thing
that would happen would be that, just
as the Court has advised us of what it
deems should be done, so we apprise the
Court of how we would like to continue
with our process of conforming the prac-
tices and procedures of the States of the
United States to the law, now the su-
preme law of the land as enunciated by
the Supreme Court.
I emphasize, therefore, that what we
are talking about in this "sense" amend-
ment is not a stay of proceedings, in a
kind of wholesale way, until all the leg-
islatures have had a chance to act in
respect of apportionment and until Con-
gress has had a chance to act in respect
of a constitutional amendment, and
holding everything to wait until those
great events have developed throughout
the country. On the contrary, what we
are recommending is that, on a case-by-
September 14
case basis, the Court go along with us as
we go along with it, and that the timing
be based upon the reasonableness of the
timing of the actions that are being
taken by Congress and by the State leg-
islatures.
The whole concept of a stepi-by-steP
basis by us and by the courts is prem-
ised upon one fundamental proposi-
tion, namely, that Congress has no
power to. order the Court. That is
the concept of the Dirksen-Mansfield
amendment. The concept there is that
Congress does have the power to order
the Court; that it is thought that we
save our act from being declared un-
constitutional by a provision which en-
titles the Court to refuse to grant a stay
contemplated by the Dirksen-Mansfield
amendment, when it finds highly un-
usual circumstances which dictate
against granting a stay.
In my judgment, the Court would have
to construe 'that phrase to mean any
conditions, in its own judgment, which
dictate that the stay should nqt be
granted. On the other hand, if the
Court wishes to show Congress the 're-
spect which it should, it will probably
have to declare the Dirksen-Mansfield
proposal unconstitutional; because if
the Court is really going to construe un-
usual circumstances to be unusual cir-
cumstances as a matter of fact, requir-
ing a factual finding to that effect, I
believe the Dirksen-Mansfield amend-
ment would be construed by the Court
to be a direction, or what might be called
a rule of decision, which, in my judg-
ment, the Court would have to strike
down as unconstitutional, exactly as it
did in respect to a statute which pre-
scribed a rule of decision in the classic
Klein case, a case decided some time ago,
but which is much in point in this sit-
uation. In the Klein case, the Court
said: -
We must think that Congress has inad-
vertently passed the limit which separates
legislative from judicial power.
In United States against Klein, de-
cided in 1872, the Court sharply distin-
guished from the so-called McCardle
case, decided 3 years earlier, and upon
which so much reliance is being placed
in respect of the Dirksen-Mansfield
amendment. In that case, the Court
passed on an act by which Congress pur-
ported to withdraw jurisdiction from the
Court of Claims in a class of pending
cases. The Supreme Court thereupon
held that that statute sought to change
for the Court a rule of decision in a pend-
ing case, and was unconstitutional.
The Dirksen-Mansfield amendment
makes no distinction between pending
cases and new cases; nor, indeed, could
it make such a distinction, because, after
all, in the normal case, the authors of
an amendment would say, "We will
change it"; but they cannot. The reason
they cannot is that most of the cases in
the country now are pending cases.
Therefore, the fat is in the fire in terms
of jurisdiction Of the Supreme Court and
of the Courts of the United States, both
original and appellate, and very little can
be done about it.
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1964
CONGRESSIONAL RECORD =SENATE 21379
Suits for reapportionment are pend-
ing in the following States: Alabama,
Arizona, California, Colorado, Delaware,
Florida, Hawaii, Idaho, Illinois(Kansas,
Kentucky, Louisiana, Maryland, Mich-
igan, Minnesota, Missouri, Nebraska,
Nevada, New Hampshire, New Jersey,
New Mexico, New York, North Dakota,
Ohio, Oklahoma, Pennsylvania, Rhode
Island, Tennessee, Texas, Utah, Ver-
mont, Virginia, Washington, West Vir-
ginia, and Wyoming.
Most of the States are now in litiga-
tion. Hence, we face a fact, not a
theory. The Mansfield-Dirksen amend-
ment, therefore, cannot be changed to
apply prospectively because if it did, it
would be discriminatory and wash out, or
seek to wash out its applicability to the
vast number of pending cases, which in-
volve most of the States.
? Mr. President, I? suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
MODIFICATION OF UNANIMOUS-CONSENT
AGREEMENT
Mr. MANSFIELD. Mr. President, I
ask unanimous consent to modify the
unanimous-consent agreement entered
on Thursday last, which reads in part
as follows:
Ordered. That the? Senate on Tuesday,
September 15, at 2:30 p.m. proceed to vote
on the pending Javits amendment.
Mr. President, I ask unanimous con-
sent that the time-2:30 p.m.?be
changed to 2:20 p.m.
The PRESIDING OFFICER. Is there
objection?
Mr. MANSFIELD. The unanimous-
consent agreement will then read as
follows:
Ordered, That the Senate, on Tuesday,
September 15, at 2:20 pm. proceed to vote
on the pending Javits amendment No. 1234 as
a substitute for the Dirksen amendment No.
1215, with the time between 12:20 p.m. and
2:20 p.m. on that day to be equally divided
and controlled by the proponents and the
opponents, respectively, and that the Senator
from New York [Mr. JAvrrs] have the right
to modify his amendment until the yeas
and nays are ordered thereon.
The reason I make this request is that
it will fit in with the plans of certain
Senators for that day. It will allow the
time to be shortened by 10 minutes be-
tween 12 o'clock and 12:20, rather than
between 12 o'clock and 12:30. It will also
allow for the vote to get underway at
2:20, if the modification is agreed to. I
would hope that the vote would be slowly
taken at that time.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
the unanimous-consent request is agreed
to.
The unanimous-consent agreement
was subsequently reduced to writing, as
follows:
UNANIMOUS-CONSENT AGREEMENT
Ordered, That the Senate, on Tuesday,
September 15, at 2:20 p.m. proceed to vote on
the pending Javits amendment No. 1234, as
a?substitute for the Dirksen amendment No.
1215, with the time between 12:20 p.m. and
2:20 p.m, on that day to be equally divided
and controlled by the proponents and the
opponents, respectively, and that the Sena-
tor from New York [Mr. JAvrrs] have the
right to modify his amendment until the
yeas and nays are ordered thereon. (Sept.
10, 1964.)
Mr. JAVITS. Mr. President, I send to
the desk a joint resolution to amend the
Constitution of the United States to per-
mit any State to apportion one house of
its legislature on factors other than pop-
ulation, with the approval of a majority
of the voters. I ask unanimous consent
that this resolution may be printed in the
RECORD and may lie on the desk for addi-
tional sponsors until 1 week from today.
The PRESIDING OFFICER. The
joint resolution will be received and ap-
propriately referred; and, without ob-
jection, the joint resolution will be
printed in the RECORD, and held at the
desk, as requested by the Senator from
NeW York. z
The joint resolution (S.J. Res. 204) to
amend the Constitution of the United
States to permit any State to apportion
one house of its legislature on factors
other than population with the approval
of a majority of its voters, introduced
by Mr. JAVITS, was received, read twice
by its title, referred to the Committee on
the Judiciary, and ordered to be printed
in the RECORD, as follows:
Resolved by the Senate and House of Rep-
resentatives of the United States of America
in Congress assembled (two-thirds of each.
House concurring therein), That the follow-
ing article is hereby proposed as an amend-
ment to the Constitution of the United
States, which shall be valid to all intents
and purposes as part of the Constitution
when ratified by the legislatures of three-
fourths of the several States:
"ARTICLE XXV
"SECTION 1. Nothing in the Constitution
of the United States shall prohibit a State
having a bicameral legislature from appor-
tioning the membership of one house of its
legislature upon the basis -Of factors other
than population, if such apportionment has
been submitted to the qualified voters of the
State through a statewide referendum held
in accordance with law and with the pro-
visions of this Constitution, and such appor-
tionment has been approved by a majority
of those voters in that referendum.
