AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961-CLOTURE MOTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300080004-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 23, 2016
• Document Release Date: May 20, 2014
• Sequence Number: 4
• Publication Date: September 8, 1964
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080004-8
. 21040 CONGRESSIONAL RECORD ? SENATE September 8
The PRESIDING OFFICER. The
Senator is correct.
Mr. RANDOLPH. Mr. President, I
yield to the Senator from Ohio [Mr.
YOUNG], with the understanding that I
do not lose my right to the floor.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. RANDOLPH. Mr. President, I
ask unanimous consent that the rule of
germaneness be waived for the re-
mainder of the day.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
Mr. RANDOLPH. Mr. President, I
shall discuss the Appalachian regional
development bill later in the afternoon;
but it is my desire now to accommodate
Senators who wish to discuss subjects
not pertinent to that measure.
Mr. METCALF. Mr. President, will
the Senator yield?
Mr. RANDOLPH. I yield to the Sen-
ator from Montana.
Mr. METCALF. I wish to speak briefly
on reapportionment problem. Will the
Senator from West Virginia yield to me
after the Senator from Ohio has com-
pleted his remarks?
Mr. RANDOLPH. I shall yield first to
the Senator from Ohio, and imme
afterward to the Senator from
itan areas?had no alternative but to ap-
peal to the Federal courts once their pe-
titions were rejected by their State
courts.
The Supreme Court ruling was, quite
simply, a ruling in favor of fair represen-
tation for all citizens. The pending
amendments is, by admission of its chief
sponsor, in reality an attempt to gain
time so that a constitutional amendment
can be adopted which would strip the
Supreme Court of its power to rule on
apportionment cases. This legislative
proposal is no postponement of the is-
sue; it is no breather to give State legis-
latures time to reapportion themselves.
In effect, it will allow evil to perpetuate
itself. It will permit present State leg-
islatures, many of which are comprised
of representatives from counties having
only a fraction of the population of other
counties, to have the same total repre-
sentation in the State legislature, and
the opportunity to prevent reapportion-
ment for decades to come. Never before
was the adage "Justice delayed is jus-
tice denied" as appropriate to the cir-
cumstances.
Not only will this affect the composi-
tion of our State legislatures but also of
our Federal Government. The legisla-
re of each State draws the boundaries
or congressional districts. Under the
status quo, rural-dominated legislatures
have to a great extent so gerrymandered
their States that citizens living in cities
and their suburbs do not have fair repre-
sentation in the House of Representatives
of the U.S. Congress. The proposal is
nothing more than a blatant attempt to
stop the clock of progress and to per-
petuate a system whereby millions of our
citizens do not receive fair representation
in the legislative bodies of this Nation.
-There are numerous examples of some
State legislatures sitting for 50 years or
more without so much as acknowledging
the requirement of their own State con-
stitutions regarding apportionment. I
am glad to say that in my State of Ohio
the situation is not so desperate. How-
ever, even in Ohio there is a need for re-
form. The Ohio constitution grants at
least one representative in the State
house of representatives for each of the
88 counties. This is because of the so-
called Hanna amendment. It was
adopted under the leadership of Marcus
Alonzo Hanna, who Was then the boss of
the Republican Party in Ohio and was
ambitious to become a Senator of the
United States at a time when the legis-
latures of the various States elected
U.S. Senators. Following the adoption
of the Hanna amendment, under which
each of the 88 counties had at least 1
representative in the State legislature,
Hanna was in fact chosen by the Legis-
lature of Ohio and represented my State
as a Senator of the United States. That
was a good many years ago.
Vinton County, one of Ohio's 88 coun-
ties, has a population of 10,274.
Cuyahoga County, in which I live, has a
population of more than 1,6 0 0 ,00 0 .
Cuyahoga County has 17 members of the
House of Representatives of the General
Assembly of Ohio, and Vinton County,
having a population of 10,274, has 1.
My vote in Cuyahoga County is worth a
AMENDMENT OF FOREIGN
ANCE ACT OF 1961?CLOTURE
MOTION
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. YOUNG of Ohio. Mr. President,
the .pending amendment regarding the
Supreme Court reapportionment deci-
sions is one of the most important and
far-reaching legislative proposals ever to
come before the Senate. How we act
upon it will shape the governments of
all our States, the Federal Government
and the lives of all Americans for gener-
ations to come. It is unfortunate that a
legislative proposal of such great signif-
icance should be hurriedly debated and
given half-hearted consideration.
The Senate debated the recently en-
acted civil rights bill for more than 100
days. The bill before us is also a civil
rights bill, for it affects the voting rights
of well over half of the citizens of our
Nation. Stripped of all its verbiage,
the amendment comes down to the essen-
tial question of whether we are willing
to recognize the concept of "one man,
one vote" in our democracy. It is fool-
hardy to try to resolve this issue hur-
riedly and without careful deliberation
during the closing days of the Congress
in the charged atmosphere of an election
year campaign.
It is, perhaps, regrettable that the Fed-
eral Courts had to intervene in this mat-
ter. However, the States asked for it.
They have had years to take some cor-
rective action but, in most instances,
have done nothing. In fact, by doing
nothing, many States violated their own
constitutions. The people who are being
deprived of fair representation?for the
most part Americans living in metropol-
very small fraction of the vote of a resi-
dent of Vinton County, when it comes to
the selection of a member of the House of
Representatives of the General Assembly
of Ohio.
Lake County, which adjoins Cuyahoga
County to the east, has a population of
148,000. Also adjoining both Cuyahoga
and Lake Counties is Geauga County.
The difference is not quite so bad there;
but Geauga County, with a population of
48,000, has one representative in the
General Assembly of Ohio. The same
sort of people, having the same interests,
live in Cuyahoga, Lake, and Geauga
Counties. Yet Lake County, with a popu-
lation of 150,000 compared with its
neighboring county of Geauga, with 48,-
000, has but one representative in the
general assembly.
The 68 less densely populated counties
of Ohio, with a population of 2,760,000,
have 68 representatives in the House of
Representatives of the Ohio Legislature.
The remaining 20 more heavily populated
counties of my State having a total popu-
lation of 6,946,000, have only 66 repre-
sentatives in the legislature. The result
is that 28.4 percent of Ohio's population
has 50.7 percent of the seats in the house.
Regarding the State senate, I am glad
to note, that the situation in Ohio is not
so bad. There, it would require only a
minority of 44.8 percent to elect a
majority.
In addition, the amendment represents
a wrong of even greater magnitude. It is
also an attempt on the part of some per-
sons to discredit and weaken the Su-
preme Court of the United States be-
cause those citizens disagree with many
of the important decisions handed down
by that great Court, of which we all have
good reason to be proud.
The proposal strikes at the heart of
the Federal system of checks and bal-
ances. It strikes at the very heart of
our democracy. It seems to me uncon-
scionable for Congress to allow itself to
be used for such purposes. I strongly
urge that this legislative proposal be
tabled or laid aside until it can receive
the consideration due it by what has
been termed the greatest deliberative
body in the world.
I firmly believe that votes should be
cast by persons on an equal basis. As
one born and reared in a rural county?
I was born in Puckerbrush Township in
Huron County, Ohio, a county not far
distant?perhaps 50 miles?from Cuya-
hoga County, where I now live. Huron
County is strictly a rural county with a
population of approximately 47,000.
I know from living in a rural area of
Ohio, and from having lived in urban
areas of my State, that citizens of our
cities will not act unjustly, capriciously,
or vengefully in legislative matters.
Equal representation for all citizens
without discrimination cannot be dan-
gerous, despite the view of those who are
opposed to this, including my opponent
in Ohio for election as a Senator, come
November.
On what basis, for example, does he
regard citizens of Franklin County or
Cuyahoga County, or of his own Ham-
ilton County?which contains the very
fine and beautiful city of Cincinnati?
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1964 c CONGRESSIONAL RECORD ? SENATE 21041
to be intellectually or morally inferior
to citizens of Union or Vinton Counties?
I ask unanimous consent to have an
editorial printed in the RECORD which
was published in the Cleveland Press
on Saturday, August 15, 1964, entitled
"Taft Knows Better"; also an editorial
published in the Toledo Blade of August
22, entitled "Unjustified Means"; and an
editorial published in the Akron Beacon
Journal of August 5, entitled, "Stopping
the Clock." These three newspapers,
the Cleveland Press, the Toledo Blade,
and the Akron Beacon Journal, are re-
garded by knowledgeable people through-
out the United States as among the
greatest and the most respected news-
papers in the Nation.
There being no objection, the editorials
were ordered to be printed in the RECORD,
as follows:
[From the Clevelafid Press, Aug. 15, 19641 ?
TAFT Knows BETTER
Congressman ROBERT TArr, a big-city Re-
publican (Cincinnati), can't be allowed to
go unchallenged on his statements Thursday
regarding Ohio apportionment.
TAFT denied that Ohio's Legislature was
dominated by rural elements. He said he
knew because he had served there for 6 years.
How could the Congressman have served
for that long and not know:
That 28.4 percent of Ohio's population has
50.7 percent (a majority) of the regular
house seats in Columbus? Or, to put it an-
other way?
That the 68 smallest counties, population
2,760,608, have 68 regular representatives?
while the 20 largest counties, population
6,945,789, have only 66 seats? ..And alscr?
That the seven largest counties have 51.8
percent of Ohio's population and only 35.8
percent of the regular house seats?
The two most powerful figures in the legis-
lature?Representative Roger Cloud and
Senator Stanley Mechem?stride from the
cornfields into the capitol. And their con-
trol over lawmakers could hardly be more
complete.
TAFT was testifying for a constitutional
amendment which would stymie reapportion-
ment of Ohio's house, ordered by the U.S.
Supreme Court.
In supporting this amendment, Congress-
man TAFT said he feared the rural counties of
southern Ohio would be underrepresented
if population were the sole consideration for
legislative seats.
What does TAFT think of the plight of un-
derrepresented city dwellers in Cuyahoga and
Lake Counties, to name only a couple?
Would he rather represent wornout coal
mines and pine trees or people?
[From the Toledo (Ohio) Blade, Aug. 22,
1964]
UNJUSTIFIED MEANS
As the Senate continued to wrestle over
Senator EVERETT DIRKSEN'S effort to postpone
application of the Supreme Court's State re-
apportionment rulings, some commentators
began to look beyond his tactics to find merit
in his goal.
Columnist Walter Lippmann, for instance,
declared in last Tuesday's Blade that there
is a great deal to be said in favor of taking
a breather in the reapportionment battles.
In brief, his argument was: So drastic a
change in our political structure as the re-
alinement of representative power is a proper
subject for deliberation and debate. Con-
gress and the people should be brought into
the decision through, say, a proposed con-
stitutional amendment to modify the rules
laid down by the Court.
Consequently, Mr. Lippmann found these
advantages in delay of such overriding im-
portance as to excuse Senator DIRKSEN'S
technique, which the columnist conceded is
"a bit awkward and rather inconvenient."
We, too, can see the value in carefully
weighing the full potential impact of the
Court's mandate, especially the order that
both houses of a legislature should represent
population to the exclusion of all other in-
terests and factors.
This is why we have expressed the hope
that lower courts would allow time for study
of all the problems involved in each State's
specific situation. And this is why we have
granted the need in some States to take ac-
count of geographic peculiarities or unusual
population concentrations, even while allo-
cating seats within the general one-man-
one-vote framework.
Yet, just because of this concern, we think
the question raised by Senator DIRKSEN'S
strategy is not whether it is justified by the
need for caution, but whether it really serves
that goal.
Is attention properly focused on the prob-
lems of reapportionment by attaching the
delay proposal as a rider to a bill as irrelevant
as the foreign aid authorization? Is full-
scale deliberation encouraged by throwing
a last-minute "monkey wrench" into the
legislative works?
Experience with this kind of tactic?and
It is a familiar one in legislative halls?
compels -a negative answer to both questions.
The result of such maneuvers, in fact, is
usually just the opposite of calm, reasoned,
wise action.
It is for that very reason that the device
is most often used to block rather than to
promote constructive movement. And that
is why Senator DIRKSEN'S aim seems to be
protection of vested political interests rather
than correction of the imbalance of power
in legislative chambers.
