AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070001-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 34
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 1
• Publication Date: September 24, 1964
• Content Type: OPEN SOURCE

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The Senate met at 11 o'clock a.m., and
was called to order by the Acting Presi-
dent pro tempore (Mr. METCALF).
The Chaplain, Re-V. Frederick Brown
Harris, D.D., offered the following -
prayer :
Merciful Father: In a world that so
largely lieth in darkness, with the human
family swept by fitful winds of doubt and
despair, we pause at this sheltered sanc-
tuary of Thy grace to make sure that no
encircling gloom without dims the inner
light on the altar of our heart.
As servants of the state, set aside to
prescribe for the ills of an ailing social
order, we pray that Thou wilt first cleanse
our own lives from moral pollution and -
from any compromise of evil. Make our
spirits great enough for these days on
ages telling. Matching the large design
of these challenging ;times, may we keep
step with the drumbeat of Thy truth
which is marching on, grateful that?
Thy love hath led us in the past;
In this free Jand by Thee our lot is
cast.
Be Thou our ruler, guardian, guide and
stay;
Thy word our law, Thy paths our chosen
way.
Amen.
MESSAGES FROM THE PRESIDENT?
APPROVAL OF BILLS
Messages in writing from the President
of the United States were communicated
to the Senate by Mr. Ratchford, one of
his secretaries, and he announced that
on September 22, 1964, the President had
approved and signed the following acts:
S. 584. An act for the relief of Yih-Ho Pao
and his wife, Joanne T. Pao; and
8.2701. An act to provide for an investi-
gation and study to determine a site for the
construction of a sea level canal connecting
the Atlantic and Pacific Oceans.
EXECUTIVE MESSAGES REFERRED
' As in executive session,
The ACTING PRESIDENT pro tem-
pore laid before the Senate messages
from the President of the United States
submitting sundry nominations, which
were referred to the appropriate com-
mittees.
(For nominations this day received,
see the end of Senate proceedings.)
MESSAGE FROM THE HOUSE
A message from the House of Repre-
sentatives, by Mr. Hackney, one of its
reading clerks, announced that the
House had passed a bill (H.R. 1096) to
authorize the Secretary of the Interior
to cooperate with the State of Wiscon-
sin in the designation and administra-
Senate
THURSDAY, SEPTEMBER 24, 1964
tion of the Ice Age National Scientific
Reserve in the State of Wisconsin, and
for other purposes, in which it requested
the concurrence of the Senate.
ENROLLED BILL SIGNED
The message also announced that the
Speaker had affixed his signature to the
enrolled bill (S. 2049) to authorize the
Secretary of Commerce to accept gifts
and bequests for the purposes of the De-
partment of Commerce, and for other
purposes, and it was signed by the Act-
ing President pro tempore.
HOUSE BILL REFERRED-
The bill (H.R. 1096) to authorize the
Secretary of the Interior to cooperate
with the State of Wisconsin in the desig-
nation and administration of the Ice Age
National Scientific Reserve in the State
of Wisconsin, and for other purposes,
was read twice by its title and referred
to the Committee on Interior and
FOREIGN ASSIST-
ANCE ACT OF 1961
The Senate resumed the considera-
tion of the bill (H.R. 11380) to amend
further the Foreign Assistance Act of
1961, as amended, and 'for other pur-
poses.
Mr. MANSFIELD. Mr. President, I
suggest , the absence of a quorum, with
the time for the quarum call to be equally
divided between each side.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
The clerk will call the roll.
The Chief Clerk proceeded to-van the
roll.
Mr. MANSFIELD. Mr. President, I
ask. unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro -tem-
pore. Without objection, it is so ordered.
Mr. MANSFIELD. Mr. President, - I
yield 5 minutes to the distinguished sen-
ior Senator from Oregon.
The- ACTING PRESIDENT pro tern-
Pore. The senior Senator from Oregon
is recognized for 5 minutes.
Mr. MORSE. Mr. President, I appre-
ciate the courtesy of the majority and
minority leaders in permitting me to
make my statement now in opposition
to the Mansfield substitute. I am en-
gaged in a conference, in a room close to
the Senate Chamber, seeking to work
out a compromise on the NEDA bill.
Therefore I suggested that I be allowed
to make my statement early.
I regret that I cannot support the
Mansfield substitute for the also unsound
Dirksen amendment. Most of the debate
on the Dirksen amendment has centered
around the 'rightness or wrongness of the
Federal court decisions on apportion-
ment. That is certainly one aspect of the
Dirksen amendment. Personally, I favor
the decisions, and I am opposed to any
constitutional amendment to change
them. But I believe there is something
more immediate involved. The nature
of the cases is not so important as the
fact the Congress is interfering in the
prerogatives of the Federal courts.
That is the real issue in the Dirksen
amendment. That is the real issue in
the substitutes. It does not matter one
whit whether Congress addresses itself to
cases of State apportionment arising un-
der the 14th amendment, or to some
other classes of cases.so far as my opposi-
tion is_concerned. It is to the bad prac-
tice that the legislation represents that
I have addressed myself more than to the
nature of the cases affected, because leg-
islative intrusion into the jurisdiction
of the courts is an unsound venture no
matter what specific cases are affected
by it. I have always opposed that dur-
ing my service in the Senate, and shall
continue to do so. When all is said and
done, I believe that this approach vio-
lates the separate powers doctrine of
the Constitution.
On the merits of the language itself,
the new substitute is at least a huge im-
provement over the Javits amendment.
It makes . no mention and holds out no
implied promise?of a constitutional
amendment to preserve malapportion-
ment.
It further improves upon previous lan-
guage by being phrased in the language
of enforcement rather than nonenforce-
ment of the 14th amendment.
But it doe ? not matter that only the
advice of Congress is offered, or that it
largely repeats the language of the High
' Court itself. It remains a rebuke to the
courts so far as the public is concerned.
It means that Congress believes some-
thing must be said to-the courts from
another separate branch of the Govern-
ment about the way they are doing their
job. It is "backseat driving."
Constitutionally, it is completely gra-
tuitous.
In my judgment, it is in as bad grace
as would be a "sense-of-the-Supreme-
Court" resolution, passed by the Justices,
giving us their gratuitous advice as to
how we should conduct the legislative
process in the Senate.
It assumes that the Supreme Court
is failing in some respect or another and
that Congress-must fill the breach with
its own opinion and advice, even if it
were nothing more than a repetition of
what the High Court has already said.
Any comment from Congress on this
subject which does not take the form of a
statutory enforcement procedure for en-
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22026 CONGRESSIONAL RECORD ? SENATE
forcement of the 14th amendment is a
substitution of the opinion of Congress
for the opinion of the Court. Under the
Constitution, Congress has authority to
enforce the 14th amendment, including
the application of the equal protection
clause to State legislatures. But it has
no authority to suspend the equal pro-
tection clause, as the Dirksen amend-
ment proposes, nor to give to the courts
its opinion of what constitutes equity in
the absence of statute, as the Javits and
now the Mansfield amendments propose.
The pending language means only that
Congress now is going to give informal
instructions to the lower courts about
reapportionment cases. "What can that
possibly mean except that Congress be-
lieves the Federal judiciary is in need
of advice and instruction from Congress
on its handling of a judicial matter?
This language, too, rebukes the Supreme
Court, as though the latter were in-
capable of exercising proper control over
the lower courts.
It is an evil day in American history
when Congress begins to advise any level
of the judicial system on the handling
of its cases, and I shall not join in setting
our country upon that course.
I warn the Senate today that I believe
it is establishing a precedent that will
rise to plague it. Every procedural argu-
ment that has been made against the
Dirksen amendment is applicable also
to the Mansfield substitute. _
The ACTING PRESIDENT pro tem.-
pore. The time of the Senator has
expired.
Mr. MORSE. Mr. President, may I be
permitted to continue for an additional
minute?
The ACTING PRESIDENT pro tem-
pore. Without objection the Senator
from Oregon is recognized for an addi-
tional minute.
Mr. MORSE. Mr. President, the sub-
stitute is a rider on the foreign aid bill.
We have heard that fact raised as an
argument against the Dirksen amend-
ment. It is pointed out that the Dirksen
amendment is a rider, a nongermane
addition to the foreign aid bill. I agree.
The same is true of the Mansfield sub-
stitute. Both amendments are equally
bad procedurally. I shall continue to
oppose them. The Dirksen amendment
has not been the subject of committee
hearings. Neither has the Mansfield
substitute been the subject of commit-
tee hearings. I have the same objection
Jto it as to the Dirksen amendment. ....
We cannot justify the Mansfield
amendment from a ,procedural stand-
point.
Mr. President, if I were not alone?and
I am sure I am alone?I would engage in
what my liberal friends call a prolonged
debate in opposition to this amendment.
I call it a filibuster. It would be a legiti-
mate use of the filibuster in order to ob-
taM a postponement of this measure
until there could be committee hearings.
I would be perfectly willing to fix a
date in the latter part of January or
early February of next-year, after com-
mittee hearings, to vote on the whole
package of reapportionment proposals.
But I know that, standing alone, it would
be an act in futility for me to try to
stop this legislative steamroller. I am
impressed with one argument of the
Senator from Montana [Mr. MANSFIELD]
that is quoted in the press. I believe we
have reached the point in the Senate
Where we must go to a vote, or we shall
do the Senate as much harm as we would
if we passed the Dirksen-Mansfield
amendment.
We have a duty as Senators also to
protect the respect that the people ought
to hold for the Senate.
I conclude my opposition with one fur-
ther comment, so far as debate is con-
cerned. I hope that the Mansfield sub-
stitute will be defeated, but in due course
of time today I shall, if some other Sen-
ator does not, move to lay the whole
package on the table, including the Dirk-
sen amendment itself. I understand
from a parliamentary standpoint that I
shall be in a position to so move after
there has been a vote on the Mansfield
amendment and before a vote on the
Dirksen amendment, as amended, is
called for. I serve notice that at that
point I shall move to lay the whole pack-.
age on the table if in the meantime the
Senate makes the mistake of passing the
Mansfield substitute. If it defeats the
Mansfield substitute I shall then move
to lay the Dirksen amendment on the
table.
Mr. MANSFIELD Mr. President, I
yield 5 minutes to the distinguished Sen-
ator from New York [Mr. JAvrrs] '
The ACTING PRESIDENT pro ton-
pore. The Senator from New York is
recognized for 5 minutes.
Mr. JAVITS. Mr. President, it will be
recalled that, together with the Senators
from Minnesota [Mr. McCARrHy and Mr.
HIIIVIPHREY], I authored a sense-of-Con-
gress resolution upon this question.
Now we have finally before us a sense-
of-Congress resolution of which the ma-
jority leader is himself the sporisor. It
Is my belief that the resolution will carry.
I wish to express my support of it, and
point tout what has been so very much
implicit in the debate. It is an addition
to, rather than a derogation of, the dig-
nity of our standing in the hierarchy of
the Federal establishment when we rec-
ognize, rather than tear down, the co-
ordinate power of another branch of the
Government?the judiciary. There is
nothing in the resolution that shows
weakness on our part. On the contrary,
recognition of the strength of equals
shows strength on our own part.
Many times legislation has stepped in
where the Supreme Court jurisdiction
has ended. The best evidence of that is
that we have passed bills such as the bill
designed to answer the problem of the
Yates case, in which the Supreme Court
narrowly limited the definition of those
who would be charged with counseling
the overthrow of government by-force to
the original organizers of the Communist
Party.
The Congress was not satisfied with
that decision. It enacted legislation ex-
pressing its intention that the statute
relate to any such organization, includ-
ing one established later than the original
Communist Party, in order to bring such
later organizations within the purview
of the law. The Court had interpreted
September 24
a statute. So the Congress had the
power to act to reverse that interpreta-
tion.
But now we are dealing with a con-
stitutional interpretation by the Court.
Therefore, we do not have the power,
except by a law of equal authority,
namely, a constitutional amendment, to
affect it.
The pending resolution, if heeded by
the Supreme Court?and I shall come to
that point in a moment?would accom?
modate the possibility of a constitutional
amendment. I have already introduced
substantially the amendment offered by
Representative McCui.Locx in the other ?
body. That proposal would permit a
statewide referendum in any State to
determine whether the people of that
State wish one house of its legislature
apportioned not according to population.
Americans believe that they ought to-
have that right, in my judgment, because
they do not follow the labyrinth of rea-
soning that the establishment of the
Senate under the Federal Constitution
was the result only of the original Fed-
eral compact between the States and
the trading within the Constitutional
Convention. I believe it is endemic in
the conscience of Americans that a type
of legislative body like the Senate is a
good thing. Many States, by a vote of
the people?one person, one vote?may
put such a provision into effect. We
ought to give the States an opportunity
to do so if the people wish it. The sense
of Congress resolution accommodates
that idea.
Finally, I should like to make the
point that, in my judgment, the Supreme
Court would listen. The Supreme Court
should listen. The lower courts should
listen. This whole controversy was
brought about?and we must give credit
to the Senator from Illinois [Mr. Dirac-
sm] for highlighting it?by the fact
that the lower courts in _ many cases
showed an unreasonable lack of prac-
ticality. With all respect to the courts?
and no one has fought for them harder
than I have?they did so in New York.
Compelling three elections in 2 years and
curtailing the terms of individual legis-
lators elected by the people is, in my
judgment, to quote the language of the
Supreme Court itself in Reynolds against
Sims, unreasonable and embarrassing
to any State. The courts did so in Ver-
mont. They forbade the legislature
from doing any business except redis-
tricting, which was again demeaning to
a State.
I believe the Supreme Court decision
in the case of Reynolds against Sims
should be enforced and can be with great
dignity and respect to the authority and
the standing in the Federal establish-
ment of every State.
We have constructed our legislatures
since the founding of the Republic
pretty much in one way, and we should
correct the situation. I am all for it.
But it does not have to be, done with
quite the ax which was forecast in some
of the three-judge court decisions.
I hope that the Senate will now re-
solve this dilemma by voting to adopt
the Mansfield substitute, which will do
what we want to do and, at the same
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CONGRESSIONAL RECORD ? SENATE 22027
time, respect the power of a coordinate
branch of the Government?the judi-
ciary?and I am confident that the
Supreme Court will listen.
I thank the Senator from Montana
for yielding the time.
Mr. DIRKSEN. Mr. President, I yield
5 minutes to the distinguished Senator
from Ohio [Mr. LAUSCHE].
The ACTING PRESIDENT pro tern-
Pore. The Senator from Ohio is recog-
nized for 5 minutes.
Mr. LAUSCHE. Mr. President, I do
not believe that the amendment offered
by the senior Senator from Montana
ought to be adopted. To me the whole
problem has a significance far in excess
of what has been generally recognized.
In my judgment, if the order of the
Court is carried into effect without the
States being given an opportunity to de-
cide whether they wish to amend the
Constitution, we shall witness the initial
steps in a Change that will come about
in our basic law, eliminating the right of
States to have two Senators, regardless
of population. To me that is the crux of
the issue. Our Government, under a
system giving States two Senators and
Representatives on the basis of popula-
tion, regardless of the number reached
after a proper ascertainment of the pop-
ulation, has been the strength of our
Government.
Rhode Island, with 841,000 people, has
2 Senators; Nevada, with 282,000 peo-
ple, has 2 Senators; Alaska with 224,-
000 people, has 2 Senators. I do
not know what the population of Mon-
tana is, but if we should apply the same
formula to Montana that some are ap-
plying to representation in the State
legislatures, Montana would have no
Senator.
There are 190 million people in the
United States. If the 100 Senators in
the Senate were apportioned on the basis
of population, there would be 1 Sena-
tor for each 1.9 million people. Ohio
would be entitled to five Senators; Illi-
nois would be entitled to six. New York
would probably have eight, and Califor-
nia nine.
I suggest to Senators who come from
sparsel:- populated States that they are
witnessing the beginning of a movement
that will call upon the people of the
United States to amend the Constitution
so as to select Senators on the basis of
population and not on the basis of repre-
senting the individual States.
Mr. DOUGLAS.. Mr. President, will
the Senator yield?
Mr. LAUSCHE. I do-not yield at this
,time. I have only 5 minutes. I will yield
if the Senator from Montana will charge
the time to the proponents.
The ACTING PRESIDENT pro tem-
pore. Does the acting majority leader,
the Senator from Hawaii [Mr. Ixotrral ,
yield time to the Senator from Illinois?
Mr. INOUYE. I shall be happy to yield
time.
Mr. DOUGLAS. I need only half a
minute.
This is one provision of the Constitu-
tion which cannot be changed. Article
V provides that no State can be denied
No. 184-6
equal representation in the Senate with-
out its consent, so my friend from Ohio
should lay his fears to rest.
Mr. LAUSCHE. I will not abide by
that statement, because we can achieve
things with the approval of the people.
But if that is the position of the Senator,
if he labels sound and wisa the proposi-
tion that each of the States shall have
two Senators, how can he reach the con-
clusion that the sparsely settled areas in
my State or his State shall have no Sen-
ator? The Senator cannot answer that
question logically. He will find himself
at an impasse.
I should like to discuss what the Su-
preme Court has said and to point out
the paradoxical position it reached in its
catchy phrase that the legislators are not
representing rocks, rivers, mountains,
and streams, but that they are represent-
ing people. If that principle is sound,
on what theory does the Senator say
that Rhode Island, with 800,000, and
Nevada, with 282,000, shall each have
two Senators?
Those who framed our Constitution
thought wisely. They pondered this
Issue. They wanted representation in
Congress neither solely on the basis of
population nor solely on the basis of geo-
graphical representation. They knew
there was a need for a blend of the two.
Unless there is such a blend, we shall
have a one-sided Government.
I come from the city of Cleveland.
My county has 1,500,000 people in it. If
the industrial counties in and around
Cleveland are given representation both
in the lower and upper house on the basis
of population, there will be completely
destroyed the advice of the people in the
rural areas.
The ACTING? PRESIDENT pro tern-
pore. The time of the Senator has
expired.
Mr. LAUSCHE. May I have 2 more
minutes?
Mr. DIRKSEN. I yield 2 minutes to
the Senator from Ohio.
Mr. LAUSCHE. Cuyahoga County,
Cincinnati, Columbus, Dayton, and
Youngstown will dominate. When they
do, they will dominate-through the labor
leaders, the Americans for Democratic
Action, and the big city political bosses.
When that point is reached, weshall
not have good government. There must
be the influence of the stable individuals
who do not comprise that one segment of
our economy completely: Legislatures
should not be dominated one sidedly
either by big city or rural voters.
May I point out what happened in
Ohio? Our constitution provides that
each county shall have at least one rep-
resentative. Our State has 88 counties.
That means each county has one repre-
sentative. Added thereto is the factor of
population giving added representation
to the big cities. That is the constitu-
tional provision. It was adopted in 1903.
In 1910 the people called for a consti-
tutional convention. It was held in 1912.
Efforts were made to change that provi-
sion, and the proposal was rejected.
In 1930 the people were asked to decide
whether, there should be a constitutional
convention, which was submitted to
them. One of the issues was whether to-
reapportion the State legislature. The
vote was 1,056,000 against and 853,000
for. The convention was not held.
We come down to 1952. In 1952 the
Issue was primarily, Shall we have?
The ACTING PRESIDENT pro tem-
pore. The time of the Senator has
expired.
Mr. LAUSCHE. I ask for 1 more
minute.
Mr. DIRKSEN. I yield 1 minute to
the Senator from Ohio..
Mr. LAUSCHE. The issue was, Shall
there be a constitutional convention?
The question was whether there should
be reapportionment. Those same forces
arguing against the Dirksen amendment
were arguing for the convention in 1952.
What did the people do? Listen to the
people: the vote was 1,977,000 "No";
1,020,000 said "Yes." The vote was prac-
tically 2 to 1 against reapportionment.
I believe the Dirksen amendment
should be adopted for the good of our
country. It should be adopted so that
there may be a blend of thinking in the
State legislatures in determining what
our economic and other policies shall be.
I yield the floor.
UTAH NOW HAS A MILLION HEIRS
Mr. DIRKSEN. Mr. President, I yield
the Senator from Utah 20 minutes.
Mr. BENNETT. Mr. President, we
have been discussing this problem now
before us for a long time, and I beg the
indulgence of the Senate to take this
time to discuss what we have found in
Utah to be a very pleasant fact.
Today, September 24, 1964, marks an
Important point in the history of Utah.
The Census Bureau and Utah State of-
ficials have agreed that sometime today
Utah's population will reach the magic
1 million mark.
Utah is relatively a newcomer to the
United States, having first been settled on
July 24, 1847, when Brigham Young led a
hardy band of Mormon pioneers across
the continent, peered into Salt Lake Val-
ley and said, "This is the place."
