AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300080047-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 15
• Document Creation Date: December 27, 2016
• Document Release Date: May 20, 2014
• Sequence Number: 47
• Publication Date: August 12, 1964
• Content Type: OPEN SOURCE

/964 Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080047-1 555
halt all secret or open efforts to force South
Korea again into the arms of the Japanese.
DAVID W. W. CONDI.
OAKLAND, CALIV.. May 4.1964.
(The writer of the above letter served as
staff section chief under Can. Douglas Mac-
Arthur and was a Reuters correspondent in
Japan.)
KINCHICLOZ, Am Pat= BUM MOM,
July 17, 1964.
Dews Sesame Massa: The settlement in
Laos was a time-buying device, and now the
time we bought is about to run out, with
the Communists taking the country over un-
less we fight them to prevent it. So Laos
has come to the same pose as South Viet-
nam. Both etiuntries are being attacked
by North Vietnam. using partly its regular
troops and porta), irregulars transparently
disguised as internal rebels. The disguised
nature of the North Vietnamese aggression
Is taken as giving North Vietnam the status
under international law of a neutral, with
the protection from counterattack which
that statue affords. But surely If interna-
tional law means anything it deals with prac-
tical realities, not with polite fictions. We
have not the slightest obligation to treat
North Vietnam as if it were not at war with
South Vietnamese allies and vittli us. We
should prevent North Vietnamese reinforce-
ments and supplies from reaching leas or
South Vietnam, and in doing so there is no
reason why we should stay on this side of the
North Vietnamese border. I believe Congress
should now declare ? state of war between
the United States and North Vietnam; and
we should bomb all of North Vietnam's mili-
tary installations, factories, rail centers, fuel
storage facilities and ports, and destroy all
North Vietnamese 'ships and aircraft. This
could be done in a week and then the situa-
tion In South Vietnam and Laos would sud-
denly take on quite a different aspect.
? Ho Chi Minh will not surrender, and we
should not expect to be able to end the war
quickly. It will be a long and terrible war,
whether we counterattack into North Viet-
nam or not. If we do, it will not be a hope-
lees war as it is at present.
.. Respectfully yours,
Romer Po
, * ? others. ? recall, your SOS egainet the Tel-
? atm deal i'rhichthe'Government turned Oen;
,
Ju a g vie, 1964. - to A.T. & T.:- and many other
HOD: WATINZ Mbitit." tans where you represented the
US. Senate; ? interests. It I is a great satisfaction to have
Washington.. D.C. . ^ .? ? EitIlttOY WAYNE MOSEZ In. Waiihington' .to_s
Mr MAR actiAtpu Norrnang;I would never counteract to some extent the Ooldinitem.
have thought of wrung, to you. I ant not the Smathers, Eastlanda et al. U there travel,
one of your Apotittienne indeed; / have mom of you nod fewer ot the UMW. our ?
never had-the good' fortune to be In Oregon. country and the world in lemma -Wahl he
But in days such- as the present ones I feel a. more Just and Peaceful Placa- .
that I must let You know how much P respect . ?Yours very truly. ? ? '
you for many ,01 the positions which you %Maar CnIzenrier.
, have taken recently on foreign and domestic.
affairs. . r? ? ? -Peatirsen.
the July 9, 1964. Concamewitar. Racoon and
I would like to add mine to your collection.
You are doing, an outstanding job in the
Senate on this issue day after day and de--
serve the good wishes of all Americans. Keep
it up.
Sincerely.
J. B. Cloatow.
P.0,?I would appreciate being placed on
the mailing list for your newsletters.
Sax leasircieco. CAUL.
July 13,1944.
Senator Wangs Moms,
U.S. Senate Building.
Washington, D.C.
81DIATOD MOW: In what capacity Is the
United States militarily responsible /Or the
perpetuation of the present South' Vietna-
mese regime? What qualities has thla re?
-
gime which guarantee the freedoms at the
South Vietnamese people?
If it is our aim to prevent the spread at
communism, perhaps ? more practical solu-
tion, and certainly a more preferable solu-
tion, would be to eliminate the conditions
which foster uprising; eliminate the ?audi-
tions, not the people.
Our position is detestable morally.
Sincerely yours,
Mr. and Mrs. Joest B. RAID.
Moms.", Mo..
Juig 15,1144.
Hon. WAYNg MOIZZ,
Senator Irons Oregon,
Washington D.C.
DEAR finniros Mons: I want to thank you,
for your courageous stand and the vigorous
way in which you have opposed our Govern-
ment's Intervention In Vietnam. The Post
Dispatch recently has given you considerable
space, as you probably know. They had ?
fine editorial praising you for your daily
speech in the Senate. voicing your opposi-
tion to this immoral and cruel war, and they
carried a three-column reprint of one of.
your speeches in which you .pointed out
that we have no legal right to engage In thin
war. I presume you nave copies et this-'
material.
You speak for a great many conscientious .
. people, not only on this subject, but on many
corning involved further in military conflict
In southeast Asia.
I fear greatly the recent escalation of the
conflict, particularly, by our Government.
I am firmly convinced that it Is against
the beat Interests of the United . States to
continue participation in this war.' It actu-
ally weakens our military security while.
harming our diplomatic posture.
' Again. thank you for your, leadership ? on
this Issue. '
- Sincerely.
Jesioara Gamismart.
Poartaire?..0isio.,
Senator Wayne L. Mouse.
`Senate Building,
Washington, D.C.
DIA* Swims Mono: As an Oregon Demo-
crat, Tve been tremendously , proud of' our
eitate's representation and rather guilty not
to have expressed my feeling to you, to Bann
Omen, and to itatranix Naussaare. ?
Now, with the bitter truth about Vietnam
breaking out at long last. may I thank you
and all other courageous protesters who are.
rat sure, standing with you. ? Wnsiant
Biases recent speech in the Rouse was heart- ?
ening. It is most unfortunate that the
press, radio. and TV do not give good COWS.,
age to controversial speeches and debate. It
mans to me and my friends of liberal faith
that now Is the heaven-sent opportunity for
the United States to do the obvious: Dem-
onstrate alleged faith in the United Nations ?
and lead the world toward a reel detente.
We cannot underrtand those whet want to,
save face militarily while they refuse to lees
the realities of the atomic age.
Thank you, Senator, and more strength to
you.
yours.
ALICE B. PLriereote.
Parnsien, Often.
July 1014.
President LYNDON B. JOIDIDON,
The White House,
Washington, D.C.
,? Dam Ma. Passinurr: I realise you are mak-
big an intensive study at the situation in.,
South Vietnam, the Importance of which you '
fully realize... LuigeljOu.- ffr:Preeldenk,hoti?
to be pressured into' making a Military cont.. ' ?
ndtment that would lead us into war vdtb-
Med China. Large you, on the other band,
to explore every avenue available that might+
lead to n peaceful'eettlement. The- 'Mee, of '
manna and the long view are needed here.
? In spite of the tact that you Mit yt0ii-Dli:t
many letters tirging.immediate military ex-
panskoz. I know there are many America:sir ,
who feel as! do about this. ,
Very truly yours. '
,(Coitto Sanatie:Watinikilaers.)..
? ? Now thlit'HODDiCie CIOLNWAINU 'WS b00002111 ? ? ? It
?
the Republican' preeldential candidate the Tint U.S. Dim=
danger inereara that teeny of his appro.. Washington. DR. ?
?`.. 2
nenta will cautious to mention him and the ?? Mtn HIDIDTat Mouth: I howl ormorol_ _Woes,
forces behind him excuses foe the chase-read over Your May 27 %meth to the Slate.
terof "many U.S. policies. ? I hope that you and the text of the' Way24. 1964. "Pilo 'Abe
will criticise anyone who attempts to justify Nation7 television Program. '
the contininnee of 'bad policies by saying I wont to ere You ovorY Possible osoour-
that any attempt tolnuatement better ones ? ogomehtIn Tour:eoott leant to brtog_111110.
would provide golitkilysnin. tunition te thr owr?fiegae4:11 11 flatten:7/1th rooPeot,towur
Goldwater forces,? - ? southeastAnaliolicy..
I.sm sure that ,you.?will nontinue ? Sbicerly mute; _ . .
come Increasingly outepokea'abont such", w'xixents Mors. NZ;
Issue as peace, enantuurient,7Chba. south-
east Ana, and dbfilrtghte. - 4
'vcrytruly
It Int
Den. limitarair 'Month: I bars, just' been'
reading some 01 yets,ertipuorters? letters in/
? ? ? A ? . ? '
kfai 187 "
_CE2ipME2IT OP PORIELOWAST-'
?-? 4NCE Acr OF 1961
ThrSenite.reamseditie considerattoii
of 'the btfl 2121. 11380) to amend furl,
ther the Pbreign 'Assistance .of 1962,?
si,aaniniled;' and tof her purposes.
Mr:McGOVERN. Mr: Preakleint:2 call
up ray atoendnient; which rolleicfor 30?
"self 'menhir-seniorSenator' from Mb.
? - ? semi (Mr. rfnitor,o7.): I 84E' that:ttl
,
;? awe:. 1 :he stated:, ? , ?
Spatter Warn
Offlos Building.'
?Wsatingins. D.C. -
Dna ' knee )rosszi".7ust a wind 01 op.
predation for the valiant efforts which yarn
see. Making to. kirp our Gauntry frost but.,
Jody Is, 106d. PRZSMIiiil, ?POI' C1:21... The
aniesidnient beitated. ? -
The Lsolsiativit Cutout On *Paiiii.114
st.the end of Section_ 620 (a) hiertedittr:
the MS by Senatcantendatent, idatfn*.
to limitation on,aggredate authatisatkin
e'
"
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1855fi
Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080047for use in Iiscai year IVO.),
-1.111,1
period, insert a semicolon, and add the
following:
Provided, That an additional $50,000.000 Is
authorized to be appropriated for the pur-
chase of domestically produced beef, poul-
try and other meats and meat products.
dairy products, rice and other high protein
foods, In adequate supply in the United
States, for donation to school lunch and sim-
ilar programs in foreign countries eligible for
assistance under this Act.
Mr. MANSFIELD Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. McGOVERN. Mr. President. I
shall take only a brief time W explain
the amendment. I believe it will be ac-
cepted by every Member of the Senate.
I have discussed it with the distinguished
chairman of the Committee on Foreign
Relations, the Senator from Arkansas
[Mr. PULalunS1]. He indicated that he
is willing to accept the amendment. I
have also discussed it with the leadership
and with numerous other Members of the
Senate, and they support the amend-
ment-
In effect, the amendment authorizes
the appropriation of $50 million under
the authority of the foreign aid bill now
before the Senate for the purchase of
domestically produced beef, poultry, and
other meats and meat products, dairy
products, rice, and other high-protein
foods which are in adequate supply in
the United States for donation to school
lunch and similar programs in foreign
countries which are eligible for assist-
ance under the bill.
I believe the amendment is a perfect
combination of our domestic self-inter-
est with the most solid kind of humani-
tarian program.
We have heard much discussion in
the Senate during the past few days
about some of the inadequacies of our
foreign aid operations. There are In-
adequacies. There are some parts of the
program that should be corrected.
But one aspect of our oversea aid pro-
gram that should bring pride to every
Member of Congress, and to every Amer-
ican. is our oversee school lunch pro-
gram. We are now feeding about 40
million schoolchildren every day through
our food for peace Program- The revolts
of that Program have been most inspir-
ing, not only in terms of the remarkable
Improvement in health on the part of
the youngsters who receive the food, but
also in terms of improved school attend-
ance and improved academic perform-
ance.
Some years ago, Prime Minister Nehru,
of India, stated that one cannot talk of
God to a starving person. By the sante
reasoning, an effective job cannot be
done of educating boys and girls who are
hungry, who are too weak and lethargic
to sit through classroom instruction.
Amazing results have been achieved by
countries.
One of the limitations of the program
has been the lack of high protein food.
Under existing authority, we have not
had the power to purchase beef and other
meat products or the high protein foods
that are desperately needed. There is no
/tingle lack in the world today that
undermines human health more than the
lack of protein foods.
There is an extremely critical shortage
of such foods all across Africa, Asia, large
parts of Latin America, and the Middle
Bast. In fact, some authorities say that
almost no child on the entire Continent
of Africa escapes the ravages of protein
deficiency. There is a terrible disease
known as kwashiorkor, which is another
name for protein deficiency. It is this
tragic lack of protein in the diets of the
youngsters of Africa and in most of the
other underdeveloped parts of the world
that causes the skinny arms and legs,
the distended bellies, and the gaunt fecal
of the children we see when we visit un-
derdeveloped countries.
The only way to correct that condition
Is by providing additional protein foods,
as would be authorized by this amend-
ment.
We should also consider the amend-
ment I have offered from the standpoint
of our own interests.
The amendment will be of great value
to American producers. We all know
that American livestock producers have
been in serious economic trouble for more
than a year. This amendment offers an
opportunity to take off the market some
of the surplus beef that is produced in
this country. The amendment provides
that the beef to be used must be domesti-
cally produced and used for the relief of
boys and girls overseas through school
lunch and similar programs.
Our dairy Producers and some of the
other producers who would be assisted
by the amendment have also had prob-
lems of surpluses, which this could help
relieve.
At the present time, lam advised that
our stocks of nonfat dried milk are quite
low. We had only 123 million pounds
uncommitted July 24 compared to 472
million pounds at the same time last
year. The voluntary agendas, which
have asked for 850 million pounds this
year, have been assured only 400 million.
It would be tragic if this commodity,
which is the backbone of some of our
school aid projects abroad, shOuld be
suddenly cut off or drastically cut back
and we should abandon millions of chil-
dren to want and hunger again.
I do not know of any program in our
entire farm aid operation that deserves
our support more than does the effort to
contribute to the improvement of the
health and well-being of schoolchildren
In the developing countries.
During the past week, the country has
marked the 90th birthday of former
President Herbert Hoover. Mr. Hoover
Is known around the world, not so much
because he was President of the United
States. important and significant as that
honor was, but because he brought
America's agricultural abundance to
worm nuriger.
former President Hoover has devoted a
good part of his recent years to the writ-
ing of a four-volume work on our over-
see food programs. It is a high tribute
to President Hoover that he handled that
Program with the broad vision and deep
sense of humanity that he manifested,
both in the years during and after World
War I and again after World War II,
when he was asked by President Truman
to direct or advise on the feeding of the
hungry people in the war-torn countries
of Europe and in Japan.
One of the most remarkable of our
Post World War Il efforts was the school
lunch program directed by Gen. Douglas
MacArthur in Japan, a program which
Is paying great dividends to the people
of Japan and the people of the United
States. The health and well-being of
a whole generation of Japanese young
people were greatly strengthened by the
oversee school lunch programs that were
directed by General MacArthur in the
postwar period. It is one of the great
achievements in the life of that re-
nowned general. Today thanks in part
to that program, Japan is the biggest
commercial, hard-money purchaser of
American agricultural commodities in
the world.
Mr. President. this is a hardheaded
program. The schoolchildren we help
today with the school lunch program,
who learn to enjoy and benefit by Amer-
ican milk, American meat, and American
agricultural products, will be our cus-
tomers tomorrow. This program is defi-
nitely in the interest of American agri-
cultural producers. It is in the interest
of people who are trying to assist over-
seas. In the best sense of the word, it
Is food for peace in action.
I am much pleased that the distin-
guished senior Senator from Missouri
(Mr. iTrArirrorON), who 16 a member of
the Committee on Foreign Relations.
and who has traveled widely and ob-
served these programs in various parts
of the world. has joined me as a cospon-
sor of the amendment.
I hope the Senate will adopt the
amendment.
Mr. SYMINGTON. Mr. President, it
Is a privilege to be a Joint sponsor of
the amendment with the distinguished
Senator from South Dakota [Mr. Mc-
Goma]. Not only will the amendment
help the people whom we intend it to
help under the foreign aid program, it
will also help the American farmer.
The fact that we reduced the foreign
aid bill last evening by several hundred
million is the only reason why we did not
Include a considerably larger figure for
this worthy cause. Nevertheless, I am
gratified to know, as I know my able *1
friend from South Dakota is, as a result
of the actions of the administration in
recent days and weeks, that beef prices,
which bad been falling in a serious, if
not critical fashion, have improved.
It is this type of program that I be-
lieve will make it possible for the Cattle-
men and those engaged in the poultry,
dairy products, ricegrowing, and other
high-protein food industries, to have a
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!support program that will be, at the same
time, not only in the best interest of
the people of the United States, but also
of the countries to which the Executive
and Congress have decided to send this
aid.