[From the Akron Beacon Journal,
Aug. 5, 1964[
STOPPING THE CLOCK
Amending the Constitution of the United
States is not something which can be done
overnight?or even within a year.
The usual process involves a favorable
two-thirds vote by each House of Congress
and then ratification by the legislatures of
three-fourths (38) of the States. Since
many legislatures meet only once in 2 years
and all but one have two houses, ratifica-
tion is a time-consuming process. Even in
the case of a noncontroversial amendment,
it usually takes 3 or 4 or more years.
It is understandable, therefore, that Rep-
resentative WILLIAM M. MCCULLOCH, of Ohio,
is afraid that his proposed amendment nul-
lifying the Supreme Court's "one person, one
vote" decision will be too late?if, indeed, it
ever should be adopted.
McCm.Locn and others in Congress want
to write into the Constitution a provision
that only one house in a State legislature
must be apportioned on a population basis.
This would mean that the other house, in
the words of Chief Justice Warren, could
represent trees, or cows, or acres.
Federal courts are already hewing to the
new precedent set by the Supreme Court and,
in some States legislatures are moving to
correct the imbalance without waiting for
court orders.
Fearful that the reform in representation
may soon be accomplished, Representative
McCuixocn has introduced an interim res-
olution which would abolish, for a period
of 7 years, the power of either State or
courts to decree the reapportionment of one
house of a State legislature.
In a parallel move, Senator DIRKSEN yes-
terday pushed through the Senate Judiciary
Committee a bill to halt Court orders for re-
apportionment until, in each case, a State
legislature has held two regular sessions.
In other words, this would give 2 to 4 years
for legislatures to act on the proposed con-
stitutional amendment, while keeping the
present apportionment in status quo.
It seems to us highly questionable whether
the constitutional interpretations of the Su-
preme Court can be nullified or delayed by a
mere act of Congress.
To be sure, the Constitution may be
amended, but can Congress overrule the
Court while the amendment process goes on?
McCuLLocn's resolution, which goes fur-
ther than DIRxsEN's bill, would even tell the
State legislatures that they couldn't proceed
with reapportionment.
Isn't that a direct contradiction of all that
he and other States righters have been
screaming about? They say they don't want
any interference with the right of the States
to set up their legislative apportionment in
their own way, And now McCuLLocn would
have Congress tell them they can't give fair
representation.
The U.S. Supreme Court ruled on this sub-
ject only after it became apparent that citi-
zens had no other recourse against legisla-
tures which neglected or refused to appor-
tion representation on a fair basis.
Under prodding, many of the legislatures,
including Ohio's, are now facing their re-
sponsibilities.
Is the clock now to be turned back, so that
all the inequities of unequal representation
can be perpetuated? That's the purpose of
DIRKSEN'S and McCtru.ocn's last-ditch fight
to keep the status quo.
Mr. YOUNG of Ohio. Mr. President,
the editorial in the Cleveland Press,
which is a Scripps-Howard newspaper,
the first of that great chain of news-
papers, with a circulation of more than
350,000 states:
Congressman ROBERT TAFT a big-city Re-
publican (Cincinnati), cannot be allowed
to go unchallenged on his statements Thurs-
day regarding Ohio apportionment.
TAFT denied that Ohio's Legislature was
dominated by rural elements. He said he
knew because he had served there for 6 years.
How could the Congressman have served
for that long and not know: That 28.4 per-
cent of Ohio's population has 50.7 percent
(a majority) of the regular house seats in
Columbus? Or, to put it another way?
That the 68 smallest counties, population
2,760,608, has 68 regular representatives?
while the 20 largest counties, population
6,945,789, have only 66 seats? And also?
That the seven largest counties has 51.8
percent of Ohio's population and only 35.8
percent of the regular house seats?
The editorial continues, explaining
that:
TAFT was testifying for a constitutional
amendment which would stymie reappor-
tionment of Ohio's House, ordered by the
U.S. Supreme Court.
In supporting this amendment, Congress-
man TAFT said he feared the rural counties
of southern Ohio would be underrepre-
sented if population were the sole consid-
eration for legislative seats.
What does TAFT think of the plight of
underrepresented city dwellers in Cuyahoga
and Lake Counties, to name only a couple?
_ Would be rather represent wornout coal
mines and pine trees or people?
The Toledo Blade, which is one of the
great newspapers of this country, stated:
As the Senate continued to wrestle over
Senator EVERETT DIRKSEN'S effort to postpone
application of the Supreme Court's State re-
apportionment rulings, some commentators
began to look beyond his tactics to find merit
in his goal.
Columnist Walter Lippmann, for instance,
declared in last Tuesday's Blade that there
is a great deal to be said in favor of taking
a breather in the reapportionment battles.
In brief, his argument was: So drastic a
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21042 CONGRESSIONAL \RECORD ? SENATE Septeirtbef 8
change in our political structure as the re-
alinement of representative power is a proper
subject for deliberation and debate. * ? ?
Consequently, Mr. Lippmann, who is
certainly one of the most respected
columnists in this country?
found these advantages in delay of such
overriding importance as to excuse Senator
DIRKSEN'S technique, which the columnist
conceded is "a bit awkward and rather in-
convenient." '
We, too, can see the value in carefully
weighing the full potential impact of the
Court's mandate, especially the order that
both houses of a legislature should repre-
sent population to the exclusion of all oth-
er interests and factors.
This is why we have expressed the hope
that lower courts would allow time for study
of all the problems involved in each State's
specific situation. And this is why we have
granted the need in some States to take ac-
count of geographic peculiarities or unusual
population concentrations, even while allo-
cating seats within the general one-man-
one-vote framework.
That is a perfectly logical statement.
The situation in some States?Alaska,
for example?might be unique. Un-
doubtedly the situation is different in
that new State. Perhaps there is good
reason to have every section represented.
However, it might be a reason that would
not apply to a State such as Ohio, with a
population of 10 million in a compact
area, as contrasted with a huge State
such as Alaska.
The columnist is certainly accurate in
his statement that time should be given
in which to determine the factors in-
volved in every State in the Union.
The editorial continues:
Yet just because of this concern, we think
the question raised by Senator DIRKSEN'S
strategy is not whether it is justified by the
need for caution, but whether it really serves
that goal.
Is attention properly focused on the prob-
lems of reapportionment by attaching the
delay proposal as a rider to a bill as irrelevant
as the foreign aid authorization? Is full-
scale deliberation encouraged by throwing
a last-minute monkey wrench into the legis-
lative works?
Experience with this kind of tactic?and
it is a familiar one' in legislative halls?
compels a negative answer to both questions.
The result of such maneuvers, in fact, is
usually just the opposite of calm, reasoned,
wise action.
It is for that very reason that the device
is most often used to block rather than to
promote constructive movement. And that
is why Senator DIRKSEN'S aim seems to be
protection of vested political interests rather
than correction of the imbalance of power
in legislative chambers.
We in the Senate should be vigilant to
prevent any disturbance in the delicate
relationship between the three coordinate
and equal branches of our Government?
the legislative, executive, and judicial.
The third editorial to which I referred
appeared in the Akron Beacon Journal
under the caption "Stopping the Clock."
I also call this editorial to the attention
of my colleagues as an outstanding edi-
torial printed in one of the great news-
papers of my State.
The editorial reads:
[From the Akron Beacon Journal, Aug. 5,
1964]
STOPPING THE CLOCK
Amending the Constitution of the United
States is not something which can be done
overnight?or even within a year.
The usual process involves a favorable
two-thirds vote by each House of Congress
and then ratification by the legislatures of
three-fourths (38) of the States. Since many
legislatures meet only once in 2 years and
all but one have two houses, ratification is
a time-consuming process. Even in the case
of a noncontroversial amendment, it usually
takes 3 or 4 or more years.
It is understandable, therefore, that Rep-
resentative WILLIAM M. McCtria.ocx, of Ohio,
is afraid that his proposed amendment nul-
lifying the Supreme Court's "one-person, one-
vote" decision will be too late?if, indeed, it
ever should be adopted.
McCuLLocx and others in Congress want
to write into the Constitution a provision
that only one house in a State legislature
must be apportioned on a population basis.
This would mean that the other house, in
the words of Chief Justice Warren, could
represent trees, or cows, or acres.
That could be the effect if the cloture
motion should be agreed to, and this
measure were passed.
The editorial continues:
Federal courts are already hewing to the
new precedent set by the Supreme Court and,
in some States, legislatures are moving to
correct the imbalance without waiting for
court orders.
Fearful that the reform in representation
may soon be accomplished, Representative
McCuLLocH has introduced an interim res-
olution which would abolish, for a period
of 7 years, the power of either State or
courts to decree the reapportionment of one
house of a State legislature.
In a parallel move, Senator Draxszic yes-
terday pushed through the Senate Judiciary
Committee a bill to halt court orders for re-
apportionment until, in each case, a State
legislature has held two regular sessions.
In other words, this would give 2 to 4 years
for legislatures to act on the proopsed con-
stitutional amendment, while keeping the
present apportionment in status quo.
It seems to us highly questionable whether
the constitutional interpretations of the Su-
preme Court can be nullified or delayed by, a
mere act of Congress.
To be sure, the Constitution may be
amended, but can Congress overrule the
Court while the amendment process goes on?
McCoLLocii's resolution, which goes fur-
ther than DIRKSEN'S bill, would even tell the
State legislatures that they couldn't proceed
with reapportionment.
Isn't that a direct contradiction of all that
he and other States righters have been
screaming about? They say they don't want
any interference with the right of the States
to set up their legislative apportionnient in
their own way. And now McCTILLocx would
have Congress tell them they can't give fair
representation. ?
The U.S. Supreme Court ruled on this sub-
ject only after it became apparent that citi-
zens had no other recourse against legisla-
tures which neglected or refused to appor-
tion representation on a fair basis.
Under prodding, many of the legislatures,
including Ohio's, are now facing their respon-
sibilities.
Is the clock now to be turned back, so that
all the inequities of unequal representation
can be perpetuated? That's the purpose of
DIRKSEN'S and McCuLLoca's last-ditch fight
to keep the status quo.
We in this Nation are proud that we
haVe three coordinate branches of our
Government?the legislative, executive,
and the judicial. The pending amend-
ment, if enacted, would destroy that
equality which our Founding Fathers
proposed. I hope that the pending
amendment will be defeated.
I strongly urge against taking any pre-
cipitate action on the measure until it
can be considered in a deliberative man-
ner, in a calmer atmosphere, after the
new Congress convenes next January.
As a U.S. Senator, representing the sov-
ereign State of Ohio, I shall vote avainst
the motion to close debate on this mat-
ter. I feel that we should put this
aside altogether, not seek to have it
adopted during this session of the Con-
gress, and immediately go on with busi-
ness that we should attend to; and then
we should adjourn sine die.
Mr. METCALF. Mr. President, will
the Senator yield?
Mr. YOUNG of Ohio. I yield.
Mr. METCALF. I have heard the ex-
cellent presentation made by the Senator
from Ohio. The Senator has analyzed
the so-called Dirksen amendment as to
its effect on his own State. He has made
an excellent presentation for a continua-
tion of the debate until another Congress
convenes and we can analyze, work on,
and hear evidence about a proposed con-
stitutional amendment, which is the way
to approach the subject.
Has the Senator from Ohio completed
his remarks?
Mr. YOUNG of Ohio. Yes; I yield the
floor.
Mr. METCALF. Mr. President, a par-
liamentary inquiry.
The PRESIDING OFFICER. The
Senator will state it.
Mr. METCALF., As I understand, by
unanimous consent the Senator from
West Virginia [Mr. RANDOLPH] yielded
the floor to the Senator from Ohio [Mr.
YOUNG], and then the Senator from Ohio
[Mr. YOUNG] yielded to the -junior Sena-
tor from Montana.
The PRESIDING OFFICER. The
Senator is correct.
Mr. METCALF. At the conclusion of
my remarks, will the Senator from West
Virginia again have the floor?
The PRESIDING OFFICER. The
Senator is correct.
Mr. METCALF. I thank the Chair.
Mr. President, I wish to address my-
self briefly to the same proposal about
which the Senator from Ohio spoke,
namely, the proposed amendment rela-
tive to reapportionment.