It is recorded that Brigham Young
prophesized that the Salt Lake Valley
some day would be filled with homes and
communities from one end to the other
and that those living there would thrive
and prosper for years to come.
Despite his prophetic vision, I doubt
that even he had a full conception?al-
though, I am sure he had hope?of the
developments the next 117 years would
bring.
Of one thing he and his followers were
certain?in this area their cities and
towns would be laid out, but no dream
of theirs could envision the State of Utah
now with 1 million inhabitants.
? Utah's founding year was 1847, when
the vanguard of the settlers came into
the area. Now we salute the efforts of
many unnamed toilers who built the
schools, business enterprises, banks, mills,
factories, mines, and beautiful cities
sprinkled around, in and near, unexcelled
outdoor recreational facilities in the can-
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22028 CONGRESSIONAL RECORD ? SENATE
yons and parks that surround the valley.
By 1850 the population of Utah' was
about 11,000 as the original settlers be-
gan moving out from their early town-
sites in Salt Lake Valley.
By 1860 it was 40,273; by 1870, 86,786;
and by 1890 it was 210,779.
As the century turned, Utah had 276,-
749 residents; by 1910, 373,351; by 1920,
449,396; by 1930, 507,847, the half mil-
lion mark; by 1940, 550,310, and by 1950,
688,862.
When the last official U.S. census was
taken in 1960, Utah's population was
890,627. In July of 1962,. reports put it
at 958,000. By July of this year the
total was 992,000.
The population of Utah has many
characteristics that make it distinctive.
Typically, Utah has the Nation's high-
est or second highest birth rate, and
consistently has maintained the lowest
or second lowest death rate. Utah's
birth rate, in the last census, was 29.4
per thousand population, compared with
a national average of about 23.4 per
thousand. Its death rate during the
same period was 6.7 per thousand com-
pared with a national average of 9.3
per thousand.
And no one should talk of Utah's ac-
complishments as it moved to reach the
million figure without mentioning those
in the field of education.
Utah ranks first in the Nation of those
25 years old and older with at least
4 years of high school; first in the Na-
tion in median school years completed
by persons 25 years old and older; lowest
percentage in the Nation of selective
service registrants failing the mental
test; lowest percentage in the Nation of
, population 25 years old and older with
less than 8 years of schooling; and lowest
percentage in the Nation of population 25
years old and older with less than 5
years of schooling.
If Utah's millionth resident is typical
of other newcomers who have recently
streamed into the State, he will seek and
find a job in industries such as steel-
making, chemicals, electronics, machin-
ery manufacture, garment making, and
missiles, that have given the State a
new look and a new outlook in the tre-
mendous spurt of population increase
- during the past decade.
All Utahans are very proud of our
"million" tag and I am sure it should
not be too long before a Senator from
my State stands before this same body
and announces that the second million
has been achieved.
Utah has come a long way since that
day when Brigham Young left for Utah
with 143 men, 3 women, 2 children, 73
wagons, 93 horses, 52 mules, 66 oxen,
19 cows, 17 dogs, and some chickens.
The first million and the first 117
years were the hardest.
This is a happy day for us, to have
reached this mark.
THE PRICE OF SILVER?U.S. SILVER
POLICY AT THE CROSSROADS
Mr. BENNETT. Mr. President, in
this morning's Journal of Commerce we
read that contracts for future-delivery
of silver, for next August, 1 year from
now, traded in a range from a low of
$1.3820 an ounce to $1.3850 an ounce.
During the past year I have been con-
stantly reminding the Senate that the
present legal price of silver, being main-
tained artificially by the willingness of
the Treasury to sell silver to all comers
at $1.29 an ounce, cannot long be main-
tained.
The day when the spot or -current
price of silver rises slightly above $1.29
an ounce, it will be profitable to melt
down our silver dollars, because the sil-
ver in the dollars is monetized at a rate
of $1.2929 an ounce. A rate which was
set, by the way, in 1792 in the first mone-
tary law passed after our Government
was formed and the Constitution was
adopted. This was the official value of
silver in our silver dollars as long ago
as that, and it has been maintained offi-
cially, though not always practically,
since then.
I should emphasize that the $1.29 an
ounce figure refers only to the monetized
value of silver in the silver dollar coin.
In 1853, the value of silver in the lesser
coins?dimes, quarters, and half dol-
lars?was reduced, so that it would re-
quire a price of $1.38 an ounce to bring
us to the point where it would pay to
melt down the smaller coinage. We
have now reached that point in the
futures market. We have reached it in
the sense that the price paid yesterday
for delivery, next August was $1.3820?
$1.3850 an ounce.
This emphasizes a problem that I have-
long tried to bring to the attention of
Members of the Senate. We are re-
minded that, with all the pressures that
are operating against silver, the Treasury
no longer has very much time in which to
move to develop a new coinage system. If
Congress and the Treasury do not act
early in the next session of Congress to
solve this problem, the shortage of coins
which we now consider to be serious will
become insignificant compared with the
probable loss from circulation of almost
all, if not all, the dimes, quarters, and
half dollars.
Our silver dollars have already disap-
peared. Even though we have agreed
upon a bill to mint $45 million more, at
the same value of the silver, $1.29 an
ounce, I predict that they will disappear
as fast as they are minted. They are al-
ready collectors' items. Anyone who is
not a collector does not realize that they
are becoming an interesting curiosity.
Many collectors have ?been gathering
silver dollars with the intention of melt-
ing them down when the price of silver
breaks through the ceiling.
The solution to our silver problem will
not be a simple matter; nor will it be
possible to satisfy all who are concerned.
However, we must face the problem now.
We have attempted to ignore the prob-
lem long enough but, as usual, ignoring
it did not make it disappear.
One year ago predictions were made
that our Treasury supplies of silver would
be sufficient to fill the production deficit
for as long as 15 to 20 years. The events
of the past year should certainly impress
all of us that the projections were inac-
curate and that we cannot hesitate longer
September 24
without adding to the problem and in-
creasing the difficulty of its solution.
Only last week, at the American Min-
ing Conference Convention, held in Port-
land, I outlined and analyzed our silver
problem in a rather simple and brief
fashion. I also pointed out the fal-
lacies of the many superficial attempts to
deal with the problem in legislative pro-
posals which have been introduced. I
should like to point out some of the high-
lights of this situation.
The silver problem is basically eco-
nomic. It stems from the fact that both
in the United States and throughout the
world demand for silver at the price ceil-
ing being held by the Treasury is greater
than the amount that is being produced
at that price. One does not have to be
an economic genius to know that this
cannot continue long, since the only way
the demand can be met under these cir-
cumstances is to use up already existing
stockpiles.
Let me review a few statistics on pro-
duction and consumption which will in-
dicate the magnitude of the problem. In
1940, U.S. production and consumption
of silver were approximately equal at a
figure of 68.3 million ounces. Last year
domestic production was 37 million
ounces, while domestic consumption had
increased to 221.3 million: In other
words last year the United States pro-
duced only about one-sixth of its own sil-
ver needs, leaving a deficit of 184.3 mil-
lion ounces to be supplied either from
foreign sources or from U.S. Treasury
stocks.
If world production had been sufficient
to supply this deficit, there would have
been no great problem; but free world
production was 210.5 million ounces
compared with consumption of 419.2 mil-
lion. Silver used for industrial and art
purposes alone totaled 247 million ounces
and exceeded total production by 37 mil-
lion ounces. Thus, production would
not have equaled consumption even in
the absence of any use of silver for coin-
age. Coinage needs of foregin countries
were 60.9 million ounces, and the U.S.
mint used 111.3 million ounces. From
these figures, one very important fact
stands out. The free world used just
twice as much silver as it produced.
WORLD SILVER DEFICIT DEPLETES TREASURY
STOCKS
The world deficit had to be filled from
previously mined silver, and last year
most of it came from silver held by the
U.S. Treasury. This year's outflow of
silver from the Treasury will be aPPro'xi-
mately 263 million ounces, or a signifi-
cant 53-percent increase over the 185
million ounces used last year. And
things are not going to be any better
next year as demands on Treasury silver
increase.
We recently had some hearings in
Congress on the need for additional
coins. Representatives of the U.S. mint
testified that mint facilities are now
working at full capacity, and they intend
to continue at that rate. It is expected
that between 8 and 9 billion coins?twice
the number minted this year?will be
turned out next year. Approximately
1,629 million of these will be dimes, quar-
ters, and half dollars. I mention these
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1964 CONGRESSIONAL RECORD ? SENATE
coins specifically because they contain
silver and will require approximately 245
million ounces. This demand alone ex-
ceeds all U.S. silver consumption dining
last year by over 23 million ounces and
just about equals expected total world ,
Production, leaving nothing for the grow-
ing demand for silver for use in indus-
try.
Minting of the new silver dollars au-
thorized this year and transfers to other
governmental agencies will require at
least an additional 35 million ounces; and
if industry continues to draw from the
Treasury at the present rate, this will
cause another 60-million-ounce with-
drawal. All these add up to a total do-
mestic demand on Treasury silver of
about 340 million ounces. - At this rate,
the 1.4 billion ounces of silver held by the
Treasury would be completely exhausted
in 4 years. .
We do not know what the reaction of
foreign governments will be to the fact
that the United States will be able to hold
the price of silver at present levels for so
short a time.
From the figures I used at the begin-
ning of my statement, it can be realized
that the world market for silver is al-
ready recognizing the Treasury's dilem-
ma and is willing to bet that next August
the price for silver will have broken
through the $1.29 ceiling and have
reached the price of $1.38, which is the
point at which our small coins can be
profitably put into the melting pot.
It would be naive to assume that some
withdrawal due to foreign demands will
not occur. Any such withdrawal will
further hasten the day when the Treas-
ury stocks will be depleted.
I hope these statistics impress all
Members of the Congress as they do me,
With the importance of immediate Treas-
ury action.
TREASURY MUST SUPPLY ALL SILVER DEMANDS
Some have asked, "Well, Why does not
the Treasury simply stop selling its sil-
ver?" To the uninitiated, this sounds
like a reasonable request; and, in fact,
bills have been introduced in Congress to
do that very thing. But the situation
is not that simple.
First, on every $1 silvercertificate that
is in circulation, there is this inscrip-
tion:
This certifies that there is on deposit in
the Treasury of the United States of America
one dollar in silver payable to the bearer on
demand.
If the outstanding silver 'certificates
were redeemed, it would require 96 per-
cent of the 1.4 billion ounces of Treasury
silver, leaving only about 45 million
ounces for all other purposes, including
the minting of small coins.
Second, the Treasury has no choice but
to provide silver to industrial users,
whether they be United States or foreign,
because if it did not make its stocks
available, the price would soon be bid
above the present ceiling of $1.29. Some
of you may think that nothing could be
better, believing that the Treasury
should get out of the silver business and
let the market determine the price.
Looking at figures of demand and sup-
ply, it is natural to conclude that I the
price would immediately rise and thus
stimulate increased production. From
this point of view, one could become very
impatient with Treasury officials. This
impatience would be justified if the
Treasury were able to let the price of sil-
ver seek its natural market level without
other disastrous consequences.
In my personal discussions with the
Secretary of the Treasury and with other
Treasury officials, I find that they would
like nothing better than to get out of the
silver market. However, serious prob-
lems would develop if the Treasury did
not hold the price of silver at its present
level long enough to work out a plan to
protect our present subsidiary coinage
against hoarding until it can be replaced
with a new coinage system. Let me dis-
cuss this in a little more detail.
VALUE OF SILVER NOW EQUALS MONETARY VALUE
In the early days of our country, all
coinage was minted on an intrinsic value
basis rather than a token basis. This
meant that the metal value of each
coin, when minted, equaled the mone-
tary value. Every time there was a
slight inflationary trend, the coins be-
came worth more as metal than as
money, and they were melted down or
hoarded.
We are at that same point today. If
the price of silver rises significantly
above $1.29 an ounce, it will be profit-
able to melt down silver dollars. Specu-
lative hoarding of dollars, has already
taken place. You notice that there
aren't any circulating. There is also
evidence that our subsidiary coins are
already being hoarded. If the Treasury
were to let the price of silver rise much
above $1.38 an ounce, then we would see
all of our dimes, quarters, and half dol-
lars disappear.
This, in a nutshell, is our silver prob-
lem. Now let us see what is being done
about it and what the final solution
should be.
LEGISLATION THUS FAR FALLS SHORT OE'
SOLUTION
Some action has been taken. The
Silver Act of 1963 made it possible for
the Treasury to replace silver certificates
with Federal Reserve Notes and thus use
some of its silver for coinage. There has
been legislation to permit a continuation
of the 1964 date on coins if necessary.
Authority has been given to mint new
dollars, and the U.S. Mint is doubling its
production of coins. None of these ac-
tions has done any more than buy time
in which a more or less permanent solu-
tion can be formulated and some of them
will have the result of lessening the time
available.
When we consider what is now being
done, we find that since this is a legisla-
tive matter, many bills have been intro-
duced. All of them thus far, however,
have fallen far short of a long-range
solution; and some of them, if accepted,
would be disastrous. Let us consider
some of the bills, briefly.
First. Several were drafted which
would immediately double the price of
silver. In the absence of prior action to
protect our present coinage, we know
that to do this would immediately drive
all of--- our silver-bearing money into
hoarding or the melting pot.
22026'
Second. Another bill was introduced
to prohibit the redemption of silver cer-
tificates with bullion and the direct sale
of Treasury silver. If the Treasury were
unable to supply industrial users with
their needs in bullion, it would' have to
be done in silver coins. We have only
3 million silver dollars on hand, and in-
dustry uses approximately 60 million -
ounces a year or an equivalent of 68
million silver dollars. Why burden the
American taxpayers with an estimated
$1 million minting cost when the newly"
minted dollars would immediately be
melted down for their silver content to
be used in photography, tableware, elec-
tronics, and the hundreds of other in-
dustrial uses?
Third. A measure was introduced and
passed by Congress providing authority
to mint 45 million new silver dollars.
Last year I predicted that our standard
silver dollar was "on its way out" I
continue to maintain that position; and
though I am from a silver-producing
State and like silver dollars as well as
any other Westerner, I could not support
the authorization. I doubt that you will
ever see any of the newly minted dollars
circulating as a medium of exchange.
You may get a few to keep as souvenirs
of the first minting of silver dollars since
1935?and probably the last standard
silver dollar ever to be minted in the
United States. Even if the new dollars
do not become a special collector's item,
each of them will contain $1 worth of
silver at present artificially low prices
and thus will be an excellent investment
for their silver content.
Fourth. The problem of hoarding was
recognized by some Congressmen, and a
bill was introduced to reduce the silver
content in a dollar from 900 to 800 grams. _
This would have removed the dollar as
a first-line defense of our coins and could
have resulted in a withdrawal of all of
our present coins because they would
have a greater value as silver compared
to their monetary value than the new
dollars.
SILVER USERS WANT SILVER REMOVED FROM
COINAGE
Silver users take an entirely different
and opposite approach to the problem.
Typical of the silver Users' position is a
recent speech made by Mr. Stevens of
International Silver Co. He made the
usual recommendation that all silver be
taken from our coinage. This has long
been the stand of silver users because it
would reduce the demand for silver
significantly. With reduced demand,
they feel that the price may decline to
their advantage.
We have noted earlier that silver
demands for industry and art presently
exceed world production; so in the ab-
sence of action by the U.S. Government
to break the price, a hope by users for
a decline is going to go unfulfilled. Mr.
Stevens goes on to say:
As long as the Treasury has silver, it would
sell it at the present price to -protect the
existing coins in our monetary system.
In other words, sell every ounce at the
present price. This is obviously in-
defensible.
I have confidence that the Treasury
and the Congress will find a solution to
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?420 SO
CONGRESSIONAL RECORD ? SENATE September 24
the problem before the ultimate mini-
mum is reached. I do not know what
a proper minimum Treasury stockpile
should be, but it seems reasonable that
it might be about-half of our present
stock, or about '700 million ounces.
cannot bring myself to believe that those
in charge of the only significant world
stock of a strategic metal?such as
silver?would be so irresponsible as to
let it become depleted below a reason-
able minimum which must be retained
for defense purposes. If such a minimum
is retained, there is presently not more
than a 1- to 2-year supply before the
price would have to rise under present
conditions.
DRASTIC TREASURY ACTIO'M COULD CONTROL
PRICE
Lest we come to the conclusion that
there is no alternative to a price rise in
the immediate future, let me point out
an unwise and unlikely action that could
make it possible to hold the price almost
indefinitely and even break it to lower
levels. New coins could conceivably be
made of a base metal. All present coins
could be called in, and holding them
made illegal, as was the case with gold
in 1933. I am sure that this might solve
the problem temporarily.
The PRESIDING OFFICER (Mr. Rim-
COFF in the chair). The time of the Sen-
atOr from Utah has expired.
? Mr. INOUYE. Mr. President, I ask
unanimous consent that the Senator
from Utah may proceed for 2 additional
minutes.
The PRESIDING OFFIcEtt. Without
objection, the Senator from Utah is rec-
ognized for 2 additional minutes.
Mr. BENNETT. Mr. President, all
present coins could be called in, and hold-
ing them could be made illegal, as was
the case with gold in 1933.
While this created a temporary ad-
vantage for the gold miners, in the 30
years which have passed it has become
a millstone around the neck of the gold
mining industry.
With its stock of silver>the Treasury
could then force the price even lower for
a period of time to bring out all hoarded
coins. This could add approximately $1.5
billion worth of silver to present Treas-
ury stocks. If the coins were all turned
back to the Treasury and melted, the
Treasury would then have about 3 bil-
lion ounces. If we did not use any silver
for coinage, annual world consumption
would drop to about half what it now is,
and the world deficit could be covered by
Treasury silver for many years, instead
of 1 or 2.
So we see that the contest between the
? producers and the users of silver still
continues. The producers are trying to
? find a way to keep some silver in our
coinage system and, at the same time,
allow the world price to break through
the present artificial Treasury ceiling.
The users, on the other hand, are trying
to eliminate all silver from our coinage
in the hope that the Treasury could then
be persuaded to use its enormous supply
to break the market and provide them
with all the silver they desire at a re-
duced price.
FINAL SOLUTION SHOULD BE REASONABLE
The final solution will probably lie
somewhere between these two positions.
Eventually, controlled and planned re-
duction of the silver content in our coins
is the only possible solution to the di-
lemma. It is desirable, however, to keep
some silver in the coins. We have al-
ways had silver in our coinage; and al-
though the value of the coins is not de-
pendent on their silver content, silver
has had a stabilizing effect and has given
confidence in our money. This has been
particularly true since gold coins were
withdrawn from circulation in 1933. The
fact that our coins have always had a
reasonable intrinsic value and that it has
been possible to' redeem paper money for
silver. has allayed justifiable fears of a
system which had nothing in it but print-
ing press money.
If possible, we should also make sure
that enough silver is kept in the coins
so that-the electrical conductivity quali-
ties needed to make them usable in to-
day's coin-operated machines and dis-
pensers will be preserved. But, at the
same time, it is important that the sil-
ver content be reduced to such a level
that no expected increase in silver prices
in the foreseeable future would make
the silver content in the new coins equal
to or greater than their authorized mone-
tary value. If the Treasury can find the
right breaking point, it could get out
of the silver business and allow supply
and demand to operate on prices and
bring them to a reasonable level.
SILVER LEGISLATION MUST HAVE PRIORITY NEXT
YEAR
. -
I am sure that the Treasury is now
thoroughly aware of the problem and
is committed to proposing a solution to
Congress. A quiet study has been going
on behind the scenes for nearly 11/2 years,
and I hope that specific recommendations
will be made to Congress when it meets
next year.
Certainly, for the protection of both
producers and consumers and to preserve
confidence in our coinage system, silver
legislation should be at the top of the
"must" list and should get priority at-.
tention early in the next Congress.
Mr. LAUSCHE Mr. President, will
the Senator from Utah yield?
Mr. BENNETT. I yield.
Mr. LAUSCHE. How would we sup-
port the coins which are made up of a
base material other than silver?
Mr. BENNETT.' They would have no
backing. The base material would be
token.
Mr. LAUSCHE. We would not have
any Federal notes to support anything
of that nature.
Mr. BENNETT. The coins would be
only token with slight, if any, intrinsic
value and no precious metal backing un-
less legislatioi was passed to that effect.
E DMENT F FOREIGN ASSIST-
ANCE ACT OF 1961
The Senate resumed the consideration
of the bill (H.R. 11380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
Mr. INOUYE. Mr. President, in sug-
gesting the absence of a quorum, I ask
unanimous consent that the time be
charged equally to the proponents and
to the opponents on the subject matter..