"SEC. 2. This article shall be inoperative
unless it st*:11 have been ratified as an
amendment to the Constitution by the leg-
islatures of three-fourths of the several
States within seven years from the date of
its submission to the States by the Congress."
Mr. JAVITS. Mr. President, I intro-
duce this joint resolution not because I
expect it to be acted on at this session of
Congress. We all know that this subject
will come before us next year. It may
very well have different sponsorship at
that time, although I shall hope to be
one of its sponsors.
I have introduced the joint resolution
to show my good faith, and to show what
I have in mind with respect to this mat-
ter: I desire to show how I feel with re-
spect to the people in each' respective
State deciding what they wish to do.
These are the very same people, on the
same basis of one person, one vote, to
whom the Supreme Court in its decision
has given the power in respect to the
State legislatures. Under the joint reso-
lution that I introduced, this power could
be applied within each State by a ma-
jority vote in a referendum to change the
way in which one house of that State's
legislature is organized.
Mr. President, to' sum up my position,
this is a unique situation in which Con-
gress and the Supreme Court have co-
ordinate power. Congress has the power
to propose an amendment to the Consti-
tion under which the legislature of each
State would determine what it wishes to
do about apportionment. The Supreme
Court has the power to declare acts of the
States unconstitutional under the 14th
amendment equal protection guarantee.
I believe the Court has properly exercised
such authority in respect to its decisions
in Baker against Carr, Reynolds against
Sims, and the other cases.
Nonetheless, the time must now elapse,
short or long, as the facts may warrant?
I emphasize that "short or long as the
facts may warrant"?to give the people
and the legislature of every State an op-
portunity to conform to the supreme law
of the land enunciated by the Supreme
Court. ?
Mr. President, I suggest the absence of
a quorum.
The PRESIDING OFFICER. The
clerk will?call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. JAVITS. Mr. President, as I
started to say a moment ago, we are in a
situation with relation to two coordinate
branches of the Government?one co-
ordinate branch in charge of determin-
ing what is and what is not lawful under
the constitutional mandate of the 14th
amendment for equal protection of the
laws; the other, under the constitutional
mandate to legislate, including constitu-
tional amendments, which may permit 'a
change in the 14th amendment require-
ment with relation to the apportionment
of State legislative bodies. We are turn-
ing to the Court at a time when the law
has been declared for the first time, after
many years, and saying, "Now that you
have determined the law, give oppor-
tunity, so long as steps are being taken
to implement what you have determined,
in good faith and with reasonable celer-
ity, to the State legislatures and to the
Congress to proceed in accordance with
what has now been declared to be the
supreme law of the land."
Mr. President, this is not a statute, be-
cause it could not be. As I have ex-
plained, in the face of all the pending
cases for State reapportionment, which
represent most of the States of the
United States, and the Supreme Court's
holding in the Klein case, such a statute
requiring the Court to stay its hand,
would, in my judgment, be declared un-
constitutional unless the Court con-
strued it solely as a request. In respect
to the dignity of the two coordinate
bodies, we should accordingly make the
request, in order to do what the Con-
stitution permits us to do.
I believe that the Supreme Court will
honor our desires if they are presented
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21380 CONGRESSIONAL RECORD ? SENATE
with respect for the coordinate -equality
of the two branches of government?the
judiciary and the legislative?seeking
the application of a rule of reason to en-
able implementation of the legal con-
cept to_go forward. I base this on what I
think is an excellent quotation from the
majority opinion in one of the major re-
apportionment cases, the case of Reyn-
olds against Sims, at page 50 of the
pamphlet opinion, which reads as fol-
lows:
In-awarding or withholding immediate re-
lief, a court is entitled to and should con-
sider the proximity of a forthcoming election
and the mechanics and complexities of State
election laws, and should act and rely upon
general equitable principles. With respect
to the timing of relief, a court can reasonably
endeavor to avoid a disruption of the election
process which might result from requiring
precipitate changes that could make unrea-
sonable or embarrassing demands on a State
in adjusting to the requirements of the
court's decree.
Mr. President, it seems to me that that
is an admirable statement when joined
with the expression of our intention,
which is the resolution which the Sena-
tors from Minnesota [Mr. MCCARTHY]
and [Mr. HUMPHREY] and I have pre-
sented to our colleagues. We would ex-
press our intention. The Court has said
that it is willing to accommodate itself
and to make provision against unreason-
able or embarrassing demands on a State
in adjusting to the requirements of the
Court's decree.
Joining our intentions, plus the Court's
expressed intention, both parties may be
treated with utmost dignity, and may
accommodate each to the other's needs
and ideas with full respect for the co-
ordinate authority in both bodies of
government. If, on the other hand, we
order the Supreme Court to do some-
thing, and the Court then construes the
language "except in the case of highly
unusual circumstances" as it ordinarily
would construe that language, we run
into the danger of an unnecessary con-
frontation between the. Supreme \ Court
and Congress, for the Court knows, as a
matter of principle?and this involves
very much more than the reapportion-
ment cases?that it would have to strike
down such a statute.
Therefore, for reasons of policy and
comity between two great branches of
government, and for the most funda-
mental reason of all, the ability to pro-
ceed under our own system without gov-
ernmental paralysis or undue confronta-
tion between two coordinate branches of
government, I urge upon the Senate the
adoption of the McCarthy-Humphrey-
Javits substitute which I have been de-
scribing today.
Mr. President, I yield'the floor.
Mr. DOUGLAS. -Mr. President, does
the Senator from New York mean the
Javits-McCarthy-Humphrey amendment
which was printed and submitted last
week?
Mr. JAVITS. The Senator from New
York has reserved the right, under the
unanimous-consent agreement kindly
allowed by the other Senators participat-
ing, to modify that amendment if we
care to make some modification. I was
speaking only of the fundamental prin-
ciple and thrust which was involved in
the substitute for the Dirksen-Mansfield
amendment.
Mr. DOUGLAS. Mr. President, in its
present form, while the intentions of the
sponsors of the amendment are excellent,
it is unacceptable to those of us who be-
lieve -that the decisions of the Supreme
Court have been correct and that they
should not be interfered with by Con-
gress.
The amendment in its present form
would put psychological pressure upon
the legislatures to delay reapportion-
ment, even if ordered by the Court, and
it would also put psychological pressure
upon at least the lower courts not to is-
sue apportionment rulings under the
previous decisions of the Supreme Court.
Since we believe the reapportionment
decisions of the Court, we do not want
such pressures to be applied.
Perhaps more important than those
two considerations is the effect- of the
language on page two of the amendment
which at present reads as follows:
Adequate time should be accorded * *
for consideration by the States of any pro-
posed amendment to the Constitution of the
United States relating to the composition of
the legislatures of the several States, or to
the apportionment of the membership there-
of, which shall have been duly submitted by
the Congress to the States for ratification.
It seems to many of us that this pro-
posal would be a tacit commitment by
the Congress to submit a constitutional
amendment to the States. I am opposed
to any constitutional amendment be-
cause I think the courts have been com-
pletely correct in this matter, both as
regards representation in one house and
in both houses of the various State leg-
islatures.
Furthermore, this language would tend
to constitute a stay of an indefinite pe-
riod during the time the amendment was
before the States. During this time the
malapportioned State legislatures would
again have the power to approve_ the
amendment and thus to seal themselves
into office almost in perpetuity And dur-
ing the time that the amendment was
before the State legislatures any further
action in the way of reapportionment
would be stayed and prevented. This
could be as long as 7 years.