As a preface and in order to demon-
strate objectiveness on this question I
will analyze, as best I can, how the re-
apportionment provision will apply in
Montana. This is an anniversary year
in Montana, we are celebrating our cen-
tennial as a territory, and our 75th year
as a State. The Organic Act of 1864
served as the Montana Constitution for
the first 25 years. Section 4 of that Act
provided as follows:
4. And be it further enacted, That the
legislative power and authority of the said
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CONGRESSIONAL RECORD ? SENATE 21043
territory shall be vested in the Governor and
a legislative assembly. The legislative as-
sembly shall consist of a council and house
of representatives. The council shall consist
of seven members having the qualifications
of voters, as hereinafter prescribed, whose
term of office shall continue two years. The
house of representatives shall, at its first
session, consist of thirteen members, pos-
sessing the same qualifications as prescribed
for the members of the council, and whose
term of service shall continue one year. The
number of representatives may be increased
by the legislative assembly, from time to
time, to twenty-six, in proportion to the in-
crease of qualified voters; and the council, in
like manner, to thirteen. An apportion-
ment shall be made, as nearly equal as
practicable, among the several counties or
districts for the election of the council and
representatives, giving to each sertion of the
territory representation in the ratio of its
qualified voters as nearly as may be. And
the members of the council and of the house
of representatives shall reside in, and be
inhabitants of, the district, or county, or
counties for which they may be elected, re-
spectively.
Congress in enacting that law ap-
parently intended that the council and
the house of representatives should be
apportioned "as nearly equal as practi-
cable" on the basis of population.
When Montana became a State and
adopted its Constitution, it changed this
concept of equal apportionment for both
houses to one that is contained in the
following provisions:
ARTICLE vs
SEC. 2. The legislative assembly shall pro-
vide by law for an enumeration of the in-
habitants of the State in the year 1895, and
every tenth year thereafter; and at the ses-
sion next following such enumeration, and
also at the session next following an enumer-
ation made by the authority of the United
States, shall revise, and adjust the appor-
tionment for representatives on the basis
of such enumeration according to ratios to
be fixed by law.
SEC. 3. Representative districts may be al-
tered from time to time as public conveni-
ence may require. When a representative
district shall be composed of two or more
counties, they shall be contiguous, and the
districts as compact as may be. No county
shall be divided in the formation of repre-
sentative districts.
Sm. 4. Whenever new counties are created,
each of said counties shall be entitled to one
Senator, but in no case shall a senatorial
district consist of more than one county.
The first Governor of Montana, Joseph
K. Toole, was a delegate to the Constitu-
tional Convention and he argued elo-
quently and fought long and hard again-
st the proposition that each county
would be entitled to one senator "and no
more."
Governor Toole, more than three-
fourths of a century ago, in a statement
that has a prophetic ring to it, said:
This section is inherently wrong and does
not meet the requirements of the Constitu-
tion of the United States which guarantees
to every State a republican form of gov-
ernment. The counties in Montana, whether
they contain 200 or 200,000 inhabitants are
all placed on equal footing. What I un-
derstand to be meant by a republican form
of government is a government where sover-
eignty is confided to and immediately exer-
cised by the popular will.
. Governor Toole suggested that it was
appropriate and desirable for each
county to have at least one senator in
No. 171 '7
order that local interests have an ex-
pression but the limitation of one senatcir
to each county was strenuously resisted
on the same grounds as the Supreme
Court of the United States laid down in
Reynolds against Sims.
Mr. Arthur J. Craven, another mem-
ber of the Montana Constitutional Con-
vention, made a speech that sounds as
if it came directly out of the decision
of the Supreme Court 75 years :ater. He
said, that the idea of one senator, and
no more than one senator, for each
county was "equivalent to saying, Go over
all this broad domain of ours and let
the rocks and the grasses and the squir-
rels and the cattle have representation
instead of men and women?the most
preposterous idea, I think, that has ever
been seriously considered by a parli-
amentary assembly."
But the convention did not go along
with these ideas. The spokesmen for
equal representation were 75 years ahead
of their time. Instead, the provisions
above quoted were adopted and approved
by Congress in the Enabling Act.
At the time the constitutional con-
vention met in 1889 there were about
130,000 people in Montana territory.
Half of these lived in three counties,
Silver Bow, Deer Lodge, and Lewis and
Clark, that are the mining counties
of Montana. The cities of Butte, Ana-
conda, and Helena controlled the terri-
torial legislature, and the smaller coun-
ties?smaller in population?had come
to resent this tricounty control. It was
the mining counties against the ranch-
ing and farming economy of the rest of
the State.
It must also be remembered that in
1889 Montana was a State of the old
frontier. Even the best roads were
dirt, and most of them were impassable
in inclement weather. Horses and bug-
gies and wagon trains made the already
great distances seem even greater.
County seats were small, and in remote
areas there was more loyalty to the
county and its immediate region than to
the rest of the vast territory.
Therefore, the original constitutional
convention for Montana was a battle-
ground of the same questions as have
been recently decided by the U.S. Su-
preme Court. Delegates from the farm-
ing counties, rural districts that were
sparsely populated, fought to contain the
influence of the richer and more popu-
lous mining counties. The plan for the
representation of rocks, grass, squirrels
and cattle instead of men and women,
won.
During the course of the debate an
amendment was offered to provide for
"at least one senator per county." And
when this was defeated, and the original
proposal that there be not more than one
senator per county was adopted, one of
the newspapers from outside the three
most populous counties commented:
We are pleased to state that the swinish-
ness of the populous counties has met with
a check.
There is no doubt that the Montana
Constitutional Convention knew what it
was doing when it apportioned the sen-
ate in the way it did. Although the de-
bate did mention the Federal analogy,
the members differentiated it and did not
accept it as the basis for the apportion-
ment finally arrived at. The apportion-
ment of the senate was a deliberate ef-
fort on the part of rural and sparsely
settled counties to wrest control from
the three richest and most populous
counties. In doing so, one of the great-
est of Montana's early Governors warned
the members that they were violating the
Constitution of the United States.
In 1889 there were 16 counties in Mon-
tana, by 1925 40 new counties had been
created and the Montana Senate con-
sisted of 56 members. Some of these
counties were needed. In some eastern
Montana counties the county seat was as
much as 200 miles away over impassable
and nonexistent roads. But county split-
ting, and the establishment of county
seats became such a popular sport during
the homesteading years that many new
counties of small population were
formed. These counties have not real-
ized the optimistic hopes of their found-
ers. The dreams of the county busters
disappeared in the farm depression of
the twenties. From 1901 on, the legisla-
ture provided that each new county
would be entitled to at least one repre-
sentative. This, of course, upset the
balance in the house of representatives
so that both branches of the Montana
Legislature became malapportioned.
I can personally testify to such dispro-
portionment, because I served as a rep-
resentative to the Montana Legislature
in 1937, when the house of representa-
tives consisted of 102 members, taxing
even the accommodations of the house
Chamber.
In 1961 an apportionment act estab-
lished the ratio of population for repre-
sentatives at 1 per 8,500 or major frac-
tion. This aggravated malapportion-
ment in that branch of the legislature.
An example is Ravalli County which I
represented in 1937. There are 12,341
people. For years it had had two repre-
sentatives. But in 1963 it lost its second
representative because it fell short of
the 8,500 plus a major fraction-4,251--
or a total of 12,751 for a second repre-
sentative-410 people short. Yet in the
State of Montana there are 17 counties
with less than the 3,841 people by which
Ravalli County exceeded the 8,500 figure.
Today the Senate in Montana is com-
posed of 56 members, one from each of
the 56 counties. In the 1960 election the
smallest county?Petroleum?had 535
registered voters. The most populous
county?Yellowstone?had 36,407 'reg-
istered voters. Therefore, the elector in
Petroleum County has a voting power in
the State senate of over 70 times the
voting power of an elector in Yellow-
stone County. Petroleum County with
535 registered voters and Ravalli County
with 6,459 voters have the same repre-
sentation in the house of representatives;
one vote.
Now, what will a realinement and a re-
apportionment do to the political com-
position of the house of representatives
and the State senate if the decision of
the U.S. Supreme Court is followed?
This is a difficult question, and at the
present time I have not the local election
returns that will permit an accurate
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21044 CONGRESSIONAL RECORD SENATE
analysis of the effect. In a recent ar-
ticle in the Montana Business Quarterly,
a publication of the School of Business
Administration of Montana State Uni-
versity, Mr. Douglas C. Chaffey pub-
lished a proposal for "Legislative Ap-
portionment in Montana" that would
comply with the decision of the U.S. Su-
preme Court. Mr. Chaffey is a native
of Montana, a graduate of the business
school, and is now studying for his doc-
torate at the University of Wisconsin.
Mr. Chaffey has proposed that dis-
tricts of approximately 7,000 be created
for the house of representatives in the
Montana Legislature which would retain
the present membership of 94. For re-
apportionment of the State senate a con-
stitutional amendment would be neces-
sary to eliminate the provision that each
county was entitled to one senator. He
creates senatorial districts of more than
one county based on population. Using
a ratio of 20,000 persons for each sena-
tor he has drawn senatorial districts
that will substantially change the politi-
cal complexion of the Montana Legisla-
ture.
It is admittedly difficult to extrapolate
the present membership of the State sen-
ate upon a new system of elections. For
example some of the leading and most
influential State senators are from the
rural counties. Given their prestige and
their public acceptance these men would
be elected from any larger senatorial dis-
trict regardless of party affiliation.
But merely for the purpose of demon-
strating the effect of a reapportionment
on the basis of population as recom-
mended by Mr. Chaffey, I have worked
out what might have happened in 1960
had the vote for state senator been cast
in the same proportion as the vote for
Governor, for President, and for U.S.
Senator in the 1960 election.
Montana now has 35 Democratic State
senators and 21 Republicans. The pro-
posal made by Mr. Chaffey would create
20 senatorial districts in Montana with
a total of 33 elected senators. The table
for the population breakdown and the
number of State senators for each dis-
trict is as follows.
I ask unanimous consent that it be
included in the CONGRESSIONAL RECORD at
this point as a part of my remarks.
There being no objection, the table was
ordered to be printed in the RECORD, as
follows:
A proposed apportionment of the
Montana Senate
Senatorial district
Population
Senators
I. Yellowstone, Carbon
87, 333
4
2. Cascade
73,418
4
3. Missoula, Mineral, Ravalli
60,041
3
4. Silver Bow, Jefferson
50,751
3
5. Flathead, Lincoln
45, 502
2
6. Lewis and Clark, Meagher,
Broadwater
33,426
2
7. Glacier, Ponders, Toole,
Teton
32, 448
2
8. Deer Lodge, Granite, Powell_
28, 656
9. 11111, Chouteau, Liberty,
Blaine
29,304
1
10. Wheatland, Mussellshell,
Fergus, Golden Valley,
Judith Basin
11. Gallatin
27, 024
26,045
1
12. Phillips, Valley
23,107
1
13. Custer, Fallon, Carter,
Powder River
22,192
1
A proposed apportionment of the
Montana Senate?Continued
Senatorial district
Population
Senators
14. Daniels, Sheridan, Roose-
velt
15. Dawson, Garfield, McCone,
Prairie, Wibaux
16. Park, Stillwater, Sweet
22, 043
21, 632
1
1
Grass
21,984
1
17. Lake, Sanders
19,984
1
18. Big Horn, Treasure, Rose-
bud
17, 539
1
19. Beaverhead, Madison
12,405
1
20. Rithland
10, 541
1
Total (20 districts)
674,767
33
Mr. METCALF. Using Mr. Chaffey's
proposal and the Democratic and Re-
publican vote for Governor in 1960
as a guide for the probable vote for
Democratic and Republican State sena-
tors in these districts, it would consist of
27 Republicans and 6 Democrats. If the
1960 returns in the presidential contest
between John F. Kennedy and Richard
M. Nixon be used as a guide, it would be
closer, there would be 20 Republican
State senators and 13 Democratic sen-
ators.
Richard Nixon carried the State for
President by about 7,000 votes; former
Gov. Donald G. Nutter was elected Gov-
ernor by a plurality of 28500 votes. On
the other hand, I was elected U.S. Sena-
tor in the same statewide election by
4,000. Using the election returns in the
U.S. Senate race as a guide, the margin
would change and the State senate
would consist of 18 Democrtas and 15
Republicans.