It is a privilege to be associated with
the distinguished Senator from South
Dakota, who, without question, is one
of the strongest proponents of American
rural life.
I urge the Senate to accept the amend-
ment.
Mr. McGOVERN. Mr. President, I
wish to comment on the point the Sen-
ator from Missouri made about the re-
lationship of this amendment to our
domestic livestock program. The Sen-
ator from Missouri has been working on
this problem diligently.
Is it not true billet this year, according
to Department of Agriculture estimates,
feed products rose 10 percent above last
year, when we were really in serious
difficulty?
Mr. SYMINGTON. That is true.
What apprehension we had from the
standpoint of prices later in the year was
over the number of? cows which would
be slaughtered. In a program of this
character, a minimum increase in the
price of beef should be important in
maintaining the price today, which is
the minimum price from the standpoint
of the capacity of the beef farmer to
make any money out of his operations.
Mr. McGOVERN. I thank the Sen-
ator.
Mr. President, I am advised that the
production of all beef this year, exclusive
of farm slaughter and veal, was 13 per-
cent above last year during the first 6
months. The first 6 months figures were
'7.8 billion pounds in 1963, and 8.8 billion
pounds in 1964.
The Department of Agriculture antici-
pates that the year's production will run
at least 10 percent over the 16.1 billion
total last year, or between 17.5 and 17.8
billion pounds.
Fed steer prices have gone up sub-
stantially in Chicago this week for mar-
ketings, for the first time this year,
dropped below a year ago. This will
not continue in view of the overall supply
outlook. ,
We have more than enough beef.
We can absorb about 3 percent in-
crease a year without unreasonable de-
pression of prices. I am sure that beef
producers would welcome the export of
a substantial quantity of the present
oversupply.
Mr. MUSKIE. Mr. President, will the
Senator from South Dakota yield?
Mr. McGOVERN. I yield.
Mr. MUSKIE. I listened with interest
to the Senator's presentation of his
amendment. I note that he specifies do-
mestic beef, poultry and other meats, and
dairy products and other high protein
foods. The language, "other high pro-
tein foods," suggests that the amend--
ment would be broad enough to include
fish. The Senator from Alaska [Mr.
BARTLETT] Of course is interested in this
subject also, and I wonder whether my
interpretation of that language is cor-
rect, in the opinion of the Senator from
South Dakota?
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?
1964 CONGRESSIONAL RECORD ? SENATE
Mr. McGOVERN. Let me say to the
Senator from Maine [Mr. MUSKIE), and
also to the Senator from Alaska [Mr.
BARTLETT] who has taken a great inter-
est in this problem over a long period
of time, that there is no questiOn in my
mind that "other high protein foods"
would include fish and fish products.
It is one of the best possible sources
of protein. We have conducted a num-
ber of experiments in certain countries
with the use of fish and fish products
as an additive to the diets of children
and adults suffering from protein defici-
ency, and it proved to be extremely valu-
able food. It would certainly be covered
by the term "other high protein foods."
Mr. MUSKIE. I thank the Senator
for his explanation.
Mr. BARTLETT. Mr. President, will
the Senator from South Dakota yield?
Mr. McGOVERN. I yield.
Mr. BARTLETT. I am very glad that
the Senator from Maine asked that ques-
tion, and I am particularly glad to get
the answer from the Senator from South
Dakota.
We all know that fish are almost
literally bursting with protein. There
is no better food protein than that which
can be obtained from fish and fish prod-
ucts. I am glad to support the Senator's
amendment. I am all the more happy
to do so because the Senator has defined
fish, in his opinion, as being one of the
foods that would be included.
The junior Senator from California
[Mr. SALINGER] is also interested in this
subject, although at the moment Maine
sardines and Alaska salmon are the fish
products in surplus. I know that all too
frequently California fish are likewise
in surplus.
I thank the Senator from South Da-
kota for yielding to me.
Mr. SPARKMAN. Mr. President, will
the Senator from South Dakota yield?
Mr. McGOVERN. I am happy to yield
to the Senator from Alabama.
Mr. SPARKMAN. I have not talked
with the chairman of the committee, the
Senator from Arkansas [Mr. FULERIGHT] ,
concerning the Senator's amendment,
but it is mY understanding that he told
the Senator from South Dakota that he
would be willing to'take the amendment
to conference.
Mr. McGOVERN. The Senator is cor-
rect. He assured me that he would ac-
cept the amendment.
Mr. SPARKMAN. That is the word I
had heard?that the Senator from Ar-
kansas [Mr. FULBRIGHT], chairman of the
committee, would take the amendment
to conference. I am prepared to carry
out the promise which he made.
The PRESIDING OFFICER (Mr.
BREWSTER in the chair). The question
is on agreeing to the amendment of the
Senator from South Dakota [Mr. Mc-
GOVERN] .
The amendment was agreed to.
Mr. BARTLETT. Mr. President, I
submit an amendment which is at the
desk, and ask that it be stated.
The PRESIDING OFFICER. The
amendment of the Senator from Alaska
will be stated.
The LEGISLATIVE CLERK. On page 17,
after line 7, it is proposed to insert the
following:
18557
SEC. 403. Section 106 of the Agricultural
Trade Development and Assistance Act of
1954, as amended, is amended by adding at
the end thereof a new sentence as follows:
"When the Secretary of the Interior has de-
termined that a domestically produced fish-
ery product is a surplus agricultural com-
modity, as defined by this section, the Presi-
shall initiate the necessary actions for the
sale of such products in accordance with the
provisions of this Act." .
Mr. BARTLETT. Mr. President, the
senior Senator from Washington and
the junior Senator from Maine and I
submit this amendment because we feel
it is absolutely essential to do so. It
appears, unfortunately, that the adop-
tion of such an amendment is necessary
if a provision we adopted last year is to
be implemented. Last year the 'Senate
added fish to the food for peace pro-
gram. Section 403(c) of the Foreign
Assistance Act of 1963 added the follow-
ing language to title I of Public Law
480:
For the purposes of this title and title IV,
the term "surplus agricultural commodity"
shall include any domestically produced fish-
ery product (not including fish flour until
approved by the Food and Drug Adminis-
tration) if the Secretary of Interior de-
termines that such product is at the time of
exportation in excess of domestic require-
ments, adequate carryover, and anticipated
exports for dollars.
That amendment had the active sup-
port of many Senators. Some of them,
naturally, represented the chief fishing
States in the coiintry--7others not. It
was supported by the Senator from
South Dakota [Mr. McGovani]. His
interest was particularly aroused because
of his former position as Director of the
food for peace program. He knew
what fish could mean to the program.
He wished whenever possible and where-
ever possible to export fish products in
order to supply protein to the nations of
the world so urgently in need of it.
The present Director of the food-for-
peace program, the Honorable Richard
W. Reuter was and is enthusiastic about
the proposal. All the great fish products
with their high protein content should
be made available on a wider scale to
the emerging nations which participate
in the food for peace program.
The amendment became' law 8 months
ago. At that time, there were in surplus
some 200,000 cases of sardines packed
in Maine. There was in surplus approx-
imately 1,500,000 cases of pink salmon,
most of which were packed in Alaska.
Those surpluses were and are causing the
warehouses to bulge, depressing the do-
mestic market and discouraging our
fisherman and fishing industry.
According to the terms of last years
amendment, it is the duty of the Secre-
tary of the Interior to declare which of
our domestic fishery products are in sur-
plus. We know that salmon- and sar-
dines are particularly in surplus. We do
not know and we cannot determine why
no declaration of a surplus has been
made. On January 16 I wrote the Sec-
retary of the Interior, asking him to de-
clare pink salmon in surplus. On Jan-
uary 30 I received a reply in which the
Secretary stated that there were strong
\indications that the salmon were in sur-
plus and that he would develop the
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Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080047-1
18558 CONGRESSIONAL RECORD ? SENATE
necessary commodity recommendations
as soon as possible. Three months later
nothing had happened. I again wrote
the Department and was again assured
that a full report could be expected
shortly. That was April 24. Nothing
more has been heard. I consider this
total failure of Secretary Udall a shock-
ing miscarriage of the will of Congress.
Mr. MUSKIE. Mr. President, will the
Senator from Alaska yield?
Mr. BARTLETT. I am happy to yield
to the Senator from Maine.
Mr. MUSKIE. We have had discus-
sions with representatives of the Depart-
ment of the Interior and the Budget Bu-
reau, and Mr. Gordon himself. The fact
is, on this question there has been no
denial of the facts which the Senator
from Alaska has just stated, as I recall,
and no one disputes there there is a sur-
plus in these canned fishery products.
Mr. BARTLETT. The Senator is ab-
solutely correct. I am glad that the
Senator from Maine brought that up.
The senior Senator from, Washington,
the junior Senator from Maine, and I
met with the Director of the Bureau of
the Budget and one of his assistants for
over 2 hours off the the Senate floor 2
months ago. It was an amazing meet-
ing at which the Director made it quite
clear that he personally was of the opin-
ion then that adding fish to the food for
peace program would most likely hurt
the fishing industry, not help it. Mr.
Gordon was willing to substitute his
judgment for that of the Bureau of Com-
mercial Fisheries, Food for Peace Ad-
ministration, the fishing industry, Con-
gress, and the President. As I said, I
was amazed.
So far as we could determine, the Bu-
reau thought that this was not a good
program. So they did not propose to do
anything about it. Whether that is so or
not, it is surely a fact that nothing has
been done.
Mr. MUSKIE. Will the Senator yield
further?
Mr. BARTLETT. I yield.
Mr. MUSKIE. We have discussed
briefly one of the criteria that were set
out in the legislation last year. That is
that there be a production in excess of
domestic requirements. Two other cri-
teria were laid down. One was that
there be an adequate inventory carryover
for the needs of the industry and the
domestic market. The other was that
we anticipated the possibility of develop-
ing exports for dollars.
We have met most of these tests on at
least a prima facie basis, and I think on
a stronger basis than that. Our facts in
that connection have not been disputed
by the Bureau of the Budget. And for
all practical purposes, so far as we know,
the Bureau of the Budget does not dis-
pute that we have met the three criteria
laid down under the act. Is that cor-
rect?
Mr. BARTLETT. That is absolutely
correct. And long ago, at a point in
time not too distant from the enactment
? of the bill last year, all of us concerned
started to work?or so we thought?with
the Bureau of the Budget and with the
Department of the Interior. We worked
under the assumption, which we thought
we were entitled to entertain, that soon
the program would be in effect.
I believe the Senator from Maine [Mr.
Musxm] has a letter in his file, which
he now holds in his hand, dated back in
February, from an official of the Depart-
ment of the Interior. The letter paints
a rosy picture in regard to implementa-
tion of the program, and paints a gloomy
picture in respect to the surplus that
exists.
We thought that very shortly after
that the Secretary of the Interior would
declare these stocks to be surplus, as he
is charged with doing under the law.
We thought Secretary Udall would rec-
ommend to the Director of the Bureau of
the Budget, and any other agencies that
had to be informed, that the program
should be made effective.
Mr. SPARKMAN. Mr. President, will
the Senator yield?
Mr. BARTLETT. I am particularly
glad to yield to the Senator from Ala-
bama. Above all things, I think it is
important that the understanding of the
committee in regard to the program be
made known. I have a feeling that the
committee accepted this amendment last
year with a notion, idea, hope, and be-
lief that it would be operative.
Mr. SPARKMAN. Mr. President, I
supported this amendment in the com-
mittee.
Mr. BARTLETT. I know that.
Mr. SPARKMAN. I supported the
amendment on the floor of the Senate.
I supported it in the conference; and it
became law.
I say in the beginning that I hope the
Senator will not insist on the present
amendment. I believe we can take care
of it in another way, by making the
record crystal clear that the intent of
Congress is that this program be imple-
mented. And that is the trouble. The
law is on the books. It just has not been
put into effect. We did intend that it
be put into effect. And we intend now
that it be put into effect.
? Let me say furthermore that I support
what was said with reference to the
amendment of the Senator from South
Dakota [Mr. MCGOVERN] that we believe
that under the wording of the amend-
ment, fish and fish products would be
included. It specifically states: "other
protein products."
I am not an expert on these matters.
But I believe that fish and fish products
are recognized as possessing about as high
a protein content as any category of food
that we have. I am perfectly willing to
say to the Senator that it was our intent
to write this provision into the law and
that it be activated. That is our intent
now. I feel confident that had this mat-
ter been called to our attention, we would
have made a strong recommendation in
the committee report with reference ?to
it.
I state here, as a matter of record on
the floor of the Senate that we intended
that it be activated. And we still do
intend that.
Mr. BARTLETT. I am encouraged by
what the Senator from Alabama had to
say.
Mr. MAGNUSON. Mr. President, will
the Senator yield?
August 12
Mr. BARTLETT. I yield.
Mr. MAGNUSON. I associate myself
with what the Senator from Maine [Mr.
Musxm], the Senator from South Dako-
ta [Mr. MCGOVERN], and the Senator
from Alaska [Mr. BARTLETT] have said.
Surely all of us thought we did do some-
thing about this program when we en-
acted it into law. I, too, am alarmed by
the lack of attention given to this fine
program by the Bureau of the Budget
and the Department of the Interior.
I hope that the Senator from Alabama
[Mr. SPARKMAN] uses his very great in-
fluence in this matter. He has great in-
fluence with those engaged in this pro-
gram. I hope that other Senators use
their influence also. If not, the Senator
from Washington will have to suggest
that when the foreign aid appropriation
bill comes along, we designate x number
of dollars for that purpose. It would
be so much better if they were to do it
and abide by the law, than if we were
forced to do such a thing.
Mr. SPARKMAN. Mr. President, I
agree with the Senator from Washington
that the better system, the better way,
the orderly way would be to activate the
program, as was very clearly the intent
of Congress. I feel confident that that
will be done.
I give assurance to all Senators that I
shall be glad to do whatever I can to see
that the program is activated. I cannot
speak for the chairman. If I recall cor-
rectly, he was an active supporter of the
program last year.
Mr. MAGNUSON. He is very active.
I know he is very concerned and will be
with us all the way.
Mr. SPARKMAN. He was active on
the committee, on the floor of the Sen-
ate, and in the conference.
Mr. BARTLETT. That is correct. I
talked with the chairman this afternoon.
He did not have an opportunity to study
the specific wording of the amendment,
so he did not promise to support it. He
did say that he was and is in favor of the
program.
Mr. SPARKMAN. This is correct. I
feel certain he will lend his support to-
ward getting the proper officials to go
ahead and do what they ought to do
under the law now on the statute books.
Mr. BARTLETT. Then we shall have
two powerful right arms helping us?the
right arm of the Senator from Alabam
and the right arm of the Senator fro
Arkansas.
Mr. MUSKIE. Mr. President, will th
Senator yield?
Mr. BARTLETT. I yield.
Mr. MUSKIE. I appreciate the re
assurance of the Senator from Alabama
It is a restatement of what I know
have been his intent a year ago when thi
language was incorporated in the bill.
Constantly when we are considering
amendments of this nature to a bill on
the floor of the Senate, we are asked by
administrators of agencies to use flexible
language. And yet when we do use the
flexible language, the language is used
to flout the will of Congress. Here we
have language that is flexible. But the
intent is clear. It has been clear ever
since the bill was enacted into law last
year. An agency uses the flexible lan-
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!18559
1964 CONGRESSIONAL RECORD ? SENATE
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guage not to implement the right of Con-
gress, but to thwart it.
Mr. BARTLETT. The agency tries to
overcome the will of Congress.
Mr. MUSKIE. That is correct.
Mr. SPARKMAN. Mr. President, I
believe we have made our intent even
more clear today. I doubt that there is
a single Senator who is opposed to it.
Mr. McGOVERN. Mr. President, will
the Senator yield?
Mr. BARTLETT. I am happy to yield
to the Senator from South Dakota whose
support meant so much to us from the
inception of what we thought was going
to be a worthwhile program. It will be
such if we ever get it going.
Mr. McGOVERN. Mr. President, as
the Senator knows, I supported this pro-
gram and have supported it since its in-
ception. I wholeheartedly agree with
the Senator from Washington [Mr.
MAGNUSON], the Senator from Alabama
[Mr. SPARKMAN], the Senator from
Maine [Mr. MusicrE], and the Senator
from Alaska [Mr. BARTLETT]. I believe
this is an important matter.
There are not very many people in the
world who are actually starving to death
any more. But we have hundreds of
millions of people who have very badly
balanced diets and are suffering from
malnutrition of one kind or another.