I appreciate the intentions of my good
friend from New York It is my hope
that we can 'reach an agreement upon
the language It pains me to have to
say this but I must state that in the form
in which the-amendment was originally
presented it is unacceptable.
Mr. JAVITS. In response to my be-
loved friend's comments?and- I shall
answer every one of the items to which
he has referred?I shall tick them off to
be sure I understand them. What he
has said is not within the contemplation
of this Senator, and I think it should be
reflected also that it is not within the
contemplation of either Senator from
Minnesota, Senator- MCCARTHY or Sena-
tor HUMPHREY. What we have to do, if
we can, is to make it clear to our col-
leagues who entertain these doubts. I
hope we can do that. That is why I wel-
come the opportunity to make any Modi-
fications which may be necessary in the
language.
September 14
With respect to the reference to Psy-
chological pressure upon State legisla-
tures, we have no desire to have any
psychological impact brought to bear
upon them. When I was stating my case
for the substitute, I made it clear that
we hoped to find a good faith quotient in
the way of the time given the legislatures
to proceed to conform to the Supreme
Court's decrees. I did not state that we
were going to deal with a wholesale stay
until everything was completed.
The second point is that the Senator
does not personally favor any constitu-
tional amendment of any kind and,
therefore, does not think we should leave
any implication that we are going, in
good faith, to respond to the Court's giv-
ing time by getting time to have one. I
happen to favor some kind of constitu-
tional amendment. The one which I
favor and have submitted would require
approval by the people of each State be-
fore one house of a State legislature could
be apportioned on a basis other than
population.
The Senator from Illinois does not
wish to be committed?neither do I?to
the proposition that based upon this
"sense" resolution, we are by implication
committing ourselves to proposing an
amendment to the States, expressly or by
implication.
Third, the Senator from Illinois stated
:that indefinite time would be granted. I
pleaded my case on the basis that the
best way for the coordinate branches of
government to proceed would be step by
step. As the State legislatures move
forward or as Congress moves forward,
at every step the courts, by a series of
relatively short steps, can determine
whether enough action is being taken to
justify further stays, knowing of the in-
tentions of Congress and of the State
legislatures. So I do not contemplate
any wholesale stay of 1 or 2 or 3 years,
but contemplate instead that the courts
will take a look at the matters and de-
termine, within the intention of Con- -
gress that stays are deserved. ?
Finally, on the question of malappor-
tioned State legislatures, I point out that
nobody?neither the Senator from Illi-
nois nor any of his colleagues, no matter
how strongly they may feel about this
matter?is saying that the acts of the
State legislatures which are malappor-
toned are invalid. If that were the re-
sult, as the Circuit Court of Appeals for
the 10th Circuit has said, there would be
anarchy. The processes of government
have existed for a long time, and must
continue. Therefore, the idea is to move
forward?I do not even use the words
"with all deliberate speed," because
those words were used in another con-
text, and I do not want to use them in
this context. But we should go forward
with all the celerity of which we are
capable. I read one of the Supreme
Court's own decisions on this subject as
to what it means to go forward. It is
found at page 50 of the pamphlet deci-
sion in the case of Reynolds against
Simms:
With respect to the timing of relief, a court
can reasonably endeavor to avoid a disrup-
tion of the election process which might re-
sult from requiring precipitate changes that
could make unreasonable or embarrassing
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? quirements of the court's decree.
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1964 . CONGRESSIONAL .ItEcORD
demands on a State in adjusting. to the re- ,
? All that we are trying to do by our
amendment is to state to a coordinate
branch of the Government our desire to
afford some period in which to deter-
mine the intentions of State legislatures,
so that the court may itself determine
what are and what are not unreasonable
or embarrassing demands on a State.
Answering the four points the Senator
has raised?and again I make no plea for
the original language of our proposal; it
may very well be that it will be very
much better expressed, and I hope we
can come to that conclusion?the intent
of our proposal is certainly no different
from what we have just been discussing.
It is not intended to put psychological
pressure upon the States; there is no in-
tention to guarantee that a' constitu-
tional amendment will be proposed; it is
not the intention to stay the matter on a
whblesale basis; and there is no intention
to defer all actions to correct malappor-
tioned legislatures beyond what is re-
quired to avoid dealing with States in an
unreasonable or embarrassing manner,
and within that definition to see that the
situation is corrected at the earliest time,
but bearing in mind that what the legis-'.
latures are doing is not invalid, that we
are not in anarchy, and that it is possible
to accomplish the purpose in a way that
? is reasonable and not embarrassing,
which is very much the standard that
the Court has laid down.
Mr. DOUGLAS. I find myself in gen-
eral agreement with what the Senator
from New York has stated, however, I
. believe-that the language in the present
amendment is susceptible of a different
interlaxetation. I am very glad he has
made this statement. I suggest that the
language needs to be made clearer on
this point.
Until there is a definite provision in
the Constitution which limits the power
of the Supreme Court to interpret the
14th amenclment?so far as it refers to
the apportionment of State legislatures,
I believe the Court should be allowed so
to interpret the Constitution, and that
the decisions of the Supreme Court
should be followed by the lower courts
and by the various State legislatures.
And I am also opposed to any such
amendment since I submit that the
Court's decisions have been substantially
necessary.
My chief concern is that we should not
stay the processes of constitutional inter-
pretation pending the ratification of a
supposititious amendment by three-
fourths of the States.
If in the meantime the ordinary con-
stitutional process should go on with
rulings in various States, but with time
given for equitable plans to be worked
out, that would be highly desirable. That
Aould as a matter of fact be in confOrm-
ity with the Court's own standards.
However, if the language is to be inter-
preted as meaning that everything must
come to a stop, while an amendment was
being proposed and acted upon, which
might take years before action was finally
completed,' it would he in effect a polite
form of the Dirksen-Mansfield amend-
No. 1'75-5
ment As such is should not be sup-
ported. But I hope the language may be
revised to connote a meaning similar to
that which I have -suggested. s
Mr. JAVITS. I am very grateful to
my colleague for his always constructive
and informed intercession. I am hope-
ful that we will find ways in which, hav-
ing come to a meeting of minds?we need
not agree on everything?we may be able
to come to an agreement.
Mr. DOUGLAS. I hope that very
much.
Mr. JAVITS. I yield the floor.
Mr. INOUYE. Mr. President, since
Wednesday, August 12, I have sat in the
Senate listening to the proponents and
opponents of the Dirksen amendment
which seeks to authorize temporary stays
in execution of court orders for imme-
diate' institution of reapportionment in
State legislatures based upon the prin-
ciple of "one-man, one-vote." Except
for a relatively brief period when the
distinguished senior Senator from Illi-
nois held forth, the discussions have
mainly centered on substantive questions
concernings the validity or invalidity of
the arguments presented in the series of
Supreme Court cases handed down last
June. Facts and figures have been cited
to prove or disprove, as the case may be,
the under or over representation, of rural
or urban areas.
I have no particular brief against such
discussions for the Supreme Court deci-
sions most certainly are based on con-
crete and specific cases from Alabama
'to Colorado, all dealing with substantive
questions of the equity or inequity of the
prevailing mode of representation in the
? various State legislatures. Political and
other social scientists have for years
written scholarly articles analyzing the
merits or demerits of a system of appor-
tionment tending to favor the nonurban
areas of our various State ,governments.
Historians have pointed to various tracts
? from American history for the purposes
of either proving or disproving whatever
line of reasoning they were inclined to
follow. Far be it for me to cover ground
so well traveled by so many experts.