The trial courts of record in Montana
are the district courts. In order to at-
tempt to balance the work of the courts,
the counties have long been combined
into judicial districts. The table for the
combination of counties in each judicial
district and the number of judges there-
in is contained in a table which I ask
unanimous consent to have included in
the CONGRESSIONAL RECORD at this point.
There being no objection, the table was
ordered to be printed in the RECORD, as
fellows:
Judicial
district
Counties
Popu-
lation
Number
of judges
1st_ _ _ ___
Broadwater and Lewis
and Clark.
30,810
2
2d
Silver Bow
46,454
2
3d
Deer Lodge, Granite, and
28,650
1
Powell.
4th
Missoula, Mineral Lake,
Ravalli, and Sanders.
80,025
3
5th
Beaverhead, Jefferson,
and Madison.
17,287
1
6th
Park and Sweet Grass
16, 458
1
7th
Dawson, McCone, Rich-
land, and 'Wibaux.
27,837
1
8th
Cascade and Chouteau____
80,766
3
9th
Teton, Pondera, Toole,
and Glacier.
34, 417
1
10th
Fergus, Judith Basin, and
17, 997
1
Petroleum.
llth
Flathead and Lincoln
45, 502
2
12th
Liberty, Rill, and Blaine__
29, 368
1
13th
Yellowstone, Big Horn
104, 211
3
Carbon, Stillwater, and
Treasure.
14th...,_
Meagher, Wheatland, Gol-
den Valley, and Mussel-
shell.
11, 733
1
15th
Roosevelt, Daniels, and
21,944
1
Sheridan
16th
Custer, Carter, Fallon,
Prairie, Powder River,
Garfield, and Rosebud
32, 661
2
17th
Phillips and Valley
23, 107
1
18th
Gallatin
26,045
1
?
September 8
Mr. METCALF. There are 28 district
judges; and again using the 1960 elec-
tion results for Governor, President, and
U.S. Senator as a guide and assuming
that there would be as many State sen-
ators as there are now district judges,
the results would come out about the
same as in the above proposal. If the
election returns for Governor were trans-
ferred to the State senator race, the
Montana State senate would not consist
of 35 Democrats and 21 Republicans as
now organized, but would be 23 Repub-
licans and 5 Democrats. Using the pres-
idential election returns, the ratio would
be 18 Republicans and 10 Democrats;
and again using the returns in my con-
test in 1960, there would be a slight
Democratic advantage of 16 Democrats
and 12 Republicans.
It is obvious from these figures that
any reapportionment of the Montana
State senate would work to the advan-
tage of the Republican Party. There are
outstanding and experienced and well-
known men in each party whose personal
following would change the values given
above. But over the years and consider-
ing the whole State the ratio would
probably work out to the advantage of
the Republican Party.
An apportionment with districts such
as are suggested by Mr. Chaffey how-
ever, does give a basis for practical mal-
apportionment and misrepresentation in
the same manner as I have earlier sug-
gested. I mentioned the Fourth Judicial
District where the large county of Mis-
soula completely dominated the smaller
surrounding counties. Another such ex-
ample is the combination of Yellowstone
County with a population of 79,016 and
Carbon County with a population of
8,317 into one senatorial district to elect
4 State senators. Actually the entire
number would come from Yellowstone
County and unless there were an excep-
tional and well-known individual from
Carbon County that area and its special
interests would never be represented.
This is why I believe that we should have
hearings on a constitutional amendment
to permit one house of a bicameral legis-
lature to be represented by other than
a population ratio. On the other hand,
there may be serious and overriding po-
litical reasons that should prohibit such
a division of legislative authority and
the whole question should be threshed
out in thorough and comprehensive
hearings before the legislative commit-
tees of the Congress who are skilled in
these political questions and not come to
us as an amendment to a foreign aid
authorization bill.
Mr. President, I have shown what
would probably happen in the State of
Montana if there were a reopportion-
ment of the State senate. It would work
to the advantage of the Republican
Party.
I have demonstrated this because I
still believe that we should oppose the
present amendment and vote against the
present proposal to invoke cloture on
next Thursday, and vote for a constitu-
tional amendment, and for comprehen-
sive and thorough hearings on such an
amendment, to properly and adequately
appraise the political aspects of the sit-
uation.
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1964 CONGRESSIONAL RECORD ? SENATE
According to Madison's reports of the
debates in the Constitutional Conven-
tion, on June 11 the Chairman, Benja-
min Franklin said:
It has given me great pleasure to observe
that till this point, the proportion of repre-
sentation, came before us, our debates were
carried on with great coolness and temper.
If anything of a contrary kind, has on this
occasion appeared; I hope that it will not be
repeated; for we are sent here to consult, not
to contend, with each other; and declara-
tions of a fixed opinion, and of determined
resolution, never to change it, neither en-
lighten nor convince us. Positiveness and
warmth on one side: naturally beget their
like on the other; and tend to create and
augment discord and division in a great con-
cern, wherein harmony and union are ex-
tremely necessary to give weight to our coun-
cils, and render them effectual in promoting
and securing the common good.
? I must -own that I was originally of the
opinion that it would be better if every Mem-
ber of Congress, or our National Council,
were to consider himself rather as a repre-
sentative of the whole, than as an agent for
the interests of a particular State; in which
case the proportion of Members for each
State would be of less consequence, and it
would not be very material that they voted
by States or individually. But I find this not
to be expected. I now think the number of
Representatives should bear some proportion
of the number of the represented.
Franklin was speaking on the issue of
suffrage in the proposed National Legis-
lature which became Congress in the
final draft of the Constitution. But I
find this quotation appropriate at this
time because this is the first occasion
since I became the junior Senator from
Montana that I have disagreed so
strongly from the position taken by my
senior colleague. Because of my affec-
tion and regard for him, and my respect
-for his wisdom and leadership I hope
that I can today set forth my differences
with him on this issue without engend-
ering the warmth that Franklin sought
to avoid. At the same time I am con-
vinced that in justice to my constituents
and my esteem for my colleague, the
majority leader, that I set forth the
reasons why I oppose the amendment
he has cosponsored with the minority
leader, the distinguished Senator from
Illinois. As Franklin said:
I now think the number of representatives
should bear some proportion to the number
of the represented.
I must confess when the decision in
Baker v. Carr, 369 U.S. 186, was handed
down in March of last year, I did not
read the case, I read about the decision
in the newspapers and periodicals and
actually arrived at no conclusion about
it, other than to say that it was about
time that something was done about
malapportionment in some of the con-
gressional districts. Nor did I read the
other decisions that followed until the
last few weeks when this amendment
was first advanced. I have now read
and studied to the best of my ability
not only Baker against Carr, but Rey-
nolds against Sims; WMCA, Inc. against
Lomenzo; Roman against Sincock;
Maryland Committee for Fair Repre-
sentation against Tawes; Lucas against
the Forty-fourth General Assembly of
Colorado; Davis against Mann, all re-
lating to various phases of the reap-
portionment question. In addition, I
have reread some of the Federalist
Papers, several Law Review articles, and
the minutes of the procedures of the
Constitutional Convention. After such,
by no means exhaustive, research I have
come to the conclusion that I agree with
Reynolds against Sims:
We hold that, as a basic constitutional
standard, the equal protection clause re-
quires that the seats in both houses of a
bicameral State legislature must be appor-
tioned on a population basis. Simply
stated, an individual's right to vote for
State legislators is unconstitutionally im-
paired when its weight is in a substantial
fashion diluted when compared with the
votes of citizens living in other parts of the
State.
Again later on the Court says:
By holding that as'a Federal constitutional,
requisite both houses of a State legislature
must be apportioned on a population basis,
we mean that the equal protection clause
requires that a State make an honest and
good faith effort to construct districts, in
both houses of its legislature as nearly of
equal population as is practicable.
These declarations are reinforced by
statements made by our Founding Fath-
ers. For example, James Wilson, a dele-
gate to the 1887 Constitutional Conven-
tion said:
The doctrine of representation is this?
first the representative ought to speak the
language of his constituents, and secondly
that his language or vote shall have the Same
influence as though the constituents gave it.
And Jefferson said:
Equal representation is so fundamental a
principle in a true republic that no prejudice
can justify its violation, because the preju-
dices themselves cannot be justified.
The Declaration of Independence
stresses the democratic ideals of equality
and the right of representation. The
Northwest Ordinance of 1887 provided
that all the people would be forever en-
titled to representation in the legislature
in proportion to their members.
But if one of the basic assumptions of
democratic rule is the one man, one vote
concept so that all citizens will have
approximately the same political voting
weight in both houses of a bicameral
State legislature, I am not certain that
sound political doctrine, requires such an
apportionment. In his dissenting opin-
ion in Reynolds against Sims, Mr. Justice
Harlan enumerates some of the factors
that have been used as criteria for estab-
lishing electoral districts in one body of
a bicameral legislature other than popu-
lation. They are as follows:
First, history; second, economics of other
sorts of group interests; third, area; fourth,
geographical considerations; fifth, a desire "to
insure effective representation for sparsely
settled areas"; sixth, "availability of access
of citizens to their representatives"; seventh,
therories of bicameralism (except those ap-
proved by the Court); eighth, occupation;
ninth, "an attempt to balance urban and
rural power"; tenth, the preference of a ma-
jority of voters in the State.
I find merit in Justice Harlan's argu-
ment that "legislators can represent
their electors only by speaking for their
interests?economic, social, political-
21045
many of which do reflect the place where
the electors live."
For example, in Montana, where I
grew up, the Fourth Judicial District,
which is the district for original trial of
cases under the jurisdiction of the first
court of record, was composed of five
counties: Missoula, Mineral, Lake, Ra-
valli, and Sanders. Missoula County had
a voter registration of 22,000, and the
combined registration of the outlying
counties was 18,300. Time and again I
have seen a lawyer from Mineral, or
Sanders, or Ravelli, or Lake run for one
of the two positions open for district
judge and get a majority of the vote in
all the outlying counties and still be de-
feated by the hometown candidates in
Missoula. If the judicial district had
been a senatorial electoral district, the
electors of the outlying counties would
have been more effectively disfranchised
than residents of malapportioned dis-
tricts. But this is a matter for a con-
stitutional amendment, and the ques-
tions raised by the various criteria men-
tioned by Justice Harlan, and others, are
questions that should be carefully ex-
plored in comprehensive congressional
hearings and not be regarded as side
issues to a foreign aid authorization bill
in the closing days of a Congress.
The controversy in which we are en-
gaged in reminiscent of the last days of
the 85th Congress when I was a Member
of the other body and several bills limit-
ing the power of the Supreme Court were
still pending. The House sent to the
Senate such legislation as the notorious
H.R. 3, which was a broad preemption
bill, a bill modifying the Supreme Court's
decision in the Mallory case, and a bill
to limit Federal judicial review of State
criminal trials by habeas corpus. This
latter proposition has come under popu-
lar scrutiny as a result af the New Yorker
magazine articles that have been issued
as a book under the title of "Gideon's
Trumpet."
By a curious coincidence the dates are
almost identical. The then majority
leader of the Senate, now President
Johnson, wanted to adjourn sine die on
August 23. The target date this year was
August 22.
In that year Senator HUMPHREY and
Senator DOUGLAS led the assault on the
legislation, and when Congress ad-
journed a little group of Senators had
defeated the congressional attack on the
courts.
But that year the questions were a
little different. For example, there was
the preemption issue brought up, chiefly,
by the decision of the Supreme Court in
Pennsylvania v. Nelson, 350 U.S. 497
(1956) , in which the U.S. Supreme Court
held that the Pennsylvania State sedition
act was invalid because the Federal Gov-
ernment had preempted this area and
the State no longer had any power.
H.R. 3 would have provided:
No act of Congress shall be construed as in-
dicating an interest on the part of Congress
to occupy the field in which such act operates
to the exclusion of any State laws on the
same subject matter unless such act contains
an express provision to that effect, or unless
there is a direct and positive conflict between
such act and the State law so that the two
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21046 CONGRESSIONAL RECORD ? SENATE September 8
cannot be reconciled or consistently stand
together.