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. INOUYE. Mr. President, I suggest
the absence of a quorum.,
The PRESIDING OFFICER. The
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. INOUYE. Mr. President, I ask
ushanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. INOUYE. Mr. President, I yield
10 minutes to the distinguished Senator
from Wisconsin [Mr. PROXIMIE].
Mr. PROXMIRE. Mr. President, yes-
terday, the distinguished Senator from
Illinois [Mr. DOTTGLAS]?who has done
such a magnificent job in this fight and
I believe has won a signal victory in the
Congress for constitutional rights and for
preserving the dignity and independence
of the Supreme Court?summarized well
and concisely the arguments from our
standpoint in the fight on the Dirksen
proposal.
The Senator from Illinois stated that
this Mansfield amendment is not a law.
It is a "sense" resolution. He said it was
the sense of Congress there could be a
delay?and I shall come to that point in
a moment?limited to a shorter period,
a 6 months' total limitation. He said
that it applied only to the district courts,
and not to the Supreme Court; that no
constitutional amendment is implied. It
would not be the sense of Congress that
there be delays pending a constitutional
amendment or after the passage of a con-
stitutional amendment by the House and
Senate, and the congressional resolution
would emphatically endorse and affirm
court action when a legislature lags.
What I should like to add to that ex-
cellent summary by our leader on this
subject is the very fortunate language
used in the amendment.
It provides that in any district court,
any order could properly allow the leg-
islature of such State the length of time
provided for a regular session on appor-
tionment, or 6 months, whichever is less,
to permit the next election of members
of State legislatures following the effec-
tive date of this act to be conducted in
accordance with the laws of such State.
I wish to stress the fact that the lan-
guage is not "shall delay." It is not
"slhould delay." It is not "may delay."
It uses a word of art which is about as
gentle, about as modest, and, I believe,
about as reluctant a word as one could
find. It states, "could properly." It does
not state that the courts cannot require
apportionment before the legislative ses-
sion or before the 6 months is up. It
states that it is the sense of Congress
that the district courts could properly
permit a 6-month period, or a lesser
period, while the legislature is in ses-
sion, to apportion representation. '
This is a very important distinction,
it seems to me. 'When it is contrasted
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1964., CONGRESSIONAL RECORD ? SENATE
with the second paragraph of the
amendment, the force of the Mansfield
proposal can be particulnrly understood.
In the second paragraph it provides that
in the event the legislatures do not ap-
portion during their legislative session,
or during the 6-month period, the dis-
trict court shall apportion. It does not
state, "could properly." It does not
state "May." It does not state "should."
It states "shall apportion." It comes
down strongly on the side of apportion-
ment. On what basis? It states that
they shall apportion "insofar as is pos-
sible consistent with the requirements
of the Constitution of the United
States."
I affirm that this is a real victory for
those who support the Supreme Court of
the United States, for those who believe
very deeply in the principle of one man,
one vote, and for those_who feel that this
is an ancient, cherished democratic prin-
ciple. I believe that this is a real victory
for us.
We have had a long debate on this
matter?not as long, Perhaps, as many
other debates which have not been called
filibusters, but a substantial debate. A
legal argument concerning the measure
has been brilliantly made by the distin-
guished junior Senator from Montana
[Mr. METCALF]. The constitutional case
has been very well made by the senior
Senator from Oregon [Mr. Moan]. It
has been made in the newspapers by the
dean of the Yale Law School, Mr. Rostow.
It has been made in depth. It has been
demonstrated that the Constitution made
it very clear that the Supreme Court has
this authority and this power of judi-
cial review.
What has the opposition had to say in
answer to that? There has not been a
word said. Not a constitutional expert
was summoned to reply to that demon-
stration. The only thing the opposition
did was to refer to the dissent by Justice
Harlan. The dissent by Justice Harlan
deserves some examination. One of the
points that he made was a statement
that the States should have the same
authority, the same power to establish a
house based on some other basis than
population, as the Federal Government
had in the establishment of the U.S.
Senate.
We showed in a recent speech going
back and examining all of the debate in-
volved in the Constitutional Convention
that our Founding Fathers saw no anal-
ogy. They were not interested in a
blending of population and area.
There were only two reasons why they
accepted a compromise with one house
on population, one on area. They had
a pistol pointed at their heads. It was
the only way they could get a Union.
They recognized that the States have a
sovereignty, an independence, and an
identity that should be, equally repre-
sented in one of the houses. There is
not a word by Madison, Jefferson, Ham-
ilton, Jay, Wilson, or any of our Found-
ing Fathers to the effect that the State
legislatures should be constituted on
any other representative basis than pop-,
ulation. There were many statements
and many firm expressions that they
should -be based on one man, one vote
as a basic, fundamental, vital democratic
principle.
Where is the answer to the argument
that we have made? From the support-
ers of the Dirksen amendment there has
not been a single historical reference to
our constitutional fathers nor have they
referred to any other experts aethe time
of the founding of the Republic. They
have not shown that any of our phil-
osophical leaders, constitutional leaders;
or great statesmen believed in any other
philosophical principle than representa-
tion by population.
The distinguished senior Senator from
Michigan [Mr. MeNAmmuvl has made
what I thought was one of the very finest
and most practical speeches on this issue.
He showed what has happened in the
State of Michigan year after year be-
cause of a divided legislature with one
branch of the legislature based on area
rather than population. He showed
that on one specific and vital measure
after another, the Governor was for it,
the lower house was for it, and the State
senators, representing a big majority of
the Michigan population were for it.
But, because those State senators rep-
resented a minority of the State senate
by reason of the malapportionment, those
measures were blocked.
- It is not just a matter of theory. It is
not just a matter of fine, philosophical
judgment. This is a very practical mat-
ter. The States have been paralyzed and
still are paralyzed because of malappor-
tionment.
the 7 years that I have been in the
Senate, I have not heard any Senator
make a more devastating case than the
senior Senator from Illinois [Mr. DOUG-
LAS] has made in showing the actual
Population inequities in State after State,
documenting it by chapter and verse.
He has shown almost incredibly unjust
situation that existed in Illinois, Cali-
fornia, New Hampshire, and many other
States throughout the country. He
showed not only that some people have
10 times the representation in their leg-
islatures that other people have, but he
also showed that in some instances some
People have 1,000 times the representa-
tion that other people have in their State
legislatures. Who can possibly defend
that representation? It is unfair rep-
resentation. It clashes with the basic,
philosophical doctrine of democracy in
which our Founding Fathers so fervently
believed.
There has not been any answer to that
showing. No one has said it is not true.
There has not been any answer to that
fundamental argument. One of the most
recent speeches on this subject was de-
livered by the distinguished senior Sen-
ator from West Virginia [Mr. RANamPul.
He gave an excellent talk in which he
said that the practical effect in the areas
of housing, urban renewal, education,
and air pollution, and in many other
areas involved in his own committee
work, was that States were unable to act
or could act only with great reluctance
and hesitation because of malapportion-
ment.
That is not merely a theory. That is a
fact. That argument has not been an-
22031
swered or met in any way by the opposi-
tion.
Where is the practical justification for
the Dirksen amendment? The only spe-
cific State in which it was said a remedy
wast required was Oklahoma.
On next Tuesday, Oklahoma will have
an election. No one can pretend that
passage of the Dirksen amendment would
eliminate the need for this election, or
serve any other purpose in Oklahoma.
That election will be held subject to an
order of the court. It will be held so that
the people of Oklahoma can- have the
kind of constitutional protection of rights
under which every citizen has equal rep-
resentation in the State legislature.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. PROXMIRE. Mr. President; may
I have an additional 2 minutes?
The PRESIDING OFFICER.. The
Senator from Wisconsin is recognized
for an additional 2 minutes.
Mr. PROXMIRE. Mr. President, the
distinguished Senator from Ohio made
his usually impassioned, eloquent, and
persuasive speech on this issue this morn-
ing. In the course of his speech, he made
the argument that with population ap-
portionment labor would be dominant.
He made the argument that the big ma-
chines of the city would dominate if this
proposal were to be approved.
Mr. President, nothing could be fur-
ther from the fact. The fact is that in
many great cities in this country, the
central city has actually declined in
population. This is one of the great re-
cent phenomena. In the 1960 census,
many cities did not gain in population.
They declined. This was true in city,
after city. The areas in the Nation that
universally showed a gain in population
were the suburban areas. The people
who live in the suburban areas do not
vote Democratic. They are usually well
educated. They are well to do. They
pay larger taxes. They deserve equal
representation?not more than equal
representation, but equal representation.
By permitting malapportionnient as
the population moves, we deny to the
most progressive communities?and,
frankly, communities in which the peo-
ple pay heavier taxes?the right to have
equal representation in their State leg-
islatures.,
Mr. President, from every standpoint,
the Dirksen amendment should not pass.
It must not pass. I serve notice?and I
know that some other Senators feel the
same way?that if the Mansfield amend-
ment is not adopted today, we have no
choice except to stay on the floor as
long as we can?and that will be a long
time?opposing the Dirksen amendment.
Mr. CLARK. Mr. President, will the
Senator yield 5 minutes to me?
Mr. INOUYE. Mr. President, I yield
5 minutes to the Senator from Pennsyl-
vania.
The PRESIDING OFFICER. The
Senator from Pennsylvania is recognized
for 5 minutes.
Mr. CLARK. Mr. President, I shall
reluctantly support the Mansfield substi-
tute amendment to the Dirksen amend-
ment to the foreign aid bill. My reluc-
tance is due to my strong feeling
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22032 CONGRESSIONAL RECORD ?SENATE
that a nongermane amendment should
never be permitted to an important bill
such as the foreign aid authorization
bill, and that as a matter of principle
Senators should indicate- by their votes
their determination that the really
vicious practice of attaching nongermane
amendments should no longer be per-
mitted.
Yesterday I offered as a part of a com-
prehensive revision of the Senate rules
a change which would bring our practice
into line with that of other, somewhat
more enlightened legislative bodies, by
prohibiting nongermane amendments.
Moreover, I am reluctant to have the
whole question of the congressional atti-
tude toward reapportionment and the
recent decisions of the Supreme Court
handled in so cursory way as by an
amendment to a bill dealing with a totally
different and yet very important subject,
namely, foreign aid.
It has been reiterated ofer and over,
but it bears repetition, that the Dirksen
amendment?and, of course, the Mans-
field substitute?were subject to no ade-
quate hearings in committee. It is being
tacked on to a bill to which it has no
pertinence.
Mr. President, that is not the way to
legislate. Quite frankly, I believe we
should be ashamed of ourselves for per-
mitting the Senate to legislate in that
wholly improper way. Nevertheless, the
Mansfield amendment would remove
practically all of the objectionable fea-
tures from both the original Dirksen
amendment and the substitute Mans-
field-Dirksen amendment. The Mans-
field amendment would do nothing to in-
dicate any opposition to the point of view
of those of us who support the Supreme
Court in its decisions and who believe
in the rule of one man one vote in both
houses of State legislatures.
It is obvious that the Senate?because
to my way of thinking it has quite in-
adequate rules and procedures?finds it-
self in a box?in a dilemma, if Senators
prefer a more stylish word. More than
a majority, but less than two-thirds,
want to vote in favor of the Dirksen
amendment. The other day, by a vote of
42 to 40, the Senate rejected the first
compromise. Now we have another op-
portunity to get out of this dilemma and
to go home, where we all belong, in or-
der to touch base with our constituents
and to support-the candidates of our re-
spective political parties in the impor-
tant presidential election which con-
fronts us on November 3.
Therefore, with reluctance, feeling
that it would do no real harm to the
Cause of adequate reapportionment of
State legislatures, and believeing that the
pragmatic requirement that we should
close up the Senate session and go home
should take precedence over any theo-
retical objections of the nature I have
stated earlier, I shall vote for the Mans-
field amendment.
Mr. President, I yield back the re-
mainder of my time.
Mr. INOUYE. Mr. President, I yield
5 minutes to the Senator from Montana.
Mr. METCALF. Mr. President, I
thank the acting majority leader.
The 'PRESIDING OFFICER. The
Senator from Montana is recognized for
5 minutes.
Mr. METCALF. Mr. President, I
compliment my senior colleague for
bringing in the proposed compromise.
I opposed the so-called Dirksen amend-
ment as it was originally offered because
it was directed to any court in any ac-
tion in any proceeding. _
I call attention to the fact that the
Mansfield -amendment is not directed to
any court in any action. It is directed
only to actions in the district courts.
There is clearly constitutional power in
the Congress of the United States to
withhold powers from the so-called con-
stitutionally designated inferior courts;
and Congress could even enact a law
which would provide that the district
courts would not have authority to en-
tertain jurisdiction in the area to which
we are referring.
The original Dirksen amendment pro-
vided that no court would have author-
ity to entertain a right for an individual
action to enforce a constitutional priv-
ilege. I prepared a proposed section to
add, in the event the original Dirksen
amendment was adopted, to any bill in
which the constitutionality of the meas-
ure was doubtful, which would state
that:
No court of the United States shall have
jurisdiction to hear or determine any ques-
tion concerning the validity of any provision
of this act under the Constitution of the
United States or enter or enforce any judg-
ment, decree, or order, or restrain, impede, or
impair the execution, administration, or en-
forcement of any provision of this act upon
-the grounds of its constitutional invalidity.
That language demonstrates that if we
had embarked upon the adoption of the
Dirksen amendment, it would have been
the end of constitutional government in
the United States. It would have been
the end of the separability of powers.
But in the amendment before the Senate
we would, first, only direct our attention
to the district courts. Second, we would
say that it is the sense of the Congress.
As the Senator from New York [Mr.
JAvirs] said, one coordinate branch of
the Government is directing to another
coordinate branch an idea that it is our
opinion that it should proceed cautiously
and slowly. It would be an admonition
from one equal to another. There would
be no rebuke to the Supreme Court. We
would not even be talking to the Supreme
Court. We would only be saying to the
district courts of the United States that
they should carry out the provisions that
their own appellate courts have provided.
We would only be admonishing the dis-
trict courts that they should carry out
the admonition that has been handed
down by the U.S. Supreme Court.
I differ with some of my friends. I feel
that after hearings I shall vote for a
constitutional amendment. I feel that
we have a right in the United State's to
apportion our legislatures on other than
a population basis if we choose to do so.
We might apportion on any economic
basis, on the basis of rural areas, or on
some other basis.
During the course of the debate I have
-examined the minutes of the Constitu-
September 24
tional Convention, Madison's reports,
and I reread the Federalist Papers for the
first time in a number of years. I en-
joyed reading those ancient documents.
I believe it was almost unanimous among
our Founding Fathers that they intended
that the one man, one vote idea be a part
of our State legislatures and our State
legislative bodies.
I am convinced, from reading the
Federalist Papers and the minutes of the
Constitutional Convention, that when it
was said we would have a republican
form of government, it meant apportion-
ment on the basis of population. The
only way we can alter that original
opinion of the Founding Fathers is to
adopt a constitutional amendment, such
as that proposed by the Senator from
New York. That is an entirely different
question from What we are confronted
with when an attack is being made by
the original Dirksen amendment, which
provides that no court shall have juris-
diction to enforce a constitutional right.
I see nothing that attacks the Supreme
Court in the present proposal.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. METCALF. May I have 3 min-
utes?
Mr. MANSFIELD. I yield 5 minutes
to the Senator fram Montana.
Mr. METCALF. I see nothing that
attacks the Supreme Court of the United
State. It is not directed to the Supreme
Court. It is directed to the district
courts. This body has complete author-
ity even to eliminate the district courts
of the United States, by an act of law.
The Mansfield amendment, on which
we are now approaching a vote, carries
out the highest tradition of this body.
We are convinced that we should go
more slowly in some apportionment
cases. So is the Supreme Court of the
United States. In many decisions
handed down by' it, it has admonished
the district courts to go more slowly.
We are convinced that "one man?one
vote" is a basic proposition. _-The Mans-
field amendment carries out that pro-
gram. We are convinced that we should
not take away or postpone basic rights
of individual citizens that have been
sustained by the Supreme Court. The
Mansfield amendment protects those
rights, and states only that it is the
-sense of the Congress that certain things
should be done.
I urge my colleagues?my colleagues
who believe in the Supreme Court deci-
sion, my colleagues who believe in con-
stitutional government, my colleagues
who believe in the enforcement of in-
dividual rights of citizens?to vote for
the Mansfield amendment.
Mr. KUCHEL. Mr. President, I
should like to ask the acting majority
leader to yield to me so I may ask a
question.
Mr. INOUYE. Mr. President, before
suggesting the absence of a quorum, I
ask unanimous consent that the time be
equally charged.
Mr. FULBRIGHT. Mr. President, will
the Senator withhold that suggestion?
Mr. INOUYE. I withhold it.
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1964 CONGRESSIONAL RECORD ? SENATE
FIRST ANNIVERSARY OF SENATE
VOTE ON LIMITED NUCLEAR TEST
BAN TREATY
Mr. FULBRIGHT. Mr. President, it
is deeply gratifying to me to be able to
mark this first anniversary of the Sen-
ate's approval of the nuclear test ban
treaty by reaffirming my conviction that
it was a wise and highly significant step.
That approval?by a bipartisan vote
of 80 to 19?was the culmination of an
exhaustive examination of the meaning,
effects, and possible ramifications of the
treaty?first by the Committee on For-
eign Relations, joined by members of
the Committee on Armed Services and
the Joint Committee on Atomic Energy,
and then by this body as a whole. It
followed a careful weighing by each of
us of the possible risks and advantages
-involved, and a thorough consideration
of the potential effects of the treaty on
our national security and on internation-
al affairs.
In opening the debate on the Senate
floor last year, I said that the treaty
might well prove to be a turning point
in history. It symbolized a change in
direction. It demonstrated that the two
great nuclear powers shared an over-
riding common interest in the imposition
of limitations on nuclear weapons and
in reducing the pace of their prolifera-
tion.
, For these and other reasons, I pointed
out that the treaty made sense under
world conditions as they then existed.
It makes at least as much sense to-
day. Although it is still too soon to
render a definitive judgment, there is
ever increasing evidence of significant
changes in the character of East-West
relations and of the emergence of at-
titudes more conducive to meeting the
overriding challenge of our time?to
reduce the risk of nuclear war. While
our progress in meeting this challenge
has been slow, I am convinced that the
test ban treaty has contributed, and will
continue to contribute, to facilitating
such progress.
And our judgment that the risks in-
volved could be adequately guarded
against has been confirmed. I was par-
ticularly gratified by the recent report
by Senator STENNIS on the results of
his subcommittee's continuing scrutiny
of the safeguards adopted in conjunc-
tion with our ratification of the treaty.
It is apparent to me that our relative
position in the nuclear field has by no
means suffered in the past year, and that
our means of protecting ourselves against
the risks of violation of the treaty are
even more effective than they were a
year ago.
Thus I welcome this occasion as an
opportunity to express again my convic-
tion that the test ban treaty, though
a rather modest step in the quest for
peace, was an extremely significant one;
and that the wisdom of having ratified
it is even more apparent today than it
was last September 24._
AMENDMENT OF FOREIGN ASSIST-
ANCE ACT OF 1961
The Senate resumed the consideration
of the bill (H.R. 11380) to amend fur-
ther the1 Foreign Assistance Act of 1961,
as amended, and for other purposes.
Mr. KUCHEL.. Mr. President, I ask
the acting majority leader to yield me 3
minutes.
Mr. INOUYE. I yield 3 minutes to the
Senator from California.
Mr..KUCHEL. Mr. President, yester-
day, at the conclusion of the comments
made by my able-friend from Illinois,
indicating the intention or the goal
sought to be achieved by the Mansfield
sense of Congress substitute, I asked a
couple of questions with respect to the
specific intention of that substitute. I
repeat my question today with a bit more
precision, to ask the author of the resolu-
tion to confirm, if he Will, my under-
standing of the intention involved in the
resolution now pending. I should like
to clarify- the intent of subsections (1)
and (2).
Am I correct, in my understanding
that the purposes of the two subsections,
taken together, are, first, to give the
State legislatures a period of time, not
exceeding 6. months, in which to act on
reapportionment, despite the pendency
of the court action; and second, mean-
while, to permit members of State legis-
latures to be elected in 1964, to be elected
in accordance with State laws in effect
on September 20, 1964?
To put the question another way, in
view of the maximum of 6 months al-
lowed for State legislative action, I
take it the words in subsection (2) "the
next election of members of the State
legislature following the effective date of
this act" mean November 3, 1964, not
November 1965, or November 1966, or
November 1967 or 1968, or November
1970.