However, I personally believe that a
more constructive approach to the ques-
tion before us is to face up to the proce-
dural questions involved. Indeed, the
Dirksen amendment itself does not raise
substantive questions of the propriety
or impropriety of the court's decisions,
? although much has already been implied
on this floor. The issue raised is mainly
procedural. And that issue is one which
goes to the very nerve center of our con-
stitutional form of government
I am deeply convinced that any tam-
pering with this nerve center is to seri-
ously endanger a system which has en-
abled this country to endure and survive
a multitude of internal and external
stresses and strains which have -wedk-
ened or destroyed a number of govern-
ments not as prudently endowed. Were
I to be alined against the majority of
the Justices in the Supreme Court deci-
. sions, I would still have to raise my voice
against the present attempt to initiate
by legislative fiat an inexorable deteri-
oration of the very structure of consti-
21381
tutiorial government. For to say that
the issue is procedural only underscores
the fact that the basic precepts of Ameri-
can constitutionalism are being under-
mined.
Without any attempt to delve into the
motives of the sponsors of the Dirksen
,amendment, and Without trying to ana-
lyze what appears to be a puzzling con-
flict in interpretation of the two major
sponsors as to the ultimate purpose be-
hind it, I can only see the effect as be-
ing detrimental to the concept of separa-
tion- of ' powers. I do not know, at this
point, whether the aim is to buy time so
as to enable Congress and the States to
initiate and ratify a constitutional
? amendment leaving inviolable existing
systems of apportionment, or simply to
provide the time necessary for the vari-
ous State legislatures to work out reap-
portionment schemes more closely in line
with the case of Reynolds against Sims.
I do not know that these varying opin-
ions are necessarily germane to the basic
procedural question. All that I do know
is that the Senate, and the Congress, are
- being asked to stay an interpretation de-
livered by the Supreme Court. All that
I do know is that this amounts to a tem-
porary restraining order from the legis-
lative arm preventing the due execution
of a decision rendered by the judicial
branch of our Government. And may I
add that the period of validity of the re-
straining order has also very little to do
with the procedural question involved.
The fact of the matter, it seems to
me, is that a judicial decision has been
deemed to be in dire need of legislative
moderation. If this can be done with
Reynolds against Sims and Lucas against
the 44th General Assembly of Colorado.
Why was it not done with Brown against
the Board of Education of Topeka? And
why cannot it be done with any and- all
Supreme Court decisions which may run
counter to the political interests of those
affected?
I am sorry .to say that ? I believe a
precedent is being created by this amend-
ment which would wreak havoc with our
traditional views that the judicial and
legislative functions should be kept sep-
arate. What other possible interpreta-
tion is there for the proposed amend-
ment? A judicial decision has been
made. The Constitution has been held
to be violated by the existent system.
The Court has said, in effect: Correct
that system so as to make it consonant
with the Constitution. But correct it
within certain reservations, to wit:
Remedial technique in this new and de-
? veloping area Of the law will probably often
differ with the circumstances of the chal-
lenged apportionment and a variety of local
conditions. It is enough to say now that,
once a State's legislative apportionment
scheme has been found to be unconstitu-
tional, it would be the unusual case in which
a court would be justified in not taking ap-
propriate action to insure that no further
elections are conducted under the invalid
plan. However, under certain circumstances,
such as where an impending election is im-
minent and a State's election machinery is
already in progress, equitable considerations
might justify a court in withholding the
granting of immediately effective relief in a
legislation apportionment case, even though
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21382 CpNGRESSIONAL; RECORD?I-. SENATE e:
the existing apportionment scheme was
found invalid.
How more reasonable can the Supreme
Court be?
The Founding Fathers were very clear
about the division of legislative, judicial,
and executive powers. As the wording
of -article III, section 1, of the Constitu-
tion states:
The Judicial power of the United States
shall be vested in one Supreme Court, and
such inferior courts as the Congress may
from time to time ordain and establish.
Section 2 sets forth the jurisdiction
of the Court as follows:
The judicial power shall extend to all
cases in law and equity arising under this
Constitution.
The only power Congress has over the
courts is in the establishment of them
and in the approval of appointees. The
Founding Fathers were very careful to
limit the judicial power of the legislative
branch to cases of impeachment only.
Since we are quoting authorities while
debating an idea as revolutionary as this
amendment. It would be wise to re-
read the thoughts of the framers of the
Constitution on the doctrine of separa-
tion of powers. What do they say?
Alexander Hamilton, in Federalist Pa-
per No. 78, states:
? The complete independence Of the courts
of justice is peculiarly essential in a limited
constitution. Liy a limited constitution, I
understand one which contains certain spe-
ciifed exceptions to the legislative authority,
such for instance, as that it shall pass no
bills of attainder, no ex-post facto laws, and
the like. Limitations of this kind can be
preserved in practice no other way than
through the medium of courts of justice,
whose duty must be to declare acts con-
trary to the manifest terror of the Constitu-
tion void. Without this, all the reservations
'of particular 'rights or privileges would
amount to nothing.
Further on in the same paper Hamil-
ton discusses the questions of supremacy
if the legislature and the Constitution
are divergent in their views:
The interpretation of the laws is the prop-
er and peculiar province of the courts. A
constitution is, in fact, and must be regard-
ed by the judges, as a fundamental law. It
therefore belongs to them to ascertain its
meaning, as well as the meaning of any par-
ticular act proceeding from the legislative
body. If there should happen tO'be an irre-
concilable variance between the two, that
which has the superior obligation and va-
lidity, ought, of course, to be preferred; or,
in other words, the Constitution ought to be
preferred to the statute, the intention of the
people to the intention of their agents.
Yet by the Dirksen amendment I think
we are.saying that Congress is supreme.
The Supreme Court in Reynolds against
Sims and Lucas against the 44th Gen-
eral Assembly of Colorado held that the
equal protection clause of the 14th
amendment guarantees to all citizens the
principle "one-man, one-vote." The
Dirksen amendment, by saying that
these decisions may not be enforced, at
least for a period of time, is overriding
the Supreme Court. I am certain that
all of us are familiar with the case of
Marbury against Madison, which sets
forth the principle of judicial review and
supremacy of the judicial branch as the
proper one to determine the constitu-
tionality of our laws. This proposal
comes dangerously close to violating that
principle by denying the courts the right
to execute their decisions.
In addition, not only would- the
Dirksen amendment violate the law of
the land, it would force others to do the
same. By forbidding the execution of
the law, it would be hampering the legal
process and force law-abiding citizens
to live under and vote for unconstitu-
tional governments. In other words, we
may be. enacting a law to force citizens
to live under unconstitutional govern-
ments, as it were.
There have been charges that law and
order will give way to chaos and uncer-
tainty if the State legislatures followed
the Court's decision and reapportioned ,
Immediately. But the effect of this
measure is far worse?it would validate
unconstitutional assemblies, and force,
by an act of Congress, the people of the
United States, in effect, to disobey and
Ignore the supreme law of the land.
'Another factor to consider is that a
dangerous precedent would be set by this
proposed amendment. The execution of
any reapportionment order cOuld be per-
manently stayed. The Dirksen amend-
ment could grant stays to January 1,
1966. But what would prevent Congress
from changing the year to January 1,
1976, or January 1, 1986? The time
limit of this proposal could be extended
indefinitely, permanently usurping the
power of the Supreme Court-to execute
Its proper functions. What guarantees
would there be that this proposal would
only be "temporary"? Temporary emer-
gency laws have an unusual habit of
taking on the character of permanence.
As I have previously intimated, even if
all sorts of guarantees were given that
? this measure will be a temporary one,
that it will not be extended beyond its
original duration, it will still set a dan-
gerods precedent. For while this amend-
ment is limited to granting stays only in
cases dealing with reapportionment, the
principle of the legislature interfering
with the functions of the judiciary would
have been set. The original purposes, in-
cluding the "special factors" which com-
pose the situation, may be forgotten in
the future.