A second section of the bill dwelt di-
rectly with Nelson case and provided that
Federal antisubversion legislation could
not prevent enforcement of State sedi-
tion statutes.
Section 1, if enacted, would have been
a broad statutory declaration by Con-
gress that it does not intend to preempt
any field without a specific declaration of
such an intent. The mischief of H.R. 3,
of course, was that it was retroactive.
But clearly such a declaration is within
the power of the legislative branch.
Another decision was that of Yates v.
United States, 354 U.S. 298, which in-
volved the conviction of 14 Communists
in California for violation of the Smith
Act. This case did not question the con-
stitutionality of the Smith Act, but it
did consider statutory interpretation,
judicial procedure, and evidence. The
convictions of five defendants were re-
versed, and nine defendants were
granted a new trial.
In the majority opinion of Yates, Jus-
tice Harlan relied on one of the oldest
rules of statutory interpretation?that
penal laws are to be strictly construed.
This rule, as Chief Justice Marshall said
in U.S. V. Wiltberger, 5 Wheat. 76, "is
founded on the tenderness of the law
for the rights of individuals; and on the
plain principle that the power of punish-
ment is vested in the legislature, not in
the Court, which is to define a crime,
and ordain its punishment." The Court
went on to interpret and construe the
word "organize" in the Smith Act in a
very narrow way that excluded the de-
fendants before the bar. This decision
was actually based on a desire, as stated
above by Justice Harlan, to have the
Court leave the question of legislating to
the Congress, even though the decision
was attacked as judicial legislating.
A third question that brought about
the attack on the Supreme Court in the
85th Congress was the passport decision.
The power to give the Secretary of State
broad discretionary powers to deny pass-
ports dated back to the basic statute,
passed in 1856, which provided:
The Secretary of the State may grant and
issue passports * * * under such rules as
the President shall designate and prescribe.
In Kent v. Dulles, 375 U.S. 116 (1958),
the Court held that the right to travel
was an individual constitutional right,
Protected by the due process clause, that
could not be infringed by vague and in-
definite statutory implication. If the
right was to be limited, a clear and
specific statutory foundation had to be
laid and these limitations had to be sub-
ject to the classic rules for delegation of
legislative power to the executive.
I have dwelt upon these cases in some
detail because I want to point out the
essential difference between what is be-
ing attempted at this time and what the
advocates of the bills to curb the Su-
preme Court were attempting in the 85th
Congress.
Incidentally, on August 21, 1958, in a
crucial vote the Senate recommitted the
preemption bill by a vote of 41 to 40.
Both authors of the present amendment
and the then majority leader, and now
President Johnson voted to recommit the
bill. I ask unanimous consent that the
rollcall on that vote be printed at this
point in the RECORD.
There being no objection, the vote was
ordered to be printed in the RECORD, as
follows:
Yeas, 41: Aiken, Anderson, Beall, Bennett,
Bible, Carroll, Case of New Jersey, Case of
South Dakota, Chavez, Church, Clark, Cooper,
Dirksen, Douglas, Green, Hayden, Hennings,
Humphrey, Jackson, Javits, Johnson of Tex-
as, Kefauver, Kennedy, Langer, Lausche,
Magnuson, Malone, Mansfield, McNamara,
Morse, Morton, Murray, Newberger, O'Maho-
ney, Pastore, Proxmire, Purtell, Saltonstall,
Symington, Wiley, Yarborough.
Nays, 40: Barrett, Bridges, Butler, Byrd,
Capehart, Cotton, Curtis, Dworshak, East-
land, Ellender, Ervin, Fulbright, Goldwater
Gore, Hickenlooper, Hill, Hoblitzell, Jenner,
Johnston of South Carolina, Jordan, Know-
land, Kuchel, Long, Martin of Iowa, Martin
of Pennsylvania, McClellan, Mundt, Potter,
Revercomb, Robertson, Russell, Schoeppel,
Smith of Maine, Spaxkmen, Stennis, Tal-
madge, Thurmond, Thye, Watkins, Williams,
Not voting, 15: Allott, Bricker, Bush, Carl-
son, Flanders, Frear, Holland, Hruska, Ives,
Kerr, Monroney, Payne, Smathers, Smith of
New Jersey, Young.
Mr. METCALF. Mr. President, I have
emphasized that in each of the categories
mentioned the Supreme Court was inter-
preting statutes and defining statutory
rights or limiting statutory restrictions
that had been created by Congress.
The passport issue, the loyalty-secu-
rity issue, the preemption issue?all
turned upon the construction of legis-
lative language, upon the application of
classic rules for ascertaining legislative
intent, upon basic considerations coming
to us from the common law upon pro-
tecting from vague statutory language
the rights of individuals charged with
, crimes. Such decisions are always
within the purview of the Supreme
Court; and when the Court misjudges
legislative intent, misconstrues legisla-
tive language, or points out that the
statute is indefinite or obscure, the legis-
lature or Congress has the duty and
obligation to examine the decision and
correct the wrong legislative interpreta-
tion, or redefine the crime, or clarify
the language.
But in the amendment offered by the
majority and minority leaders, we are
not only confronted with statutory in-
terpretation and determination of legis-
lative intent, but we have before us
a basic constitutional issue. Justice
Holmes once declared:
If American law were to be represented
by a single figure, skeptic or worshipper alike
would agree without dispute that the figure
could be one alone, and that one John
Marshall.
Of course, the great decision of Chief
Justice Marshall was that of Marbury
against Madison, 1 Cranch. 137-1803.
Marbury against Madison established the
principle of the supremacy of the judi-
ciary in constitutional matters. The
authority of the U.S. Supreme Court to
declare a statute unconstitutional was
laid down, an authority that is now
firmly established in American juris-
prudence.
In the Dirksen amendment, as in the
Tuck bill, we areinot Confronted by legis-
lative interpretation,- br by clarification
of language that has been held to be
vague or indefinite. We are faced with
a series of decisions that hold that "one
man, one vote" is a basic constitutional
proposition for electors for the House of
Representatives of the Congress, and
equally for both houses of a bicameral
State legislature. The majority leader
has said that one purpose of his amend-
ment is to gain some time for the legis-
latures to act. He says that he regrets
that the Court did not mention "delib-
erate speed" with which the States could
comply with the decision, as was men-
tioned in the school segregation cases.
But a reading of Raynolds against Sims
forcefully demonstrates that great flexi-
bility is permitted by the Court, even
more than a solitary mention of "delib-
erate speed."
In the statement of the case, the Court
pointed out that the Alabama consti-
tution required reapportionment imme-
diately after each decennial census and
yet, in spite of population changes, no
such reapportionment had taken place
since 1901. Here, then, is more than a
half century of inaction; certainly this
is not precipitous activity on the part
of the Court. Throughout the opinion
the Court has laid down flexible stand-
ards in language such as:
By holding that as a Federal constitutional
requisite both houses of a State legislature
must be apportioned on a population basis,
we mean that the equal protection clause
requires that a State make an honest and
good-faith effort to construct districts, in
both houses of its legislature, as nearly of
equal population as is practicable. We real-
ize is is a practical impossibility to arrange
legislative districts so that each one has an
Identical number of residents, or citizens, or
voters. Mathematical exactness or preci-
sion is hardly a workable constitutional re-
quirement.
Again the legislative act:
Would be constitutionally valid, so long as
the resulting apportionment was one based
substantially on population and the equal-
population principle was not diluted in any
significant way. Somewhat more flexibility
may therefore be constitutionally permis-
sible with respect to State legislative ap-
portionment than in congressional redis-
tricting.
Then the Court works out the tech- ,
nique of handling the cases, not making
general rules but declaring:
Developing a body of doctrine on a case-by-
case basis appears to us to provide the most
satisfactory means of arriving at detailed
constitutional requirements in the area of -
State legislative apportionment.
It is just this case-by-case analysis
as a judicial process that the Congress
proposes to halt by the pending amend-
ment.
I read from the case of Roman against
Sincock:
Our affirmance of the decision below is not
meant to indiciate approval of the District
Court's attempt to state in mathematical
language the constitutionally permissible
bounds of discretion in deviating from ap-
portionment according to population? In
1 The court below suggested that popula-
tion-variance ratios smaller than 11/2 -to-1
would presumably comport with minimal
constitutional requisites, while ratios in ex-
cess thereof would necessarily involve devi-
ations from population-based apportionment
too extreme to be constitutionally sustain-
able. See 215 F. Supp., at 190.
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1964 CONGRESSIONAL RECORD ? SENATE
our view the problem does not lend itself
to any such uniform formula, and it is
neither practicable nor desirable to estab-
lish rigid mathematical standards for eval-
uating the constitutional validity of a State
legislative apportionment scheme under the
equal protection clause. Rather, the proper
judicial approach is to ascertain whether,
under the particular circumstances existing
In the individual State whose legislative
apportionment is at issue, there has been a
faithful adherence to a plan of population-
based representation, with such minor devi-
ations only as may occur in recognizing
certain factors that are free from any taint
of arbitrariness or discrimination.
Al Ir. President, in Wesberry against
Sanders, the Court held that congres-
sional representation must be based on
population as nearly as is practicable.
There is also provision for flexibility in-
sofar as the time is concerned. Reynolds
against Sims says that limitations on
the frequency of reapportionment are
justified by the need for stability and
continuity in the organization of the leg-
islative system, although undoubtedly re-
apportionment no more frequently than
every 10 years leads to some imbalance
in the population of districts toward the
end of the decennial periods, and also to
the development of resistance to change
on the part of some incumbent legisla-
tors. In substance, we do not regard the
equal protection clause as requiring daily,
monthly, annual or biennial reapportion-
ment so long as a State has a reasonably
conceived plan for a periodic readjust-
ment of legislative representation.
So, the real flexibility is in compliance
with the decision of the Supreme Court.
The rigidity that is deplored is in adopt-
ing the pending amendment that will stay
all proceedings.
But the basic proposition through all
the reapportionment cases is the consti-
tutional right of the individual to have
his vote count for just as much as any
other individual's. This is the golden
thread that runs through all the deci-
sions. In Baker against Carr the Court
said:
We conclude that complainant's allega-
tions of a denial of equal protection present
a justiciable constitutional cause of action
upon which appellants are entitled to a trial
and decision. The right asserted is within
the reach of judicial protection under the
14th amendment.
Mr. PROXMIRE. Mr. President, will
the Senator from Montana yield?
The PRESIDING OFFICER (Mr. Mc-
GOVERN in the chair.) Does the Senator
from Montana yield to the Senator from
Wisconsin?
Mr. METCALF. I am glad to yield to
the Senator from Wisconsin.
Mr. PROXMIRE. The Senator's con-
tion that, as he puts it, the golden thread
consistently runs through the courts de-
cisions, is that it is a constitutional right
of each individual to have his vote count
as every other individual vote; is that
not correct?
Mr. METCALF. The Senator is. cor-
rect. It is a basic, individual constitu-
tional right, with which I agree. I be-
lieve that an examination of the Fed-
eralist Papers, the minutes of the orig-
inal Constitutional Convention, and
other documents of our Founding Fath-
ers, will bear out that it was the original
intention in both legislatures and-in the
House of Representatives that the one
man-one vote principle should be a part
of our republican form of government.
Mr. PROXMIRE. As I understand,
then, what is most unfortunate and
wrong about the Dirksen and the Tuck
proposals is that they would have the
Congress to intervene, after a Supreme
Court decision, and suspend or overrule
the action of the Supreme Court, which
would in effect end judicial review as we
have known it and would seriously
weaken the division of powers; is that
not correct?
Mr. METCALF. The Senator is quite
correct. The Senator has anticipated
an argument I am about to make fur-
ther on in my address, that adoption of
either the Tuck or the Dirksen proposal
would seriously hamper the separability
of power which is a basic consideration
in our form of government.
Mr. PROXMIRE. If the Senator in-
tends to develop that point a little later
let me revert to an earlier point he
made?one which has not received suf-
ficient stress and discussion on the floor;
namely, the timing of the action by the
Supreme Court, whether the Supreme
Court has demanded precipitate, sudden,
instant response on the part of State leg-
islatures,. whether it has required them
to apportion in an unreasonably short
time, or whether, in the judgment of the
Senator from Montana, who has been
a judge himself and has had the oppor-
tunity to study these cases carefully, the
Supreme Court has allowed adequate
time in such cases, so that the State leg-
islature would have an opportunity to
act, with the will to do so, without serious
inconvenience.