I ask my friend if I am correct in my
understanding that that is the intention
of the sense of Congress amendment now
pending, which he has authored.
Mr. MANSFIELD. Mr. President, in
view of the questions asked by the dis-
tinguished acting minority leader, my
answer is that his interpretation is cor-
rect. The intention is to provide for
November 1964. It is clearly indicated
by providing in (1) a maximum period of
6 months in which the legislatures may
act. The whole purpose of -the amend-
ment is to encourage and permit State
legislatures to act expeditiously to bring
their own representation into line with
constitutional requirements.
Mr. KUCHEL. I thank the Senator
for confirming my understanding of the
intention of his amendment. I shall
support the sense-of-Congress resolu-
tion he has introduced. In my judg-
ment, my able friend from Montana and
other Senators on both sides of the aisle
have achieved a fine and constructive
alternative to the recommendations oth-
ers have made to shear away part of the
jurisdiction of the U.S. Supreme Court
in an unconstitutional manner.
Mr. METCALF. Mr. President, will
tlie majority leader yield me 1 minute?
Mr. MANSFIELD. I yield 1 minute
to my colleague.
Mr. METCALF. I call to the attention
of the acting minority leader the fact
that this proposal is directed to the dis-
trict courts.
22033
Mr. KUCHEL. Exactly.
Mr. METCALF. Other actions that
have gone beyond the digtrict court, and
are pending in the circuit court or Su-
preme Court, are not affected by the
proposed legislation.
Mr. KUCHEL. In other words, the
Congress of the United States?assuming
the Mansfield substitute 'is adopted?
makes no comment with respect to the
sense of this body on any lawsuits that
may be pending before the circuit courts
or the U.S. Supreme Court.
- Mr. METCALF. That is correct. It
makes no comment on actions in either
the circuit courts or the Supreme Court.
Mr. KUCHEL. I thank my friend for
making that abundantly clear, and I
thank the Senator for yielding to me.
Mr. HART. Mr. President, will the
Senator yield me 1 minute for the pur-
pose of asking a question?
Mr. MANSFIELD. I yield 1 minute to
the Senator from Michigan.
Mr. HART. I was on the telephone
and entered the Chamber at the con-
clusion of the colloquy between the dis-
tinguished majority leader and the dis-
tinguished majority whip. The question
has been asked me?and apparently it
goes to the point our distinguished leader
was answering in response to a question
by the Senator from California, and I
shall ask it in this form?with respect to
subsection (1) under (a) in the proposed
resolution. Does the date against which
the 6-month maximum is measured be-
gin to run from the date of enactment
Of this bill for all States, or is there any
accommodation that would require that
the 6-month time period would run only
after a State's regular session began?
Mr. MANSFIELD. It is my belief that
under the resolution now before us the
writ would begin to run on the day the
Court laid down its order.
Mr. HART. I thank the Senator.
Mr. JAVITS. Mr. President, will the
Senator yield me 1 minute so that I may
ask him a question?
Mr. MANSFIELD. I yield.
Mr. JAVITS. Is there any magic in
the September 20, 1964, date? Should
not the RECORD show why that date was
chosen? Apparently that is the date
fixed in the resolution for the effective
date of State laws. Does it refer to a
particular date with respect to ' a State
law?
? Mr. MANSFIELD. It could have been
the date of the enactment of the act,
but the intention is to give some finality.
Mr. JAVITS. It has no relationship
to a particular State or State law.
Mr. MANSFIELD. No. In one respect
that was unfortunate.
Mr. AIKEN. Mr. President, will the
Senator yield?
Mr. MANSFIELD. I yield.
Mr. AIKEN. I would like to have a
clarification of one provision. The
amendment authorizes the court to act
"in the absence of unusual circum-
stances." What would be considered un-
usual circumstances?
" Mr. MANSFIELD. I could give no
specific answer to that question at this
time. -I doubt whether any Senator
could do so. However, it is my under-
standing that this is a phrase which is
usually considered in a legal matter to
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22034 CONGRESSIONAL RECORD ? SENATE
allow for something unforeseen in the
proposal under consideration?some-
thing that is unusual.
Mr. AIKEN. In the event that the
courts have already issued an order to a
State to reapportion, and have set a date
by which time reapportionment must be
accomplished, would that fact, in the
mind of the Senator, constitute an un-
usual circumstance?
Mr. MANSFIELD. Yes; I would say it
would.
Mr. AIKEN. Then, in the event that
a State?and I am thinking particularly
of Vermont, Connecticut, sand New
York?has already been subjected to un-
usual circumstances, the district court
having jurisdiction would not be author-
ized to reapportion the legislature under
the wording of the amendment. Is that
correct?
Mr. MANSFIELD. I should say that
the answer to the question raised by the
distinguished senior Senator from Ver-
mont is that it would lie within the dis-
cretion of the court, and that the court
itself would have to make that decision.
Mr. AIKEN. 'But the amendment only
authorizes the mist to reapportion in
States where there are no unusual cir-
cumstances.
Mr. MANSFIELD. ?But it allows for
unusual circumstances at the same time.
The language "in the absence of unusual
circumstances" works both ways. The
courts have wide-ranging discretion in
this matter as to what their interpreta-
tion should be.
Mr. AIKEN. Does the Senator mean
that if the court undertook to redistrict,
and if the legislature had failed to reap-
portion, the court must make that under- -
taking under other legislation than the
pending amendment? The amendment,
as I read it, virtually fails to indicate
that the district court should reappor-
tion if there are unusual circumstances,
such as being already under an order
of the court.
Mr. MANSFIELD. Except that it
would be a matter that the district court
Itself would have to determine.
Mr. AIKEN. I am not sure that it does
not provide that the district court is not
authorized, except in the absence of un-
usual circumstances, to redistrict a leg-
islature.
Mr. MANSPIELD. It would be the
hope, if this "sense" resolution is agreed
to, that the court would take into con-
sideration the pos:cion of the State leg-
islatures, and that the State legislatures
would do likewise.
Mr. AIKEN. Would it be the sense
of Congress that States which are al-
ready under an order of the Court would
be entitled to the same privilege that
is allowed to other States? I realize
that the resolution merely expresses the
sense of Congress and that its terms
are not binding legislation. Is it in-
tended to recommend the regular time,
plus 30 days, but not to exceed 6 months
in all? Our legislature, which will be
elected under the laws existing on Sep-
tember 20, 1964, would normally meet
in the first week in January. It has
been directed to reapportion and to do
nothing else, and to be all through by
March 31. Normally the legislature
would be in session?we have no time
limit, of course?until somewhere around
the last of June or the first of July,
or approximately for 6 \ months from
the time that it convenes. Would the
Senator from Montana feel that the res-
olution would express the sense of Con-
gress that the State of Vermont should
be allowed 6 months in all, after 'con-
vening, in spite of the fact that , the
Court has ordered it to reapportion in
3 months from January 1.
Mr. MANSFIELD. My answer would
be that that matter would be within the
discretion of the Court. If the Court
so decided, it would be possible.
Mr. AIKEN. But it would be the sense
of Congress, would it not, that that be
done? (
Mr. MANSFIELD. - It would_be my in-
terpretation, from what the distin-
guished Senator has said, that it would
be possible, but it would be a matter
which would be within the discretion of
the Court.
There is nothing in the amendment
which is binding in any way; it merely
expresses the sense of Congress.
Mr. AIKEN. It is rather incongruous
that States which are in the bind in
which States like Vermont, Connecticut,
and New York find themselves, should be
required to reapportion within 3 months,
while States like Delaware and Rhode
Island, where there are no court cases,
but which, according to what I have
heard in the Senate, are the most mal-
apportioned of any of the States, would
have 6 months' time allowed after con-
vening.
Mr. MANSFIELD. It is my belief that
if the courts so decide, it is within their
discretionary authority to do what the
Senator from Vermont has said.
Mr. AIKEN. Would the Senator say
that we are extending the same "sense
of Congress" expression to judges who are
considering cases in certain States as we
do with respect to other States?
Mr. METCALF: Mr. President, will the
Senator yield?
Mr. MANSFIELD. I yield.
Mr. METCALF. As I read the amend-
ment, it is the sense of Congress that the
Court could properly suspend any order
on reapportionment until the legislatures
are allowed to meet, or permit another
election to be held under the laws in
effect on September 20, 1964. In order
to give greater latitude and greater dis-
cretion to the Court, we put in the pro-
vision about unusual circumstances.
It is difficult for us, on the floor of the
Senate, without a knowledge of all the
record before the court, to understand
the circumstances of each case.
Mr. AIKEN. But does the Senator
agree that the same "sense of the Con-
gress" would extend to States which are
already caught in a bind, as well as to
the State of Rhode Island?
Mr. METCALF. I would agree to that.
I believe that is the intention, as I read
the amendment. The intention is to say
to-any district court that has jurisdic-
tio: "We would like you to haye the
authority to provide a 6 months' oppor-
tunity to reapportion."
Mr. AIKEN. As I recall, early in the
September' 24
discussion I suggested on the floor of the
Senate that the State of Vermont should
have until the first of July, which would
be 6 months from the time the legislature
convenes.
Mr. METCALF. I would not want my
comments to apply to a specific case, be-
cause I do not know what unusual cir-
cumstances might exist. The court
would certainly have discretion to ascer-
tain and determine them. But I agree
with the Senator froni Vermont that the
amendment states that it is the sense of
Congress that the States could properly
be given this opportunity. That is pro-
vided in subsections (1) and (2) .
Mr. MAGNUSON. Mr. President, will
the Senator yield?
Mr. AIKEN. I yield.
Mr. MAGNUSON. In the State of
Washington a three-judge court de-
cided approximately 60 days ago that the
State legislature was to meet and reap-
portion the State; otherwise the candi-
dates running for the legislature would
run on what the court called a weighted-
vote basis. The legislature has not met,
but the decision of the court stands.
What would this amendment do, first,
about a court decision, in view of the lan-
guage of the amendment:
The effective date of this act to be con-
ducted in accordance with the laws of such
State in effect on September 20, 1964.
The State law stands as it is; but the
Court has made a decision. If someone
wanted to seek a change in the Court de-
cision under this amendment in the na-
ture of a substitute, would he have to ask
the Court to change its decision? What
would be the practical legal situation?
Mr. METCALF. The only way in
which one can get into court is to file a
complaint. The Senator from Vermont
has named some States that are allegedly
more malapportioned than his own
State. The only reason why there has
been no action is that no one has filed a
complaint with the court. However, if
I were handling the case, I would cer-
tainly go into court on the basis of this
amendment and ask for additional time.
Mr. MANSFIELD. Mr. President, may
I ask from which side time is being
yielded?
Mr. MAGNUSON. Mr. President, I
ask that I be yielded 2 minutes.
Mr. DIRKSEN. I yield 2 minutes to
the Senator from Washington.
Mr. MAGNUSON. If ,the legislature
met and changed the apportionment ac-
cording to the direction of the court, that
would be different.
What bothers us in the State of Wash-
ington is that a three-judge court has
handed down its decision. The decision
made the reapportionment legal under
color of law at 'the time it was made.
How can it be changed? Obviously, one
could go, back to the co, urt and ask it to
review its decision. But if no one wanted
to do that, I suppose the decision of the
court would stand, would it not?
Mr. METCALF. The court decision
would stand if no one sought a review.
The reason for including the phrase
"in the absence of unusual circum-
stances" is to allow the court to do it.
One of the unusual circumstances would
be such a decision as that which has al-
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1964 CONGRESSIONAL RECORD ? SENATE
ready been made by a three-judge court
in the State of Washington.
Mr. MAGNUSON. But it might also
say that there are reasons to justify
deferring the effectiveness of its decision
until the next meeting of the legislature.
Mr. METCALF. It might permit the
members of the next legislature ' to be
continued under the laws in effect.
Mr. MAGNUSON. They have already
filed and have been nominated. This.
situation poses a practical political prob-
lem in any State where the Court has
made a decision.,
Mr. METCALF. That is why this
language has been included. It would
permit absolute discretion on the part of
a court to ascertain exactly what the
circumstances are under the facts that
have been submitted.
Mr. MAGNUSON. I thank the Sen-
ator from Montana. Several persons
have called me in the past 2 or 3 days
and asked for a clarification. My own
view is that the Supreme Court decision
should stand in every State, and that
each State should reapportion in the
way the Court and the Constitution say
it should be reapportioned. But I under-
stand that some other practical prob-
lems may be involved.
Mr. MANSFIELD. Mr. President, I
yield myself half a Minute.
I move to modify the pending amend-
ment in the nature of a substitute by
striking out, on page 1, line 8, and on
page 2, line 1, the phrase "including
those," and inserting in lieu thereof "or
in the presence of circumstances."
? The PRESIDING OFFICER (Mr. Mai-
COFF in the chair) . The request will re-
quire unanimous consent.
Mr. MANS.toir.,LD. I ask unanimous
consent to so modify the amendment in
the nature of a substitute.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
Mr. MONRONEY. Mr. President, on-
page 2, lines 9 through 12, the language
reads:
(2) Permit the next election of members
of the State legislature following the effec-
tive date of this act to be conducted in ac-
cordance with the laws of such State in effect
on September 20, 1964.
, Does that mean that legislators who
are nominated, whichever group might
be nominated in my State, would be
running under the laws in effect in No-
vember, at the time of the general elec-
tion or under the laws in effect on Sep-
tember 20, 1964? Or does it apply to the
next legislature, that normally would
run for election in 1966? Is this lan-
guage designed to take care of cases like
those which exist in Virginia and Ken-
tucky only, where the elections will be
in 1965?
Mr. METCALF. I should think that
this language would apply only to the
Immediate next election.
Mr. MONRONEY. Which would be in
November of this year?
Mr. METCALF. In November of this
..year.
Mr. MONRONEY. The distinguished
Senator from Montana is an eminent
No. 184-7
lawyer and has worked hard on this sub-
ject, trying to bring some degree of logic
to it. I should like to have his views
concerning the situation in my State of
Oklahoma, which has been directed by
a three-judge Federal court to cancel
the primary elections that had been held
as directed by the Supreme Court of the
United States.
The court finally got around to re-
districting the State of its own volition,
and directed that the election in the new
districts be held. The Governor called
an election to be held on September 29?
this month.
Which law applies in the State of
Oklahoma? The decision of the three-
judge court is on appeal to the Supreme
Court, so it is not final. It seems to me
that until the Supreme Court makes ,
final, one way or the other, the appealed
judgment of the three-judge Federal
court, the State law, in the eyes of Con-
gress at least, should normally apply.
Of course, in the eyes of the electorate,
we are going ahead and are having the
court-ordered election without the final-
ity of the appeal. The candidates who
will be nominated in the new primary on
September 29, which replaces the two
primaries that have already been held,
will, I presume, go into the November
election as the nominees of the parties
in those districts.
What I am trying to find out is the
meaning of the date, September 20, 1964,
and what laws are in effect.
Mr. METCALF. In the first place, this
is a "sense of Congress"_resolution.
Mr. MONRONEY. I realize that.
Mr. METCALF. In the second place,
we are saying to the district courts that
we hope they will use the same judicial
restraint which the Supreme Court of
the United States has used. The deci-
sion of the three-judge district court has
to be final, whether the resolution passes,
or the Dirksen resolution passes, or any
other resolution passes. I would hope
that if the resolution should pass, the
district courts in the various States would
heed the admonition to exercise the same
judicial restraint which the U.S. Supreme
Court has asked.
I cannot answer the question of the
Senator from Oklahoma because it may
be that even before we get to the Su-
preme Court and have the decision
rendered, the election will be held and
the question will be moot.
Mr. MONRONEY. That is what I am
afraid of. The September 20, 1964, date-
line is what makes it moot.
Mr. METCALF. The September 20,
1964, dateline, in my opinion, would not
alter the situation in Oklahoma,. That
was a line written in when the amend-
ment was drawn up. As my colleague,
the Senator from Montana [Mr. MANS-
FIELD], said, it might well have been the
effective date of the amendment, but we
tried to put in some specific date.
Mr. MONRONEY. I do not object to
the date. I am fearful that the date will
result in the application of the laws of
the State as changed by a decision of the
three-judge Federal court, now on appeal
to the Supreme Court. The amendment
2205.
should express the sense of Congress that
Oklahoma would be entitled to be in-
cluded with the other 49 sister States as
having some rights, to be dealt with in
the same degree of equity which the other
States have enjoyed. This is a crazy-
quilt pattern because there is no uni-
formity on when the Supreme Court's
decison of June 15 becomes final with re-
spect to all States.
Mr. METCALF. Let me give the Sena-
tor from Oklahoma-7-so far as I can give
it?the same answer I gave the Senator
from Vermont.
We say it is the sense of Congress in
any action in the district court that any
order could properly be set aside to allow
the legislature to meet, or, to permit the
next election immediately following the
act under the laws of the State. We
could take judicial notice of the laws of
Oklahoma?permitting discretion by the
district courts. But the sense of Con-
gress is that we would hope, unless there
are unusual circumstances, that the
three-judge district court would carry
out the laws of the State at the next No-
vember 3 election and-give the legislature
up to 6 months in which to reapportion.
Mr. MONRONEY. From what the
Senator says, the laws of the State ac-
tually are the laws of the State.
Mr. METCALF. The Senator is cor-
rect.
Mr. MONRONEY. Not those which
have been amended by the three-judge
Federal court.
Mr. METCALF. This is not a declara-
tion that they are unconstitutional.
This would be applied to the laws of the
State of Oklahoma as enacted by its leg-
islature and in existence on Septem-
ber 20, 1964.
Mr. MONRONEY. Even though the
Federal court action had been taken and
is now on appeal.
Mr. METCALF. The Senator is cor-
rect.
Mr. MONRONEY. I thank the distin-
guished Senator from Montana for his
efforts to help shed some light on this
problerii.
Mr. METCALF. I am sorry that I
could not have been more helpful.
Mr. MONRONEY. The Senator from
Montana has been most helpful.
Mr. METCALF. Mr. President, I
yield 3 minutes to the Senator from
Michigan [Mr. HART].
The PRESIDING OFFICER. The
Senator from Michigan is recognized for
3 minutes.,
Mr. HART. Mr. President, I join in
the expressions already voiced in thank-
ing the majority leader for the role he
has played in bringing us to this point.
I have every hope that the Senate will
adopt the new Mansfield amendment.
I support the amendment, but I do not
throw my hat in the air in wild enthusi-
asm.I ish very much that even this short
step in the direction of seeming to at-
tempt to influence any Federal court
need not be taken; that it be made clear,
however, under all the circumstances re-
flected in the RECORD of the debates so
far, that the course of prudence and
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22036 CONGRESSIONAL RECORD ? SENATE
responsibility supports those who express
the hope that the Senate will adopt the
amendment.
As the able senior Senator from Illi-
nois [Mr. DOUGLAS] has pointed out, this
is an expression of our attitude. It is
not a direction by way of enactment of
a law. It does not direct even this ex-
pression of attitude toward the Supreme
Court of the United States. In these
senses, then, it avoids the confrontation
which could cause a critical constitu-
tional crisis for this country.
It should not be cited as precedent for
congressional review of Supreme Court
decisions, and certainly not as prece-
dent for a new shortcut method to
amend the Constitution or suspend con-
stitutional rights.
In closing, I again make the point
which, in the few times I have debated,
has been my principal concern: As citi-
zens of a republic, let us understand
clearly the implications which are in-
volved, should we at any time take any
action which would suspend and there-
fore deny a constitutional right to a citi-
zen of this country, except as we would
amend the Constitution in the form pro-
vided.
This, at root, has been the basic con-
cern of all of us. I hope that such con-
cern is shared even by some of those
who believe the one man, one vote prin-
ciple is bad law. Worse than any bad
law, it would be a course of action by
the Senate which would have the effect
some day?tragically?of leaving our
Constitution worth precisely the paper
it cost to print it, and nothing more.
That is a lesson of history we had all
better understand, the amendment as-
proposed would have no effect on the
operation of the apportionment pro-
cedures in Michigan.
As an expression of confidence, I
thank the Senator from Illinois [Mr.
DOUGLAS], and all other Senators who
joined in bringing us to this Moment.
In closing, Mr. President, some days
ago I called to the attention of the Senate
some communications that I have re-
ceived from people and groups across
the country in opposition to the Dirksen-
Mansfield rider. -We now are offered a
vastly different approach in the sense
of Congress resolution which is pending.
Yet the RECORD should contain the
thoughtful expressions which continue
to cross my desk on the basic issue raised.