What is to stop Congress from passing
other bills staying the execution of Court
orders in any field which any Member of
Congress finds repugnant? Reappor-
tionment is the issue, today. What is to
stop voter registration from being the
issue tomorrow, or the practice of certain
religions the issue next week? This
amendment would strip the courts of
their constitutional power and thereby
tend to undermine the .Constitution. It
would tend to reduce the judiciary to a
position of subservience to the legisla-
ture. It would render it a branch whose
pronouncements could only be executed
by the grace of Congress. Cases would
be decided, claims adjudicated, laws in-
terpreted, but no executions would be
allowed without the advice and consent
of Congress. Such a situation would
make a mockery of the Constitution as
the supreme law of the land. We would
have, in effect, a system whereby the
September 14
branch of government enacting a law,
would decide- the constitutionality and
the enforcement of the law, a system
which the framers of the Constitution
regarded as tyranny, and a complete ab-
dication of the rights of the people.
May I emphasize in closing that my
remarks today were not made in haste
nor with any intemperance or malice. I
have given long and serious thought to
the implications of the amendments as
I personally saw them. I would be remiss
were I to remain silent on the matter.
The issue is much too great and far too
significant for one who is deeply com-
mitted to our system of government.
The issue has far too many implications
for the future of American constitution-
alism to be ignored.
Reapportionment may be right or
wrong, but the role of the court and the
doctrine of the supremacy of the Con-
stitution can never be, should never be,
challenged.
Mr. DOUGLAS. Mr. President, will
the Senator from Hawaii yield?
Mr. INOUYE. I am glad to yield.
Mr. DOUGLAS. I congratulate the
Senator from Hawaii on his able argu-
ment. He has proved himself to be as
good a lawyer and authority on the Con-
stitution as he was a soldier.
The Senator from Hawaii?although
he is modest about this?has one of the
most distinguished war records in the
Nation. The battalion in which he
served, the 442d, had the finest record of
any unit in the American Armed Forces.
They had more men killed, more
wounded, , and more decorated than any
comparable unit.
The Senator from Hawaii was one of
the bravest and most skillful members of
that magnificent battalion. He has now
shown himself to be a scholarly constitu-
tional lawyer. The position he takes is,
In my judgment, completely sound.
The decisions of the Court were sub-
stantively correct. The Senator from
Hawaii has not gone into that subject,
but he has pitched his argument on the
ground that it would be really scandalous
were the legislature to insist that it in-
terpret the Constitution and put the Con-
stitution in the deep freeze, so to speak,
while it proceeded to act upon the mat-
ter, or while a constitutional amendment
was before the country.
I conclude as I began, in congratulat-
ing the Senator for his excellent argu-
ment.
Mr. INOUYE. I am most grateful for
the generous remarks of the Senator
from Illinois. I am-happy to be on his
team.
Mr. President, I suggest the absence of
a quorum:
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. DOUGLAS. Mr. President, I ask
unanimous consent that the order for
the quorum call may be rescinded.
The PRESIDING OFFICER. With- -
out objection, it is so ordered.
Mr. DOUGLAS. Mr. President, over
the weekend, two significant editorials
were published in two great American
newspapers.
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CONGRESSIONAL RECORD ? SENATE
The first one was Published in the St.
Louis Post Dispatch for Friday, Septem-
ber 11, and deals with what the St. Louis
Post Dispatch properly entitles "Attack
on the Court.",
It begins by stating:
Senator DIRKSEN'S ride/ against the Su-
preme Court has been stalled. Only 40 Sen-
ators voted to shut off debate on his plan
to restrict the Court's power to support leg-
islative apportionment, while 63 (including
Missouri Senators SYMINGTON and LONG)
voted against cloture.
Mr. President, it is significant that ?
while it would have required a two-thirds
vote to obtain a limitation of debate, we
had more than a two-thirds vote against
limitation of debate.
The editorial, however, correctly goes
on to state:
? Unfortunately, the rider to the foreign
aid bill is not dead. A motion to table it
Was defeated by 49 to 38.
Mr. President, parenthetically, let me
-say that there were 5 Members of the
Senate who were absent who would have
voted for tabling, so that the true
strength was about 43; that the motion
to table made by the Senator from Ver-
mont [Mr. AntEN1 came from a Senator
whom we all honor, but he was for the
Dirksen amendment and then voted
against his own motion to table in the
belief that by this unexpected move he
would throw the forces against the Dirk-
Sen amendment into confusion and that
the vote to table would be relatively
slight.
The fact that 38 stood fast and voted
for tabling was, I believe, most indica-
tive.
The editorial continues that "those
who are opposed to the plan are free to
go on talking against the Dirksen plan."
The editorial states further:
As the debate proceeds, the public should
become fully aware of the grave issues in-
volved. Senator DIRKSEN insists he is not
attacking the Supreme Court. He says the
issue is whether the Constitution empowers
the Court to say how State legislatures shall
be composed. What he means is that Con-
gress should decide the Court's power; but
the Constitution has already decided that.
I reaffirm the able argument which
has just been made on the floor. of the
Senate by the distinguished Senator
from Hawaii [Mr. INOUYE].
The St. Louis Post-Dispatch editorial
continues:
The Court was enforcing the Constitution
In holding that its equal-protection-of-the-
laws clause requires both houses of State leg-
islatures to be elected by popular vote.
Mr. President, can we have equal pro-
tection of the laws if people are unequal-
ly represented in the legislatures, and if
groups are grossly imderrepresented in
the legislatures which make the laws?
How can it be said that they will be given
the equal protection of the laws?
The St. Louis Post-Dispatch con-
tinues:
Senator DIRKSEN is ignoring the Constitu-
tion in proposing that Congress, by simple
legislation, tell the courts they cannot en-
force the equal voting rights principle for a
year and more.
It may well be much more than a year.
The St. Louis Post-Dispatch con-
tinues:
In that time the Senator hopes for passage
of a constitutional amendment to override
the Court decision permanently.
This is not the ,first attack on the Su-
preme Court, but it is one of the more seri-
ous. Only once in history has Congress ac-
tually restricted the Court by legislation. In
1868, during a struggle over Reconstruction,
Congress withdrew the Supreme Court's au-
thority to hear habeas corpus appeals from
lower. Federal courts. Even so, Congress did
not tell the High Court it could not hear
direct appeals on this great writ, and soon
a , more thoughtful legislature rescinded its
ruling. President Franklin D. Roosevelt tried
to pack the Court in 1937, when he was dis-
satisfied with decisions adverse to the New
Deal. He proposed that he be given power
to name an additional Justice, up to a total
of 15, for each one who failed to retire at the
age of 70. The Senate of those days was
properly outraged, and killed the plan.
As a result of the McCarthy period hyste-
ria, former Senator Jenner, .of Indiana, in
1957 tried to remove Supreme Court juris-
diction from cases involving contempt of
Congress, Federal loyalty actions and vari-
ous subversive activities. The Jenner pro-
posals were tabled and never even reached a
vote.
Now, for the first time, Congress is asked
to interpret the Constitution for itself, tak-
ing from the Court that responsibility which
the Constitution gives it. Could there be
any stronger attack on one branch of Gov-
ernment by another, or anY heavier assault
on judicial review and separation of pow-
ers?
The Dirksen forces have suffered a de-
served defeat, with a italemate as the re-
sult. Perhaps Senator HUMPHREY Will suc-
ceed with his effort to turn the Dirksen
command to the courts to advisory legisla-
tion only, though there is no great reason
for Congress to advise the courts to give
States time to comply with the Court de-
cision. The States will have to have time in
any case.