Mr. METCALF. I most certainly do.
I believe that is a special point. As was
pointed out in one case, it was 50 years
since there had been reapportionment,
so that there was no precipitate action on
the part of the Supreme Court.
Mr. PROXMIRE. In what case?
Mr. METCALF. Reynolds against
Sims.
Mr. PROXMIRE. Reynolds against
Sims.
Mr. METCALF. Certainly, no case
comes to the U.S. Supreme Court, to a
district court, or to a circuit court, with-
out someone bringing in the case. There
must be some underlying action before
the case can even be brought into court.
As I have pointed out from thee deci-
sions, the Court points out that each of
the States must have its rights, its liabili-
ties, and its duties allowed upon a State-
by-State and a case-by-case basis.
Here, we are asked to pass general legis-
lation at a late date in the Congress, and
without any hearings, which would pro-
hibit any action by any courts; whereas
the Court says that we should not act too
precipitately. We do not require mathe-
matical precision. We do not require
daily, monthly, yearly, or even decennial
reapportionment.
But we require that as much as prac-
ticable be accomplished, that there be a
reapportionment, so that as a practical
matter the one man, one vote principle
would be applied to State legislatures.
Mr. PROXMIRE: What the Court has
21047
tried to do is to apply this principle on
an individual basis, depending on the
merits of each case, and examining the
merits carefully. The Court has tried to
lay down rules of flexibility so that each
State can adopt its own procedure in ac-
cordance with its own particular and
peculiar problems?historical problems,
and so forth. It is in a position to do
that individually because of the nature
of the judicial system. But Congress
would substitute a blanket order which,
in the case of Michigan, Wisconsin, and
many other States, could result in a
chaotic situation.
Mr. METCALF. I believe that is true
in the case of Illinois.
Mr. PROXMIRE. Yes. .Whereas,
Congress might provide a remedy in one
or two other States, the Supreme Court
is trying,to study each case individually
and decide it on a fundamental basis as it
decided the Reynolds against Simms case,
as to how the various States can comply
with that order and do it most con-
veniently and most appropriately, but
eventually.
Mr. METCALF. That is correct. It
decided it on the basic facts that are
presented to the district court in ad-
versary procedure for that purpose. It
admonished each of the district courts
that might hear the case that there is
no hard-and-fast rule, that they must do
the best practical thing under the cir-
cumstances. There is the real flexibility,
the genuine flexibility that is in the Su-
preme Court decision, rather than the
rigidity of the amendment, which states,
in effect,' "You shall cease the hearing
of all cases until 1966."
Mr. PROXMIRE. I thank the Senator.
Mr. METCALF. I spoke about the
right of the individual to have his vote
count for as much as the vote of any
other individual. I stated that the vote
was a basic, individual, constitutional
right.
In Reynolds against Simms, the Court
stated:
We hold that, as a basic constitutional
standard, the equal protection clause re-
quires that the seats in both houses of a
bicameral State legislature must be appor-
tioned on a population basis. Simply stated,
an individual's right to vote for State legis-
lators is unconstitutionally impaired when
its weight is in a substantial fashion diluted
when compared with votes of citizens living
in other parts of the State.
And later the Court said:
? Congress simply lacks the constitutional
power to insulate States from attack with
respect to alleged deprivations of individual
constitutional rights.
I enumerate these cases and emphasize
the fact that we are talking about what
the Court has said in all the cases about
the basic, individual, constitutional right.
I seek to differentiate what was done in
the 85th Congress when a group?some of
the same group who are opposing this
amendment and the minority and the
majority leader?now the President of
the United States?and others made a
strong fight to prevent Congress from
*overruling the Supreme Court in cases
where no basic, constitutional right was
involved. It involved merely a case of
statutory interpretation or construction
of legislative language, or the definition
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21048 CONGRESSIONAL RECORD -- SENATE
of a crime. That is a thing on which the
Court frequently conflicts with the legis-
lature, and the legislature in turn says,
"This is what we meant. This is what
our real interpretation is."
Then, once the legislature has spoken,
the Court continues and follows through
with the construction of the language, as
the amended bill provides.
But we are dealing here with a basic,
individual, constitutional right. We are
not dealing with the definition of a
crime, the construction of statutory lan-
guage, or the interpretation of the Con-
stitution. We are dealing with some-
thing that goes further back than that.
We are dealing with something that is as
substantial as the right of a trial by jury
or the right of freedom of speech.
I think of an analogy. Suppose we
were to say that the right of women to
vote interferes with the election of some
of our officers, and someone suggests the
Introduction of a constitutional amend-
ment in the next Congress, but that un-
til then we should pass a law that wom-
en would not have the right to vote.
That would be a clear violation of the
19th amendment. Of course, we could
not do that. Suppose we were to say
that because of the unfortunate situa-
tion in Mississippi, Alabama, and Geor-
gia, we are convinced that the people in
Mississippi, Alabama, and Georgia do not
have a fair jury trial, and until the civil
rights situation has cleared up, for a
couple of years, we would set aside the
right of trial by jury in that situation,
and there would be no more jury trials.
Clearly, such an act would be uncon-
stitutional, whether we were to do it for
a day, a week, or as the Tuck bill pro-
vides, set aside a constitutional right
forever. That is the difference between
what happened in the 85th Congress and
what is being attempted here today.
Mr. PROXMrRE. Is it not true that,
pursuing the same analogies that the
Senator from Montana did, Congress
might in a time of national emergency
and hysteria suspend the right of free
speech, the right of worship, which are
the most fundamental rights that have
been written into the first amendment of
the Constitution, which, in the judgment
of many Americans, distinguishes this
country as the bastion of liberty more
than any other phase of our entire Gov-
ernment. The right of an equal vote in
the State legislature is just as funda-
mental in principle on the basis of the
Supreme Court decision as any of the
other rights which the people of America
have been willing to fight and die for.
Mr. METCALF. We could paraphrase
the Dirksen amendment and say, "In-
stead of the one-man, one-vote suspen-
sion and instead of saying that no court
can have jurisdiction to entertain any
case brought under the provisions of the
Bill of Rights, we will suspend the entire
Bill of Rights until 1966," or, as the Tuck
bill provides, suspend it forever. We are
now talking about constitutional rights.
This is not a statutory decision. This is
not construction of language. This is
not a tempering of words. The Court has
held in the cases that I have already
enumerated, anti that I shall read later,
that this is a basic, individual, constitu-
tional right.
Mr. PROXMIRE. The distinguished
Senator from Montana is making a high-
ly significant speech. I hope that our
colleagues will have an opportunity to
study it in the RECORD. This issue goes
to the very heart of our objections to
the Dirksen amendment.
Some of us feel very deeply about one
man, one vote. Some of us feel very
strongly about the inequity this proposal
would work against many of our urban
citizens. And, while that is very im-
portant, it seems to me that it is not in
the same class as an objection as the
fundamental principle that the Senator
from Montana is stressing now, that our
very constitutional rights are threatened
if we agree to the Dirksen amendment,
which seeks to abridge, postpone, or de-
stroy a ruling of the Supreme Court by
an act of Congress.
I believe that the Senator from Mon-
tana is presenting this argument in an
unanswerable way. I have not heard a
single word of argument to refute what
the Senator has said so far.
It would be very interesting if those
who support the Dirksen amendment
could find any way to meet that argu-
ment. They have talked about incon-
venience to State legislatures. They
have talked about an analogy with the
U.S. Senate. They have talked about
how the farm groups and rural groups
need greater representation. I have
studied the CONGRESSIONAL RECORD very
carefully, as has the Senator from Mon-
tana. Proponents of the Dirksen
amendment have not begun to answer
the fundamental issue which is at stake,
namely, Shall the Supreme Court be in
a position to protect and affirm consti-
tutional rights, or shall it not? That is
the question which is at stake. The
Senator from Montana is making the
most significant speech on this subject
to date.
Mr. METCALF. I thank the Senator
from Wisconsin for his remarks. He
has pointed out that this is the most
dangerous constitutional crisis that our
Nation has ever faced, because if Con-
gress can set aside a basic constitutional
right such as one-man, one-vote has been
declared to be, Congress can set aside any
other part of the Constitution, and we
would see the end of our constitutional
form of government. It alarms me and
concerns me that so many Senators who
continually talk about the Constitution
and about constitutional government
have signed the cloture motion, have
spoken in defense of the postponement
of constitutional rights, and have wished
to repeal decision after decision, going
back to the great decision of Chief Jus-
tice Marshall in Marbury against Mad-
ison.
In Davis against Mann, a case coming
to the U.S. Supreme Court from Vir-
ginia, the majority opinion summarized
the holding of Reynolds against Sims as
follows:
In Reynolds v. Sims, decided also this date,
we held that the equal-protection clause re-
quires that seats in both houses of a bica-
meral State legislature must be apportioned
substantially on a population basis. Neither
of the houses of the Virginia General As-
sembly, under the 1962 statutory provisions
here attacked, is apportiOned sufficiently on
NO
September 8
a population basis to be constitutionally
sustainable.
In Lucas against The Forty-fourth
General Assembly of the State of Colo-
rado, the question was on the apportion-
ment of the Colorado State senate as
approved by a majority vote of the elec-
torate of Colorado in a referendum sub-
mitted for that purpose. The Court
examined the apportionment provided
and concluded:
That the fact that a challenged legislative
apportionment plan was approved by the
electorate is without Federal constitutional
significance, if the scheme adopted fails to
satisfy the basic requirements of the equal-
protection clause.
The Court said:
Apportionment of senate seats * * * clearly
involves departures from population-based
representation too extreme to be constitu-
tionally permissible.
In WMCA against Lomenzo, a New
York case, the Court said:
Neither house of the New York Legislature,
under the State constitutional formulas and
the implementing statutory provisions here
attacked, is presently or, when reapportioned
on the basis of 1960 census figures, will be
apportioned sufficiently on a population basis
to be constitutionally sustainable.
So here we are dealing with a vastly
different proposition than that which
confronted us in the 85th Congress.
Here is a constitutional right which the
proposed amendment will set aside or
temporarily stay for a period, as I have
discussed in the colloquy just held with
the Senator from Wisconsin [Mr. PROX-
MIRE].
If there is one thing that Marbury
against Madison decided it is that the
legislative branch cannot destroy the
individual constitutional rights of citi-
zens. This proposition is basic in the law
and is the foundation for the declaration
In Wesberry against Saners that "laws
which debase a citizen's right to vote"
come under this power. Not only is it
hornbook law that the Supreme Court is
the constitutional guardian against con-
gressional encroachments upon the con-
stitutional rights of the citizen, but it is
equally as well established that Federal
rights under the U.S. Constitution may
be protected from violation by acts of the
States. This has been statutory law
since the original Judiciary Act in the
First Congress. It is basic case law since
Marbury against Madison. This is the
holding in the landmark cases of Fletcher
v. Peck (6 Cr. 807) , and McCullough v.
Maryland (4 Wh. 316) . One of the func-
tions of the U.S. Supreme Court is to pass
on the constitutionality of State laws
and the Constitution itself establishes
the U.S. Supreme Court as the final
tribunal for constitutional adjudication.
For example, in Cooper v. Aaron (358
U.S. 1, (1958) ) , which was a case involv-
ing interposition, the Court said that
Marbury against Madison had laid down
the duty "to say what the law is" and
then continued:
This decision, declared the basic principle
that the Federal judiciary is supreme in the
exposition of the law of the Constitution, and
that principle has ever since been respected
by this Court and the country as a perma-
nent and indispensable feature of our con-
stitutional system.
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CONGRESSIONAL RECORD - SENATE 21049
In Martin v. Hunter's Lessee (1
Wheaton, 304 (1816) ) , the State of Vir-
ginia had confiscated land grants relying
on a statute prohibiting aliens from in-
heriting real property.
In 1813, the Supreme Court ruled
against Virginia's action but the State's
court of appeals Yield that section 25 of
the Judiciary Act of 1789 was unconsti-
tutional and refused to obey the man-
date. Section 25 of the Judiciary Act
authorized the Supreme Court to review
any State court decisions that challenged
the validity of Federal authority.