The basic issue may be raised again, in
connection with this or some other con-
stitutional right. It would be well to
record the cautions voiced in these com-
munications.
Mr. President, I ask unanimous con-
sent that the above-mentioned commu-
nications be printed at this point in the
RECORD, together with an explanation
of each.
There being no objection, the cor-
respondence communications and ex-
planations were ordered to be printed in
the RECORD.
Mr. HART. Prof. Malcolm E. Jewell,
of the Department of Political Science
at the University of Kentucky, is a
recognized authority on State govern-
ment and reapportionment. He has
been involved in the successful rappor-
tionment efforts in Kentucky. Follow-
ing is a statement in opposition to any
legislation which would delay enforce-
ment of the Supreme Court's reappor-
tionment decision:
No NEED FOR DELAY
Perhaps the strongest, as well as the
simplest, argument against legislation, to
delay enforcement of the Supreme Court's
reapportionment decision is that it is un-
necessary. There is no crisis in the States
concerning reapportionment. Ever since the
Baker v. Carr decision, the Federal courts
have moved cautiously and moderately. A
review of the Federal court decisions and of
the views advanced by judges during hear-
ings on reapportionment would show that
the Federal judges have approached this
issue with restraint and have given State
legislatures every reasonable opportunity to
reapportion themselves. The standard pat-
tern, repeatedly followed by the courts, has
been to give the legislature time to reappor-
tion before the courts have acted. The
courts have then reviewed the legislative
product. Sometimes they have approved,
sometimes they have given tentative ap-
proval pending a better apportionment law
by the next legislature. Rarely the courts
have been forced to put into effect, as in
Alabama, a judicially designated apportion-
ment.
The reaction of legislatures in many States,
however, has been to seek the minimum
amount of change that might satisfy the
courts or to make improvements in one
house but make the apportionment even less
equitable in the other. In many States there
has not been an honest effort to comply with
judicial requirements. In those States where
the legislature has now been given only
months instead of years to reapportion, it is
largely the fault of legislators who gambled
on winning court approval for apportion-
ments that were little better than those of
the past. There is no need for delay, beyond
the delays granted?in the past and at
the present?by the courts. Rather there
is a need" to settle the apportionment prob-
lem, to accept and apply the principle of,
equality In both legislative houses, and to
put an end to footdragging.
There is no evidence that the American
public is disturbed by the Court's decisions
on apportionment or by the principle of
population equality in the legislature. A re-
cent Gallup poll showed a solid majority in
favor of basing apportionment in both
houses on equality. In fact, there is con-
siderable apathy and ignorance concerning
the problem. But leaders of opinion, and
the better informed citizens in the metro-
politan sections of the country have wel-
comed the apportionment decisions as long
overdue. Editorial opinion has been gen-
erally favorable. In those States where the
legislature has complied with the judicial de-
cisions, there has been general approval, and
no evidence of public dismay. The resistance
to the Court's decisions on apportionment
comes, instead, from the legislators them-
selves and from a few of the. interests that
believe they have more to gain from mal-
apportionment. The legislators' reaction is
understandable, and there is no doubt that
some political careers will be eclipsed; but
the personal interests of a few hundred legis-
lators are hardly as important or worthy of
protection as the interests of millions of
Americans in an equal voice in government.
THE REAL ISSUE : POLITICAL EQUALITY
The real issue we are debating is not
whether the courts should slow down or
whether the Congress should interfere with
the enforcement of judicial decisions. The
sponsors and supporters of this proposal for
delay are frank to admit that their objective
is to lay the groundwork for measures that
would reverse at least some part of the Su-
September' 24
preme Court's decisions on apportionment. -
One plan would be to limit the principle of
population equality to one house of the leg-
islature, leaving the States free to use any
standard for the second house. The more
drastic Tuck proposal would strip the Federal
courts of authority to protect citizens in their
exercise of voting equality in legislative elec-
tions. The real issue is Whether we will
:turn back the clock and undo the reforms
that have been undertaken.
It has been argued that the practice of bas-
ing apportionment in one house is so widely
accepted as to be almost a principle of dem-
ocratic government at the State level. This
claim deserves to be examined closely. Con-
troversy over apportionment dates from the
earliest history of the States. During the
period of Jacksonian democracy most of the
States removed property qualifications for
voting and as their constitutions were revised
they retained or added provisions using pop-
ulation as the primary base of apportionment.
The Northwest Ordinance of 1787 had stipu-
lated that the legislature should be rippor-
tioned by population in the territory. The
principle of population was only partially
diluted by provisions assuring each county a
minimum of representation, perhaps in one
house. In the early 19th century such rec-
ognition of local units of government did not
cause serious distortions in apportionment
by population because the contrasts between
densely and sparsely populated counties were
small. It was only when the trend toward
the cities began that the problem became
acute.
In some States, during the latter part of
the 19th century, the rural interests hastened
to add constitutional provisions that would
perpetuate their control despite the surge
of population to the cities. In other States
the rural interests succeeded in retaining
constitutional provisions that had only re-
cently begun to have inequitable results. In
some States the rural interests, still holding
a legislative majority, simply ignored State
constitutional provisions requiring reappor-
tionment. Sometimes, as in Illinois where
the deadlock lasted half a century, urban
legislators and voters agreed to compromises
-that minimized the effect 'of population in
one house in order to win compliance with
the constitutional provisions for periodic
reapportionment of the-other house.
Whether they were defening, revising, or
ignoring the State constitution, the rural
majority in the legislature was simply per-
petuating its own power.
It is easy to describe legislative apportion-
ments that give minimum weight to popu-
lation as balanced plans or compromises that
reflect the political philosophy of the State's
citizens. In fact, however, these apportion-
ments usually reflect simply the success of
a legislative majority in maintaining their
power in one or both houses despite the fact
that they no longer represent a majority of
the State's citizens. Rarely have the voters
of a State deliberately chosen a plan of mal-
apportionment unless the alternative was an
apportionment that was older or more arbi-
trary in its effect. The population princi-
_pie was initially the major principle in the
apportionment of most State legislatures,
and the effect in the early legislatures was
an apportionment that was equitable in prac-
tice. The population principle has been
eroded by population trends, and by the un-
willingness of those in power to yield that
power to urban voters.
The issues of majority and minority rights
are as old as the history of political thought.
It is one of the virtues of a democracy that
it respects both majorities and minorities
and devises institutions that will make this
respect meaningful and realistic. In the de-
bate over apportionment the issue of ma-
jority rule and minority rights is often sim-
plified so drastically that it becomes mean-
ingless. It is true, of course, that when a
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CONGRESSIONAL RECORD ? SENATE 22037
majority of the voters living in large cities
can elect only 15 or 20 percent of the legis-
lators a majority is being reduced to a mi-
nority voice in government. It is also true
that in many States the rural voters would
have only a small minority of legislators un-
der an equitable apportionment. But the
debate over majorities and minorities often
assumes that both urban (or metropolitan)
and rural (or nonmetropolitan) legislators
vote as a bloc. This is simply not true.
Several studies of rollcall voting in legisla-
tures have demonstrated that such cohesion
of urban and rural forces is rare. Urban in-
terests, in particular, are divided because' of
the wide variety of viewpoints represented
in a large metropolitan area. Nor is it true
that, in States like Oregon and Massachu-
setts that have had quite equitable appor-
tionments, the urban legislators have either
voted as a bloc or have ridden roughshod
over the rights of the small cities and coun-
ties. This simply has not happened, and no
one who understands the legislative process
-in the States would expect it to. In fact our
metropolitan areas are becoming more di-
verse all the time. The growth of modern
suburbia to a majority position in some met-
ropolitan areas means that the largest bene-
ficiary of reapportionment will be those vot-
ers who are least likely to be cohesive in
their views and' voting, least likely to be
bossed or managed.
In reality the political struggle in any leg-
islative ' body, as in political society as a
whole, is a oonflict among groups?all of
which are minorities. Legislation is, in part,
a result of the arguments and political
strength of these various groups. Some of
these groups ,have greater access, are more
effective and influential, when rural legisla-
tors are in a majority or are more numerous
than an equitable apportionment would per-
mit. When the rural voter is overrepre-
sented, the interests that may benefit are
not necessarily rural; they may be busi-
nesses located in a distant city. The legis-
lative process is too complex to measure pre-
cisely the effect of any particular apportion-
ment on various interests. For this reason,
the effort to protect certain groups?such as
the farmer?by overrepresentation of certain
counties, is not necessarily successful.
The conflict over apportionment is not
really a conflict over majority and minority
rights?because there is not, in any of our
States, any cohesive, identifiable majority.
The question is whether certain minorities
should have more votes in legislative elec-
tions than others do. When the cities and
suburbs are underrepresented, certain mi-
norities lose a part of their voice in govern--
ment. One of these is the suburban dweller,
who is so indefinable a type that we might
more properly divide him into various sub-
groups. Another minority is the labor union
member. Another member clearly discrimi-
nated against by malapportionment is the
Negro. Most Negro voters live in metropoli-
tan areas, North and South.
We have many ways of protecting minority
groups in this country. The U.S. Constitu-
tion and the State constitutions contain bills
of rights that serve this purpose. The recent
civil .rights law is one example of legislative
protection for a minority. But there is no
reason why one minolity, residing in the
least populated counties, should be singled
out for a special kind of protection. As
Justice Warren said in the apportionment
decision: "Our constitutional system amply
provides for the protection of minorities by
means other than giving them majority con-
trol of State legislatures."
Many persons have been disturbed by the
Court's willingness to reverse decisions on
reapportionment taken by the voters in a
State, such as Colorado. It can be argued,
as the Court did, that the issue in an appor-
tionment referendum is seldom clear cut and
voter understanding of such questions is
often not great. But the fundamental rea-
sons why the courts cannot be bound by a
public vote on apportionment involve this
Issue of minority rights. The question of
apportionment reached the Supreme Court
under the 14th amendment, and the Court's
decision was based squarely on the equal
protection clause of. that amendment. This
constitutional provision has been consistent-
ly used to protect minority rights. As the
Court has said: "A citizen's constitutional
right, can hardly be infringed upon because
a majority of the people choose to do so."
It does not matter that a majority of voters
in every other county in California voted
against increasing the representation of Los
Angeles County, for example. Voters have a
right to an equal vote, whether they are a
minority (like the 40 percent of Californians
living in Los Angeles) or a majority (like the
majority in Florida's six largest counties).
The issue is not a conflict of majority and
minority. There is, in political reality,, no
meaningful majority bloc?urban or. rural.
What is at stake is the votes of individuals.
There is no more reason why a majority of
voters in a State should be able to devalue
the votes of citizens in a few large cities than
there is why a majority of voters should be
permitted to disenfranchise Negro voters.
And there is no more reason for Congress
to intervene in judicial, decisions protecting
the value of the vote than for Congress to
intervene in judicial decisions protecting the
right to vote itself. The right to vote is a
fundamental right, recognized by those Sen-
ators from the South who dispute the im-
portance of other aspects of the civil rights
bill. If the right to vote is fundamental,
the right to have substantially an equal vote
'must be nearly as basic. If a constitutional_
amendment were passed to reverse some or
all parts of the apportionment decisions, this
would be the first time in American history
that Congress had, sought by constitutional
amendment to restrict the rights, and spe-
cifically the voting rights, of American
citizens.
ONE HOUSE OR TWO?'
The Supreme Court's decision that the
population principle must be applied to both
houses of the legislature has been the sub-
ject of the -most intense criticism and it is
this aspect of the apportionment decision
that is the target of a proposed constitu-
tional amendment. The comparison of the
State legislature with Congress, the so-called
Federal analogy, has been so often disproved
that it needs little comment. The States are
not Federal systems, the counties lack the
rights and prerogatives enjoyed by States in
a Federal system, and the system of repre-
sentation in the U.S. Senate is the product
of historical compromise that is not perti-
nent to the experience or the needs of the
States. The Federal analogy has no basis in
law, in history; in constitutional theory. It
is but a debating point.
If the case for reapportionment rests on
equality of political power, of access to the
legislature, for all citizens, it is impossible
to make a distinction between one house and
the other. If our citizens needed protection
from government, it might be enough to
grant equality of vote in a single house, but
the role of government is positive and not
negative. Today voters seek benefits from
government, measures of health, education,
welfare, measures to assist cities in meeting
their responsibilities, and the distribution
of State funds to localities. For these pur-
poses, equality of representation in one house
is not enough. There must be an equal voice
in both houses, or a minority may be able to
exercise a legislative veto to block measures
desired by a majority.
,In those States where only one house is
based on population, the consequence is not
compromise and a balancing of interests,
usually. The result is deadlock, buckpassing,
and irresponsibility. Sometimes the result
of a single malapportioned house is that one
political party cannot hope to win both
houses even though it elects a Governor and
wins a majority of the votes cast for legis-
lative office. Under these conditions the
voters have a limited choice. They may elect
a Governor and a legislative majority that are
Republican, or they may choose a divided
government, but they may not choose a
Democratic legislature.
In other States it is the Republican Party
that is similarly 'discriminated against. In
fact it is not a political organization that is
discriminated against in such States; it is
the majority of voters who are unable to
translate their votes into a partisan majority
In the legislature. The result of divided gov-
ernment, so often encouraged by malappor-
tionment, is irresponsibility. If the legis-
lature acts unwisely, or fails to act, the
average voter?and often even the best in-
formed voter?is unable to determine which
party, or which house, is to blame. Dead-
lock becomes the order of the day. And if
-compromise is achieved under these circum-
stances, It is likely to be the consequence
of patronage and logrolling rather than
an adjustment of views and interests in the
best sense of the term "compromise."
Increasingly our States are developing two-
party systems that are actually competitive.
In many of these States party cohesion in
the legislature is high, or at least growing.
An apportionment system that guarantees
or encourages deadlock or that excludes one
party (but not -the other) from the chance
of winning control of government (which is
the very reason for a party's existence) is a
system that undermines the two-party sys-
tem itself.
THE CONSEQUENCES OF EQUITABLE
APPORTIONMENT
No man can predict exactly what changes
would result from equitable apportionments
in those States that have been malappor-
tioned. The precise political and policy re-
sults are often unclear. But a few predic-
tions can be made, and these point up the
necessity of permitting this reapportion-
ment movement inspired by the courts to
continue unchecked.
Increasingly the problems of our States
are urban ones, the problems of rapid metro-
politan growth, of crowded cities, expensive
urban highway systems, greater demands on
the educational and welfare services that are
heavily concentrated in the cities. Reap-
portionment will not solve these problems
or assure that any particular approach to
them will be adopted. It will, however, guar-
antee that a greater proportion of legislators
have knowledge and understanding, first-
hand, of the problems of urban America. No
single step will strengthen the States more
or enhance their ability to deal with these
problems. No greater encouragement to ur-
ban citizens to seek Federal help for their
problems could be imagined than destroying
their chances for an equitable voice in the
State legislature. It is not reasonable to
assume or expect that urban citizens will
give 'up in their efforts to deal with their
needs. If they cannot be met in the State
capitols there will be even greater pressure
for action in Washington. The States have
a role, a major role, to play in the federal-
ism of the next few decades, but they will
not play this role well if the legislatures are
ill-equipped to respond to the demands of
the voters.
Thirty years ago the rural defenders of the
status quo warned that big city machines
would dominate the State.. These machines
are increasingly a myth or a hollow shell.
But the major beneficiaries of reapportion-
ment are going to be the suburbanites, whose
votes are rarely controlled by any machine,
urban or rural. Reapportionment will have
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22038 CONGRESSIONAL RECORD ? SENATE
at least short-run effects on political parties
that can be predicted. It will help the Demo-
crats in some States and the Republicans
in others. It will tend, in most States to
intensify party competition at the State
level by helping minority parties. But, in
political terms, reapportionment on the basis
of population equality will increase the rep-
resentation of those areas that are most
marginal, most competitive. In the longer
run, traditionally strong one-party areas,
both urban and rural, will lose representa-
tion, and more legislators will be chosen from
genuine two-party districts. This in itself
Is a healthy thing, a step in the direction of
revitalizing our political system and increas-
ing the interest of voters.
Folloiving are statements made by rep-
resentatives of the League of Women
Voters of Wisconsin in support of fair
apportionment in that State:
STATEMENT BEFORE THE JOINT JUDICIARY CoM-
MITTEE OF THE WISCONSIN LEGISLATURE BY
-Mas. F. A. MOTE, LEAGUE OF WOMEN VOTERS
OF WISCONSIN, IN SUPPORT OF BILLS 813S
AND 770A (1.nrarricsx.) -AND 812S AND 771A
(IDENTICAL) RELATING TO APPORTIONMENT OF
SENATE AND ASSEMBLY DISTRICTS
-The League of Women Voters of Wisconsin
supports bills 813S and 770A (identical) and
8148 and 771A (identical) . 813S is the bill
drafted by a subcommittee of the legislative
council of the 1959 session made up fof Re-
publican and Democratic legislators and five
public Members. Bill 813S is based on 812S
and contains amendments to provide divi-
sions of the multidistrict counties based on
the 1960 population figures that were not
available to the legislative council subcom-
raittee. The League of Women Voters sup-
ports_ 8138 or 812S (with amendments to ap-
portion districts in the multidistrict coun-
ties) because they both more fully carry-out
the principle of representation based on
population than does 815S. Bill 8138 provides
many more districts nearer the ideal size than
does 8158. Under 813S there would be 26
assembly districts within 1,000 of the ideal
(39,500) while there are only 13 (exactly half
as many) within 1,000 of the ideal size in
815S. There are 48 districts within 3,000 of
the ideal size in 813S and only 32 within
3,000 in 8158. In the Senate, 813S creates 4
districts within 3,000 of the ideal size while
there are none within this range in bill.8158,
Bill 813S contains 18 districts within 9,000 of
the ideal size. Only 14 fall in this range in
8158. Bill 813S, as demonstrated by the num-
ber of districts it has created nearer the ideal
size, has done a more complete job of reap-
portioning the whole State than has 8158.
In addition, 815S does not provide Milwau-
kee County with fair representation. The
framers of the bill? have evened the dis-
tricts in Milwaukee County to range in size
from about 40,000 to 45,000. There are, how-
ever, fewer districts near the ideal size in
815S than in 813S. It also results in leaving
over 87,000 Milwaukee County residents with-
out representation in the legislature. If you
multiply-the ideal sized assembly district by
the 24 districts allowed Milwaukee County
under 815S and subtract this total from the
population of the county, you find that over
87,000 people in the county are not ade-
quately represented. This number more than
equals the number necessary for two more
assembly districts. In no other part of the
State is there a district with even half that
number unrepresented. In fact there are
7 counties with under 86,000 people that
have 2 legislative districts each.
Thera are constitutional restrictions which
make it impossible to give some districts the
representation to which they are entitled, but-
these same restrictions make.it necessary to
overrepresent other areas and in some cases
grossly overrepresent them. In Milwaukee
County these restrictions do not create such
problems in the same magnitude and there is
an opportunity to create distriets of almost
ideal size. We believe that 8138 (770A) ap-
portions Milwaukee County more fairly as
well as creating? more districts for the whole
State nearer the ideal tize.
The League of Women Voters began its
study of apportionment in the early 1930's
and has supported population apportionment
since that time. Our studies have con-
firmed the belief that equality of representa-
tion gives people more respect for govern-
ment. Recently, Roscoe Drummond of the
Christian Science Monitor reiterated argu-
ments made by the League of Women Voters
in support of population apportionment. He
says that if State legislatures are repre-
sentative of the people and responsive to
voter opinion, the trend of the disenfran-
chised city voter to go to Washington for
everything will be halted. States rights will
be strengthened because the capacity of fairly
apportioned legislatures to discharge State
responsibilities will be strengthened. It is
interesting to note Drummond's final point?
he suggests that if States were fairly appor-
tioned perhaps there would have been no
agitation to establish a Cabinet post of De-
partment of Urban Affairs.
The League of Women Voters looks to the
present legislature to reaffirm the people's
respect for State government by recommend-
ing pills 813S and 770A or bills 8128 and
771A (with amendments) for passage.