The basic cause of that malnutrition is
the lack of proper foods.
In most countries, people can find suf-
ficient volume of food to eat, but they
do not have the correct mixture. Add-
ing even a modest amount of fish or fish
products to a diet can perform almost
miraculous results in terms of human
health. On humanitarian grounds alone,
aside from what the proposal might
mean to our own domestic economy, we
ought to implement it as quickly and as
effectively as we can.
Mr. BARTLETT. I thank the Senator.
In view of what has transpired here to-
day, I hope that the Secretary of the In-
terior within the next week?it should
not take until sundown tomorrow, in
fact?will declare these stocks of fish in
surplus, as he should have done long ago
under the law, and that soon thereafter
the program will be put into effect.
In the light of what the Senator from
Alabama [Mr. SPARKMAN] has said?and
I realize that the Public Law 480 is a
discretionary program, but I did not re-
alize it would prove to be quite as dis-
cretionary as it has?and because of the
fine support that he has given, I with-
draw the amendment.
AMENDMENT NO. 1215
Mr. DIRKSEN. Mr. President, on be-
half of the distinguished majority
leader and myself I offer an amendment
to the pending bill. I presume the for-
eign assistance bill is the pending busi-
ness before the Senate. Am I correct?
The PRESIDING OveICER. The
Senator is correct.
Mr. DIRKSEN. I offer the amend-
ment to the pending bill. I do not in-
tend to discuss the subject very long
tonight. Copies of the amendment have
been given to all Senators and the press
and, so far as I know, to all Members of
the House. The subject has been pend-
ing for quite a long time, and it has
become something of a volcanic issue in
the country.
I believe that interest in the so-called
reapportionment question began with
the case of Baker against Carr in 1962.
That case emanated from the State of
Tennessee, and in the course of the
Supreme Court's decision there were
finally filed at least 60 suits in 37 States.
In some cases there was reapportion-
ment, and in other cases there was not.
But overshadowing all of that came
another line of decisions by the Supreme
Court, the principal one of which is the
case of Reynolds against Sims, which
came out of Alabama. Jointly with that
case, the Court undertook to consider
a case from the southern district of New
York on appeal, a case from Maryland
on appeal, a; case from Virginia on ap-
peal, a case from Delaware on appeal,
and a case from Colorado on appeal. But
the decision in the case of Reynolds
against Sims covers the entire question.
First, I ask unanimous consent to have
printed at this point in my remarks the
dissenting opinion of Associate Justice
John Marshall Harlan.
There being no objection, the opinion
was ordered to be printed in the RECORD,
as follows:
DISSENTING OPINION OF ASSOCIATE JUSTICE
JOHN MARSHALL HARLAN IN THE CASE OF
REYNOLDS V. SIMS
(June 15, 1964)
Mr. JUSTICE HARLAN, dissenting:
In these cases the Court holds that seats
in the legislatures of six States are ap-
portioned in ways that violate the Federal
Constitution. Under the Court's ruling it is
bound to follow that the legislatures in all
but a few of the other 44 States will meet the
same fate.2 These decisions, with Wesberry
V. Sanders, 376 U.S. 1, involving congressional
districting by the States, and Gray v. San-
ders, 372 U.S. 368, relating to elections for
statewide office, have the effect of placing
basic aspects of state political systems under
the pervasive overlordship of the Federal
judiciary. Once again,' I must register my
protest.
PRELIMINARY STATEMENT
Today's holding is that the equal protec-
tion clause of the 14th amendment requires
every State to structure its legislature so
that all the members of each house represent
substantially the same number of people;
other factors may be given play only to the
extent that they do not significantly en-
croach on this basic "population" principle.
Whatever may be thought of this holding
as a piece of political ideology?and even on
that score the political history and practices
of this country from its earliest beginnings
leave wide room for debate (see the dissent-
Alabama, Colorado, Delaware, Maryland,
New York, Virginia.
2 In the Virginia case, Davis v. Mann, post,
p. ?, the defendants introduced an exhibit
prepared by the staff of the Bureau of Public
Administration of the University of Virginia
in which the Virginia Legislature, now held
to be unconstitutionally apportioned, was
ranked eighth among the 50 States in "rep-
resentatives," with population taken as
the basis of representation. The Court notes
that before the end of 1962, litigation attack-
ing the apportionment of State legislatures
had been instituted in at least 34 States.
Ante, p. 21, note 30. See infra, p. 24.
3 See Baker v. Carr, 369 U.S. 186, 330, and
the dissenting opinion of Frankfurter, J., in
which I joined, id., at 266; Gray v. Sanders,
372 U.S. 368, 382; Wesberry v. Sanders, 376
U.S. 1, 20.
ing opinion of Frankfurter, J., in Baker v.
Carr, 369 U.S. 186, 266, 301-323)-1 think it
demonstrable that the 14th amendment does
not impose this political tenet on the states
or authorize this Court to do so.
The Court's constitutional discussion,
found in its opinion in the Alabama cases
(Nos. 23, 27, 41, ante p. ?) and more par-
ticularly at pages 26-33 thereof, is remarkable
(as, indeed, is that found in the separate
opinions of my Brothers Stewart and Clark,
ante, pp. ?, ?) for its failure to -address
itself at all to the 14th amendment as a
whole or to the legislative history of the
amendment pertinent to the matter at hand.
Stripped of aphorisms, the Court's argument
boils down to the assertion that petitioners'
right to vote has been invidiously "debased"
or "diluted" by systems of apportionment
which entitle them to vote for fewer legisla-
tors than other voters, an assertion which is
tied to the equal protection clause only by
the constitutionally frail tautology that
"equal" means "equal."
Had the Court paused to probe more deeply
into the matter, it would have found that
the equal protection clause was never, in-
tended to inhibit the States in choosing any
democratic method they pleased for the
apportionment of their legislatures. This
is shown by the language of the 14th amend-
ment taken as a whole, by the understanding
of those who proposed and ratified it, and by
the political practices of the States at the
time the amendment was adopted. It is con-
firmed by numerous State and congressional
actions since the adoption of the 14th
amendment, and by the common understand-
ing of the amendment as evidenced by sub-
sequent constitutional amendments and de-
cisions of this Court before Baker v. Carr,
supra, made an abrupt break with the past
in 1962.
The failure of the Court to consider any
of these maters cannot -6e excused or ex-
plained by any concept of "develobing" con-
stitutionalism. It is meaningless to speak
of constitutional "development" when both
the language and history of the controlling
provisions of the Constitution are wholly
ignored. Since it can, I think, be shown be-
yond doubt that State legislative apportion-
ments, as such, are wholly free of constitu-
tional limitations, save such as may be im-
posed by the republican form of government
clause (Const., art. IV, sec. 4) ,4 the Court's
actions now bringing them within the pur-
view of the 14th amendment amounts to
nothing less than an exercise of the amending
power by this Court.
So far as the Federal Constitution is con-
cerned, the complaints in these cases should
all? have been dismissed below for failure to
state a cause of action, because what has
been alleged or proved shows no violation of
any constitutional right.
Before proceeding to my argument it
should be observed that nothing done in
Baker v. Carr, supra, or in the two cases that
followed in its wake, Gray v. Sanders and ?
Wesberry v. Sanders, supra, from which the
Court quotes at some length, forecloses the
conclusion which I reach.
Baker decided only that claims such as
those made here are within the competence
of the Federal courts to adjudicate. Al-
though the Court stated as its conclusion
'That clause, which manifestly has no
bearing on the claims made in these cases,
see V. Elliot's "Debates on the Adoption of
the Federal Constitution" (1845), 332-333,
could not in any event be the foundation
for judicial relief. Luther v. Borden, 7 How.
1, 42-44; Ohio ex rel. Bryant v. Akron Metro-
politan Park District, 281 U.S. 74, 79-80;
Highland Farms Dairy, Inc., v. Agnew, 300
U.S. 608, 612. In Baker v. Carr, supra, at
277, the Court stated that reliance on the
Republican Form of Government Clause
"would'be futile."
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18560 CONGRESSIONAL RECORD ? SENATE August 12
that the allegations of a denial of equal pro-
tection presented "a justiciable constitu-
tional cause of action," 369 U.S., at 237, it is
evident from the Court's opinion that it was
concerned all but exclusively with justiciabil-
ity and gave no serious attention to the ques-
tion whether the equal protection clause
touches State legislative apportionments.,
Neither the opinion of the Court nor any of
the concurring opinions considered the rel-
evant text of the 14th amendment or any of
the historical materials bearing on ? that
question. None of the materials was briefed
or otherwise brought to the Court's atten-
tion.?
In the Gray case the Court expressly laid
aside the applicability to state legislative
apportionments of the "one person one vote"
theory there found to require the striking
down of the Georgia county unit system.
See 372 U.S. at 376, and the concurring
opinion of Stewart, J., joined by Clark, J.,
id., at 381-382.
In Wesberry, involving congressional dis-
tricting, the decision rested on article I, sec-
tion 2, of the Constitution. The Court ex-
pressly did not reach the arguments put
forward concerning the equal protection
clause. See 376 U.S. at 8, note 10. '
Thus it seems abundantly clear that the
Court is entirely free to deal with the cases
presently before it in light of materials now
called to its attention for the first time. To
these I now turn.
A. The language of the 14th amendment
The Court relies exclusively on that por-
tion of section 1 of the 14th amendment
which provides that no State shall "deny to
any person within its jurisdiction the equal
protection of the laws," and disregards
entirely the significance of section 2, which
reads:
"Representatives shall be apportioned
among the several States according to their
respective numbers, counting the whole num-
ber of persons in each State, excluding
Indians not taxed. But when the right to
vote at any election for the choice of electors
for President and Vice President of the
United States, Representatives in Congress,
the Executive and Judicial officers of a State,
or the members of the Legislature thereof,
is denied to any of the male inhabitants of
such State, being twenty-one years of age,
and citizens of the United States, or in any
way abridged, except for participation in
rebellion, or other crime, the basis of repre-
sentation therein shall be reduced in the
proportion which the number of such male
citizens shall bear to the whole number of
male citizens twenty-one years of age in
such State."
The amendment is a single text. It was
Introduced and discussed as such in the
Reconstruction Committee,7 which reported
It is fair to say that, beyond discussion
of a large number of cases having no rele-
Nance to this question, the Court's views on
this subject were fully stated in the compass
of a single sentence: "Judicial standards un-
der the equal protection clause are well
developed and familiar, and it has been open
to courts since the enactment of the 14th
amendment to determine, if on the particu-
lar facts they must, that a discrimination
reflects no policy, but simply arbitrary and
capricious action." 369 U.S. at 226.
Except perhaps for the "crazy quilt" doc-
trine of my Brother Clark, 369 U.S., at 251,
nothing is added to this by any of the con-
curring opinions, id., at 241, 265.
?The cryptic remands in ScholIe v. Hare,
369 U.S. 429, and W MCA, Inc., V. Simon, 370
U.S. 190, on the authority of Baker, had noth-
ing to say on the question now before the
Court.
7See the Journal of the Committee, re-
printed in Kendrick, The Journal of the
Joint Committe of Fifteen on Reconstruction
(1914), 83-117.
It to the Congress. It was discussed as a
unit in Congress and proposed as a unit to
the States,' which ratified it as a unit. A
proposal to split up the amendment and sub-
mit each section to the States as a separate
amendment was rejected by the Senate.?
Whatever one might take to be the applica-
tion to these cases of the equal protection
clause if it stood alone, I am unable to un-
derstand the Court's utter disregard of the
second section which expressly recognizes
the States' power to deny "or in any way"
abridge the right of their inhabitants to vote
for "the members of the [State] legislature,"
and its express provision of a remedy for
such denial or abridgement. The compre-
hensive scope of the second section and its
particular reference to the State legislatures
precludes the suggestion that the first section
was intended to have the result reached by
the Court today. If indeed the words of the
14th arrifnclment speak for themselves, as
the majority's disregard of history seems to
imply, they speak as clearly as may be against
the construction which the majority puts on
them. But we are not limited to the lan-
guage of the amendment itself.
B. Proposal and ratification of the
amendment
The history of the adoption of the 14th
amendment provides conclusive evidence that
neither those who proposed nor those who
ratified the amendment believed that the
equal protection clause limited the power of
the States to apportion their legislatures as
(hey saw fit. Moreover, the history demon-
strates that the intention to leave this power
undisturbed was deliberate and was widely
believed to be essential to the adoption of
the amendment.
(1) Proposal of the amendment in Con-
gress?A resolution proposing what became
the 14th amendment was reported to both
Houses of Congress by the Reconstruction
Committee of Fifteen on April 30, .1866.7?
The first two sections of the proposed amend-
ment read:
"Szc. 1. No State shall make or enforce any
law which shall abridge the privileges or im-
munities of citizens of the United States; nor
shall any State deprive any person of life.
liberty, or property, without due process of
law; nor deny to any person within its juris-
diction the equal protection of the laws.
"Sze. 2. Representatives shall be appor-
tioned among the several States which may
be included within this Union, according to
their respective numbers, counting the whole
number of persons in each State, excluding
Indians not taxed. But whenever, in any
State, the elective franchise shall be denied
to any portion of its male citizens not less
than twenty-one years of age, or In any way
abridged except for participation in rebellion
or other crime, the basis of representation in
such State shall be reduced in the propor-
tion which the number of such male citizens
shall bear to the whole number of male 'citi-
zens not less than twenty-one years of age." 11
In the House, Thaddeus Stevens introduced
debate on the resolution on May 8. In his
opening remarks, Stevens explained why he
supported the resolution although it fell "far
short" of his wishes;
"I b'elieve it is all that can be obtained in
the present state of public opinion. Not
only Congress but the several States are to
be consulted. Upon a careful survey of the
See the debates in Congress, Cong. Globe,
39th Cong., 1st sess., 2459-3149, passim (1866)
(hereafter Globe).
Globe 3040.
10 Globe 2265, 2286.
77 As reported in the House. Globe 2286.
For prior versions of the amendment in the
Reconstruction Committee, see Kendrick, op.
cit., supra, note 7, 83-117. ? The work of the
Reconstruction Committee is discussed in
Kendrick, supra, and Flack, the adoption of
the 14th amendment (1908), 55-139, passim.
whole ground, we did not believe that 19 of
the loyal States could be induced to ratify
any proposition more stringent than. this." 13
In explanation of this belief, he asked the
House to remember "that 3 months
-since, and more, the committee reported and
the House adopted a proposed amendment
fixing the basis of representation in such
way as would surely have secured the en-
franchisement of every citizen at no dis-
tant period," but that proposal had been re-
jected by the Senate." 13
He then explained the impact of the first
section of the proposed amendment, par-
ticularly the equal protection clause.
"This amendment allows Congress to cor-
rect the unjust legislation of the States, so
far that the law which operates upon one
man shall operate equally upon all. What-
ever law punishes a white man for a crime
shall punish the black man precisely in the
same way and to the same degree. What-
ever law protects the white man shall afford
'equal' protection to the black man. What-
ever means of redress is afforded to one
shall be afforded to all. Whatever law allows
the white man to testify in court shall allow
the man of color to do the same. These are
great advantages over their present codes.
Now different degrees of punishment are in-
flicted, not on account of the magnitude of
the crime, but according to the color of the
skin. Now color disqualifies a man from
testifying in courts, or being tried in the
same way as white men. I need not enu-
merate these partial and oppressive laws.
Unless the Constitution should restrain them
those States will all, I fear, keep up this dis-
crimination and crush to death the hated
freedmen." 14
He turned next to the second section,
which he said he considered "the most im-
portant in the article."1, Its effect, he said,
was to fix "the basis of representation in
Congress."71 In unmistakable terms, he rec-
ognized the power of a State to withhold
the right to vote:
"If any State shall exclude any of her
adult male citizens from the elective fran-
chise, or abridge that right, she shall forfeit
her right to representation in the same pro-
portion. The effect of this prevision will be
either to compel the States to grant uni-
versal suffrage or so to shear them to their
power as to keep them forever in a hope-
less minority in the National Government,
both legislative and executive." 17
Closing his discussion of the second sec-.
tion, he noted his dislike for the fact that
it allowed "the States to discriminate [with
respect to the right to vote] among the same
class, and receive proportionate credit in
representation." 18
Toward the end of the debate 3 days
later, Mr. Bingham, the author of the first
section in the Reconstruction Committee
and its leading proponent,7? concluded his
discussion of it with the .following:
"Allow me, Mr. Speaker, in passing, to sa
that this amendment takes from no Stat
any right that ever pertained to it. No Stat
ever had the right, under the forms of la
or otherwise, to deny to any freeman th
11 Globe 2459.
13 Ibid. Stevens was referring to a proposed
amendment to the Constitution which pro-
vided that "whenever the elective franchise
shall be denied or abridged in any State on
account of race or color, all persons therein
of such race or color shall be excluded from
the basis of representation." Globe 535. It
passed the House, id., at 538, but did not
muster the necessary two-thirds vote in the
Senate, id., at 1289.