The case was again brought before the
Supreme Court in 1816, and Justice Story
logically, learnedly, and thoroughly de-
livered a telling blow to the compact
theory and sustained the theory of the
basic constitutional right. He held that
the Supreme Court review of State laws
is necessary to maintain uniformity of
decisions throughout the whole United
States. I quote from the decision in the
case of Martin v. Hunter's Lessee (1
Wheaton U.S. 304) :
The third article of the Constitution is that
which must principally attract our attention.
* * * The language of the article through-
out is manifestly designed to be mandatory
upon the legislature. Its obligatory force is
so imperative that Congress could not with-
out violation of its duty, have refused to
carry it into operation. The judicial power
of the United States shall be vested [not may
be vested] in one supreme court and such
inferior courts as Congress may, from time
to time ordain and establish.
? If then, it is a duty of Congress to vest the
judicial power of the United States, it is a
duty to vest the whole judicial power. The
language, if imperative as to one part, is im-
perative as to all. If it were otherwise, this
anomaly would exist: That Congress might
successively refuse to vest the jurisdiction in
any one class of cases enumerated in the Con-
stitution, and thereby defeat the jurisdic-
tion as to all; for the Constitution has not
singled out any class on which Congress is
bound to act in preference to others.
We are suspending for a period or tak-
ing away from the citizen a basic con-
stitutional right guaranteed by the Fed-
eral Constitution.
Up to now I have outlined some of the ,
methods by which Congress has sought
to control the Supreme Court. In the
85th Congress the general preemption
proposal, the modification of the loyalty
and passport statutes were legislative
means of control that did not touch the
Constitution. Similarly back in the fa-
mous so-called Court-packing plan of the
New Deal, the proposal was not to sus-
pend constitutional rights and privileges
but to expand the Supreme Court in the
hope that newly appointed judges would
reverse the previous decisions of the
Court.
Another technique that has been
adopted is to take away the remedy from
the citizen so that it is admitted that
he has a basic right but no remedy to
enforce that right. It is contended that
this is what is being done in this case.
I have been unable to satisfy myself as to
Whether or not the requirement of due
process with respect to judicial review
of constitutional questions means that
such review by the Federal courts, but
our concept of Federal supremacy dating
from Marbury against Madison and re-
iterated in cases whose numbers are le-
gion would seem to argue that it does.
The pending amendment is directed
to any Federal court. It would leave to
the State and local courts the enforce-
ment of Federal constitutional rights of
Individuals. In Bush v. Orleans School
Board (D.C., La.) , 188 F. Supp. 916, 924-
925 (1940) , affirmed, 365 U.S. 569, the
Court quoted from "Warren's Supreme
Court in U.S. History," volume 1, pages
27-28, 1923 edition, as follows:
Changes * * ? restricting the appellate
jurisdiction of the Court ? * would result
in leaving final decision of vastly important
national questions in the State or inferior
Federal courts, and would effect a disastrous
lack of uniformity in the construction of the
Constitution so that fundamental rights
might vary in different parts of the country.
The question here, then, is whether or
not the Congress can suspend jurisdic-
tion of the Federal courts over legislative
apportionment which has been held to
Involve a basic constitutional right. In
removing the remedy and directing a leg-
islative act suspending the jurisdiction of
"any court" to exercise either original
jurisdiction or review of a question con-
cerning the violation of the Constitution
of the United States, does not Congress
exceed its constitutional power?
The existing statutes relating to orig-
inal jurisdiction that would be amended
by implication by the Dirksen-Mansfield
rider are:
SEC. 1331. FEDERAL QUESTION; AMOUNT IN
CONTROVERSY; COSTS.-
(a) The district courts shall have original
jurisdiction of all civil actions wherein the
matter in controversy exceeds the sum or
value of $10,000 exclusive of interest and
costs, and arises under the Constitution, laws,
or treaties of the United States.
(b) Except when express provision there-
for is otherwise made in a statute of the
United States, where the plaintiff is finally
adjudged to be entitled to recover less than
the sum or value of $10,000, computed with-
out regard to any setoff or counterclaim to
which the defendant may be entitled, and
exclusive of interests and costs, the district
court may deny costs to the plaintiff and,
In addition, may impose costs on the plain-
tiff. (June 25, 1948, ch. 646, 62 Stat. 930;
July 25, 1958, Public Law 85-554, sec. 1,
72 Stat. 415.)
SEC. 1343. CIVIL RIGHTS AND ELECTIVE
FRANCHISE.-
The district courts shall have original jur-
isdiction of any civil action authorized by
law to be commended by any person:
(1) To recover damages for injury to his
person or property, or because of the depriva-
tion of any right of privilege of a citizen of
the United States, by any act done in fur-
therance of any conspiracy mentioned in
section 1985 of title 42;
(2) To recover damages front any person
who fails to prevent or to aid in preventing
any wrongs mentioned in section 1985 of
title 42 which he had knowledge were about
to occur and power to prevent;
(3) To redress the deprivation, under color
of any State law, statute, ordinance, regula-
tion, custom or usage, of any right, privilege
or immunity secured by the Constitution of
the United States or by any Act of Congress
providing for equal rights of citizens or of
all persons within the jurisdiction of the
United States;
(4) To recover damages or to secure equi-
table or other relief under any Act of Con-
gress providing for the protection of civil
rights, including the right to vote.
(June 25, 1948, ch. 646, 62 Stat. 932; Sept. 3,
1954, ch. 1263, sec. 42, 68 Stat. 1241; Sept. 9,
1957, Public Law 85-315, pt. III, sec. 121,
71 Stat. 637.)
SEC. 2281. INJUNCTION AGAINST ENFORCE-
MENT OF STATE STATUTE; THREE-JUDGE COURT
REQUIRED.-
An interlocutory or permanent injunction
restraining the enforcement, operation, or
execution of any State statute by restraining
the action of any officer of such State in the
enforcement or execution of such statute or
of an order made by an administrative board
or commission acting under State statutes,
shall not be granted by any district court
or judge thereof upon the ground of the
unconstitutionality of such statute unless
the application therefor is heard and deter-
mined by a district court of three judges
under section 2284 of this title. (June 25,
1948, ch. 646, 62 Stat. 968.)
SEC. 1983. Civn. ACTION FOR DEPRIVATION OF
RIGHTS.-
Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage,
of any State or Territory, subjects, or causes
to be subjected, any citizen of the United
States or other person within the jurisdic-
tion thereof to the deprivation of any rights,
privileges, or immunities secured by the Con-
stitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for re-
dress. (R.S. sec. 1979.)
SEC. 1988. PROCEEDINGS IN VINDICATION OF
CIVIL RIGHTS.-
The jurisdiction in civil and criminal mat-
ters conferred on the district courts by the
provisions of this chapter and title 18, for
the protection of all persons in the United
States in their civil rights, and for their
vindication, shall be exercised and enforced
in conformity with the laws of the United
States, so far as such laws are suitable to
carry the same into effect; but in all cases
where they are not adapted to the object, or
are deficient in the provisions necessary to
furnish suitable remedies and punish of-
fenses against law, the common law, as mod-
ified and changed by the constitution and
statutes of the State wherein the court hav-
ing judisdiction of such civil or criminal
cause is held, so far as the same is not in-
consistent with the Constitution and laws of
the United States, shall be extended to and
govern the said courts in the trial and dis-
position of the cause, and, if it is of a
criminal nature, in the infliction of punish-
ment on the party found guilty. (R.S.
sec. 722.)
In addition this would affect the vari-
ous provisions of the Civil Rights Act of
1964, Public Law 88-352.
Some of the statutes relating to appel-
late procedure and review that would be
altered and amended by implication by
the adoption of the Dirksen-Mansfield
rider are:
SEC. 1253. DIRECT APPEALS FROM DECISIONS
OF THREE-JUDGE COURTS.-
Except as otherwise provided by law, any
party may appeal to the Supreme Court from
an order granting or denying, after notice of
hearing, an interlocutory or permanent in-
junction in any civil action, suit or proceed-
ing required by any -Act of Congress to be
heard and determined by a district court of
three judges. June 25, 1948, ch. 646, 62 Stat.
928.)
SEC. 1254. COURTS OF APPEALS; CERTIORARI;
APPEAL; CERTIFIED QUESTIONS.-
Cases in the courts of appeals may be re-
viewed by the Supreme Court by the follow-
ing methods:
(2) By appeal by a party relying on a
State statute held by a court of appeals to
be invalid as repugnant to the Constitution,
treaties or laws of the United States, but such
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21050 CONGRESSIONAL RECORD ? SENATE
appeal shall preclude review by writ of cer-
tiorari at the instance of such appellant, and
the review on appeal shall be restricted to the
Federal questions presented.
SEC. 1257. STATE COURTS; APPEAL; CERT'''.
MARL? '
Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the Su-
preme Court as follows:
(2) By appeal, where is drawn in question
the validity of a statute of any State on the
ground of its being repugnant to the Consti-
tution, treaties or laws or the United States,
and the decision is in favor of its validity.
(3) By writ of certiorari, where the validity
of a treaty or statute of the United States is
drawn in question or where the validity of a
State statute is drawn in question on the
ground of its being repugnant to the Consti-
tution, treaties or laws of the United States,
or where any title, right, claimed under the
Constitution, treaties or statutes of, or com-
mission held or authority exercised under,
the United States. (June 25, 1948, ch. 646,
62 Stat. 929.)
Snc. 1441. ACTIONS REMOVABLE GENER-
ALLY.?
*
(b) Any civil action of which the district
courts have original jurisdiction founded on
a claim or right arising under the Constitu-
tion, treaties or laws of the United States
shall be removable without regard to the
citizenship or residence of the parties. Any
other such action shall be removable only if
none of the parties in interest properly joined
and served as defendants is a citizen of the
State in which such action is brought.
SEC. 1984. SAME; REVIEW OF PROCEEDINGS.?
All cases arising under the provisions of
this act in the courts of the United States
shall be reviewable by the Supreme Court of
the United States, without regard to the sum
in controversy, under the same provisions
and regulations as are provided by law for
the review of other causes in said court.
(Mar. 1, 1875. ch. 114, sec. 5, 18 Stat. 337.)
Article III of the U.S. Constitution
gives to Congress authority over the in-
ferior Federal courts. The article is as
follows:
SECTION 1. The judicial power of the United
States, shall be vested in one Supreme Court,
and in such inferior Courts as the Congress
may from time to time obtain and estab-
lish. * * *
SEC. 2. The judicial power shall extend to
all Cases in-Law and Equity, arising under
this Constitution, the Laws of the United
States. * *
Congress has changed the jurisdiction
of the inferior courts from time to time.
For example, in 1801 in the words of the
Constitution, Congress granted the in-
ferior Federal courts jurisdiction of "all
cases in law and equity, arising under
the Constitution and the laws of the
United States." The next session of
Congress withdrew this broad grant of
power. In 1875 the Federal "inferior"
courts were given jurisdiction over cases
where the amount in controversy was
$500 or more, in 1887 this was increased
to $2,000, in 1911 to $3,000 and in 1958
to $10,000. But this is not a case for the
enforcement of a right to collect $500 or
$2,000 or $10,000 in a damage suit. This
is a question of enforcement of a con-
stitutional right.
As for review, the Congress has almost
always granted review to the U.S. Su-
preme Court from decisions of the dis-
trict court.
The power granted to the judiciary in
article III of the Constitution is not self-
enacting insofar as the inferior courts
are concerned. In 1793 Justice Iredell in
Chisholm v. Georgia (2 Dall 419, 423)
said:
r conceive that all courts of the United
States must receive, not merely their orga-
nization as to the number of judges of which
they are to consist; ? but all their authority,
as to the matter of their proceeding from the
legislature only.
In 1789 Congress forbade diversity of
citizenship suits on promissory notes, and
this was sustained as a valid power of
Congress:
The judicial power [except in a few speci-
fied instances] belongs to Congress.
In Bank of the United States against
Deveau, the Supreme Court said that a
right to sue does not imply a right to sue
in Federal Court unless such power is ex-
pressly granted by an act of Congress.