STATEMENT BEFORE THE JOINT JUDICIARY
COMMITTEE OF THE WISCONSIN LEGISLATURE
BY MRS, H. A. LARDY, DIRECTOR, LEAGUE OF
WOMEN VOTERS OF WISCONSIN, IN OPPOSI-
TION TO Joitrr RESOLUTIONS 1168, 1175,
152A, 155A, AND 156A, RELATING TO CHANG-
ING THE CONSTiTuTION To INCLUDE AREA IN
APPORTIONMENT OF SENATE DISTRICTS AND IN
CASE OF JOINT RESOLUTION 155A IN APPOR-
TIONMENT or ASSEMBLY DISTRICTS
The League of Women Voters of Wisconsin
opposes Joint Resolutions 116S, 117S, 152A,
and 156A which amend the constitution to
include area in apportionment of State sen-
ate seats and 155A which includes area in
apportionment of assembly seats. Propo-
nents of area representation argue that be-
cause the U.S. Senate has two Members from
each State, regardless of size, that State legis-
lative bodies might also constitute one house
that way and, in fact, many do. The League
of Women voters would like to remind you
that these divisions of government are not
comparable. The Thirteen Colonies were in-
dependent sovereign States, but counties are
arms of the State government and not en-
titled to representation as independent sov-
ereignties might be.
Wisconsin can be proud indeed that it
did not follow the example of many States
that adopted the Federal system without re-
alizing the fundamental differences between
State and Federal Government. Wisconsin
was the 30th State to be admitted to the
Union and was one of the Midwestern States,
which because of an increasing appetite for
democracy broke the pattern of adopting the
Federal system. The people of Wisconsin
wisely chose representation based on popula-
tion in both houses of our legislature.
It would be ironic if, at this juncture in
history when the U.S. Supreme Court is
Setting States on the road to more represent-
ative apportionment, Wisconsin would step
backward down the path to less representa-
tion by changing the constitution to include
area.
The League of Women Voters of Wisconsin
urges you to maintain Wisconsin's proud
place in the history of population appor-
September .2.4
tionment by rejecting Joint Resolutions 116S,
117S, 152A, 155A, and 156A.
STATEMENT BEFORE SENATE JUDICIARY COM-
MITTEE OF THE WISCONSIN LEGISLATURE BY
MRS. MARSHALL BEAUGRAND, DIRECTOR,
LEAGUE OF WOMEN VOTERS OF WISCONSIN,
IN OPPOSITION TO JOINT RESOLUTION 12, 5
(AMENDING THE CONSTIav rION To DENY
FEDERAL COURT JURISDICTION OVER STATE
LEGISLATIVE APPORTIONMENT),
I am Mrs. Marshall Beaugrand of Racine,
appearing on behalf of the League of Women
Voters of Wisconsin in opposition to Joint
Resolution 12, S. The league has for many
years supported redistricting and reappor-
tioning of legislative seats on a population
basis at regular intervals, as provided in our
State constitution. We have recently strong-
ly reaffirmed this position.
Naturally we, too, are very interested in
the decision of 'the Supreme Court in the
Tennessee case and have watched to see what
effect it would have in other States, as well
as in our own. If we understand it correctly,
In the Tennessee case the Court has said,
in effect, that State legislatures are not free
to deprive the citizens Of a State of their
rightful representatation in their State-legis-
latures. And if we understand correctly the
intent of Joint Resolution 12, 8, it says, in
effect, that State legislatures are free to do
this very thing. Further the resolution says
that the people of a State may never appeal
to the Federal court in the matter of repre-
sentation, no matter how serious their griev-
ance might be. People who do not have their
just measure of representation in the legis-
lative bodies that make decisions affecting
their lives are not free people. To the ex-
tent that we are deprived of this right, we
have a grievance. In our State courts, and in
the laws and Constitution of the United
States, we are entitled to redress of grievance.
But this resolution would take away this
right under the U.S. Constitution, as it re-
lates to the representation of citizens in their
State legislatures, an area of continuing
controversy, since we could not petition a
silent court.
Over the years, we have learned something
of the problems of reapportionment, and
understand that there are difficult, personal,
partisan, and esonomic questions involved
in this issue, and that it truly is something
over which reasonable men may disagree. We
followed the session last summer and saw
that the disagreement among legislators can
be bitter, almost violent at times. As a mat-
ter of fact, ordinary citizens can get quite
upset over it, too. But a controversy can
be taken in stride when it's all in the frame-
work of our government. The rules for our
protection are there, and the game is played
out according to the rules that we know and
respect. This joint resolution would change
those rules.
Those of us who watch the operation of
State government and who know a little of
_government in other States take great pride
in Wisconsin. We are confident that we can
break through our problems in Wisconsin,
rather than breaking down under them. We
aren't perfect, of course, but as many text-
books on State government point out, Wis-
consin has often been the first State to take
this or that constructive action for good
government. It seems unlikely that pro-
posals such as those embodied in this group
of joint resolutions could ever have origi-
nated in Wisconsin?they are unlike Wiscon-
sin ideas. In our opinion, they urge us to
take rash and excessive action. In this con-
nection, we note that the courts have not
acted rashly or excessively?they have acted
with considerable restraint. We earnestly
hope that this committee, and the legisla-
ture, Will act with restraint and prudence,
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1964, CONGRESSIONAL RECORD ? SENATE
and will refuse to recommend or to adopt
joint resolution 12, S.
STATEMENT TO ASSEMBLY COMMITTEE ON
ELECTIONS BY MRS. WILLARD HURST, LEAGUE
OF WOMEN VOTERS OF WISCONSIN, IN PAR-
TIAL SUPPORT OF JOINT RESOLUTION 77A,
RELATING TO A SUPPLEMENTARY AGENCY FOR
LEGISLATIVE REAPPORTIONMENT
The League of Women Voters of Wisconsin
favors amending the State constitution to
provide a supplementary agency to carry out
legislative reapportionment if the legislature
fails to act. In our studies of apportionment
? procedures we considered also the possibility
of taking the responsibility for this painful
job entirely out of the hands of the legisla-
ture by providing automatic reapportion-
ment, as six States do. But most of our
members preferred merely to establish a
supplementary agency. It would either be a
spur to action by the legislature or it Would
do the job itself.
Eight States now provide an alternate pro-
cedure if the legislature fails to act. Five of
these alternate procedures are commissions.
They have 5 to 10 members, some or all of
whom are State officials as provided in the
proposal before us.
While the league supports the main point
of this resolution, we question one provision.
That is to have the chief justice as a mem-
ber of the reapportionment commission.
Even before Baker v. Carr, the Wisconsin
Supreme Court reviewed the constitutionality
of 'Wisconsin apportionment acts. So it
seems the chief justice should not be in-
volved in the process at, another stage than
that of court review. '
We do, however, clearly support a supple-
mentary agency to reapportion if the legisla-
ture fails to do so within the time provided
in the State constitution. \
Prof. Harlan Hahn, now on the faculty
at the University of Michigan, has done
extensive research on Iowa government
and politics. This is his statement based
largely on the reapportionment situation
in Iowa:
THE UNIVERSITY OF MICHIGAN,
SCHOOL OF PUBLIC HEALTH,
Ann Arbor, Mich, August 28, 1964.
Senator PHILIP A. HART,
Senate Office Building,
Washington, D.C.
DEAR SIR: I received a letter yesterday from
William J. D. Boyd, senior associate of the
National Municipal League, asking me to
send you a statement on State legislative
apportionment which the Senator might use
in the current debate on this subject on the
Senate floor. Although I have recently ac-
cepted a joint appointment at the Univer-
sity of Michigan as a research associate in the
school of public health and as an assistant
professor in the department of political sci-
ence, most of my previous research on re-
apportionment was done in the State of
Iowa in connection with my Ph. D. disserta-
tion on Iowa politics which I wrote at Har-
vard University.
I am, therefore, enclosing a short state-
ment on legislative apportionment based
largely upon data which I obtained in Iowa.
As you will note, most of this material has
previously appeared in two articles which I
wrote, "Reapportionment, the People, and
the Courts," Iowa Business Digest, XXXIV
August 1963), pages 19-22 and "Urban versus
Rural Split Shows in Vote," National Civic
Review, LIII (March 1964), pages 146-147. I
hope that you might find the enclosed state-
ment useful.
Thank you very much.
Sincerely yours,
HARLAN HAHN.
MYTHS IN THE REAPPORTIONMENT
CONTROVERSY
To gain a clearer understanding of the
arguments which have developed since the
recent Supreme Court decisions on reappor-
tionment, it is necessary to examine carefully
the propositions advanced by both sides of
the controversy. This statement seems to be
particularly important with regard to the
claim that desired advantages would accrue
to various sectors of the population through
the postponement of the implementation of
the Court decision requiring that all persons
shall be equally represented in both houses
of a State legislature. If this assertion Is to
be sustained, one must first discover which
segment of the population will receive the
greatest advantage from the failure to adopt
an equitable apportionment plan promptly,
and then determine whether or not this
segment has supported such a delay.
Evidence on this subject can be obtained
from the State of Iowa. Although the con-
stitution of that State requires the reappor-
tionment of both houses of the legislature
decennially solely on the basis of popula-
tion, prior to 1964 the Iowa General Assembly
had not been reapportioned in nearly 50
years. In 1963 the legislature passed and
submitted to a popular referendum a con-
stitutional amendment, commonly known as
the Shaff plan, which would have postponed
equal apportionment by freezing only a
slight improvement in the disparity of pop-
ulation and representation into the State
constitution. Although this amendment was
overwhelmingly defeated at the polls, both
the Shoff plan and the apportionment of
the Iowa Legislature prior to 1964 provide
an opportunity to determine which group
obtained the greatest advantage under those
systems and whether or not this group sup-
ported the postponement of an equal appor-
tionment plan.
It has often been assumed that an unequal,.
apportionment of legislative seats gives
greater representation to farmers and to geo-
graphic area. Yet the 55 least populous
counties, which constituted a majority in
the apportionment of the lower house of the
Iowa Legislature before 1964, represent only
51.8 percent of the area and 46.5 percent of
the farm residents in the State. The 50 least
populous counties, which would have con-
trolled a majority in the Iowa House under
the Shall apportionment plan, represent only
45.5 percent of the area and 40.9 percent
of the farm residents in the State.
Even more striking perhaps is the fact
that farm residents do not have a majority
within the 50 or 55 least populous counties
of the State. statistics reveal that farm
residents constitute only 40.7 percent of the
people living in the 50 least populous coun-
ties and 40.6 percent of the population of
the 55 least populous counties.
What group, then, would have controlled
a majority in the Iowa Legislature? The
Shaff plan or the apportionment before 1964
would have given the residents of small
towns majority representation in the Iowa
Legislature. According to the 1960 census,
people living in small, incorporated towns
accounted for 52.1 percent of the total pop-
ulation of the 50 least populous counties and
52.6 percent of the population of the 55 least
populous counties. None of those counties
contain towns of 10,000 or more population.
Yet the population of the 20 counties having
cities larger than 10,000 is 53.1 percent of
the total population of the State. Within
those 20 counties the people living in towns
of 10,000 or more represent '71.8 percent of
the total population of the counties. Thus
the residents of towns of more than 10,000
population are probably the most underrep-
resented segment in the Iowa Legislature,
22039
while the towns smaller than 10,000 are
probably the most overrepresented group.
One might therefore anticipate that voters
in towns of less than 10,000 population would
have provided the strongest support and
that voters in cities larger than 10,000 would
have evidenced the strongest opposition to
the Shoff plan. Since a Federal court had
already declared the apportionment which
existed in 1963 unconstitutional, support for
the Shaff plan in the referendum could only
be interpreted as evidence of a willingness
to postpone an equal apportionment scheme.
As expected, cities of more than 10,000 popu-
lation demonstrated the greatest opposition
to the Shoff plan; and the plan was largely
defeated in the 17 counties in Iowa which
contain cities larger than 10,000. However,
support for the Shaff plan did not follow the
anticipated pattern.
Although the Shoff plan would have given
majority representation in the State legis-
lature to small towns rather than farm areas,
farm townships in 19 counties supported the
plan with a 70.2-percent majority. On the
other hand, the county seat towns in these
19 counties opposed the plan by 56.4 percent.
In one county the farm townships recorded
a majority vote against the plan. In Cerro
Gordo County the farm townships opposed
the plan by 52.4 percent, while Mason City,
the only town in the 19 counties studied of
more than 10,000 population, was 82.4 per-
cent in opposition. When the votes from
Cerro Gordo County are omitted from the,
total, the vote in opposition to the Shoff
plan was 29 percent in the farm townships
and 45.7 percent in the county seats.
Apparently voters do not always consult
their self-interest when balloting on this is-
sue. The vote on apportionment in Iowa
was probably influenced more by the gen-
eral configurations of urban-rural conflict
? than it was by the, interests of the sectors
of the population involved. Farmers were
apparently deluded by the belief that the
Shaff plan would give them majority repre-
sentation in the Iowa Legislature; and small
towns seemed to identify more with the view-
point of their larger urban counterparts than
with their own interests in this election.
Thus the above evidence, which has been
largely compiled from two articles in the
Iowa Business Digest and the National Civic
Review, indicates that there are several
myths in the reapportionment controversy
which should be dispelled. Neither farfners
nor geographical area would always gain ma-
jority representation, in a State legislature
through a delay in equal apportionment.
And the segment of the population which
would obtain the greatest advantage through
the postponement of equal apportionment
has not supported such a delay. There were
no groups which would both gain an ad-
vantage and which have supported the fail-
ure to reapportion State legislatures prompt-
ly on the basis of population. Therefore,
there would seem to be few reasons for fur-
ther delay in the implementation of Supreme
Court decisions.
Mr. Irving Achtenberg, an outstanding
attorney of Kansas City, Mo., made the
following statement on reapportionment
before the Democratic platform com-
mittee:
KANSAS CITY, MO.,
August 28, 1964.
Senator PHILIP A. HART,
Senate Office Building,
Washington, D.C.
My DEAR SENATOR: MT. William Boyd, of
National Municipal League, indicates that
you are interested in public statements on
the subject of reapportionment.
I enclose herewith a statement which I
made before the Democratic platform corn-
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22040 CONGRESSIONAL RECORD ? SENATE
mittee last week, which I would be very
happy for you to use for any purpose which
Ft might serve.
We are all very appreciative of your efforts
in behalf of equal representation and I per-
sonally want to cheer and urge you on in
this most important political effort for equal
representation.
Sincerely yours,
IRVING ACHTENSERG.
STATEMENT ON REAPPORTIONMENT BY IRVING
ACHTENBERG BEFORE THE DEMOCRATIC PLAT-
FORM CommirrEE, AUGUST 20, 1964
Mr. Chairman, I appear before you this
afternoon to urge you to consider a plank
In the Democratic Party platform affirming
the principle of equality of representations
under the 14th amendment; supporting the
magnificent decisions of the U.S. Supreme
Court calling for legislative reapportonment;
decrying current congressional efforts at de-
laying and destroying legislative reform and
calling upon the States to voluntarily com-
ply with the spirit of the Supreme Court's
mandate of "one person?one vote."
The Court, by its momentous decisions in
Baker v. Carr and Reynolds v. Sims has
opened the judicial gates through which we
can return to equal representation by pop-
ulation, with which our country began, but
which have been eroded in the past century.
When the Thirteen Colonies became States
in 1775, most of them adopted constitutions
employing population as the basis for elec-
tion of legislators. Through the first half
of the 19th century the tendency toward
political equality of persona regardless of
origins or economic position, continued.
The original -constitutions of 36 States re-
quired that representation be based totally
or substantially on population.
However, there was a shift from this pat-
tern in the second half of the century. The
growth of cities and the shifts of population
from the farms became appreciable and there
began to develop differences-of economic and
political philosophy between the citizens in
rural areas and those of the cities. Despite
the change to an urban-oriented economy,
legislative apportionment and legislative ap-
portionment formulas have failed to reflect
the change?this has been because of the
resistance of rural legislators, not anxious to
vote themselves, or their friends, or political
point of view, out of office.
Today over 135 million Americans-3 out
of 4 of us?live in cities and suburbs. We
an urban society. Yet the undisputed fig-
ures show that in most States the rural
:voters are overwhelmingly in control of one
legislative house and overweighted, if not
dominant, in the other house. In my own
State of Missouri 20 percent of the voters
of the State elect a majority of the lower
house and 69 of the 89 rural counties favored
in the lower house are also favored in the
senate. The smallest county, with a popula-
tion of under 4,000 has 1 representative just
as does the largest district with over 55,000
people?an unfair weighting of the rural vote
over the urban vote of 13.5?'to 1. In each
of your States you know that a somewhat
similar malapportionment exists.
? What is the significance of all of this?
Simply that our State legislatures are not
adequately handling the problems of eco-
nomic and social change resulting from out
20th century life. Representative govern-
ment is not working well at the State level.
As a result the cities are looking elsewhere
for solutions to their problems. The States
are ceasing to play their proper, important
role in the governmental sector of our society.
The Supreme Court has met this issue di-
rectly and forcefully. On June 15, 1964, in
the case of Reynolds v. Sims, Chief Justice
Warren, speaking for the majority, said:
"We hold that, as a basic constitutional
standard, the equal-protection clause re-
quires that the seats in both house of a bi-
-
cameral State legislature must be appor-
tioned on a population basis. Simply stated,
an individual's right to vote is unconstitu-
tionally impaired when its weight is in a
substantial fashion diluted when compared
with votes of citizens living in other parts of
the State. The equal-protection clause re-
quires that a State make an honest and
good faith effort to construct districts, in
both houses of its legislature, as nearly of
equal population as is practicable."
If I may summarize the rule laid down, it
is that bothhouses of every State legislature
must be on a population basis and each State
must make an honest and good faith effort
to form. legislative districts as nearly of
equal population as possible.
These are principles we must defend, not
destroy.
Equality of the vote is not a partisan issue.
It may help the Democrats in New York or
the Republicans in Texas; the liberals in the
large cities or the conservatives in the sub-
urbs. The truth is that today the most
underrepresented geographic group is not the
voters of the central cities, but those in the
burgeoning suburbs.
The fact remains that the only fair stand-
ard of representation in a democracy is peo-
ple?not mountains, or acres, or economic
interests. This means, and requires, equality
of representation in both houses of the legis-
lature.
The Republican Party platform proposes
tampering with this fundamental democratic
principle by. supporting a constitutional
amendment enabling States to apportion one
house on a basis including factors other
than population. Do not be misled by argu-
ments that this is a fair compromise, bal-
ancing the votes between the rural interests
and those of the cities. This proposal would
totally resist any real change. The power
of a rural group, or any other economic
minority, to control one house is the power
to block and destroy the voice of the ma-
jority in the other house. What other fac-
tors does the other party, suggest, if not
population? What virtue is possessed by
those who reside in the sparsely populated,
areas, which is not possessed by those in
more densely populated areas? Many
minorities besides the farmer have special
problems in their relation to their govern-
ment. Orga niyed labor is concerned with
legislation affecting its dealings with man-
agement, and industry likewise is concerned
with its relationship to labor; the Catholic
is concerned with the growing costs of paro-
chial education; other groups are concerned
with the relationship between church and
state; And resort areas want laws preserving
parks and recreational areas; central cities
need help with the decaying slums and prob-
lems of sewage, water supply, mass transit,
zoning and urban sprawl; the Negro is con-
cerned with civil rights and his position at
the bottom of the economic ladder. Which
of these economic, religious or geographic
groups would have a greater voice in your
State if factors other than population may
control one house? If the rural voter with
his speoial problems is entitled to a heavy
weighting of his i(ote, why not one or all of
these?
The answer is simple and absolute. -Once
we depart from the principle of "one persori,
one vote" there is no rational standard, if
we are to retain our American form of rep-
resentative government first proclaimed in
the Declaration of Independence.
We are now confronted with a major con-
gressional attempt either to destroy the pow-
er of the Federal courts to require equal rep-
resentation or to delay and impede the im-
plementation of court decrees. These efforts
are ill-conceived tampering with fundamen-
tal, democratic, constitutional rights. We
must not as a party sanction or favor any
such attempts.
All of this is not to claim: that equitable
September 24
reapportionment Will solve all our legislative
Ills. It is reasonable to suggest, however, -
that it will produce greater awareness in at_
least two of the great problem areas of to-
day?the fields of human rights and urban
affairs.
We are the party which in 1796 in America's
first contested national election campaigned
under the leadership of Thomas Jefferson
on the principles of "the rights of man."
We are the party that in 1960 in its platform
concerned itself with the issues of human
rights and human dignity?the right to use-
ful employment, minimum wages, a decent
living for the farmer, the right to a decent
home, adequate medical care and protection
from the economic fears of old age, sickness
and unemployment, the need for better edu-
cation for our children and equal opportu-
nity for all men.
When you again this year deliberate on
these specific rights of the individual, which
our party defends and supports, remember
that the right to vote is the most cherished
and fundamental right of all, underlying,
supporting and protecting all the rest.
We must not temporize, we cannot com-
promise the right of all Americans to an
equal voice in the legislative branches of
their government.
IRVING ACHTENBERG,
Kansas City, Mo.