The colloquy which we had a few min-
utes ago with the Senator from NeW.
York [Mr. JAvzTs] indicates the reasons
why we are dissatisfied with the present
draft-of the Javits-McCarthy-Humphrey
amendment. It is not as bad as the
Dirksen-Mansfield amendment. But, in
its present form, it is dangerous. It
could bring psychological pressure to
bear on the legislatures and the courts to
slow up the process of carrying out the
constitutional requirement for substan-
tial equality of representation in the leg-
islatures. -
It might well be interpreted to induce
courts and State legislatures to freeze
the existing apportionment of member-
ship, pending. the ratification of a con-
stitutional amendment. It, in a sense,
psychologically commits Congress to
submit such a statement, becaus,e it car-
ries with it the phrase, "which shall have
been duly submitted by the Congress to
the States." It makes no provision that
any amendment thus submitted should
be passed upon by the people either by
direct referendum or by a constitutional
convention chosen specifically by the
people. But it would still permit the
rotten borough- malapportioned legisla-
tures to ratify such an amendment and
have it be legal.
As I indicated, there are many of us
who cannot accept the Javits-McCarthy-
Humphrey amendment in its present
form. We hope that the negotiations
which are now being, conducted for a re-
vision may be satisfactorily completed.
21383
The editorial concludes with this ring-
ing paragraph:
But when Senator DIRKSEN insists that he
is willing to fight for his cause until Christ-
mas or after, the champions of .the High
Court cannot depend on leaving their
trenches by Christmas. However long if
takes, however long the Senate must remain
in session, the authority of the Supreme
Court to uphold the Constitution must be
maintained. ?
My colleague from Illinois issued a
ringing statement last-week that he was
prepared tostay here until Christmas to
get his amendment passed.
Some of us are equally determined to
stay here until Christmas in order to pre-
vent the Dirksen-Mansfield amendment
from being passed. We believe .that we
are fighting on the side of the Constitu-
tion. We are very glad to have our posi-
tion supported by so great a newspaper
as the St. Louis Post-Dispatch. Mr.
President, I ask unanimous consent that
the editorial published in the St'. Louis
Post-Dispatch of September 11, 1964, en-
titled "Attack on the Court" be printed
In full at this point in the RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
[From the St. Louis (Mo.) Post-Dispatch,
Sept. 11, 19641
ATTACK ON THE COURT
Senator DIRILSEN'S ride against the Su-
preme Court has been stalled. Only 30 Sen-
ators voted to shut Off debate on his plan
to restrict court power over State legislature
apportionment, while 63 (including Missouri
Senators SYMINGTON and Loim) voted against
cloture.
Unfortunately, the rider to the foreign aid
bill is not dead. A motion to table it was
defeated by 49 to 38. So the situation is as
it was, with Senator DOUGLAS, of Illinois, and
his band free to go on talking against the
Dirksen plan. As the debate proceeds, the
public should become fully aware of the
grave issues involved.
Senator DIRKSEN insists he is not attacking
the Supreme Court. He says the issue is
whether the Constitution empowers the
Court to say how State' legislatures shall be
composed. What he means is that Congress
should decide the Court's power; but the
Constitution has already decided that.
It is true, as critics of the Court have said,
that the Constitution gives Congress some
control of appellate jurisdiction and of lower
courts. But the Constitution also creates
the Supreme Court, and gives to that Court
_full jurisdiction in all cases arising from the
Constitution.
The Court was enforcing the Constitution
in holding that its "equal protection of the
laws" clause requires both houses of State
legislatures to be elected by popular vote.
Senator DIRKSEN is ignoring the Constitution
in proposing that Congress, by simple legis-
lation, tell the courts they cannot enforce
the equal Voting rights principle for a year
and more. In that time the Senator hopes
for passage of a constitutional amendment
to override the Court decision permanently.
This is not the first attack on the Supreme
Court, but it is one of the more serious.
Only once in history has Congress actually
restricted the Court by legislation. In 1868,
during a struggle over Reconstruction, Con-
gress withdrew the Supreme Court's author-
ity to hear habeas corpus appeals from lower
Federal courts. Even so, Congress did not
tell the High Court it could not hear direct
appeals on this great writ, and soon a more
thoughtful legislature rescinded its ruling.
President Franklin D. Roosevelt tried to
"pack" the Court in 1937, when he was dis-
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21384 CONGRESSIONAL RECORD ? SENATE September. .14
satisfied with decisions adverse to the New
Deal. He proposed that he be given power
to name an additional Justice, up to a total
of 15, for each one who failed to retire at
the age of 70. The Senate of those days was
properly outraged, and killed the plan.
As a result of the McCarthy period of hys-
teria, former Senator Jenner of Indiana in
1957 tried to remove Supreme Court jurisdic-
tion from cases involving contempt of Con-
gress, Federal loyalty actions and various sub-
versive activity. The Jenner proposals were
tabled and never even reached a vote.
Now, for the first time, Congress is asked
to interpret the Constitution for itself, taking
from the Court that responsibility which the
Constitution gives it. Could there be any
stronger Attack on one branch of Govern-
ment by another, or any heavier assault on
judicial review and separation of powers?
The Dirksen forces have.suffered a deserved
defeat, With a stalemate as the result. Per-
haps Senator EVOMPHREY will succeed with
his effort to turn the Dirksen command to
the courts to advisory legislation only,
though there is no great reason for Congress
to advise the courts to give States time to
? comply with the Court decision. The States
will have to have time in any case.
But when Senator DIRKSRN insists that he
is willing to fight for his cause until Christ-
mas or after, the champions of the _High
? Court cannot depend on leaving their
trenches by Christmas. However long it
takes, however long the Senate must remain
in session, the authority of the Supreme
_Court to uphold the Constitution must be
maintained.
Mr. DOUGLAS. Mr. President, this
morning, the Washington Post published
another very able editorial under the title
"Shadow of a Shadow." I suppose this
Is drawn from the passage in Richard II,
when Richard II, who had been de-
throned, looked in the mirror and it was
said that the shadow of his shadow had
displaced the reflection of his face.
The editorial states:
The best that can possibly be said in favor
of the administration-sponsored compromise
of the Dirksen apportionment rider is that it
might help to break a Senate deadlock and
that it would do serious damage, really, only
to the good name of the Congresa.
As one who is very jealous of the good
name of Congress, I do not wish to con-
tribute gratuitously to its further den-
igration.
Mr. McCARTHY. Mr. President, will
the Senator yield?
Mr. DOUGLAS. I yield.
Mr. McCARTHY. I suppose the next
step would be that we might pass a re-
solution giving advice to the Senate as to
what it should do.
Mr. DOUGLAS. That would be equal-
ly appropriate or incongruous. The ar-
ticle goes on to say:
But it is essentially a silly solution, in-
sulting to the Supreme Court and pointless
even from the point of view of its supporters;
and while it is, to be sure, not nearly so
dangerous or offensive as the. Dirksen rider
itself, it would still trench damagingly on
the constitutional separation of powers.
I am very glad that the junior Senator
,from Minnesota [Mr. MCCARTHY] has
just made the statement which he did.
I take it that he, in a sense, is detaching
? himself from the amendment, and pub-
licly assented to it only in the sense of
harmony and unity.
The editorial goes on to say:
The compromise, introduced by Senators
JAvrrs and MCCARTHY, with an apparent as-
sent from the White House, would express
the "sense of Congress" that "adequata time"
be afforded to the States "to conform to the
requirements of the Constitution." It would
also add a more objectionable provision de-
claring It to be the sense of Congress that',
the States be given adequate time to consider
any proposed constitutional amendment re-
lating to the composition of "state legisla-
tures.