In Stuart v. Laird (1 Cr. 799 (1803)),
the Supreme Court affirmed the power
of Congress to remove a suit from one
circuit to another. In U.S. v. Hudson
and Goodwin (7 Cr. 32, 33) ) , the Court
said:
The power which Congress possess to cre-
ate Courts of inferior jurisdiction, neces-
sarily implies the power to limit the juris-
diction of those Courts to particular objects.
In Sheldon v. Still (8 How. 441, 448-
449 (1850) ), the question was the juris-
diction of the circuit court, Mr. Justice
Grier said:
The Constitution has defined the limits of
the judicial power of the United States, but
has not prescribed how much of it shall be
exercised by the circuit court; consequently,
the statute which does prescribe the limits
of their jurisdiction, cannot be in conflict
with the Constitution, unless it confers
powers not enumerated therein.
The Court concluded:
Having a right to prescribe, Congress may
withhold from any Court of its creation juris-
diction of any of the enumerated contro-
versies.
Such were the early cases. They have
been cited over and over again as sus-
taining the power of Congress to with-
draw from the "inferior" Federal courts
original jurisdiction to adjudicate certain
categories of cases.
But these cases deal with statutory
rights and with the existence of reme-
dies. The cases do not deal with judicial
review. They do not raise constitutional
questions. In a very cursory survey in
the time at hand, I have found but one
case which did specifically treat the con-
stitutional question. This was Mayor
of Nashville v. Cooper (6 Wall. 247, 251-2
(1868) ). In that case the Court?Jus-
tice Swayne?prefaced its decision with
the usual and familiar rule:
This Court has the power to declare an
act of Congress to be repugnant to the Con-
stitution, and therefore invalid. But the
duty is one of great delicacy, and only to be
performed where the repugnancy is clear,
and the conflict irreconcilable. Every doubt
is to be resolved in favor of the constitu-
tionality of the law.
The circuit court decision, according
to Justice Swayne's opinion, proceeded
"entirely upon the grounds of constitu-
a
September 8
tional invalidity." Therefore, it is ap-
propriate to take into consideration the
discussion that this case made of the
question even though the actual decision
was on another issue. Here are some
quotations from the decision:
The Constitution provides, that "the judi-
cial power of the United States shall be
vested in one Supreme Court, and in such
inferior courts as the Congress may from
time to time ordain and establish," and that
this power "shall extend to all cases, in law
and equity, arising under this Constitution
and the laws of the United States."
The power here under consideration is
given in general terms. No limitation is im-
posed. The broadest language is used. "All
cases" so arising are embraced. None are ex-
cluded. How jurisdiction shall be acquil.ed
by the inferior courts, whether it shall be
original or appellate, or original in part and
appellate in part, and the manner of pro-
cedure in its exercise after it has been ac-
quired, are not prescribed.
Later:
As regards all courts of the United. States
inferior to this tribunal, two things are nec-
essary to create jurisdiction, whether origi-
nal or appellate. The Constitution must
have given the Court the power to take it,
and an act of Congress must have supplied
it. There concurrence is necessary to vest
It. It is the duty of Congress to act for that
purpose up to the limits of the granted
power. They may fall short but cannot ex-
ceed it. To the extent that such action is
not taken, the power lies dormant.
As to leaving the Federal constitu-
tional question to be determined by the
State courts, the Court had this to say:
It is the right and the duty of the na-
tional government to have its Constitution
and laws interpreted by its own judicial tri-
bunals. * * * The courts of the several
States might determine the same questions
In different ways. There would be no uni-
formity of decisions.
It would appear that these early cases
have uniformly held that all jurisdiction
may be removed from the inferior courts,
that jurisdiction must be specifically
granted and if not granted lies dormant.
The general authority in the Supreme
Court to review constitutional questions
in the absence of statute granting such
an authority is more doubtful. In Chis-
holm v. Georgia (2 Dall. 419,423 (1793) ) ,
Justice Iredell held:
I conceive that all the courts of the United
States must receive not merely their organi-
zation as to the number of judges of which
they are to consist; but all their authority, as
to manner of their proceeding, from the
legislature only.
In another discussion of this question
I will review in detail some of the early
cases, both on the authority of the in-
ferior Federal courts and on the imposi-
tion of the power in Congress to delimit
appellate review and withhold and with-
draw jurisdiction from the Federal
courts.
Suffice to say at this time that the
most celebrated case is Ex Parte McCar-
die (6 Wall. 318 (1868) ; 7 Wall. 506
(1869) ) . McCardle was arrested by the
military authorities under the provision
of the Reconstruction Acts. He filed a
petition for a writ of habeas corpus al-
leging unlawful restraint and challeng-
ing the validity of the dots. After a
hearing in the Federal circuit for south-
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/964 CONGRESSIONAL RECORD ? SENATE
ern Mississippi, McCardle was remanded
to the custody of the military. He ap-
pealed to the U.S. Supreme Court under
the provisions of the statute-14 Stat.
386. Before the Supreme Court could
act, Congress enacted new legislation-
15 Stat. 44?withdrawing appellate ju-
risdiction from the Court on "appeals
which have been or may hereafter be
taken." The Supreme Court said:
Without jurisdiction the Court cannot
proceed at all in any cause. Jurisdiction is
power to declare the law and when it ceases
to exist, the only function remaining to the
Court is that of announcing the fact and
dismissing the cause.
It should be noted, however, that the
statute is strictly interpreted and it is
only an appeal to the Supreme Court that
was taken away. There still remained
a right to appeal to the circuit courts in
habeas corpus proceedings.
It is this strict construction and the
actual fact that McCardle was very nar-
rowly limited that has permitted schol-
ars to suggest that McCardle is not. au-
thority for full and complete power over
the appellate jurisdiction of the Federal
courts.
There are cases under the due-process
doctrine that seem to indicate that Con-
gress cannot prevent a testof the consti-
tutionality of a statute, see for example,
United States v. Carolene Products Co.
(304 U.S. 144 (1938) ) :
We may assume for present purposes that
no pronouncement of a legislature can fore-
stall attack upon the constitutionality of the
prohibition which it enacts ? * ? a statute
would deny due process which precluded the
disproof in judicial proceedings of all facts
which would show or tend to show that a
statute depriving the suitor of life, liberty
or property had a rational basis.
The same is true of the supremacy
doctrine for instance in St. Joseph
Stock Yards Co. v. U.S. (298 U.S. 38),
Justice Brandeis commented:
The supremacy of law demands that there
shall be an opportunity to have some court
decide whether an erroneous rule of law
was applied; and whether the proceeding in
which facts were adjudicated were con-
ducted regularly. To that extent, the per-
son asserting a right, whatever its source,
should be entitled to the independent judg-
ment of a court on the ultimate questions
of constitutionality.
If the Dirksen amendment, or the even
more restrictive Tuck bill, is enacted
there will be withdrawal and withhold-
ing from the inferior and the appellate
courts of any power of enforcement of
an individual constitutional right. No
Congress has gone so far, no court has
yet been confronted with so far reaching
a proposition as this one that directs
"any court" to withhold enforcement.
I have grave doubts that the legislative
branch of Government can so com-
pletely dominate the judicial branch in
a constitutional question. In a future
speech I will analyze the different cases
and attempt to demonstrate that sus-
pending both original and appellate jur-
isdiction over State apportionment cases
is violative of the due-process clause of
the fifth amendment.
No. 171-8
But even if it is conceded that the
Congress has a right to withhold, to sus-
pend and to withdraw individual con-
stitutional rights, it is wrong in prin-
ciple.
A basic doctrine of our American
Government is that of separation of
powers. The three departments of Gov-
ernment "should be kept completely in-
dependent of the others, so that the acts
of each shall not be controlled by, or
subjected to, directly or indirectly, the
coercive influence of neither of the
others?Humphrey v. U.S. (295 U.S. 602) .
Ours is a government of law. Judge
John J. Parker, in an eloquent article in
the American Bar Association Journal,
volume XXXVI, page 523, 1950, said:
Society, whether a free society or not, is
not a mere aggregation of individuals. It
is an organism. The law is the life prin-
ciple of that organism.
This respect for law is basic to us. If
we can overturn the fundamental law of
the Constitution by taking away or with-
holding a man's constitutional right to
having a vote equal to that of other men,
then we can take other constitutional
rights away in the same manner. There
are those that complain that murders
and assaults in Mississippi are not being
punished because of the difficulty of get-
ting convictions by a jury. But shall we
take away the right to indictment and
jury trial? Such a right would be endan-
gered if we embark on this first step.
The freedoms of the press and of speech,
and of religion can be taken away in the
same manner and the Bill of Rights set
aside, as I suggested previously to the
Senator from Wisconsin, and the entire
Bill of Rights could be set aside.
Prof. Bernard Schwarz, a student of
the French political system pointed out:
The French experience shows that a con-
stitntion which cannot be judicially enforced
contains but empty words. It is judicial
review which ensures that the American Con-
stitution is not violated and gives that in-
strument its practical meaning. It is the
failure of the French courts to assert a review
power over the constitutionality of acts of
the legislature that has made the various
constitutions in France mere paper instru-
ments.
In Russia, Vyshinky once said:
From top to bottom the Soviet social order
is penetrated by the single general spirit of
the oneness of the authority of the toiler.
The program of the All-Union Communist
Party (of Bolsheviks) rejects the bourgeois
principle of separation of powers.
Madison, writing in the Federalist,
said:
[i] t may clearly be inferred that, in saying,
"There can be no liberty where the legislative
and executive powers are united in the same
person, or body of magistrates," or, "if the
power of judging be not separated from the
legislative and executive powers," he [Mon-
tesquieu] did not mean that these depart-
ments ought to have no partial agency in, or
no control over, the acts of each other. His
meaning, as his own words import, and still
more conclusively, as illustrated by the ex-
ample in his eye, can amount to no more
than this, that where the whole power of one
department is exercised by the same hands
21051
which -possess the whole power of another
department, the fundamental principles of a
free constitution are subverted.
The contest between the three depart-
ments in National, State, and local gov-
ernments still goes on from day to day
with varying results, but with all of the
skirmishes, sometimes none too edifying,
the goal remains constant?a govern-
ment of law rather than of official will or
whim. This goal can only be attained
by a government of limited powers dis-
tributed both vertically and horizontally,
as a glance at the dictatorships of today
and yesterday will demonstrate to all
who are willing to learn from the expe-
rience of others. -
These views are in marked contrast to
those of the Founding Fathers. Wash-
ington, in his Farewell Address, warned:
The spirit of encroachment tends to con-
solidate the powers of all the departments in
one, and thus to create, whatever the form
of government, a real despotism.
John Adams reasoned:
- It is by balancing each of these three
powers against the other two, that the efforts
In human nature toward tyranny can alone
be checked and restrained, and any degree
of freedom preserved in the Constitution.
Jefferson was of the same mind:
The concentrating of these in the same
hand is precisely the definition of despotic
government. It will be no alleviation that
these powers will be exercised by a plurality
of hands and not by a single one; .173 despots
would surely be as oppressive as 1.
Madison was equally emphatic:
The accumulation of all powers, legislative,
executive, and judiciary, ift the same hands,
whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may
justly be pronounced the very definition of
"tyranny."
No concept of government has been so
unanimously accepted by all the states-
men whose genius brought into being the
American Nation as has the doctrine of
the separation of governmental powers.
I am convinced that the Dirksen
amendment is wrong, it is wrong in the
spirit of the Constitution, it is wrong in
the principle of the separation of powers,
it is wrong in the doctrine of the
Lj su-
premacy of the law. It should be re-
ected.
SENATOR METCALF'S GREAT
SPEECH ON LEGISLATIVE AP-
PORTIONMENT
Mr. McGOVERN. Mr. President, one
of the great speeches of this Congress
was delivered today by the thoughtful
junior Senator from Montana [Mr. MET-
CALF]. Senator METCALF, a distinguished
jurist in his own right, has carefully
traced the mistaken notions on which
the Dirksen apportionment amendment
is based. He has made perfectly clear
that the Dirksen proposal would create
a dangerous precedent under which Con-
gress could prevent the courts from pro-
tecting basic American constitutional
rights. In this case, the equality of indi-
vidual voting rights for all citizens is
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