(Attorney for plaintiffs from the under-
represented urban areas of Missouri now seek-
ing reapportionment of the State legislature
in the Federal court case of Jonas v. Hearnes.)
Following is a letter I have received
from Mr. M. L. Borawick, of Midway,
Wash., who has served as counsel in the
reapportionment case in that State. He
describes the confusion that would be
created in that State by passage of the
Dirksen-Mansfield rider:
?
MIDWAY, WASH.,
September 4, 1964.
HOD. PHUIP A. HART,
U.S. Senator, Senate Office Building, '
Washington, D.C.
DEAR SENATOR HART: The National Munici-
pal League requests that those interested in
opposing Senator DIRKSEN'S pending bill con-
cerning the Federal judiciary to write you
since you are spearheading the efforts to de-
feat this measure. Since I feel strongly about
this matter, I send this letter for whatever
assistance it may be in your struggle.
In June 1962, I had the occasion to file the
Washington State reapportionment case in
the U.S. District Court in Seattle. This court
was chosen because it offered a distinct ad-
vantage over filing in the State courts. The
three-judge court called for by the United
States Code and the direct' appeal to the U.S.
Supreme Court meant a faster and less ex-
pensive action than a comparable suit in the
State system. As it turned out, the advan-
tages I recited were soon apparent to all
parties. The case was ?filed on June 6, 1962.
It was decided on the merits on December
13, 1962. A decree was entered in May 1963,
the delay due to the court giving the legisla-
ture an apportunity to apportion itself dur-
ing its regular session in 1963. This the leg-
islature failed to do in both regular and spe-
cial session. The State appealed, and the U.S.
Supreme Court affirmed the lower court on
the merits in June 1964. Thigpen v. Meyers,
211 F. Supp. 826 (1962); Meyers v. Thigpen,
377 U.S. ?, 32 Law Week 3442 (1964).
Thus a. final decision was rendered in just
2 years after the original complaint was
filed, and the preparation of extensive and
expensive briefs which would have been
necessary, in all probability, had the action
gone from the superior court to the State
supreme court to the U.S. Supreme Court was
avoided.
If the Dirksen bill is passed, a litigant in
this type of action will be denied-these very
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CONGRESSIONAL RECORD ?,SENATE 22041
real advantages. Litigation will be more ex-
pensive and time consuming. In the final
analysis, the public will suffer.
On the merits as applied locally, the Wash-
ington State Legislature has not apportioned
itself of its own volition since 1901. Even
In that year, the apportionment was but a
completion of the original apportionment
called for by the State constitution. Our
State constitution provides for legislative
reapportionment after every Federal census
"according to population." An initiative
measure which would have placed legislative
districts close to numerical equality was
passed in the mid-1950's, but the legislature
emasculated the initiative.
A State court challenge to the districting
failed because of failure of proof as to popu-
lation figures. By 1960, the differences in
population between legislative districts was
as high as 8 to 1. Recent population studies
show these discrepancies are widening as
more and more 'people leave the rural and
central city areas and move to the suburbs.
Admittedly the discrepancies in Washington
State are not nearly as bad as Vermont,
Connecticut, New Mexico, and California,
for example, but 8 to 1, and growing, when
I to 1 is called for by the State constitution
is bad enough.
So for the first time in 60 years, we are on
the verge of obtaining not only Federal con-
stitutional guarantees, but guarantees of our
State constitution through the action of our
3 judge Federal court. A hearing is sched-
uled on September 14 in Seattle at which
time we expect the Court to hand down a
final decree implementing the Court's prior
rulings that the legislative districts are un-
constitutionally drawn.
If the Dirksen bill is passed, 2 year's work
will go for naught, and we will probably
be in a situation where an action to reappor-
tion will be brought in the State courts re-
sulting in a duplication of effort and crea-
tion of unnecessary and additional political
uncertainty.
While I have not read of anyone articu-
lating it on the floor of Congress, there seems
to be a feeling that Congress may properly
withdraw all jurisdiction from Federal courts
in the State legislative apportionment area
because of the precedent set down in ex parte
McCardie, 7 Wall. (74 U.S. 500 . (1869).
None of the writings I have seen in connec-
tion with the Dirksen bill have pointed out
that McCarcile concerned itself with the with-
drawal by Congress of jurisdiction from the
Supreme Court of appeals from lower Fed-
eral courts in a given area while the Dirksen
bill, if I correctly understand it, would deny
Federal appellate jurisdiction in the review of
State court decisions. This is a horse of an
entirely different color. It seems that the
Dirksen bill, if successfully negotiated
through Congress, would bring,.about a fun-
damental change in the character of the
Federal system.
Finally, the Dirksen bill would operate ret-
rospectively to impair or deny vested rights.
The analogy of this type of legislation to
ex post facto laws is clear.
For the foregoing reasons, I heartily sup-
port your opposition to the Dirksen bill. If
there is any further assistance I can give,
please do not hesitate to let me know.
Sincerely yours,
M. L. BORAWICK.
Following is a statement made before
the House Judiciary Committee by the
Honorable Herman Goldner, mayor of
St. Petersburg, Fla., and chairman of
the Florida Mayors' Conference on Fair2
Apportionment:
REMARKS BY MAYOR HERMAN GOLDNER, OF Sr.
PETERSBURG, IN TESTIMONY BEFORE THE
HOUSE JUDICIARY COMMITTEE, WEDNESDAY,
AUGUST 5, 1964
Mr. Chairman, members of the Judiciary
Committee, ladies and gentlemen. I am here
today as the representative of the U.S. Con-
ference of Mayors, as chairman of the Flor-
ida Mayors' Conference on Fair Apportion-
ment and as mayor of St. Petersburg, Fla.
My purpose is to attempt to shed some
light on a problem facing the burgeoning
urban areas of this Nation which, if not
given a sympathetic hearing by you and by
the entire Congress, will result in further
shame and shambles such as we have wit-
nessed most recently in the heavily populated
areas of New York's Harlem, Rochester, and
Jersey City.
The proposed constitutional amendment
you are considering would, if approved, de-
prive a majority of the citizens of this Na-
tion the opportunity of fair representation'
in the State legislatures. This has been the
case during the first 64 years of this century
in a majority of States in this country.
Without fair representation in State law-
making bodies, the needs of urban areas
have been shunted aside for pork barrel pro-
grams that exist on urban-earned tax dol-
lars and perpetuate the dynasty of rural-
oriented legislators who cannot or will not
face up to their responsibilities to the large
numbers of people in our cities.
Bringing this matter close to home for me
is the situation in Florida right now.
A strong rural power structure, elected by
less than half of the qualified voters of the
State, has a death grip on the helm of both
houses. This power group comprises a ma-
jority of the voting body of the senate and
an equally potent portion of the house of
representatives.
Instead of correcting this situation to give
the people the rights guaranteed under our
U.S. Constitution, the people serving in these
bodies have offered token plans that merely
shift the districts in a manner so that their
control is never lost.
This situation has become a cancer on our
Nation's body politic. It is getting larger
Instead of smaller. It is a roadblock for
urban growth that has caused the cities to
take over, more costly and time-consuming
means to meet the problems inherent with a
large population.
To further illustrate, let us take a close
look at Florida's history in reapportionment.
Since 1925, Florida's State Legislature has
been confronted with four constitutionally
required reapportionment sessions. To date
there has been a negligible amount of prog-
ress. In 1925, the creation of four new
counties created four new house seats; the
senate, meanwhile, through expansion and
addition of counties, added six seats in the
period from 1923-25. This brought the
totals for the 2 houses to 38 senators and
95 representatives. These figures were not to
change again until 1963.
In the intervening period, apportionment
action was severely limited. In 1935, four
house seats were reshuffled. In 1945, two
house seats and two senate seats were re-
shuffled.
In 1955, with Florida beginning to swing
into the most dynamic growth period any
State in this Nation has ever experienced,
the legislature made a vain attempt to as-
sure forever minority control of the senate.
A move to make each of Florida's 67 counties
a senatorial district was soundly defeated by
the people at the polls. Two other apportion-
ment bills were vetoed by then Gov. Leroy
Collins because they didn't do the job. In
1957, a special session of the legislature of-
fered a "daisy chain" amendment that was
quickly invalidated by another vote of the
people. ?
Our first successful reapportionment was
achieved in early 1963. By successful I mean
only that at least something was done, al-
though it was by no means enough to even
approach fair apportionment. In the pre-
vious legislative session, 1961, a majority of
the Florida Senate was elected from counties
having 12.3 percent of the State's popula-
tion. A majority of the house was elected
from counties having 14.7 percent of the
population. A plan for realinement was
presented by this body for ratification by the
people. This failed at the polls and shortly
thereafter, a special legislative session was
called by Gov. Farris Bryant.
The special session of November 1962 failed
in its mission to come up with a reapportion-
ment formula which would be more palatable
than the one which had been defeated at the
polls.
Another special session was called in late
January of 1963, approximately 2 months be-
fore the regular legislative session was slated
to open. This third special session within
18 months came up with a proposal that was
immediately implemented by statute and at
the same time offered as a constitutional
amendment to be considered in the Novem-
ber 1964 general election.
Quickly acting on this plan, a new legisla-
ture was elected which offered a slightly
improved but wholly inadequate representa-
tion of the majority of Floridians. The 1963
legislature was so constructed that 27.4 per-
cent of the population elected the house of
representatives while 14.5 percent of the peo-
ple elected a majority of the senate.
Today these figures are a little worse as
our urban areas have continued to grow
larger.
Malapportionment is not an evil designed
by these people who refuse to give the ma-
jority a fair voice. It is merely a convenient
tool that was created by rapid growth in
concentrated areas.
As the growth in our population centers
has continued upward, the needs of these
areas have increased. There is one major
Item that is most vital to people living in
these populous areas?taxation.
Most people don't object to carrying their
fair share of the tax load. And yet the bat-
tlecry of our Founding Fathers during the
American Revolution has come back to haunt
many of us who have the responsibility of
leadership in large cities. That being "Tax-
ation without representation is tyranny."
In our cases, we cannot say we aren't repre-
sented. We just aren't farily represented.
An illustration: Today in Florida, a State
senator from Dade County (Miami) repre-
sents 467,500 people. A State Senator from
the district made up of Levy, Dixie, and Gil-
christ Counties represents 17,700 people.
They both have the same lawmaking and
voting privileges, but the senator represent-
ing Levy, Dixie, and Gilchrist Counties ac-
tually has more than 25 times the voting
power of the Senator from Dade County.
There exists, therefore, not only a great
deficiency in representation for our cities in
State legislatures, but a definite tax imbal-
ance which continues to get more topheavy
In favor of the less populous areas.
Those who would point to the U.S. Con-
gress and say that this is the way our fore-
fathers meant the State lawmaking bodies
to be made up also are not looking closely
enough at their history books.
In 1838, Florida's first constitutional con-
vention proposed a legislature which had
a Senate and a House with districts divided
as nearly equal in population as possible.
This constitution was approved by the
people and was the document under which
Florida was governed when it entered the
Union in 1845. In the years that followed,
Florida had four more "new" constitutions?
yet always the principle of fair representa-
tion in both houses prevailed in the lan-
guage of the documents.
There is no magic number which will give
us complete fair apportionment. No equal
units of population can be designated in or-
der to do this because of the political sub-
divisions known as counties. We ask that
within the bounds of reason, however, that
those areas with massive populations be giv-
en the full right to vote and not be relegated
to positions of partial citizenship through
denial of representation.
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22042 CONGRESSIONAL RECORD ? SENATE
The result of the malapportionment is the
very thing our rural-controlled legislatures
decry as the socialistic drift of the Nation
through welfare and aid programs.
If the legislatures of the respective States
faced squarely the apportionment responsi-
bilities that are theirs by law, the cities
would not have to continue to go tot the
Federal Government for help in meeting the
needs of their growing populations.
In Florida, cities have no tax powers other
than ad valorem property taxes. Therefore,
we are pinned down very tightly on just
what we can do and can't do for the people
we represent. As mayor of St. Petersburg,
I am in a better position than most because
of some excellent management of our city
affairs and because of the wonderful patience
of my Constituency.
However, in most cities, there is a growing
unrest for those things which have been
due- for so long but which population cen-
ters of this Nation are only doing what
must be done in order for them to survive.
Take away our chances of fair apportion-
ment and you will be thrusting on the
people of this country a burden that may,
in the final analysis, break our backs.
Reapportionment must be required, and
it must come quickly. We proudly boast
of being the most modern and dynamic
? nation in the world yet we are attempting
to govern this great Nation through a sys-
tem at the State level that is a smothering
cover of mediocrity.
We had a constitutional amendment in
the early part of this century that reflects
what happens when people out of tune with
the majority gain control. Prohibition was
a mistake. Countless lives and a great many
tax dollars were -wasted enforcing a law
that people didn't want. Don't make the
same mistake with this amendment pro-
hibiting court intervention in State appor-
tionment. You will seal off the only chance
we have left to gain our rightful place in
the affairs of our State. You will be mak-
ing the same mistake that our English an-
cestors made. Taxation without representa-
tion cannot and will not be tolerated in
this country.
Mr. METCALF. Mr. President, I yield
myself 1 minute.
The PRESIDING OFFICER. The
Senator from Montana is recognized for
1 minute.
Mr. METCALF. Mr. President, in the
course of colloquy with the Senator from
Vermont and the Senator from Okla-
homa, the question was raised as to the
application of the proposed Mansfield
amendment to an existing court order.
I invite attention to the language. We
are not only expressing the sense of Con-
gress as to the function of a district court
in any action, but also "Any order affect-
ing the conduct of a State government."
That would be specifically applicable to
a situation in the State of the Senator
from Vermont.
Mr. AIKEN. Mr. President, I believe
that the Senator from Montana is cor-
rect in his interpretation of the language.
If the court observed the sense of Con-
gress at all, it would be helpful to our
-State. We have given our legislature,
which meets in January?
The PRESIDING OFFICER.. The
time of the Senator from Montana has
expired.
Mr. AIKEN. Mr. President, I yield
myself 5 minutes.
The PRESIDING OFFICER. The
Senator from Vermont is recognized for
5 minutes.
Mr. AIKEN. We have been given
until March 31 to complete reapportion-
ment. In the meantime, however, be-
cause of the Court's order, the Gover-
nor?who is now running for reelection?
indicated that he might call a special
session of the old legislature after elec-
tion.
I do not know what they would do.
They could conceivably vote the new leg-
islature, which would be elected the first
week in November, out of business. I do
not know what the situation would be.
But it would be handled much more
smoothly, and a better job would be done
if the legislature could meet as usual.
And I am sure it could complete its work
within the time which the sense of the
Congress establishes as a reasonable
time.
Mr. METCALF. I believe that is ex-
actly what we are trying to do.
Mr. AIKEN. I thank the junior Sen-
ator from Montana for his interpreta-
tion. It makes sense. It was what I
hoped he would say.
Mr. METCALF. Mr. President, I
yield to the senior Senator from Illinois
[Mr. DOUGLAS] such time as he may re-
quire.
Mr. DOUGLAS. Mr. President, the
original Dirksen amendment, which in
a sense, is still before this body, was
aimed at delaying, and, if possible, over-
throwing the apportionment decisions of
the U.S. Supreme Court. I believe that
those decisions were long overdue, and
are basically correct, so that they should
be affirmed, and not reverse& That was
the fundamental reason that I am op-
posed to the original Dirksen-Mansfield
amendment.
The population districts for the elec-
tion of members of the State legislature
were laid out long ago, when the States
were primarily rural and agricultural,
with their populations relatively evenly
spread over a particular State. And the
apportionment schemes which were laid
down go back in certain States to the
period before there was even a United
States of America. For the constitu-
tions of Vermont, New Hampshire, and
New Jersey laid out a system of repre-
sentation, for at least one house, based
on the population situation which
existed almost two centuries ago.
In a great many other States, the ap-
portionment pa :ttern was laid out be-
fore 1900. In general, I think that the
decade 1900-1910 was the period, or al-
most the latest period, in the majority
of the States, when the legislative pat-
tern of representation was formed. Since
those times, there has been a tremen-
dous shift of population, both to the
cities and to the suburbs.
I introduced figures early in the debate
to show that, whereas even as late as
1910, only 31 percent of the population
lived in areas which could be regarded
as metropolitan, by 1960, 62 percent lived
In these metropolitan areas. Today,
probably the figure is close to two-thirds.
With the rapid movement toward the
cities and suburbs, this percentage will
shortly become 70 percent, 75 percent,
and then 80 percent. But the States
have been held to the legislative system
September- 24
of apportionment based on conditions
which have long since disappeared. Of
course, those who benefit from this mal-
apportionment do not want to change it.
The politicians in the small communities
and small counties do not want to change
It. It would mean diminishing their
power. The big corporations and private
utilities do not want to change it, in the
main, because they find it easier to con-
trol the legislators from those districts
than they would the legislators from the
cities and suburbs. So there are power-
ful forces in opposition to the decisions
of the Supreme Court.
The Supreme Court acted only after
no other practical remedy was presented
or possible. The existing, malappor-
tioned legislators have refused to re-
apportion themselves.
The State courts had refusesl to inter-
vene, even when, as in many cases, in-
cluding my own State of Illinois, the
State constitutions prescribed a reap-
portionment every 10 years according to
population. This injunction was vio--
lated decade after decade. And the
State courts stated that they were
powerless to interfere. The Federal
courts withheld action for a long time.
In the famous case of Colegrove
against Green, with a somewhat divided
opinion, the Supreme Court refused to
interfere. But, when it became appar-
ent that there was no other remedy, that
the legislatures would not act and the
State courts would not act, then the Su-
preme Court stepped into the breach.
It has now been charged that it did so
In a legislative fashion because they
thought it was proper to reapportion.
And, I dare say they did so believe. It
has been charged that they did not do so
under the Constitution. I deny that.
There is an amendment to the Con-
stitution which a great many people try
to ignore. It is the 14th amendment.
And the 14th amendment provides that
no State shall deprive any person of the
"equal protection of the laws." That is
a part of the Constitution.' The Supreme
Court reasoned, "How can people be
granted the equal protection of the laws
if they have grossly unequal representa-
tion in the legislative bodies which make
the laws?" If they are substantially un-
derrepresented, they will not be ac-
corded the equal protection of the laws.
I do not see that there is any answer
to - that logic under the Constitution.
Some have quoted Justice Harlan's dis-
sent. But, I would remind the Senate
that Justice Harlan was almost the
sole dissenter as far as the logical and
constitutional aspects of the issue are
concerned.
-It is true that the present pattern of
apportionment demands change. We
have placed some of these figures in the
RECORD. But, they are worth repeating
again. Let me take the case of the lower
house of the various bodies. We have
cited the horrible example of Vermont,
where a town of 3.6 people has the same
representation as a city of 38,000.
In Vermont, it is not merely a question
of disparity between the most overrepre-
sented and the most underrepresented
towns. But, 12 percent of the population
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1964 CONGRESSIONAL RECORD ? SENATE
of Vermont can elect a majority of the
lower house.
In Connecticut, 13 percent of the popu-
lation can elect a majority of the lower
house. I see in the chair the distin-
guished junior Senator from Connecticut
[Mr. RIBICOFF] . He presided with great
efficiency-as Governor of that State. He
knows what I am talking about.
In Delaware, 18 percent of the people
elect a majority of the house. In Florida,
it is 30 percent. And until recently, it
was only 15 percent. The figures which
I have, as of June 21, show that Kansas
elects a majority of the house with 19 per-
cent. I believe that has been changed
since June. But there are an number
of States in which a relatively small pro-
portion elect a majority of the members
of the lower house of the State legisla-
tures.
In Georgia, it is 22 percent of the popu-
lation. In North Carolina, it is 27 per-
cent. In Alabama, it is 38 percent. In
Louisiana, it is 33 percent. In Texas, it
is 39 percent. In Oklahoma, it is 32 per-
cent. In Arkansas, it is 33 percent. In
Missouri, it is 20 percent. In South
Dakota, it is 38 percent. In Utah, it is
33 percent. In Nevada, it is 29.percent.
And in Washington, prior to the recent
apportionment, it was 35 percent.
In New York, 35 percent of the popu-
lation controls the lower house; in Ohio,
29 percent; and in my own State of
Illinois, 40 percent. E'en in the lower
houses, which in general, outside of New
England, are supposed to be the popular-
ly elected body, a relatively small mi-
nority of persons living in rural areas
controls even the lower house.
When we come to the State senates,
the situation is even worse: In Nevada, 8
percent can elect a majority of the
State senate; California, 10 percent;
Arizona, 14 percent; New Mexico, 14 per-
cent; Florida, 15 percent; Maryland, 14
percent; New Jersey, 19 percent; Mon-
tana, 16 percent; Idaho, 17 percent, and
so on. In Illinois, it is 29 percent.