14 Globe 2459.
1, Ibid.
1, Ibid.
17 Ibid.
18 Globe 2460.
10Kendrick, op. cit., supra, note 7, 87, 106;
Flack, op. cit., supra, mite 11, 60-68, 71.
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_ _
1964 CONGRESSIONAL RECORD - SENATE 18561
equal protection of the laws or to abridge
the privileges or immunities of any citizen
of the Republic, although many of them have
assumed and exercised the power, and that
without remedy. The amendment does not
give, as the second section shows, the power
to Congress of regulating suffrage in the
several States." 20
He immediately continued:
"The second section excludes the conclu-
sion that by the, first section suffrage is sub-
jected to congressional law; save, indeed,
with this exception, that as the right in the
people of each State to a republican govern-
ment and to choose their Representatives in
Congress is of the guarantees of the Con-
stitution, by this amendment a remedy might
be given directly for a case supposed by
Madison, where treason might change a State
government from a republican to a despotic
government, and thereby deny suffrage to
the people." 2'
He stated at another point in his remarks:
"To be sure we all agree, and the great
body of the people of this country agree, and
the committee thus far in reporting measures
of reconstruction agree, that the exercise of'.
the elective franchise, though it be one of the
privileges of a citizen of the Republic is ex-
clusively under the control of the States.=
In the 3 days of debate which separate
the opening and closing remarks, both made
by members of the Reconstruction Commit-
tee, every speaker on the resolution, with a
single doubtful exception,2* assumed without
question that, as Mr. Bingham said, supra,
"the second section excludes the conclusion
that by the first section suffrage is subjected
to congressional law." The assumption was
neither inadvertent nor silent. Much of the
debate concerned the change in the basis of
representation effected by the second sec-
tion, and the speakers stated repeatedly, in
express terms or by unmistakable implica-
tion, that the States retained the power
to regulate suffrage within their borders.
Attached as appendix A heretofore are some
of those statements. The resolution was
adopted by the House without change on
May 10.24
Debate in the Senate began on May 23,
and followed the same pattern. Speaking
for the Senate Chairman of the Reconstruc-
tion Committee, who was ill, Senator How-
ard, also a member of the Committee, ex-
plained the meaning of the equal protection
clause as follows:
"The last two clauses of the first section
of the amendment disable a State from de-
priving not merely a citizen of the United
States, but any person, whoever he may be,
of life, liberty, or property without due
process of law, or from denying to him the
equal protection of the laws of the State.
This abolishes all class legislation in the
States and does away with the injustice of
subjecting one caste of persons to a code not
applicable to another. It prohibits the hang-
ing of a black man for a crime for which the
white man is not to be hanged. It protects
the black man in his fundamental rights as
a citizen with the same shield which it
20 Globe 2542.
22 Ibid. It is evident from the context of
the reference to a republican government
that Bingham did not regard limitations on
the right to vote or the denial of the vote
to specified categories of individuals as vio-
lating the guarantee of a republican form
of government.
22 Ibid.
=Representative Rogers, who voted against
the resolution, Globe 2545, suggested that the
right to vote might be covered by the priv-
ileges and immunities clause. Globe 2538.
But immediately thereafter he discussed the
possibility that the Southern States might
"refuse to allow the Negroes to vote." Ibid.
5' Globe 2766.
throws over the white man. Is it not time,
Mr. President, that we extend to the black
man, I had almost called it the poor privilege
of the equal protection of the law?
"But, sir, the first section of the proposed
amendment does not give to either of these
classes the right of voting. The right of
suffrage is not, in law, one of the privileges
or immunities thus secured by the Consti-
tution. It is merely the creature of law. It
has always been regarded in this country as
the result of positive local law, not regarded
as one of those fundamental rights lying at
the basis of all society and without which a
people cannot exist except as slaves, subject
to a depotism (sic]." 20
Discussing the second section, he ex-
pressed his regret that it did "not recog-
nize the authority of the United States over
the question of suffrage in the several
States at all." 20 He justified the limited
purpose of the amendment in this regard
as follows:
"But, sir, it is not the question here what
will we do; it is not the question what you,
or I, or half a dozen other Members of
the Senate may prefer in respect to colored
suffrage; it is not entirely the question what
measure we can pass through the two
Houses; but the question really is, what
will the legislatures of the various States
to whom these amendments are to be sub-
mitted do in the premises; what is it likely
will meet the general approbation of the
people who are to elect the legislatures,
three-fourths of whom must ratify our prop-
ositions before they have the force of con-
stitutional provisions?
"The committee were of opinion that the
States are not yet prepared to sanction so
fundamental a change as would be the con-
cession of the right of suffrage to the colored
race. We may as well state it plainly and
fairly, so that there shall be no misunder-
standing on the subject. It was our opinion
that three-fourths of the States of this
Union could not be induced to vote to grant
the right of suffrage, even in any degree or
under any restriction, to the colored race.
"The second section leaves the right to
regulate the elective franchise still with the
States and does not meddle with that
right." 27
There was not in the Senate, as there had
been in the House, a closing speech in ex-
planation of the amendment. But because
the Senate considered, and finally adopted,
several changes in the first and second sec-
tions, even more attention was given to the
problem of voting rights there than had
been given in the House. In the Senate,
it was fully understood by everyone that
neither the first nor the second section in-
terfered with the right of the States to reg-
ulate the elective franchise. Attached as
appendix B hereto are representative state-
ments from the debates to that effect. After
having changed the proposed amendment to
the form in which it was adopted, the Sen-
ate passed the resolution on June 8, 1866.=
As changed, it passed in the House on
June 13.20
(ii) Ratification by the "loyal" States:
Reports of the debates in the State legisla-
tures on the ratification of the 14th amend-
ment are not generally available.** There
=Ibid.
2? Ibid.
27 Ibid.
28 Globe 3042.
2? Globe 3149.
30 Such evidence as there is, mostly com-
mittee reports and messages to the legis-
latures-from Governors of the State, is to
the same effect as the evidence from the
debates in the Congress. See Ark. House
J. 288 (1866-186'7); Fla. Sen. J. 8-10 (1866);
Ind. House J. 47-48, 50-51 (1867); Mass.
Legis. Doc., House Doc. No. 149, 4-14, 16-17,
Is, however, compelling indirect evidence.
Of the 23 loyal States which ratified the
amendment before 1870, 5 had constitutional
provisions for apportionment of at least
one house of their respective legislatures
Which wholly disregarded the spread of
population.= Ten more had constitutional
provisions which gave primary emphasis to
population, but which applied also other
principles, such as partial ratios and rec-
ognition of political subdivisions, which were
Intended to favor sparsely settled areas.=
Can it be seriously contended that the leg-
islatures of these States, almost two-thirds
of those concerned, would have ratified an
amendment which might render their own
States' constitutions unconstitutional.
Nor were these State constitutional pro-
visions merely theoretical. In New Jersey,
for example, Cape May County, with a pop-
ulation of 8,349, and Ocean County, with
a population of 13,628, each eletced 1 State
senator, as did Essex and Hudson Counties,
with populations of 143,839 and 129,067, re-
spectively.= In the house, each county was
entitled to 1 representative, which left 39
seats to be apportioned according to popu-
lation.= Since there were 12 counties be-
sides the 2 already mentioned where had
populations over 30,000.35 It is evident that
there were serious disproportions in the
house also. In New York, each of the 60
counties except Hamilton County was en-
titled to one of the 128 seats in the as-
sembly.** This left 69 seats to be distributed
among counties the populations of which
ranged from 15,420 to 942,292.= With 7
23, 24, 25-26 (1867); Mo. Sen. J. 14 (1867);
N.J. Sen. J. 7 (Extra Sess. 1866); N.C. Sen.
J. 96-97, 98-99 (1866-1867); Tenn. House J.
12-15 (1865-1866); Tenn. Sen. J. 8 (Extra
Sess. 1866); Va. House J. & Doc., Doc.
No. 1, 35 (1866-1867); Wis. Sen. J. 33, 101-
103 (1867). Contra, S.C. House J. 34 (1866);
Tex. Sen. J. 422 (1866 App.).
For an account of the proceedings in the
State legislatures and citations to the pro-
ceedings, see Fairman, "Does the Fourteenth
Amendment Incorporate the Bill of Rights?"
2 Stan. L. Rev. 5, 81-126 (1949).
31 Conn. const., 1818 art, third, sec. 3
(towns); N.H. const., 1792, part second, sec.
XXVI (direct taxes paid); N.J. const., 1844,
art. IV, sec. II, Cl. 1 (counties); R.I. const.,
1842, art. VI, sec. 1 (towns and cities); Vt.
const., 1793, C. II, sec. 7 (towns).
In none of these States was the other
House apportioned strictly according to pop-
ulation. Conn. const., 1818, amend. II; N.H.
const, 1792, pt. second, sec. IX-XI; N.J.
const, 1844, art. IV, sec. III, Cl. 1; R.I. const.,
1842, art. V, sec. 1; Vt. const., 1793, amend 23.
32 Iowa const., 1857, art. III, sec. 35; Kans.
const., 1859, art. 2, sec. 2, art. 10, sec. 1;
Me. const., 1819, art. IV-pt. first, sec. 3;
Mich. const., 1850, art. IV, sec. 3; Mo. const.
1865; art. IV, sec. 2; N.Y. const. 1846, art.
III, sec. 5; Ohio const, 1851, art. XI, secs.
2-5; Pa. const., 1838, art. I, secs. 4, 6, 7, as
amended; Tenn. const., 1834, art. II, sec. 5;
W. Va. const., 1861-1863, art. IV, sec. 9.
33 Ninth Census of the United States, Stat-
istics of Population (1872) (hereafter cen-
sus), 49. The population figures, here and
hereafter, are for the year 1870, which pre-
sumably best reflect the figures for the years
1866-70. Only the figures for 1860 were
available at that time, of course, and they
would have been used by anyone interested
in population statistics. See, e.g., Globe
3028 (remarks of Senator Johnson).
The method of apportionment is contained
In N.J. cond., 1844, art. IV, sec. II, cl. 1.
=N.J. const., 1844, art. IV, sec. HI, cl. 1.
census 49.
35 Ibid.
86 N.Y. const., 1846, art. III, secs. 2, 5.
census 50-51.
= Ibid.
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18562 CONGRESSIONAL RECORD - SENATE August 12
more counties having populations over 100,-
000 and 13 others having populations over
50,000," the disproportion in the assembly
was necessarily large. In Vermont, after
each county had been allocated 1 senator,
there were 16 seats remaining to be distrib-
uted among the larger counties." The small-
est county had a population of 4,082; the
largest had a population of 40,651 and there
were 10 other counties with populations
over 20,000.40
Ratification by the "reconstructed"
States: Each of the 10 "reconstructed" States
was required to ratify the 14th amendment
before it was readmitted to the Union." The
constitution of each was scrutinized in
Congress." Debates over readmission were
extensive." In at least one instance, the
problem of State legislative apportionment
was expressly called to the attention of Con-
gress. Objecting to the inclusion of Florida
In the act of June 25, 1868, Mr. Farnsworth
stated on the floor of the House:
"I might refer to the apportionment of
representatives. By this constitution rep-
resentatives in the legislature of Florida are
apportioned in such a manner as to give to
the sparsely populated portion of the State
Ibid.
" There were 14 counties, census 67, each
of which was entitled to at least one out of
a total of 30 seats. Vt. const., 1793,
amend. 23.
"Census '67.
"Act of Mar. 2, 1867, sec. 5, 14 Stat. 429.
See also act of June 25, 1868, 15 Stat. 73, de-
claring that the States of North Carolina,
South Carolina, Louisiana, Georgia, Alabama,
and Florida, would be admitted to represen-
tation in Congress when their legislatures
had ratified the 14th amendment. Other
conditions were also imposed, including a re-
quirement that Georgia nullify certain
provisions of its constitution. Ibid. Ar-
kansas, which had already ratified the 14th
amendment, was readmitted by act of June
22, 1868, 15 Stat. 72. Virginia was read-
mitted by act of Jan. 26, 1870, 16 Stat. 62;
Mississippi by act of Feb. 23, 1870, 16 Stat.
67; and Texas by act of May 30, 1870, 16 Stat.
80. Georgia was not finally readmitted until
later, by act of July 15, 1870, 16 Stat. 363.
42 Discussing the bill which eventuated in
the act of June 25, 1868, see note 41, supra,
Thaddeus Stevens said:
"Now, sir, what is the particular question
we are considering? Five or six States have
had submitted to them the question of
forming constitutions for their own govern-
ment. They have voluntarily formed such
constitutions, under the direction of the
Government of the United States. * *
They have sent, us their constitutions.
Those constitutions have been printed and
laid before us. We have looked at them; we
have pronounced them republican in form;
and all we propose to require is that they
shall remain so forever. Subject to this re-
quirement, we are willing to admit them
into the Union." Cong. Globe, 40th Cong.,
2d sess., 2465 (1868). See also the remarks
of Mr. Butler, infra, pp. 19-20.
The close attention given the various con-
stitutions is attested by the act of June 25,
1868, which conditioned Georgia's readmis-
sion on the deletion of "the first and third
subdivisions of section seventeen of the fifth
article of the constitution of said State, ex-
cept the proviso to the first subdivi-
sion. * * *" 15 Stat. 73. The sections in-
volved are printed in Sen. Ex. Doc. No. 57,
40th Cong. 2d sess., 14-15.
Compare United States v. Florida, 363 U.S.
121, 124-127.
40 See, e.g., Cong. Globe, 40th Cong., 2d
sess., 2412-2413, 2858-2860, 2861-2871, 2895.-
2900, 2901-2904, 2927-2935, 2963-2970, 2998-
3022, 3023-3029 (1868).
the control of the legislature. The sparsely
populated parts of the State are those where
the are very few Negroes, the parts inhabited
by the white rebels, the men who, coming in
from Georgia, Alabama, and other States,
control the fortunes of their several counties.
By this constitution every county in that
State is entitled to a representative. There
are in that State counties that have not 30
registered voters; yet, under this constitu-
tion, every one of those counties is entitled
to a representative in the legislature; while
the populous counties are entitled to only
one representative each, with an additional
representative for every thousand inhabi-
tants." "
The response .of Mr. Butler is particularly
"All these arguments, all these statements,
all the provisions of this constitution have
been submitted to the Judiciary Committee
of the Senate, and they have found the con-
stitution republican and proper. This con-
stitution has been submitted to the Senate,
and they have found it republican and prop-
er. It has been submitted to your own Com-
mittee on Reconstruction, and they have
found it republican and proper, and have re-
ported it to this House." "
The constitutions of 6 of the 10 States con-
tained provisions departing substantially
from the method of apportionment now held
to be required by the amendment." And, as
in the North, the departures were as real in
fact as in theory. In North Carolina, 90 of
the 120 representatives were apportioned
among the counties without regard to popu-
lation, leaving 30 seats to be distributed by
numbers." Since there were 7 counties with
populations under 5,000 and 26 counties with
populations over 15,000, the disproportions
must have been widespread and substantial."
In South Carolina, Charleston, with a popu-
lation of 88,863, elected 2 senators; each
of the other counties, with populations rang-
ing from 10,269 to 42,486 elected 1 senator."
In Florida, each of the 39 counties was en-
titled to elect 1 representative; no county
was entitled to more than 4.50 These prin-
ciples applied to Dade County with a popu-
lation of 85 and to Alachua County and Leon
County, with populations of 17,328 and 15,236,
respectively."
It is incredible that Congress would have
exacted ratification of the 14th amendment
as the price of readmission, would have
studied the State constitutions for compli-
ance with the amendment, and would then
have disregarded violations of it.
The facts recited above show beyond any
possible doubt:
(1) That Congress, with full awareness of
and attention to the possibility that the
States would not afford full equality in vot-
ing rights to all their citizens, nevertheless
deliberately chose not to interfere with the
States' plenary power in this regard when it
proposed the 14th amendment.
(2) That Congress did not include in the
14th amendment restrictions on the States'
power to control voting rights because it be-
lieved that if such restrictions were included,
the amendment would not be adopted.