The editorial then goes on to say fur-
ther:
Some of the Senators who have so ably
and sensibly led the fight against the Dirk-
sen rider have now proposed a modification
of the administration compromise. They
would limit it to a reiteration of the Su-
preme Court's own language allowing flex-
ibility and patience in implementation of
the apportionment decision.
I do not know where the Washington
Post editors got the information, but
they are apparently mind readers. They
have stated the general purpose of our
efforts fairly accurately. The editorial
continues:
There can be no objection to this propo-
sal except that it is-an exercise in futility;
it amounts to the shadow of a shadow of the
Dirksen rider.
It May be remembered that Abraham
Lincoln once referred to a promise as
being about as substantial as soup made
from the shadow of a crow which had
starved to death.
The editorial concludes:
It would be better to avoid casting even
this shadow of a shadow on the independ-
ence of the judiciary. But perhaps it is
justified as the price of getting this mis-
chievous matter settled. And it has the vir-
tue of a reductio ad absurdum.
Mr. President, I ask unanimous con-
sent that the editorial published in the
Washington Post of September 14, 1964,
entitled "Shadow of a Shadow," be
printed at this point in the RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
[From the Washington (D.C.) Post, Sept.
14, 1964]
SHADOW OF A SHADOW
The best that can possibly be said In favor
of the administration-sponsored compromise
of the Dirksen apportionment rider is that
it might help to break a Senate deadlock
and that it would do serious damage, really,
only to the good name of the Congress. But
It is essentially a silly solution, insulting to
the Supreme Court and pointless even from
the point of view of its supporters; and while
it is, to be sure, not nearly so dangerous
or offensive as the Dirksen rider itself, it
would still trench damagingly on the con-
stitutional separation of powers.
The compromise, introduced by Senators
JAvrrs and MCCARTHY, with an apparent as-
sent from the White House, would express
the sense of Congress that adequate time
be afforded to the States to cOnform to the
requirements of- the Constitution. It would
also add a more objectionable provision de-
claring it to be the sense of Congress that
the States be given adequate time to con-
sider any proposed constitutional amend-
ment relating to the composition of State
legislatures.
The first provision serves no purpose what-
ever. The Supreme Court itself said plainly
that "With respect to the timing of relief,"
an inferior court "can reasonably endeavor
to avoid a disruption of the election process
which might result from requiring precipi-
tate changes that could make unreasonable
or embarrassing demands on a State in ad-
justing to the requirements of the court's
decree." The second provision amounts to
nothing less than a demand that U.S. courts
suspend application of the equal protection
clause of the Constitution until Congress
finds time to subvert it altogether.
Some of the Senators who have so ably
and sensibly led the fight against the Dirk-
sen rider have now proposed a modification
of the administration compromise. They
would limit it to a reiteration of the Supreme
Court's own language allowing flexibility and
patience in implementation of the appor-
tionment decision. There can be no objec-
tion to this proposal except that it is an
exercise in futility; it amounts to the shadow
of a shadow of the Dirksen rider. It would
be better to avoid casting even this shadow
of a shadow on the independence of the
judiciary. But perhaps it is justified as the
price of getting this mischievous matter set-
tled. And it has the virtue of a reductio ad
absurdum.
Mr. DOUGLAS. Mr. President, I join
the Senator from Minnesota [Mr. Mc-
CARTHY] in feeling that if we can defend
the courts, I am willing to pay the price
of appearing somewhat ridiculous.
Mr. McCARTHY. Mr. President, will
the Senator yield?
Mr. DOUGLAS. I yield.
Mr. McCARTHY. Mr. President, I
would have to differ with the position
expressed by the Senator from Illinois.
I do not believe that what we propose
in the amendment to which he referred
is quite as absurd as that which was pro-
posed in the Dirksen-Mansfield amend-
ment.
Mr. DOUGLAS. No. That is correct.
Mr. McCARTHY. We have really
backed away a little from the ultimate.
Mr. DOUGLAS. We have reduced the
absurdity.
Mr. McCARTHY. That is correct. As
I said when I spoke previously, the Dirk-
sen-Mansfield proposal, if it had any
authority in it, immediately moved into
the area of the unconstitutional. If it
had no authority, it was nothing more
than a piece of advice or recommenda-
tion to the Court. So at least we were
honest in our amendment in doing noth-
ing other than to offer advice to the
Court; and I would say that that is a
less absurd action than it would be if
we were to proceed on the assumption
that we had authority in a field in which
we have no authority. I suggest that
this often happens with regard to the
Washington Post. I often find myself
in agreement with its conclusions and its
recommendations, but sometimes we do
well not to read too carefully its justi-
fication for Its position. .
Mr. DOUGLAS. lam glad to find that
the Senator from Minnesota seems to be
in rough general accord with some of
the criticisms which some of us have
advanced.
Mr. McCARTHY. As I have said to
the Senator, I would prefer to have no
amendment or resolution.
. Mr. DOUGLAS. So would I. _
? Mr. MCCARTHY. I would leave the
Court free..to act.
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196A
Mr. DOUGLAS. So would I. I hope
that the legislative record will be made
clear that the current proposal is not a
substantive one.
Mr. McCARTHY. The Senator from
Illinois and I have discussed the subject
before. There are certain areas of con-
fusion because we have let the executive
branch of the Government "legislate" in
some areas in which I think we ought to
act; and we have put too great a burden
of the executive responsibility on the
Court in a number of critical areas, in-
cluding civil rights, and now in the area
of reapportionment. If we moved each
area of responsibility one step to the
right, Congress might be left with noth-
ing but a kind of unofficial judicial re-
view as its clear responsibility.
Mr. DOUGLAS. But that has been
because of the failure of the Congress
and of the various State legislatures to
act.
Mr. McCARTHY. In most cases.
Mr. DOUGLAS. In slang parlance,
we have "asked for it."
Mr. McCARTHY.' In most cases it is
the result of our failure to act when we
should have acted. '
Mr. JAVITS. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFioiCER. Without
objection, it is so ordered.
Mr. McCARTHY. Mr. President, the
question of reapportionment is an issue
in my State of Minnesota, as it is in many
other States.
The Minnesota State constitution pro-
vides that both houses, the senate and
the house of representatives, shall be ap-
portioned equally in proportion to the
population, but this provision has not
been followed in any strict way.
I requested the attorney general's office
In Minnesota to provide me with a brief
summary of the judicial action which has
taken place over the years in regard to
this provision of our State constitution.
I ask unanimous consent that the re-
view may be printed at this point in the
RECORD.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
The judicial construction has been as fol-
lows:
In State ex rel. Meighen V. Weatherill
(1914), 125 Minn. 336, 147 NW. 105, an attack
was made on the reapportionment act of
1913, claiming that it was in violation of the
above constitutional provisions. The Min-
nesota, court stated that the legislature is
vested with wide discretion in forming legis-
lative districts and the courts will,not inter-
fere except when there has been a clear and
arbitrary departure from the requirement of
equality. The court did state that there was
a constitutional mandate imposing a duty of
reapportionment upon the legislature and
that duty continues beyond the legislative
session after the decennial census if the
legislature had not complied.
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CONGRESSIONAL RECORD ? SENATE
In Smith v. Holm (1945), 220 Minn. 486,
19 N.W. 2d 911, another legal attack was
made upon the reapportionment act of 1913.
The Minnesota court adhered to the rule in
the Weatherill case, supra, and character-
ized the law as follows:
"In short, if the legislature exercises its
judgment and discretion in enacting an ap-
portionment law, the result is not vulnerable
to attack in the courts."
The court went on further to say that if a
reapportionment act was valid when en-
acted, it may not be held unconstitutional by
reason of subsequent changes in the relative
population of the districts, and that it con-
tinues in force until superseded by a valid
act.