(3) That at least a substantial majority,
if not all, of the States which ratified the
"Cong. Globe, 40th Cong., 2d sess., 3090-
3091 (1868).
"Id., at 3092.
"Ala. const., 1867, art. VIII, sec. 1; Fla.
const., 1868, art. XIV; Ga. const., 1868, art.
III, sec. 3, par. I; La. const., 1868, tit. II,
art. 20; N.C. const., 1868, art. II, sec. 6; S.C.
const., 1868, art. II, secs. 6, 8.
"NC. const., 1868, art. II, sec. 6. There
were 90 counties. Census 52-53.
Ibid.
" S.C. const., 1868, art. II, sec. 8; Census 60.
"Fla. const., 1868, art. XIV.
"Census 18-19.
14th amendment did not consider that in so
doing, they were accepting limitations on
their freedom, never before questioned, to
regulate voting rights as they chose.
Even if one were to accept the majority's
belief that it is proper entirely to disregard
the unmistakable implications of the second
section of the amendment in construing
the first section, one is confounded by its
disregard of all this history. There is here
none of the difficulty which may attend the
application of basic principles to situations
not contemplated or understood when the
principles were framed. The problems
which concern the Court now were problems
when the amendment was adopted. By the
deliberate choice of those responsible for
the amendment, it left those problems un-
touched.
C. After 1868
The years following 1868, far from in-
dicating a developing awareness of the
applicability of the 14th amendment to prob-
lems of apportionment, demonstrate pre-
cisely the reverse: that the States retained
and exercisel the power independently to
apportion their legislatures. In its consti-
tutions of 1875 and 1901, Alabama carried
forward earlier provisions guaranteeing each
county at least one representative and fixing
an upper limit to the number of seats in
the House.5?
Florida's constitution of 1885 continued
the guarantee of one representative for each
county and reduced the maximum number
of representatives per county from four to
three." Georgia, in 1877, continued to favor
the smaller counties." Louisiana, in 1879,
guaranteed each parish at least one repre-
sentative in the house." In 1890, Mis-
sissippi guaranteed each county one repre-
sentative, established a maximum number of
representatives, and provided that specified
groups of counties should each have approxi-
mately one-third of the seats in the house,
whatever the spread of population." Mis-
souri's constitution of 1875 gave each county
one representative and otherwise favored less
populous areas." Montana's original con-
stitution of 1889 apportioned the State sen-
ate by counties." In 1877, New Hampshire
amended its constitution's provisions for
apportionment, but continued to favor
sparsely settled areas in the house and to
apportion seats in the senate according to
direct taxes paid; 0 the same was true of
New Hampshire's constitution of 1902."
In 1894, New York adopted a constitution
the peculiar apportionment provisions of
which were obviously intended to prevent
representation according to population: no
county was allowed to have more than one-
third of all the senators, no two counties
which were adjoining or "separated only by
public waters" could have more than one-
half of all the senators, and whenever any
county became entitled to more than three
senators, the total number of the senators
was increased, thus preserving to the small
counties their original number of seats."
In addition, each county except Hamilton
was guaranteed a seat in the assembly."
The North Carolina constitution of 1876
55 Ala. const., 1875, art. IX, secs. 2, 3; Ala.
const., 1901, art. IX, secs. 198, 199.
"Fla. const., 1885, art. VII, sec. 3.
54 Ga. const., 1877, art. III, sec. III.
"La. const., 1879, art. 16.
50 Miss. const., 1890, art. 13, sec. 265.
"Mo. const., 1875, art. 4, sec. 2.
"Mont. const., 1889, art. V, sec. 4, art. VI,
sec. 4.
55 N.H. const., 1792, part second, secs. 9-11,
26, as amended.
"N.H. const., 1902, part second, arts. 9,
10, 25.
"N.Y. const., 1894, art. HI, sec. 4.
"N.Y. const., 1894, art. III, sec. 5.
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fiaye each county at least one representa-
tive and fixed a maximum number of rep-
esentatives for the whole house.63 Okla-
homa's constitution at the time of its ad-
mission to the Union (1907) favored small
counties by the use of partial ratios and a
maximum number of seats in the House;
n addition, no county was permitted to
"take part" in the election of more than
seven representatives.6, Pennsylvania, in
1873, continued to guarantee each county
one representative in the house.,4 The same
was true of South Carolina's constitution
of 1895, which provided also that each county
should elect one and only one senator.?4
Utah's original constitution of 1895 assured
each county of one representative of the
house.47 Wyoming, when it entered the
Union in 1889, guaranteed each county at
least one senator and one representative.43
D. Today
Since the Court now invalidates the legis-
lative apportionments in six. States, and has
so far upheld the apportionment in none,
it is scarcely necessary to comment on the
situation in the States today, which is, of
course, as fully contrary to the Court's deci-
sion as is the record of every prior period in
this Nation's history. As of 1961, the con-
stitutions of all but 11 States, roughly 20
percent of the total, recognized bases of ap-
portionment other than geographic spread
of population, and to some extent favored
sparsely populated areas by a variety of de-
vices, ranging from straight area representa-
tion or guaranteed minimum area repre-
sentation to complicated schemes of the kind
exemplified by the provisions of New York's
constitution of 1894, still in effect until
struck down by the Court today in No. 20,
post, page ?.49 Since Tennessee, which was
the subject of Baker v. Carr, and Virginia,
scrutinized and disapproved today in No. 69,
post, page ?, are among the 11 States whose
own constitutions are sound from the stand-
point of the Federal Constitution, as con-
strued today, it is evident that the actual
practice of the States is even more uniformly .
than their theory opposed to the Court's view
of what is constitutionally permissable.
E. Other factors
In this summary of what the majority-
ignores, note? should be teken of the 15th
and 19th amendments. The former pro-
hibited the States from denying or abridging
the right to vote "on account of race, color,
or previous condition of servitude." The
latter, certified as part of the Constitution
in 1920, added sex to the prohibited classifica-
tions. In Minor v. Hap persett, 21 Wall. 162,
this court considered the claim that the right
of women to vote was protected by the
privileges and immunities clause of the 14th
amendment. The court's discussion there
f the significance of the 15th amendment
s fully applicable here with respect to the
9th amendment as well.
"And still again, after the adoption of the
4th amendment, it was deemed necessary!
o adopt a 15th, as follows: 'The right of
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964 CONGRESSIONAL RECORD SENATE 18563
63 N.C. const., 1876, art. II, sec. 5.
64 Okla. const., 1907, art. V, 'sec. 10.
4, Pa. const., 1873, art. II, sec. 17.
'S .C. const., 1895, art. III, secs. 4, 6.
97 Utah const., 1895, art. IX, sec. 4.
68 Wyo. const., 1889, art. III, sec. 3.
69 A tabular presentation of constitutional
provisions for apportionment as of Nov. 1,
1961, appears in XIV Book of the States
(1962-63) 58-62. Using this table, but dis-
regarding some deviations from a pure popu-
lation base, the Advisory Commission on
Intergovernmental Relations states that
there are 15 States in which the legislatures
are apportioned solely according to popula-
tion. Apportionment of State Legislatures
(1962) , 12.
No. 157-12
citizens of the United States to vote shall not
be denied or abridged by the United States,
or by any State, on account of race, color, or
previous condition of servitude.' The 14th
amendment had already provided that no
State should make or enforce any law which
should abridge the privileges or immunities
of citizens of the United States. If suffrage
was one of these privileges or immunities,
why amend the Constitution to prevent its
being denied on account of race, at cetera?
Nothing is more evident than that the greater
must include the less, and if all were already
protected why go through with the form of
amending the Constitution to protect a
part?" Idem, at 175.
In the present case, we can go still further.
If constitutional amendment was the only
means by which all men and, later, women,
could be guaranteed the right to vote at
all, even for Federal officers, how can it be
that the far less obvious right to a particular
kind of apportionment of State legisla-
tures?a right to which is opposed a far
more plausible conflicting interest of the
State than the interest which opposes the
general right to vote?can be conferred by
judicial construction of the 14th amend-
ment? 7? Yet, unless one takes the highly
implausible view that the 14th amendment
controls methods of apportionment but
leaves the right to vote itself unprotected,
the conclusion is inescapable that the court
has, for purposes of these cases, relegated the
15th ? and 19th amendments to the same
limbo of constitutional anachronisms to
which the second section of the 14th amend-
ment has been assigned.
Mention should be made finally of the
decisions of this court which are disregarded
or, more accurately, silently overruled today.
Minor v. Happersett, supra, in which the
court held that the 14th amendment did not
confer the right to vote on anyone, has al-
ready been noted. Other cases are more di-
rectly in point. In Cole grove v. Barrett, 330
U.S. 804, this court dismissed "for want of a
substantial Federal question" an appeal
from the dismissal of a complaint alleging
that the Illinois legislative apportionment
resulted in "gross inequality in voting
power" and "gross and arbitrary and atro-
cious discrimination in voting" which denied
the plaintiffs equal protection of the laws?,
In Remmey v. Smith, 102 F. Supp. 708
(D.C.E.D. Pa.), a three-judge district cdurt
dismissed a complaint alleging that the
apportionment of the Pennsylvania Legisla-
ture deprived the plaintiffs of "constitutional
rights guaranteed to them by the 14th
amendment." Id., at 709. The district
court stated that it was aware that the
plaintiffs' allegations were "notoriously true"
and that "the practical disenfranchisement
of qualified electors in certain of the elec-
tion districts in Philadelphia County is a
matter of common knowledge." Id., at 710.
7? Compare the Court's statement in Guinn.
v. United States, 238 U.S. 347, 362:
"Beyond doubt the [15th] amendment
does not take away from the State govern-
ments in a general sense the power over suf-
frage which has belonged to those govern-
ments from the beginning and without the
possession of which power the whole fabric
upon which the division of State and na-
tional authority under the Constitution and
the organization of both governments rest
would be without support and both the au-
thority of the Nation and the State would
fall to the ground. In fact, the very com-
mand of the amendment recognizes the pos-
session of the general power by the State,
since the amendment seeks to regulate its
exercise as to the particular subject with
which it deals."
7' The quoted phrases are taken from the
Jurisdictional Statement, pp. 13, 19.
This court dismissed the appeal "for the
want of a substantial Federal question." 342
U.S. 916.
In Kidd v. McCanless, 292 S. W. 2d 40, the
Supreme Court of Tennessee dismissed an
action for a declaratory judgment that the
Tennessee Apportionment Act of 1901 was
unconstitutional. The complaint alleged
that "a minority of approximately 37 per-
cent of the voting population of the State
now elects and controls 20 of the 33 mem-
bers of the senate; that a minority of 40
percent of the voting population of the State
now controls 63 of the 99 members of the
house of representatives." Id., at 42. With-
out dissent, this Court granted the motion
to dismiss the appeal. 352 U.S. 920. In
Radford v. Gary, 145 F. Supp. 541 (D. C.
W. D. Okla.) , a three-judge district court
was convened to consider "the complaint of
the plaintiff to the effect that the existing
apportionment statutes of the State of Okla-
homa violate the plain mandate of the Okla-
homa constitution and operate to deprive
him of the equal protection of the laws
guaranteed by the 14th amendment to the
Constitution of the United States." Id., at
542. The plaintiff alleged that he was a resi-
dent and voter in the most populous county
of the State, which had about 15 percent
of the total population of the State but only
about 2 percent of the seats in .the State
senate and less than 4 percent of the seats
in the house. The complaint recited the
unwillingness or inability of the branches of
the State government to provide relief and
alleged that there was no State remedy avail-
able. The district court granted a motion
to dismiss. This court afftrmed without
dissent. 352 U.S. 991.
Each of these recent cases is distinguished
on some ground or other in Baker v. Carr.
See 369 U.S., at 235-236. Their summary
dispositions prevent consideration whether
these after-the-fact distinctions are real or
imaginary. The facts remains, however,
that between 1947 and 1957, four cases
raising issues precisely the same as those
decided today were presented to the court.
Three were dismissed because the issues pre-
sented were thought insubstantial and in the
fl
fourth the lower court's dismissal was
affirmed:,
I have tried to make the catalog com-
plete, yet to keep it within the manageable
limits of a judicial opinion. In my judg-
ment, today's decisions are refuted by the
language of the amendment which they con-
7? In two early cases dealing with party pri-
maries in Texas, the Court indicated that the
equal protection clause did afford some pro-
tection of the right to vote. Nixon v. Hern-
don, 273 U.S. 536; Nixon v. Condon, 286 U.S.
'73. Before and after these cases, two cases
dealing with the qualifications for electors
in Oklahoma had gone off on the 15th
amendment, Guinn v. United States, 238 U.S.
347; Lane v. Wilson, 307 U.S. 268. The ra-
tionale of the Texas cases is almost certainly
to be explained by the Court's reluctance to
decide that party primaries were a part of the
electoral process for purposes of the 15th
amendment. See Newberry v. United States,
256 U.S. 232. Once that question was laid to
rest in United States v. Classic, 313 U.S. 299,
the Court decided subsequent cases involv-
ing Texas party primaries on the basis of the
15th amendment. Smith v. Allwright, 321
U.S. 649; Terry v. Adams, 345 U.S. 461.
The recent decision in Gomi//ion V. Light-
foot, 364 U.S. 339, that a constitutional claim
was stated by allegations that municipal lines
had been redrawn with the intention of de-
priving Negroes of the right to vote in mu-fl elections was based on the 15th
amendment. Only one Justice, in a concur-
ring opinion, relied on the equal protection
clause of the 14th amendment. Id., at 349.
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express its regret that the general assembll
had not adopted the court's suggestion (se
tionment a statutory, rather than a con-
stitutional matter, so as to facilitate further
changes in apportionment which might be
required (210 F. Supp. 401). In January
constitution be amended to make appor-
19-63, the general assembly again approved
207 F. Supp. at 206-207), that the Delawar
the proposed amendment of the apportion-
ment provisions of the Delaware constitu-
tion, which thereby became effective on Jan-
uary 17, 1963.79- Three months later, on
April 17, 1963, the district court reached "the
reluctant conclusion" that article II, section
2 of the Delaware constitution, was uncon-
stitutional, with or without the 1963 amend-
ment. Sincock v. Duffy, 215 F. Supp. 169,
189. Observing that "the State of Delaware,
the general assembly, and this court all seem
to be trapped in a kind of box of time" (id. at
191), the court gave the general assembly
until October 1, 1963, to adopt acceptable
provisions for apportionment. On May 20,
1963, the district court enjoined the defend-
ants from conducting any elections, includ-
ing the general election scheduled for No-
vember 1964, pursuant to the old or the new
constitutional provisions.** This court now
approves all these proceedings, noting par-
ticularly that in allowing the 1962 elections
to go foriyard, "the district court acted in a
wise and temperate manner." Post, p 14.81
Records such as these in the cases decided
today are sure to be duplicated in most of
the other States if they have not already.
They present a jarring picture of courts
threatening to take action in an area which
they have no business entering, inevitably
on the basis of political judgments which
they are incompetent to make. They show
legislatures of the States meeting in haste
and deliberating and deciding in haste to
avoid the threat of judicial interference. So
far as I can tell, the Court's only response
to this unseemly state of affairs is ponder-
ous insistence that. "a denial of constitu-
tionally protected rights demands judicial
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18564 CONGRESSIONAL RECORD ? SENATE August 1
&true and by the inference fairly to be drawn
from subsequently enacted amendments.
They are unequivocally refuted by history
and by consistent theory and practice from
the time of the adoption of the 14th amend-
ment until today.
II
The court's elaboration of its new "con-
stitutional" doctrine indicates how far?and
how unwisely?it has strayed from the ap-
propriate bounds of its authority. The con-
sequence of today's decision is that in all
but the handful of States which may already
satisfy the new requirements the local dis-
trict court or, it may be, the State courts,
are given blanket authority and the consti-
tutional duty to supervise apportionment of
the State legislatures. It is difficult to
imagine a more intolerable and inappro-
priate interference by the judiciary with the
Independent legislatures of the States.
In the Alabama cases (Nos. 23, 27, 41), the
district court held invalid not only existing
provisions of the State constitution?which
this court lightly dismisses with a wave of
the supremacy clause and the remark that
"it makes no difference whether a State's
apportionment scheme is embodied in its
constitution or in statutory provisions," ante,
page 49?but also a proposed amendments to
the Alabama constitution which had never
been submitted to the voters of Alabama for
ratification, and standby legislation which
was not to become effective unless the
amendment was rejected (or declared un-
constitutional) and in no event before 1966.
Sims v. Frink, 208 F. Supp. 431. See ante,
pages 8-16. Both of these measures had been
adopted only 9 days before,13 at an extraordi-
nary session of the Alabama Legislature,
convened pursuant to what was very nearly
a directive of the district court, see Sims v.
Frink, 205 F. Supp. 245, 248. The district
court formulated its own plan for the ap-
portionment of the Alabama Legislature, by
picking and choosing among the provisions
of the legislative measures. 208 F. Supp., at
441-442. See ante, page 17. Beyond that, the
court warned the legislature that there would
be still further judicial reapportionment un-
less the legislature, like it or not, undertook
the task for itself. 208 F. Supp., at 442. This
court now states that the district court acted
in "a most proper and commendable man-
ner," ante, page 51, and approves the district
court's avowed intention of taking "some
further action" unless the State legislature
acts by 1966, ante, page 52.
In the Maryland case (No. 29, post, p ?),
the State legislature was called into special
session and en'acted a temporary reapportion-
ment of the House of Delegates, under pres-
sure from the State Courts?' Therefore, the
Maryland Court of Appeals held that the
Maryland Senate was constitutionally ap-
portioned. Maryland Committee for Fair
" The measures were adopted on July 12,
1962. The District court handed down its
opinion on July 21, 1962.
" In reversing an initial order of the circuit
court for Anne Arundel County dismissing
the plaintiffs' complaint, the Maryland Court
of Appeals directed the lower court to hear
evidence on and determine the plaintiffs'
constitutional claims, and if it found provi-
sions of the Maryland constitution to be in-
valid, to "declare that the legislature has the
power, if called into special session by the
Governor and such action be deemed appro-
priate by it, to enact a bill reapportioning
its membership for purposes of the Novem-
ber 1962, election." Maryland Committee for
Fair Representation v. Tawes, 228 Md. 412,
438-439. On remand, the opinion of the
circuit court included such a declaration.
The opinion was filed on May 24, 1962. The
Maryland Legislature, in special session,
adopted the "emergency" measures now de-
clared unconstitutional 7 days later, on May
31, 1962.
Representation v. Tawes, 229 Md. 406. This
court now holds that neither branch of the
State legislature meets constitutional re-
quirements. Post, page 17. The court pre-
sumes that since "the Maryland constitu-
tional provisions relating to legislative appor-
? tionment [are] hereby held uncdnstitutional,
the Maryland Legislature * * * has the
inherent power to enact at least temporary
reapportionment legislation pending adoption
of State constitutional provisions" which sat-
isfy the Federal Constitution, idem, at 18.
On this premise, the court concludes that
the Maryland courts need not "feel obliged
to take further affirmative action" now, but
that "under no circumstances should the
1966 election of members of the Maryland
Legislature be permitted to be conducted
pursuant to the existing or any other un-
constitutional plan." Idem, at 19.
In the Virginia case (No. 69, post, p. ?),
the State legislature in 1962 complied with
the State constitutional requirement of reg-
ular reapportionment.18 , Two days later
a complaint was filed in the district court.18
Eight months later, the legislative reap-
portionment was declared unconstitutional.
Mann v. Davis, 213 F. Supp. 577. The dis-
trict court gave the State legislature two
months within which to reapportion itself in
special session, under penalty of being re-
apportioned by the court?' Only a stay
granted by a member of this court slowed the
process; " it is plain that no stay will be
forthcoming in the future. The Virginia
Legislature is to be given "an adequate op-
portunity to enact a valid plan"; but if it
fails to "to act promptly in remedying the
constitutional defects in the State's legisla-
tive apportionment plan," the district court
Is to "take further action." Post, page 14.
In Delaware (No. 307, post, p. ?), the
district court entered an order on July 25,
1962, which stayed proceedings until Au-
gust 7, 1962, "in the hope and expectation"
that the general assembly would take
"some appropriate action" in the intervening
13 days. Sincock v. Terry, 207 F. Supp. 205,
207. By way of prodding, presumably, the
court noted that if no legislative action were
taken and the court sustained the plantiffs'
claim, "the present general assembly and
any subsequent general assembly, the mem-
bers of which were elected pursuant to sec-
tion 2 of article II (the challenged provisions
of the Delaware constitution) , might be held
not to be a de jure legislature and its legis-
lative acts might be held invalid and uncon-
stitutional." Id., at 205-206. Five days
later, on July 30, 1962, the general assembly
approved a proposed amendment to the State
constitution. On August 7, 1962, the dis-
trict court entered an order denying the de-
fendants' motion to dismiss. The court said
that it did not wish to substitute its judg-
ment "for the collective wisdom of the Gen-
eral Assembly of Delaware," but that "in
the light of all the circumstances," it had to
proceed promptly (210 F. Supp, 395, 396).
On October 16, 1962, the court declined to
enjoin the conduct of elections in November
(210 F. Supp. 396). The court went on to
" The Virginia constitution, art. IV, sec.
43, requires that a reapportionment be made
every 10 years.
" The 1962 reapportionment acts were ap-.
proved on Apr. 7, 1962. The complaint was
filed on Apr. 9, 1962.
n The district court handed down its
opinion on Nov. 28, 1962, and gave the Vir-
ginia General Assembly until Jan. 31, 1963,
"to enact appropriate reapportionment laws."
213 F. Supp., at 585-586. The court stated
that failing such action or an appeal to this
Court, the plaintiffs might apply to it "for
such further orders as may be required." Id.,
at 586.
" On Dec. 15, 1962, the Chief Justice
granted a stay pending final disposition of
the case in this Court.
" The Delaware constitution, art. XVI, sec.
1, requires that amendments be approved by
the necessary two-thirds vote in two succes-
sive general assemblies.
80 The district court thus nailed the lid on
the "box of time" in which everyone seemed
to it "to be trapped." The lid was tempo-
rarily opened a crack on June 27, 1963, when
Mr. Justice Brennan granted a stay of the
injunction until disposition of the case by
this _Court. Since the Court states that "the
delay inherent in following the State con-
stitutional prescription for approval of con-
stitutional amendments by two successive
general assemblies cannot be allowed
result in an impermissible deprivation of ap
pellees' right to an adequate voice in th
election of legislators to represent them,
post, pp. 15-16, the lid has presumably bee
slammed shut again.
811n New York and Colorado, this patter
of conduct has thus far been avoided. I
the New York case (No. 20, past, p. ?), th
district court twice dismissed the complain
once without reaching the merits, WMC
Inc., v. Simon, 202 F. Supp. 741, and onc
after this Court's remand following Baker
Carr, supra, 370 U.S. 190, on the merits, 20
F. Supp. 368. In the Colorado case (No. 508
post, p. ?), the district court first declined
to interfere with a forthcoming election at
which reapportionment measures were to be
submitted to the voters, Lisco V. McNichols,
208 F. Supp. 471, and, after the election, up-
held the apportionment provisions which had
been adopted, 219 F. Supp. 922.
In view of the action which this Court now
takes in both of these cases, there is little
doubt that the legislatures of these two
States will now be subjected to the same
kind of pressures from the Federal judiciary
as have the other States.
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!9 6 4. CONGRESSIONAL RECORD ? SENATE
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otection" (ante, p. 31) . By thus refusing
recognize the bearing which a potential
r conflict of this kind may have on the
uestion whether the claimed rights are in
act constitutionally entitled to judicial pro-
ection, the Court assumes, rather than sup-
orts, its conclusion.
It should by now be obvious that these
cases do not mark the end of reapportion...
ment problems in the courts. Predictions
once made that the courts would never have
to face the problem of actually working out
an apportionment have proved false. This
Court, however, continues to avoid the con-
sequences of its decisions, simply assuring
us that the lower courts "can and * * *
will work out more concrete and specific
standards" (ante, p. 43) . Deeming it "expedi-
ent" not to spell out "precise constitutional
tests," the Court contends itself with stating
"only a few rather general considerations."
Ibid.
Generalities cannot obscure the cold truth
that cases of this type are not amenable to
the development of judicial standards. No
set of standards can guide a court which has
to decide how many legislative districts a
State shall have, or what the shape of the
districts shall be, or where to draw a par-
ticular district line. No judicially manage-
able standard can determine whether a
State should have single-member districts
or multimember districts or some combina-
tion of both. No such standard can control
the balance between keeping up with popu-
lation shifts and having stable districts. In
all these respects, the courts will be called
upon to make particular decisions with re-
spect to which a principle of equally popu-
lated districts will be of no assistance what-
soever. Quite obviously, there are limitless
possibilities for districting consistent with
such a principle. Nor can these problems
be avoided by judicial reliance on legislative
udgments so far as possible. Reshaping or
ombining one or two districts, or modyfying
just a few district lines, is no less a matter
f choosing among many possible solutions,
ith varying political consquences, than re-
pportionment broadside."
The court ignores all this, saying only that
what is marginally permissible in one State
ay be unsatisfactory in another, depending
n the particular circumstances of the case,"
nte, p. 43. It is well to remember that the
roduct of today's decisions will not be read-
ustment of a few districts in a few States
hich most glaringly depart from the prin-
iple of equally populated districts. It will
e a redetermination, extensive in many
ases, of legislative districts in all but a few
tates.
Although the court?necessarily, as I be-
eve?provides only generalities in elabora-
on of its main thesis, its opinion neverthe-
ss fully demonstrates how far removed
ese problems are from fields of judicial
mpetence. Recognizing that "indiscrimi-
te districting" is an invitation to "partisan
rrymandering," ante, pp. 43-44, the court
vertheless excludes virtually every basis for
e formation of electoral districts other than
discriminate districting." In one or an-
her of today's opinions, the court declares
unconstitutional for a State to give effec-
ve consideration to any of the following
establishing legislative districts:
1. History; ga
2. "Economic or other sorts of group in-
erests"; 84
3. Area; 85
82 It is not mere fancy to suppose that in
order to avoid problems of this sort, the
Court may one day be tempted to hold that
all State legislators must be elected in state-
wide elections.
8, Ante, p. 44.
88 Ante, pp. 44-45.
8. Ante, p.45.
4. Geographical considerations; 8*
5. A desire "to insure effective representa-
tion for sparsely settled areas"; 88
6. "Availability of access of citizens to their
representatives"; '8
7. Theories of bicameralism (except those
approved by the court); 89
8. Occupation; "
9. "An attempt to balance urban and rural
power." 98
10. The preference of a majority of voters
In the State."
So far as presently appears, the only fac-
tor which a State may consider, apart from
numbers, is political subdivisions. But even
"a clearly rational State policy" recognizing
this factor is unconstitutional if "population
is submerged as the controlling considera-
tion."
know of no principle of logic or practi-
cal or theoretical politics, still less any con-
stitutional principle, which establishes all or
any of these exclusions. Certainly it is that
the court's opinion does not establish them.
So fa's as the court says anything at all on
this score, it says only that "legislators rep-
resent people, not trees or acres," ante, page
27; that "citizens, not history or economic
interests, cast votes," ante, page 45; that
"people, not land or trees or pastures, vote,"
ibid." All this may be conceded. But it is
surely equally obvious, and, in the context of
elections, more meaningful to note that peo-
ple are not ciphers and that legislators can
represent their electors only by speaking for
their interests?economic, social, political?
many of which do reflect the place where the
electors live. The court does not establish,
or indeed even attempt to make a case for
the proposition that conflicting interests
within a State can only be adjusted by dis-
regarding them when voters are grouped for
purposes of representation.
CONCLUSION
With these cases the court aproaches the
end of the third round set in motion by the
complaint filed in Baker. v. Carr. What is
done today deepens my conviction that ju-
dicial entry into this realm is profoundly
ill-advised and constitutionally impermis-
sible. As I have said before, VVesberry v.
Sanders, supra, at 48, I believe that the vi-
tality of our political system, on which in
the last analysis all else depends, is weak-
ened by reliance on the judiciary for politi-
cal reform; in time a complacent body poli-
tic may result. '
These decisions also cut deeply into the
fabric of our federalism. What must follow
from them may eventually appear to be the
product of State legislatures. Nevertheless,
no thinking person can fail to recognize that
the aftermath of these cases, however de-
sirable it may be thought in itself, will have
been achieved at the cost of a radical altera-
tion in the relationship between the States
and the Federal Government, more particu-
larly the Federal judiciary. Only one who
has an overbearing impatience with the
Federal system and its political processes will
believe that the cost was too high or was
inevitable.
88 Ibid.
8, Ibid.
88 Ibid.
" Ante, pp. 41-42.
99) Davis v. Mann, post, p. 12.
911d., at 13.
92 Lucas v. Forty-Fourth General Assembly,
post, p. 22.
80 Ante, p. 46.
94 The Court does note that, in view of
modern developments in transportation and
communication, if finds "unconvincing"
arguments based on a desire to insure repre-
sentation of sparsely settled areas or to avoid
districts so large that voters' access to their
representatives is impaired. Ante, p. 45.
18565
Finally, these decisions give support to a
current mistaken view of the Constitution
and the constitutional function of this court.
This view, in a nutshell, is that every major
social ill in this country can find its cure
in some constitutional "principle," and that
this court should "take the lead" in promot-
ing reform when other branches of govern-
ment fail to act. :The Constitution is not
a panacea for every blot upon the public
tirelfare, nor should this court, ordained as
a judicial body, be thought of as a general
haven for reform mcvements. The Consti-
tution is an instrument of government, fun-
damental to which is the premise that in a
diffusion of governmental authority lies the
greatest promise that this Nation will realize
liberty for all its citizens. This court,
limited in functions in accordance with that
premise, does not serve its high purpose
when it exceeds its authority, even to satisfy
justified impatience with the slow workings
of the political process. For when in the
name of constitutional interpretation, the
court adds something to the Constitution
that Was deliberately excluded from it, the
court in reality substitutes its view of what
should be so for the amending process.
I dissent in each of these cases, believing
that in none of them have the plaintiffs
stated a cause of action. To the extent that
Baker v. Carr, expressly or by implication,
went beyond a discussion of jurisdictional
doctrines independent of the substantive is-
sues involved here, it should be limited to
what it in fact was: an experiment in ven-
turesome constitutionalism. I would re-
verse the judgments of the District Court in
Nos. 23, 27, and 41 (Alabama), No. 69 (Vir-
ginia, and No. 307 (Delaware) and remand
with directions to dismiss the complaints.
I would affirm the judgments of the District
Court in No. 20 (New York), and No. 508
(Colorado), and of the Court of Appeals of
Maryland in No. 29.
APPENDIX A
.. -
Statements made in the House of Repre-
sentatives during the debate on the resolu-
tion proposing the 14th amendment.,
"As the nearest approach to justice which
we are likely to be able to make, I approve of
the second section that bases representation
upon voters." (2463, Mr. Garfield.) ,
"Would it not be a most unprecedented
thing that when,this [former slave] popu-
lation are not permitted where they reside to
enter into the basis of representation in their
own State, we should receive it as an element
of representation here; that when they will
not count them in apportioning their own
legislative districts, we are to count them as
five-fifths (no longer as three-fifths, for that
is out of the question) as soon as you make
a new apportionment?" (2464-2465, Mr.
Thayer).
"The second section of the amendment is
ostensibly intended to remedy a supposed in-
equality in the basis of representation. The
real object is to reduce the number of south-
ern representatives in Congress and in the
electoral college; and also to operate as a
standing inducement to Negro suffrage."
(2467, Mr. Boyer.)
"Shall the pardoned rebels of the South in-
clude in the basis of representation 4 mil-
lion people to whom they deny political
rights, and to no one of whom is allowed a
vote in the selection of a Representative?"
(2468, Mr. Kelley.) .
"I shall, Mr. Speaker, vote for this amend-
ment; not because I approve it. Could I have
controlled the report of the committee of 15,
it would have proposed to give the right of
suffrage to every loyal man in the country."
(2469, Mr. Kelley.)
1 All page references are to Congressional
Globe, 39th Cong., 1st sass, (1866).
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18566 CONGRESSIONAL RECORD ? SENATE August 1
"But I will ask, why should not the repre-
sentation of the States be limited as the
States themselves limit suffrage? If the
Negroes of the South are not to be counted
as a political element in the government of
the South in the States, why should they be
counted as a political element in the Gov-
ernment of the country in the Union. (2498,
Mr. Broomall.)
"It is now proposed to base representation
upon suffrage, upon the number of voters,
Instead of upon the aggregate population in
every State of the Union." (2502, Mr. Ray-
mond.)