In 1958, an action was initiated in the
Federal court, Magraw v. Donovan (1958),
163 Fed. Supp. 184, similes to that now pend-
ing. The plaintiffs argued that unequal rep-
resentation deprived them of the right guar-
anteed by the 14th amendment to the U.S.
Constitution and that the reapportionment
act of 1913 was unconstitutional in 1958.
The three judge Federal court in Magraw
v. Donovan (March 21, 1958), 159 Fed. Supp.
901, held that the action was within the
jurisdiction of the Federal court. It should
be noted that initially the defendants were
secretary of state and the county auditors
of St. Louis, Hennepin, Ramsey, and Olmsted
Counties, but that subsequently the county
auditors of Houston, Grant, and Ottertail
intervened. The latter counties were over-
represented on a population basis in the State
legislature.
In Magraw v. Donovan (July 10, 1958), 163
Fed. Supp. 184, the Federal court made a
determination that there was substantial
inequality in the cornposition of the Min-
nesota legislative districts. The court
pointed out in the Minnesota case of Smith
v. Holm no question of the equal protection
clause under the 14th amendment was pre-
sented or considered. The court stated:
"" * it is the unmistakable duty of the
State legislature to reapportion itself peri-
odically in accordance with recent population
changes. * * It is not to be presumed that
the legislature will refuse to take such action
as is necessary to comply with its duty under
the State constitution."
The court retained jurisdiction with the
provision that following the adjournment of
the 1959 session of the Minnesota Legislature
the parties could petition the court for such
action as they may deem appropriate. The
Minnesota Legislature did reapportion in
1959, effective January 1, 1962. Subsequently
the plaintiffs moved for an order to dismiss
the action without prejudice and the Fed-
eral court permitted this in Magraw v. Dono-
van (October 26, 1959), 177 Fed. Supp. 803,
over the objection of the intervening de-
fendants.
Mr. McCARTHY. Mr. President, the
present range of population in Minne-
sota legislative districts cover's extensive
differences. If the population of the
State is divided by the 67 senatoOal dis-
tricts, the average would be 50,953. The
largest district at the present time has
a population of 100,000, or nearly twice
the proportionate number. The smallest
senatorial district has a population of
24,587, roughly one-half what it would
be if the average were applied.
The population of the State divided
by 135 house districts would average out
to 25,288. The largest house district has
56,000, which is roughly twice the size
of what it would be if proportionate rep-
resentation had been achieved. The
smallest is only 8,343. It is the result
21385
of reapportionment which took place fol-
lowing the census of 1960.
Mr. DOUGLAS. Mr. President, will the
Senator yield for a question?
Mr. McCARTHY. I yield.
Mr. DOUGLAS. This followed the
census of 1960?
Mr. McCARTHY. Yes; this was the
most recent reapportionment.
Mr. DOUGLAS. This was "reform"
reapportionment?
Mr. McCARTHY. Following the cen-
sus of 1960.
Mr. DOUGLAS. I use the word "re-
form" in quotation matks.
Mr. McCARTHY. I understand the
implication.
Mr. DOUGLAS: And is not the State
grossly malapportioned? The cities of
Minneapolis, St. Paul, and Duluth are
grcissly underrepresented in relation to
other districts. Is that not correct?
Mr. McCARTHY. That is true. I
would have to state that, from the view-
point of being advantageous to Demo-
crats or Republicans, strict reapportion-
ment would be somewhat disadvanta-
geous to the Democrats; but we are acting
on principle.
Mr. DOUGLAS. That is correct as to
Illinois also, since reapportionment is not
going to help the Democrats. In fact, the
suburbs are considerably more under-
represented than are the cities, and the
suburbs tend to be Republican:-
Mr. McCARTHY. And the rural dis-
tricts are liberal in my State. So in this
case we are doing what we think is best
for the State of Minnesota.
Mr. DOUGLAS. The Senator is an
authority on the Bible, and he is, there-
fore, familiar with the Biblical quotation:
He that sweareth to his own hurt, and
changeth not.
Mr. McCARTHY. I hope we receive
credit not only for using Biblical quota-
tions, but also for the action we have
taken.
It is estimated that, theoretically, 40.1
percent of the population could control
the senate and 34.5 percent could con-
trol the house in the Minnesota Legisla-
ture.
Following the decision of the U.S. Su-
preme Court in Reynolds against Sims,
a case was filed in the U.S. district court
? in the district of Minnesota, entitled
"Honsey, et al., Against Joseph Donovan,
Secretary of State, et al.," asking for re-
apportionment of the Minnesota legisla-
tive districts.
The attorney general of the State of
Minnesota and other officials have filed
an answer to the plaintiffs' complaint.
This matter is now pending before the
U.S. district court.
It is possible that the court could ren-
der its decision any day, and it is pos-
sible that the court decision would en-
join the November 3 election for the
Minnesota House of Representatives, or
In the alternative, order the election of
the representatives from the various dis-
tricts to be an at-large election. But I
am confident that the court will not take
such action and that the election will
proceed on November 3 under State law.
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21386 CONGRESSIONAL RECORD ? SENATE
The disproportionate representation of
our State is rather obvious and clear. I
hope that through either the case which
is pending in tlie district court of Min-
nesota or other action reapportionment
may come about in Minnesota.
In any event, I believe it is to be a very
serious matter for Congress to attempt to
interfere with the decisions which have
been made by the court, or in any posi-
tive way to try to obstruct the actions
which might follow from what we now
call the historic decisions, altfiough they
have been late in coming.
ADJOURNMENT
Mr. -McCARTHY. Mr. President, if
there is no further business to come be-
fore the Senate, I move that the Senate
adjourn until 12 o'clock noon tomorrow.
The motion was agreed to and (at 4
o'clock and 44 minutes p.m) the Senate
adjourned until tomorrow, September 15,
1964, at 12 o'clock meridian.
NOMINATIONS
Executive nominations received by the
Senate September 14, 1964:
POSTMASTERS
The following-named persons to be post-
masters:
CALIFORNIA
Robert B. Ross, Orinda, Calif., in place of
L. G. Mallary, retired..
Salvatore J. Montalbano, St. Mary's Col-
lege, Calif., in place of J. J. Shanahan, retired.
FLORIDA
Harry R. Collier, Deerfield Beach, Fla., in
place of E. V. Morrow, deceased.
MARYLAND
Ralph H. Barrett, Bladensburg. Md., in
place of C. H. Brown, deceased.
Evelyn E. Lednum, Tilghman, Md., in place
of B. V. Sinclair, retired.
MISSISSIPPI
Mamie L. Holland, Glendor, Miss., in place
of M. B. Lowe, retired.
,
September .1.4;1964
MISSOURI
Catherine J. Sinnott, Wayland, Mo., in place
of T. H. Sinnott, deceased.
NEBRASKA
Dorothy M. Turner, Firth, Nebr., in place
of Delmer Vandewege, transferred.
NEW JERSEY
Leonard F. Errico, Stockton. N.J., in place
of W. J. Ledger, retired.
NEW YORK
Jerome P. Meyer, Corfu, N.Y., In place of
Celestine Reynolds, retired.
SOUTH DAKOTA
Jennie M. Swartz, Baltic, S. Dak., In place
of C. R. Dregseth, retired.
TEXAS
Annie M. Whittiey, Barksdale, Tex., in
place of Lillie Perkins, retired.
Austin Skinner, Ferris, Tex., in place of A.
T. McCarson, transferred.
MONTANA
Lawrence A. Wendel, Helena, Mont., in
place of H. K. Potter, deceased. - ?
1
Declassified and Approved For Release 2014/02/21: CIA-RDP66B00403R000300070025-6