"We admit equality of representation based
upon the exercise of the elective franchise by
the people. The proposition in the matter
of suffrage falls short of what I desire, but so
far as it goes it tends to the equalization of
the inequality at present existing; and while
I demand and shall continue, to demand the
franchise for all loyal male Citizens of this
country?and I cannot but admit the possi-
bility that ultimately those 11 States may be
restored to representative power without the
right of franchise being conferred upon the
colored people?I should feel myself doubly
humiliated and disgraced, and criminal even,
if I hesitated to do what I can for a proposi-
tion which equalizes representation." (2608,
Mr. Boutwell.)
"Now, conceding to each State the right to
regulate the right of suffrage, they ought not
to have a representation for male citizens
not less than 21 years of age, whether white
or black, who are deprived of the exercise of
suffrage. This amendment will settle the
complication in regard to suffrage and repre-
sentation, leaving each State to regulate that
for itself, so that it will be for it to decide
Whether or not it shall have a representa-
tion for all its male citizens not 'less than 21
years of age." (2510, Mr. Miller.)
"Manifestly no State should have its basis
of national repreSentation enlarged by rea-
son of a portion of citizens within its bor-
ders to which the elective franchise is de-
nied. If political power shall be lost be-
cause of such denial, not imposed because of
participation in rebellion or other crime,
it is to be hoped that political interests may
work in the line of justice, and that the end
will be the impartial enfranchisement of all
citizens not disqualified by crime. Whether
that end shall be attained or not, this will
be secured: that the measure of political
power of any State shall be determined by
that portion of its citizens which can speak
and act at the polls, and shall not be en-
larged because of the residence within the
State of portions of its citizens denied the
right of franchise. So much for the second
section of the amendment. It is not all that
I wish and would demand; but odious in-
equalities are removed by it and representa-
tion will be equalized, and the political rights
of all citizens will under its operation be,
we believe, ultimately recognized and ad-
mitted." (2511, Mr. Eliot.)
"I have no doubt that the Government of
the United States has full power to extend
?the elective franchise to the colored popu-
lation of the insurgent States. I mean
authority; I said power. I have no doubt
that the Government of the United States
has authority to do this under the Consti-
tution; but I do not think they have the
power. The distinction I make between au-
thority and power is this: we have, in the
nature of our Government, the right to do
it; but the public opinion of the country
is such at this precise moment as to make
it impossible we should do it. It was there-
fore most wise on the part of the committee
on reconstruction to waive this matter in
deference to public opinion. The situation
of opinion in these States compels us to look
to other means to protect the Government
against the enemy." (2532, Mr. Banks.)
. "If you deny to any portion of the loyal
citizens of your State the right to vote for
Representatives you shall not assume to rep-
resent 'them, and, as you have done for so
long a time, misrepresent and oppress them.
This is a step in the right direction, and
although I should prefer to see incorporated
into the Constitution a guarantee of uni-
versal suffrage, as we cannot get the required
two-thirds for that I cordially support this
proposition as the next best." (2539,2540, Mr.
Rogers.)
APPENDIX B
Statements made in the Senate during the
debate on the resolution proposing the 14th
amendment?
"The second section of the constitutional
amendment proposed by the committee can
be justified upon no other theory than that
the negroes ought to vote; and negro suf-
frage must be vindicated before the people in
sustaining that section, for it does not ex-
clude the nonvoting population of the
North, because it is admitted that there is
no wrong in excluding from suffrage aliensl
females, and minors. But we say, if the
negro is excluded from suffrage he shall-
also be excluded from the basis of represen-
tation. Why this inequality? Why this in-
justice? Poi- injustice it would be unless
there be some good reason for this discrim-
ination against the South in excluding her
nonvoting population from the basis of
representation. The only defense that we
can make to this apparent injustice is that
the South commits an outrage upon human
rights when she denies the ballot to the
blacks, and we will not allow her to take ad-
vantage of her own wrong, or profit by this
outrage. Does any one suppose it possible
to avoid this plain issue before the people?
For if they will sustain you in reducing the
representation of the South because she does
not allow the negro to vote, they will do
so because they think it is wrong to dis-
franchise him." (2800, Senator Stewart.)
"It [the second section of the proposed
amendment] relieves him [the Negro] from
mispresentation in Congress by denying him
any representation whatever." (2801, Sen-
ator Stewart.)
"But I will again venture the opinion
that it [the second section] means as if it
read thus: no State shall be allowed a rep-
resentation on a colored population unless
the right of voting is given to the Negroes?
presenting to the States the alternative of
loss of representation or the enfranchise-
ment of the Negroes, and their political
equality." (2939, Senator Hendricks.)
"I should be much better satisfied if the-
right of suffrage had been given at once to
the more intelligent of them [the Negroes]
and such as had served in our Army. But
it is believed by wiser ones than myself that
this amendment will very soon produce
some grant of suffrage to them, and that
the craving for political power will ere long
give them universal suffrage. Believing
that this amendment probably goes as far
in favor of suffrage to the Negro as is prac-
ticable to accomplish now, and hoping it may
in the end accomplish all I desire in this
respect, I shall vote for its adoption, al-
though I should be glad to go further."
(2963-4, Senator Poland.)
"What" is to be the operation of this
amendment? Just this: your whip is held
over Pennsylvania, and you say to her that
she must either allow her Negroes to vote
or have one Member of Congress less."
(2987, Senator Cowan.)
"Now, sir, in all the States?certainly in
mine, and no doubt in all?there are local
as contradistinguished from State elections.
There are city elections, county elections,
and district or borough elections; and those
city and county and district elections are
All page references are to Congressional
Globe, 39th Cong., 1st sess. (1866).
held under some law of the State in whic
the city or county or district or borough Ma
- be; and in those elections, according to th
laws of the States, certain qualifications ar
prescribed, residence within the limits of th
locality and a property qualification in some.
Now, is it proposed to say that if every man
in a State is not at liberty to vote at a city
or a county or a borough election that is to
affect the basis of representation?" (2991,
Senator Johnson.)
"Again, Mr. President, the measure upon
the table, like the first proposition submitted
to the Senate from the committee of 15, con-
cedes to the States * * * not only the right,
but the exclusive right, to regulate the
franchise. It says that each of the Southern
States, and, of course, each other State in
the Union, has a right to regulate for itself
the franchise, and that consequently, as far
as the Government of the United States is
concerned, if the black man is not permitted
the right to the franchise, it will be a wrong
(if a wrong) which the Government of the
United States will be impotent to redress."
(3027, Senator Johnson.)
"The amendment fixes representation upon
numbers, precisely as the Constitution now
does, but when a State denies or abridges
the elective franchise to any of its male in-
habitants who are citizens of the United
States and not less than 21 years of age,
except for participation in rebellion or other
crime, then such State will lose its repre-
sentation in Congress in the proportion
which the male citizen so excluded bears to
the whole number of male citizens not less
than 21 years of age in the State." (3033,
Senator Henderson.)
Mr. DIRKSEN. By all odds the opin-
ion is one of the most devastating dis-
senting opinions that I have ever read.
I believe it tears to shreds the majority
opinion of the Supreme Court. To make
the point klain in brief compass I nee
submit only a short editorial publishe
in the Columbus Citizens Journal, whic
is a Scripps-Howard newspaper pub
lished in Columbus, Ohio. The editoria
came from the issue of August 8. I shal
read the editorial in its entirety:
DIRKSEN'S REAPPORTIONMENT BREATHER
Last June's U.S. Supreme Court decision
which propounded the astonishing theor
that, regardless of what the. people of a Stat
may decide by vote, both houses of all State
legislatures must be apportioned on a stric
population basis, has led to chaos.
Lower courts, following the Suprem
Court's constitutional presumptions, hay
been making rubble of State constitution
disrupting State business and generall
throwing their weight around.
New York's constitution requires a 2-ye
term for legislators, but three judges ha
ordered the voters to elect for a 1-year ter
both this year and next. In Connectic
three other Federal judges ordered the Sta
to hold three special elections, hold a spec
session of the legislature which was to do
routine State business, and set up a co
stitutional convention.
After the Supreme Court ruled out Col
rado's voter-approved legislative setup, t
legislature reapportioned. But the Cobra.
Supreme Court says that latest apportio
ment is invalid under the State constitutio
Senator DnucsEN, of Illinois, now propose
and a Senate committee has approved, a bi
to stay all these proceedings for about
years?to give Congress time to decide on
way to preserve the right of State -voters
set up State senates on other than a popula-
tion basis. And to permit States time to
try to tidy up the mess.
In the circumstances, this probably is the
best Congress can do in a session nearing
adjournment. So Congress is, and ought to
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964 CONGRESSIONAL RECORD ? SENATE 18567
e, under great pleasure to pass the Dirksen
'breather." Whatever may be wrong with
tate legislative systems, none can be worse
han the predicaments created by the Su-
reme Court's action.
Mr. President, I take some interest in
this question, and approach it from the
standpoint of a constitutional resolution,
but it had to be measured against the
calendar, against the prospective ad-
journment date, and all the other dif-
ficulties that arise in the final hours of
the Congress. It was transparently
manifest that under no circumstances
could a constitutional resolution nego-
tiate, the committees, negotiate both
houses, and then be sent off into a con-
stitutional orbit for a period of 7 years
awaiting ratification by the States.
What confronts us here as a result of
the decision in the case of Reynolds
against Sims is really an emergent situ-
ation, which can be approached logically
only by a statute. The statute that we
have devised as an amendment to the
foreign aid bill is an effort to buy some
time. But to buy time we must do it
effectively, so that under no circum-
stances might an autocratic judicial of-
ficial undertake to thwart the will of
Congress.
In working on the question we had the
benefit of the legal staff of the subcom-
mittees of the Committee on the Judi-
ciary on which I labor. The majority
leader was very generous in making his
competent staff available. In addition,
we had officials from the Department of
Justice, including the Deputy Attorney
General. There have been a great many
sessions. We finally wound up our labors
at about 3 o'clock this afternoon. The
amendment is now in final form, and it
will be available to all Senators tonight,
so that when the Senate convenes to-
morrow we can set aside the amendment
until after the disposition of the amend-
ment still to be offered by the distin-
guished Senator from Alaska [Mr.
GRUENING] and I believe an amendment
to be offered by the distinguished Sen-
ator from Texas [Mr. TOWER]. There-
after we can come to grips with the
problem. I rather anticipate that there
will be a great deal of discussion. But
there was a general consensus on all
ides: I pay high tribute to the major-
y leader for the consumate patience he
as mustered at all times in trying to
reduce something that in my judgment
at once effective, that will do what we
et out to do, and yet can command wide
upport on the part of Senators on both
ides of the aisle.
There is only one further thing to
hich I wish to allude tonight. We have
efore us the-foreign assistance bill. No-
? ody is more sensible of the proprieties
han is the minority leader; and seldom
o I undertake to tack onto a bill a pro-
vision that has no particular relation to
it. But I was confronted with a reality.
That reality is that we are moving,
hopefully, toward adjournment, prob-
ably a week from Saturday. That is a
short period of time in which to get
anything done. I knew also that if we
undertook to handle this proposal as
an independent measure, it would have
to go through this body, then through
the House, then to conference, and I
doubt very much whether the time would
he sufficient to do even that. But even
then we would have nothing more than a
resolution submitted to the States for
ratification, and that probably could be
a long, drawn-out process.
I therefore had to select a vehicle
that I knew had to get to the Presi-,
dent's desk. I had a choice of the so-
called interest equalization bill, possibly
the social security measure, still pend-
ing in the Senate Finance Committee, on
which there will be no executive session
or markup until Friday of this week, or
I could take advantage of the bill which
is before us, which I know is on the so-
called "must" calendar.
That bill was so drawn as to be some-
thing of an invitation, because it is di-
vided into four parts, and the caption in
part IV reads "Amendments to Other
Laws." That was an invitation to come
along and offer an amendment at that
point as a section in Part 4; and the
amendment offered by the majority
leader and myself will appear as section
402, on page 17, after line 7.
A tremendous amount of work, pa-
tience, and skill have gone into the per-
fection of this amendment. I pay high
tribute to my own staff, Neal Kennedy,
Bernard Waters, and Clyde Flynn, who
labored early and late.
I pay testimony to the Department of
Justice for having been so willing to sit
in on these sessions.
I pay testimony to the distinguished
majority leader and to his staff, particu-
larly Charlie Ferris and Kenny Teasdale.
They are good lawyers, and they have
been on the job early and late.
They were working toward midnight
last night to see whether, at long last,
we could not perfect an amendment
which would commend itself to the good
grace and acceptance of the Senate.
I believe, at long last, that we have
contrived exactly that.
I try not to utilize surprise as a legal
weapon. That is often done in a court
room. Suddenly, out of a clear sky, there
is a witntss whom the attorney did not
anticipate, or a line of testimony that
was furthest from the attorney's
thoughts. Those surprises can often de-
molish the lawyer's case.
I knew that the President would have
to take a look at this proposal if, hope-
fully, we put it into this bill. A week ago
I spent an hour and a half with the
President of the United States. I gave
him the original language, although
what we have done is a considerable de-
parture from that language. I told him
I had no choice except to find a vehicle
that I knew had to get to his desk. So
I gave him a memorandum and fully ad-
vised him, so he would not, under any
circumstances, be surprised or aston-
ished.
Without alluding to any other great
legislative body, I understand that a kind
of round robin has been circulated, to
which are appended the names of 70
legislators. They almost took the kind
of vow that winds up the Declaration
of Independence, in committing their
lives, fortunes, and sacred honor against
any measure that has this proposal in it.
I am sorry they have to be a little dis-
appointed, because that round robin was
circulated as to something that is not
absolutely mot, because this amendment
Is a complete-replacement of all the work
we have done heretofore. I trust they
will not have to circulate another round
robin, but in order to be in character,
obviously they would have to do so, if
they were going to object to the amend-
ment submitted by myself and the ma-
jority leader.
Tomorrow we shall- be ready to set
aside this amendment long enough to
complete action an the other amend-
ments. Then the discussion will begin.
Unless the Senate is in a mood to dis-
cuss this amendment a long time, or un-
less there is a disposition to filibuster, we
could, if we remained in session late
enough, probably dispose of it tomor-
row. But I know the proposal is going
to command the attention of the lawyers
in the Senate, or at least a good many.
I always regard myself as something of a
novitiate or amateur at the feet of great
lawyers like Senator ERVIN, Senator Rus-
SELL, Senator HEuSicA, and even Senator
KumiEL, of California.
I am a bit of a tyro, but at least we
have finished the job. So today I think
I share the hope of the majority leader
that we can come to grips with this ques-
tion, have it suitably ventilated, and that
with good fortune smiling at us, we can
wind it up tomorrow.
So I offer the amendment and ask
that it be made the pending business.
The Foreign Assistance Act is the
Pending business, but this amendment
will be pending to the Foreign Assistance
Act, because I understand no other
amendment was pending.
The PRESIDING OFFICER. The
amendment offered by the Senator from
Illinois [Mr. DIRKSEN] will be stated.
Mr. DIRKSEN. Mr. President, I ask
that the amendment not be read, but that
it be published in the CONGRESSIONAL
RECORD at this point.
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered.
The amendment submitted by Mr.
DIRKSEN, for himself and MF. MANSFIELD,
is as follows:
On page 17, after line 7, insert the follow-
ing new section:
"SEC. 402. (a) Chapter 21, title 28.f United
States Code, is amended by adding at the
end thereof the following new section:
1461. Stay of proceedings for reapportion-
ment of State legislative bodies.
" '(a) Any court of the United States
having jurisdiction of an action in which
the constitutionality of the apportionment
of representation in a State legislature or
either house thereof is drawn in question
shall, upon application, stay the entry or
execution of any order interfering with the
conduct of the State government, tht pro-
ceedings of any house of the legislature
thereof, or of any convention, primary or
election, for such period as will be in the
public interest.
" (b) A stay for the period necessary?
'(i) to permit any State election of repre-
sentatives occurring before January 1, 1966,
to be conducted in accordance with the laws
of such State in effect immediately preceding
any adjudication of unconstitutionality and
" ' (ii) to allow the legislature of such State
a resasonable oppportunity in regular session
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18568 CONGRESSIONAL RECORD ? SENATE August 12
or the people by conatitutional amendment a
reasonable opportunity following the adjudi-
cation of unconstitutionality to apportion
representation in such legislature in accord-
ance with the Constitution
shall be deemed to be in the public interest
in the absence of highly unusual circum-
stances.
" '(c) An application for a stay pursuant
to this section may be filed at any time be-
fore, or after final judgment by any party or
intervener in the action, by the State, or by
the Governor or Attorney General or any
member of the legislature thereof without
other authority.
"'(d) In the event that a State fails to
apportion representation in the legislature in
accordance with the Constitution within the
time allowed by any stay granted pursuant to
this section, the district court having juris-
diction of the action shall apportion repre-
sentation in such legislature among appro-
priate districts so as to conform to the con-
stitution and laws of such State insofar as is
possible consistent with the requirements of
the Constitution of the United States, and
the court may make such further orders per-
taining thereto and to the conduct of elec-
tions as may be appropriate. _
" '(e) An order of a district court of three
judges granting or denying a stay shall be
appealable to the Supreme Court in the
manner provided under Section 1253 of this
Title, and in all other cases shall be appeal-
able to the court of appeals in the manner
provided under Section 1294 of this Title.
Pending the disposition of such appeal the
Supreme Court or a Justice thereof, or the
court of appeals or a Judge thereof, shall have
power to stay the order of the district court
or to grant or deny a stay in accordance with
subsections (a) and (b).'
"(b) The chapter analysis of that chapter
is amended by adding at the end thereof the
following new item:
"'461. Stay of proceedings for reapportion-
ment of State legislative bodies."
The PRESIDING OFFICER. The
amendment will be received and printed.
Mr. DIRKSEN. Mr. President, I think
I have had submitted for printing in the
RECORD the dissenting opinion of Justice
John Harlan. I think it is important to
have it printed in the RECORD.
Mr. PROXMIRE. Mr. President, will
the Senator yield to Me very briefly?
Mr. DIRKSEN. I yield.
Mr. PROXMIRE. Did I correctly un-
derstand the Senator to say that the
amendment which is now being sub-
mitted is entirely different from the bill
reported by the Judiciary Committee by
a 10-to-2 vote earlier?
Mr. DIRKSEN. It is not quite sub-
stantially different.
Mr. PROXMIRE. This proposal has
not only not had any hearings, but no
committee approval of any kind; is that
correct?
Mr. DIRKSEN. It is being offered as
an amendment to the pending bill.
Mr. PROXMIRE. I understand.
Mr. DIRKSEN. Literally thousands
of amendments on which no hearings
are held are offered to bills.
Mr. PROXMIRE. Yes; indeed. I will
not get into that matter at the moment.
I wished to get that information before
me, because I believe a vote of 10 to 2
in the Judiciary Committee is a very
strong, if not persuasive, recommenda-
tion by the Senate's principal advisers
on law. As I understand what the Sena-
tor has said, this is an entirely different
amendment, in substance; is? that col*:
rect?
Mr. DIRKSEN. Yes; except the basic
principle is the same. It involves bring-
ing about by statute, if it can be consti-
tutionally done, the purchase of enough
time, to meet a chaotic condition which
has developed in the States. It has gone
so far that in the State of Oklahoma the
courts not only invalidated the act of its
legislature, but also invalidated the re-
sults of the primary election. The Okla-
homa Representatives as of this mo-
ment, including the majority leader in
the House of Representatives, are truly
in a fix.
? Mr. PROXMIRE. I understand. I
do not wish to delay the Senate tonight.
However, it will be interesting to see how
the amendment will affect Oklahoma,
Illinois, and other States.
Mr. DIRKSEN. And Wisconsin.
Mr. PROXMrR,E. -Wisconsin is as
perfectly apportioned as it can be.
Mr. DIRKSE11. It is?
Mr. PROXMIRE. Oh, yes; both
Houses are population apportioned by
our Constitution. Furthermore, our lat-
est apportionment of a few weeks ago
makes the largest district within 3 per-
cent of being perfect, and the smallest
district within 3 percent of being per-
fectly apportioned. Therefore, we have
no problem.
Mr. GRUENING. Mr. President, I ask
unanimous consent that the pending
amendment be temporarily laid aside so
that I may call up my amendment to
H.R. 11380, and ask for a vote on it.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment will be stated.
Mr. GRUENING. It is not necessary
to read the amendment. I have spoken
at length on it.
The PRESIDING OFFICER. Without
objection, the amendment will be printed
in the RECORD at this point.
The amendment is as follows:
AMENDMENT NO. 1138
On page 17, after line 7, add the following
new section:
"TITLE VIII?ACCELERATED PUBLIC WORKS
"SEC. 801. Section 3(d) of the Public
Works Acceleration Act (Public Law 87-658;
76 Stat. 542) is hereby amended to read as
follows:
" '(d) There is hereby authorized to be
appropriated not to exceed $2,400,000,000 to
be allocated by the President in accordance
with subsection (b) of this section, except
that not less than $800,000,000 shall be allo-
cated for public works projects in areas des-
ignated by the Secretary of Commerce as re-
development areas under subsection (b) of
section 5 of the Area Redevelopment Act.
Appropriations made pursuant to this au-
thorization after the date of enactment of
this sentence shall remain available until
expended.'"
Mr. GRUENING. The amendment is
an amendment to the Public Works
Acceleration Act.
I ask the Senator in charge of the bill
whether he will take it to conference.
Mr. SPARKMAN. Mr. President, the
Senator knows I have strongly sup-
ported, in this country, the kind of pro-
gram that he has in mind. I have voted
for it on other occasions. I helped to
get it through the committee. I must
say, in all frankness, however, that it
does not belong on the foreign aid bill.
Therefore I am not in a position to ac-
cept it.
Mr. GRUENING. I appreciate the
statement of the distinguished Senator
from Alabama. I understand his sym-
pathy for the purpose. I also under-
stand his feeling that perhaps this is
not the place to press the amendment.
Mr. President, I ask for a vote on the
amendment.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment offered by the Senator frcim
Alaska. (Putting the question.)
Mr. DIRKSEN. Mr. President, I ask
for a division.
On a division the amendment was
rejected.
ORDER FOR ADJOURNMENT UNTIL
10 AM. TOMORROW
Mr. MANSFIELD. Mr. President, I
ask unanimous consent that when the
Senate completes its business today it
stand in adjournment until 10 o'clock
a.m. tomorrow.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
AUTHORIZATION FOR COMMITTEES
OF THE SENATE TO MEET TO-
MORROW
Mr. MANSFIELD. I ask unanimous
consent that all Senate committees may
be authorized to meet during the session
tomorrow until 12 o'clock noon.
The PRESIDING OFFICER. Without
objection, it is so ordered.
THE ALL-CARGO AIRLINES
Mr. SPARKMAN. Mr. President, a
serious crisis has been developing for
the small business segment of the air-
line industry; namely, the all-cargo air-
lines. These carriers, who properly were
certificated by the Civil Aeronautics
Board for the carriage of freight, mail,
and express, have had their existence
threatened by virtue of the competitive
inequity which exists between them an
the giant, subsidy-eligible airlines.
The Congress in the Federal Aviatio
Act imposed certain statutory responsi
bilities upon the Civil Aeronautics Boar
Those responsibilities include, anion
other things, the promotion and develo
ment of an overall air transport system
a system which wisely includes special
ized all-cargo airlines. The CAB woul
be remiss in its duties if it did not tak
steps and measures to allow these spe
cialized carriers?the only airlines tha
have an obligation and can be count
upon to provide all-cargo service?
survive, develop, and grow.
The CAB's recent policy statemen
regarding the all-cargo carriers is one
which deserves the attention and praise
of the Congress. It is a profound and
wise statement of policy, and one which
should be accepted by all public interest
motivated persons.
Our economy is becoming increasingly
specialized. I am glad to note that this
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Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080047-1
CONGRESSIONAL RECORD ? SENATE 18569
rend is manifesting itself in the CAB's
ecision. I congratulate the Board for
ts forward looking and courageo
decision.
SENATOR FRANK CHURCH'S BRIL-
LIANT MILWAUKEE SPEECH
Mr. PROXMIRE. Mr. President, on
ugust 1, the distinguished senior Sen-
ator from Idaho [Mr. CHURCH] delivered
a remarkable speech at a testimonial
dinner in my honor in Milwaukee.
Senator CHURCH'S speech was greeted
with enthusiastic approval by a capac-
ity crowd from all over Wisconsin.
When he finished he received one of the
longest and loudest standing ovations I
have heard anywhere.
Mr. President, while the speech of the
Senator from Idaho was deeply moving,
it was also profoundly thoughtful. Sen-
ator CHURCH squarely faced our big
problem: how to achieve peace and vic-
tory for freedom in the nuclear age, the
missile age, the age of a militant com-
munism on the march. His ringing and
thoughtful answer deserves the widest
possible audience.
For this reason Mr. President, I ask
unanimous consent that excerpts from
Senator CHURCH'S speech in Milwaukee,
on August 1 be printed in the RECORD at
this point.
There being no objection, the excerpts
were ordered to be printed in the RECORD,
as follows:
BATTLE CALL FOR THE REPUBLIC
(Excerpts from an address by Senator FRANK
CHURCH, Democrat, of Idaho, at a fund-
raising dinner for Senator WrIzIANI PRox-
MIRE, in Milwaukee, Wis., August 1, 1964)
For 2 weeks now, I've been carrying my
arm in a sling. I'm glad to be rid of it,
because people kept mistaking me for a
moderate Republican just back from San
Francisco.
The fever of the old frontier captured the
Republican convention out there. Looking
backward with BARRY had overpowering
appeal. They claim he'll carry every State?
all 13 of. them. They say his platform will
win over both parties?the Tories and the
Whigs.
Well, as a fellow westerner, I understand
the nostalgia for the Old West. I like BARRY
GOLDWATER. He's my neighbor in Washing-
on; we share adjoining offices at the Sen-
te?and that's where he should stay.
There is a proven man who site in the
hite House?where he should stay?
yndon B. Johnson. The touchstones of his
dministration are three: prudence, prosper-
y, and peace.
Only if prudence prevails?only if the pro-
sses of law and order are upheld?will it
rove possible for us to remedy what now ails
s most, the racial ferment rampant in the
nd. This is an affliction which breeds ex-
emism among white and black alike. But
men of moderation are swept aside, the
roblem will soon become a plague, as the
irus of violence spreads. For when men of
ifferent colored skin clash in anger, none
an see that each man's blood runs red.
How, then, do we seek the solution? First,
by making sure that the law itself is right?
that it implements those guarantees of equal
treatment which the Constitution extends
to every citizen. Second, by upholding the
law and preserving good order against every
violator, regardless of race, creed, or color.
This is the prescription of Lyndon B. John-
son. This is why he urged the enactment
of the civil rights bill. And both parties
responded in Congress; of the 33 Republi-
cans in the Senate, 27 voted for the bill;
only 6 Republicans voted against it. But
among the six, a tiny minority within the
minority, Was BARRY GOLDWATER.
Now the time of test is upon us. Will the
law be respected? Will good order be pre-
served? Or will extremists on both sides
take charge?
In accepting the nomination at San Fran-
cisco, Senator GOLDWATER said, "Extremism
In defense of liberty is no vice; moderation
In pursuit of justice is no virtue." That
amounts to nothing more than a fervent way
of saying the end justifies the means. Little
wonder that Walter Lippmann should pro-
test, as follows:
"If there ever was a time, it is now, when
it is against the public interest to tell men
that they may take extreme measures in
what they believe to be the defense of liberty
and the pursuit of justice. There is a racial
conflict in this count6 and there is a strong
tendency to private violence on both sides,
among the white and among the black.
"With the private shootings, the private
burnings, the private bomb throwings, the
private mobs, is it not the duty of every
American to rally to the defense of law and
order? But how can there be such a rally
if we must endure an election in which the
challenging contender is telling the flam-
mable crowd that extremism may be no sin
and that moderation may be no virtue?"
If this is the choice GOLDWATER offers, then
it is the choice between wrong and right.
The American people will search their hearts,
and I have no doubt they will choose the
course which is right. -In a massive affirma-
tion, they will uphold the hand of Lyndon
Johnson,
After San Francisco, there can be no doubt
that the men who have been placed in
charge of the elephant are trying to make it
walk on its two right feet. They claim that
this is in the mainstream of Republican tra-
dition. But it is not. It is, rather, a repudia-
tion of responsible Republicanism, and all
for which it stands.
The party whose first President saved the
Union, by fighting off the enemies of the
Federal Government, now presents us with a
candidate for President who talks as if the
Federal Government were the enemy.
So let us, as Democrats, take the high
ground, where both of our great political
parties have stood in the past. Let us pre-
pare to do battle for the Federal Union; to
talk sense instead of nonsense; to reason
rather than emote. Let us respond to right-
wing fanaticism by emphasizing the govern-
ing facts of our life and, times.
When they berate big, Central Government,
let us remind them that the growth of the
National Government is not even keeping
pace with the growth of the Nation itself;
that, in 1952, there were 16 Federal em-
ployees for every thousand of population,
compared with 13 today; that, from 1952 to
1962, total Federal civilian employment fell
3 percent, while empolyment by State and
local governments increased by 63 percent.
If "creeping socialism" is measured by the
rising tide of Government employees, the
sentinels would do better to station them-
selves closer to home.
When they accuse us of being profligate
spenders, let us remind them that President
Johnson's budget this year was the lowest,
in proportion to our national wealth, to be
submitted since the tight Truman budget of
1951; that, ? despite our burgeoning national
growth, the Johnson budget was half a billion
under the budget of the previous year, and
that 15,000 Government positions have been
struck from the Federal payrolls.
When they complain of stifling taxes, let
us reply that Federal income tax rates have
been twice reduced since the Korean war,
and that this session of the Congress, at the
behest of Presidents Kennedy and Johnson,
has enacted the largest peacetime tax cut in
history.
When they wail about the "welfare state,"
let us confront them with the fact that only
7 cents out of each Federal tax dollar is paid
out on all the welfare programs combined,
while nearly 80 cents of that same tax dollar
goes, in one way or another, to pay, not for
welfare, but for warfare. Payment for past
war, and preparation for future war, is the
principal cause of today's big government.
So, when the doubletalkers call, in the
same breath, for a shutdown of government
at home, and a showdown with communism
abroad, let's have the commonsense to laugh
them off the political stage.
Let's pull the sheets off their hobgoblins
of "socialism," "subversion," and "sellout."
This country of ours is not an old Victorian
haunted house, creaking with insolvency, its
foundations being eaten away by Red ter-
mites, about to be betrayed to the enemy.
Our times are not some kind of spook show
filmed by 19th Century-Fox.
We are a mighty nation of nearly 200 mil-
lion free people, rich beyond belief, and
stronger than we have ever been before.
Since John F. Kennedy ushered in this
Democratic administration, less than 4 years
ago, our gross national product has grown
by a fantastic $100 billion. Wages and
profits and family income are at their high-
est levels in our history. Free enterprise is
doing fine.
To be sure, like every generation before us,
we have our problems. But they are flesh-
and-blood problems, not ghostly apparitions.
Only those afraid to face up to these prob-
lems prefer fantasy to fact. It is a fact
that equal justice must yet be won for our
colored citizens; the educational opportu-
nities must be broadened for all; that better
medical care for the aged and infirm must
be secured; that the needs of the poor must
be better attended; that the ends of freedom
must be extended, and the peace preserved.
These are the real-life problems with
which our dynamic President is grappling
from day to day. And the people of this
land have the good sense to know it. That's
why President Lyndon B. Johnson is going
to be overwhelmingly reelected this Novem-
ber.
But if the Goldwater brand of Republican-
ism is not really relevant to the domestic
problems with which we must grapple, it
loses all reality when placed in context with
the problems which confront us in the out-
side world.
It is here that he stresses but one theme,
belligerency. He charges the Democrats with
"cringing before the bully of communism."
I say no American President, Democrat or
Republican, has ever cringed before any
enemy of the United States. Harry Truman
wasn't cringing when he sent American forces
into Korea to defend against Communist
aggression there. John F. Kennedy wasn't
cringing when he faced down two Soviet ul-
timatums at Berlin, or when he ordered the
Navy to intercept Russian ships on the high
seas, or when he demanded, and obtained,
the dismantlement of the launching bases
and the removal of Soviet missiles from
Cuba. Lyndon Johnson isn't cringing in
South Vietnam today. He doesn't know the
meaning of the word.
But belligerency alone is not a foreign
policy. John F. Kennedy reminded us, in
his unforgettable inaugural address, that
"We should never negotiate out of fear, but
that we should never fear to negotiate." It
was in this spirit of statesmanship that the
nuclear test ban treaty was achieved, the
first thaw on the cold war front in many
years. Again, after the most careful consid-
eration, both parties in the Senate voted
overwhelmingly for the treaty's ratification.
But GOLDWATER voted "no."
Declassified and Approved For Release 2014/05/20: CIA-RDP66B00403R000300080047-1