, Mr. President, our time is drawing to
a close. It is interesting that the pro-
ponents of the Dirksen amendment and
the opponents of the Mansfield substi-
tute have really not taken the floor today.
Many of us were reluctant to accept
the proposed change, but we are con-
fident that it will not interfere with the
decisions of the Supreme Court. The
only adjustment that might possibly be
made would be to give the legislatures
a little more time in which to reappor-
tion. But this is not to exceed 6 months.
The resolution would not be a law. It
would not be mandatory. It would mere-
ly make a suggestion to the lower courts
but not to the Federal circuit courts or to
the Supreme Court. It would state that
in our opinion any delay should.not be
more than 6 months at the outside, arid
if the States do not act in that time, the
courts, in our judgment, should proceed
to apportion in accordance with the de-
cisions of the Supreme Court. I agree
with the able discussion by the senior
Senator from Wisconsin [Mr. Paoxiwnm] ,
who pointed out that all it says is that
these lower courts "could properly" take
No. 184-8
the need for a slight delay into consider-
ation "in the absence of unusual circum-
stances."
I hope very much that the present
Mansfield amendment will be adopted by
a big majority. It is the best which we
can obtain in an imperfect world.
Mr. AIKEN. Mr. President, for pur-
poses of clarification, I have a couple of
additional questions that I should be
glad to have answered in the time that
might be available to me.
Mr: METCALF. I shall be glad to try
to answer them.
Mr. AIKEN. I do not know how much
time remains. I believe there is time
enough for all of us.
The first question is as follows: Would
the Senator consider a court order di-
recting the State Legislature of Ver-
mont to do something that had been
prohibited by the Vermont constitution
since 1793 as constituting "unusual cir-
cumstances" within the meaning of the
pending amendment? If a court called
upon the State legislature to do some-
thing which is prohibited by the State
constitution, would that constitute an
"unusual circumstance"?
Mr. METCALF. A State constitution
could be as unconstitutional under the
14th amendment as a State statute.
When the constitution of Montana was
adopted, a provision was inserted in the
constitution providing that each coun-
ty shall have not more than one sena-
tor. At that time one of the greatest
constitutional lawyers in Montana said,
"That provision is a violation of the 14th
amendment of the Federal Constitu-
tion." That statement was made 75
years ago. He said, "This is not a re-
publican form of government."
Mr. AIKEN. Would it be an "unusual
circumstance" for a court to order a
State to do something which has been
recognized as unconstitutional within
that State since 1793? That is 171 years.
Would that not be a rather unusual cir--
cumstance?
Mr. METCALF. That is the reason
that the clause containing the words
"unusual circumstances" is included in
the amendment. It would give a three-
judge court some latitude in determin-
ing whether or not strict enforcement
of an order should follow. But that
would be up to the judges to ascertain
under the facts of the particular case.
There would be more facts involved than
the Senator has presented. I have ob-
jected all along to moving in and per-
mitting Members of the Congress to take
the position of judges.
Mr. AIKEN. I am speaking of the
meaning of the amendment rather than
any decision of the judges. 1 am asking
whether, within the meaning of ? the
amendment, a violation by a State of
provisions of a constitution which it had
held for 171 years would constitute an
"unusual circumstance"?
Mr. METCALF. That would be the
opinion of the Senator. That might be
my opinion. That might be_ or might not
be the opinion of the judge. I repeat
that, as I understand the amendment,
we would say to any district court hay-
22043
Ing jurisdiction that any order hereto-
fore entered should be postponed until
the legislature had an opportunity ,to
meet or waive an election, unless there
are unusual circumstances.
Mr. AIKEN. Another question has
arisen which perhaps the Senator might
be able to answer. The pending amend-
ment provides that the court could prop-
erly permit a legislature to reapportion
only in the absence of unusual circum-
stances. Why not permit the legislature
to reapportion if there are unusual cir-
cumstances, particularly when the legis-
lature has been so directed by the court?
Mr. METCALF. I do not believe that
the amendment so provides. The
amendment is directed to a district court
in any action that is pending or any
order that has been issued affecting the
conduct of the State government, and
provides that that court may properly
permit the legislature to meet and per-
mit the next election to be held..
Mr. AIKEN. Then it is the under-
standing of the Senator from Montana
that the intent of the amendment would.
be to permit a State legislature to re-
apportion its legislature even though
unusual circumstances might exist
Mr. METCALF. If there are unusual
circumstances that would cause the
court to decide otherwise, the amend-
ment would give discretion to the court.
But unless they were unusual circum-
stances, it is our intention, if we adopt
the amendment, to say that it is the
sense of Congress that legislatures
should properly be permitted to meet
in not more than 6 months and reappor-
tion themselves.
Mr. AIKEN. Whether or not "unusual
circumstances" prevail.
Mr. METCALF. The provision rela-
ting to' "unusual circumstances" is in-
tended to give special discretion to a
court in cases in which the ordinary
admonition that we are putting into the
sense of Congress resolution should not
prevail.
Mr. AIKEN. If the legislature re-
fused to reapportion, or was unable to
reapportion?I believe at a recent ses-
sion the legislature of Connecticut found
Itself in that position?the district court
could step in to reapportion.
Mr. METCALF. The Senator is set-
ting forth some of the facts that might
be taken into consideration.
Mr. AIKEN. It is the intent, then, of
the amendment that a State legislature
should be permitted to reapportion
whether or not "unusual circumstances"
prevail, and if they are unable to do so
'for any reason, the district court may
take over.
Mr. METCALF. I cannot agree to
that. It is the intention of the amend-
ment to admonish the various district
courts that have jurisdiction of actions
or have entertained orders that they
should give the legislatures the right to
meet. An election should be held at the
next election under the existing laws of
the State, unless there are unusual cir-
cumstances that would require some
other action.
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22044 CONGRESSIONAL RECORD ? SENATE
quorum call, and that the proponents will
still have 9 minutes remaining.
The PRESIDING OFFICER. Is there
objection? Without objection, it is so
ordered.
Mr. AIKEN. Mr. President, I do not
anticipate any further requests for time.
I will not say there, will not be any.
Therefore, I would not want to yield back
my time; but let us have a quorum call
without charging the time to either side.
Mr. METCALF. With the understand-
ing that the proponents still have 9
minutes.
The PRESIDING OFFICER. The
absence of a quorum has been suggested.
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 atoriCER. Without
objection, it is so ordered.
UNANIMOUS-CONSENT REQUEST
Mr. MANSFIFLII. Mr. President, I
ask unanimous consent that, immedi-
ately after the vote on the Mansfield
amendment, not to exceed one-half hour
be allowed for various possible motions
to table which might be offered before
the time would begin to run on the mo-
tion to refer to the Committee on For-
eign Relations the conference report on
S. 2687.
I have cleared this request with in-
terested Senators, including the distin-
guished chairman of the Foreign Rela-
tions Committee, the Senator from Ar-
kansas [Mr. FULBRIGHT]. '
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
THE ROLE OF THE FEDERAL COURTS TN THE RE-
APPORTIONMENT OF STATE LEGISLATURES
? Mr. DIRKSEN. Mr. President, I try
to take as even an approach to the prob-
lem of reapportionment and the effect
of the court decisions on this problem as
I can, and take account of the scholarly
literature in this field. I ask, therefore,
that there be printed at this point in my
remarks the winning essay in .the 1964
Ross Prize Essay Competition, conducted
annually by the American Bar Associa-
tion pursuant to the bequest of the late
Judge Erskine M. Ross. The contest was
open to all members of the association
and it closed prior to the Supreme Court's
decisions in the June 15 Supreme Court
decisions in the reapportionment cases.
The judges were Sylvester C. Smith; Jr.,
of West Orange, N.J., who, I believe, is a
past president of the American Bar As-
sociation; Judge Richard H. Chambers
of the U.S. Court of Appeals for the
Ninth Circuit; and Dean F. D. G. Ribble
of the University of Virginia School of
Law.
This article is entitled "The Role of
the Federal Courts in the Reapportion-
ment of State Legislatures" and appears
in the American Bar Association Journal
for September 1964.
I call attention particularly to the fol-
lowing passages:
The equality of voter" influence implicit in
the "one person, one vote" concept is invalid
when it is not limited to equality in the cor-
Mr. AIKEN. The Senator has already
indicated that directing a State to violate
a constitution which has been observed
for'170 years might be an unusual cir-
cumstance, or the fact that a Federal
court had already directed a State to re-
apportion within a certain time might
be an unusual circumstance. I would
say that if those are unusual circum-
stances, the legislature would have to be
Permitted to reapportion rather than
turn the question over to the district
court.
Mr. METCALF. The Senator reads
the amendment differently from the way
in which I read it. I would say that the
general rule that would be laid down
under the amendment would be that the
legislatures should be permitted to meet
and reapportion.
The general rule laid down is that the
next election be permitted to be held
under the laws of the State, unless there
are some special or unusual circum-
stances that should prohibit it. So the
general rule the Senator is trying to
have laid down is that the legislature of
Vermont should be permitted to appor-
tion in the next general session of the
legislature unless 'the judge decides, in
his discretion, that there is something
that would prevent it.
Mr. AIKEN. And the members of the
legislature elected November 3 would
be meeting in January.
Mr. METCALF. Under the laws in
existence on September 20.
Mr. AIKEN. I believe that we have
become about as involved as it is possible
to be. -
Mr. METCALF. The Senator from
Vermont is using the expression' "un-
usual circpmstances" to try to justify
something. As I understand, the un-
usual circumstances would be taken into
consideration only to prevent the opera-
tion of the sense-of-Congress resolution
that the legislature shall meet and re-
apportion, and that an election shall
be held on November 3.
Mr. AIKEN. What the Senator from
Vermont is asking, what he hopes the
sense of Congress resolution provides, is
that the legislature of Vermont which
will be elected November 3 and which
will meet the first week in January, is
given 6 months' time to reapportion.
Mr. METCALF. That is what the
resolution provides.
Mr. President, I should like to reserve
the rest of my time. May I ask how much
time I have left?
The PRESIDING OFFICER. There
are 9 minutes remaining on the side of
the proponents.
Mr. METCALF. How much on the.
side of the opponents?
The PRESIDING OFFICER. The
opponents have 48 minutes.
Mr. METCALF. Mr. President, I
should like to have a quorum call and be-
allowed to retain our 9 minutes.
Mr. AIKEN. Mr. President, the only
request I have is for 10 minutes by the
Senator from Illinois [Mr. DMILSEN], but
not until after 2 o'clock, because he is
trying to have lunch.
Mr. METCALF. Mr. President, I ask
unanimous consent that there may be a
September 2.4.
relation between voters in a common con-
stituency. The true issue involving a voter's
due respecting his representation Is primarily
whether he has an equal voice in the choice
of the representative of hm and his fellow
constituents; it is only secondarily involved
with the relative influence of his representa-
tive in shaping legislation compared with
the influence of other representatives.
* *
But, it is insisted that insofar as the Fed-
eral Courts, by implementation of Baker v.
Carr of otherwise, impose upon the States an
obligatory formula of - geographically equal
districting it will irretrievably dilute and
weaken State government.
Baker v. Carr moves thecapably to confirm
that observation. It does more than move
from the States to the Federal Government
jurisdiction over problems now of national
scope. It tends to undermine the health of
State governments, and its consequences
should not be underrated.
? The contest was won by R. W. Nah-
stoll, a practicing attorney of the Oregon
bar. It is certainly a scholarly and docu-
mented piece of work. With some
modesty, I am happy to note that the
thinking of the author is not too far a
departure from my own thoughts on this
general subject.
I believe, therefore, as a part of the
literature of this discussion it ought to
be included in the RECORD. Accordingly
I make that request.
There being no objection, the essay
was ordered to be printed in the RECORD,
as follows:
[From the American Bar Association Journal,
September 19641
THE ROLE OF THE FEDERAL COURTS IN THE
REAPPORTIONMENT Oy STATE LEGISLATURES
(By R. W. Nahstoll, of the Portland (Oreg.)
bar)
(This is the winning essay in the 1964 Ross
Prize ssay Competition, conducted annually
by the American Bar Association pursuant
to the bequest of the late Judge Erskine M.
Ross. The contest was open to all members
of the association (except officers and em-
ployees), and it closed prior to the Supreme
Court's, decisions in the reapportionment
cases. The judges were Sylvester C. Smith,
Jr., of West Orange, N.J.; Judge Richard H.
Chambers of the U.S. Court of Appeals
for the Ninth Circuit; and Dean F. D. G.
Ribble of the University of Virginia School of
Law.)
During the latter part of the lath Century,
men of good will concerned themselves with
the theory and structure of government. It
is immaterial that the period cannot be pre-
cisely defined, but surely from 1776 to the
adoption of the Bill of Rights in 1791 these
were matters of coffee house concern. Public
attention to the "state of the Union" was
sometimes skeptical, sometimes defiant,
sometimes incredulous, but rarely apathetic.
If general public interest did not ultimately
supply the delicate phraseologywhich is the
statement of the Constitution, nor yet the
basic principles, it nevertheless furnished a
crucible in which the ideas of the political
sophistioates were refined for articulate ex-
planation through The Federalist and similar
communications.
Probably the interest in apportionment
problems, congressional and legislative, has
provoked currently more widely spread re-
flection on political theofy than at any time
since the founding of this country.
During the Reconstruction Period, to be
sure, there was high popular interest in these
affairs. But, the attendant climate of post-
war hositility, despair and fatigue, aggravated
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CONGRESSIONAL RECORD ? SENATE
by calculated vindictiveness of some elements
of congressional leadership, tended to abort,
at that time, development of any valid po-
litical theory.
From time to time, issues arousing intense
public responses have arisen in relatively re-
stricted issues, e.g., President F. D. Roose-
velt's New Deal, the extension of executive
power, and his "courtpacking" effort of 1937.
However, despite the heat generated by these
Issues, they provoke no 'significant general
reanalysis of the theory of government.
And then came 1962?and Baker v. Carr?
This offering proposes no effort to review
the niceties of Baker v. Carr, vis-a-vis its
predecessors, nor to examine the positions
assumed by the several members of the
Court. To anyone aware of the copious com-
pendium already published to those ends, no
conceivable purpose could justify another
effort. Also, the nature of Baker v. Carr and
its spawn commends the suggestion of Mr.
Justice Holmes, who, in a different context,
observed that "at this time we need educa-
tion in the obvious more than investigation
of the obscure"? As a milestone on the
tortuous path of constitutional policy, the
significance of the case is nowhere to be de-
nied. It marks a turn that will have it live
in the company of McCulloch v. Maryland 8
and Marbury v. Madison 4 which is assurance,
indeed, that it likely will not be disregarded.
But the disturbing effect of the Baker case
results from the narrowness of the path
from this turn as restricted by the labored
effort of the Majority to justify Federal ju-
dicial intervention in this problem on the
basis 'of the equal protection clause of the
14th amendment and to reject the basis of
the guaranty clause of article IV. I submit
that the result of that election of the Court
interjects the Federal Government beyond
appropriate limits into internal affairs of
the States by according to the Federal Gov-
ernment an unjustifiable power to require
uniformity in the structure of State govern-
ments. The result includes potential harm
by reducing or destroying the viability and
genius of the "republican" form of govern-
ment which is constitutionally presumed for
each State.
One hundred sixty-two pages of the U.S.
Reports are devoted to the collective opinions
In Baker V. Carr, but the reader may indulge
a private suspicion that, after the dust had
settled from the Court's in camera skirmish,
it might have served the purpose to rule
briefly the essence of the case: To claim for
the Federal Government, acting through its
courts, the power and duty to intervene,
on the petition of individual voters,' in a
matter of legislative apportionment. In
short unless he is to be understood as join-
ing his brethern of the majority in limiting
jursdiction to the 14th amendment, Justice
Stewart's opinion might well have sufficed.
LITTLE RESISTANCE TO BAKER PRINCIPLE
There has been little resistance expressed
by writers to the Baker principle that legis-
lative apportionment is an appropriate area
for Federal judicial concern and action; nor
is it suggested here.? Indeed, one's predis-
position to acknowledge the necessity of
'369 U.S. 186.
2 Collected Legal Papers 292-293 (1920).
4 Wheat. (17 U.S.) 316.
4 1 Cranch (5 U.S.) 137.
The standing of "any person whose right
to vote is impaired" appears properly resolved
against the contention that such a claimant
is without standing because his right is not
peculiar to him, but is shared in common
with all others. Baker v. Carr, 369 U.S. 186,
201-208; Gray v. Sanders, 372 U.S. 368, 375.
9 A valuable contribution to the literature
on this' subject is Prof. Alfred de Grazia's
book, "Apportionment and Representative
Government (1962). The author says: "The
. least disputable general determination of the
Supreme Court in Baker v. Carr appears to
Federal jurisdiction over matters of legisla-
tive apportionment is so strong that it is
astonishing to what difficulty Justice Bren-
nan believed himself committed in order to
persuade his reader to not change his mind.
Few could have anticipated that the Court,
when at last it faced the problem, should, or
might have, ruled otherwise. The realities
of our, times render vain the continuing pro-
testation of some that, "Come weal or come
woe, our status is quo." Whatever may be
one's attitude toward the prospect of more of
the same, it is unrealistic to believe that the
future holds any significant retreat from past
changes tending toward centralization of
authority in the Federal Government./ Many
of the affairs of men once thought to be of
only local or intrastate concern have become
of concern to those in other States, adjoin-
ing and remote, and must be now resolved in
the context of the several states. These in-
terstate interests are founded, in part, on
the moral responsibility of caring about the
welfare of fellow countrymen. They are
founded also on the realities of interstate
business and the fluidity of our people. It
does make a difference to a Californian that
a child in Mississippi is educated today, for
tomorrow they may be neighbors. It does
make -a difference to a New Yorker that in-
dustry is not attracted elsewhere 'by sub-
marginal wages. It does make a difference
to an Oregon lumberman whether West Vir-
ginia's economy sustains a market for lum-
ber products. Moreover, Federal attention
to such matters may be regarded as neces-
sary if one accepts the cynical assumption
that States consciously control the rate at
which they "solve" their social problems to
retard interstate flow of residents. Does any
State consciously deter its solution to prob-
lems of its needy, its aged or its minorities
lest solution of the problems invite the wel-
fare and employment burdens of other
states? The practical recall that the public
image of prosperous California enticed droves
of dust bowl needy who became a welfare
and employment burden. But precisely be-
cause such matters have come within the
Federal concern there is need to respect as
a hazard a possible "tyranny of the major-
ity." a
COURT RL.vuSES TO EVADE RESPONSIBILITY
Properly, it seems, the Court refused to
evade responsibility for decisive action by
taking refuge behind the "political question"
have been that State apportionment systems,
whether contained in the State constitution
or in legislation, could be admitted to ex
amination in a case before a Federal court to
determine whether they violate the equal-
protection provision of the 14th amendment
of the Federal Constitution (page 154)."
Professor de Grazia does not, in his book,
consider article IV, and in his apparent ac-
quiescence in the Court's position excluding
the guaranty clause, he is not joined by this
writer.
'See Jackson, "The Supreme Court in the
American System of Government" (1955), es-
pecially chapter III: "It is the maintenance
of the constitutional equilibrium between
the States and the Federal Government that
has brought the most vexatious questions to
the Supreme Court. That it was the duty. of
the Court within its own constitutional
functions, to preserve this balance has
been asserted by the Court many times; that
the Constitution is vague and ambiguous on
this subject is shown by the history preceding
our Civil War. It is undeniable that ever
since war ended we have been in a cycle of
rapid centralization, and Court opinions have
sanctioned a considerable concentration of
power in the Federal Government with a cor-
responding diminution in the authority and
prestige of State governments" (pp. 65-66).
De Tocqueville, "Democracy in America,"
ch. XVI (for a similar warning, see The Fed-
eralist, No. 51).
22045
doctrine of Colegrove V. Green" If Federal
protection is due the individual, where but
the courts can he look for that protection?
It is not satisfactory to leave the solution, as
would Justice Frankfurter, ultimately to the
"conscience of the people's representatives".14
If a voter is deprived today, it is no answer
to tell him that at some indefinite future
time things may worsen sufficiently to evoke
curative action." To refuse to be limited
by the "political question" theory does not
require that the courts remove from the
judicial arsenal the doctrine of equitable
restraint to act in those cases where satis-
factory State action is manifestly under way.
Retained for appropriate use, it can serve an
obvious function to withhold judicial action
pending the State's opportunity in lieu of
dismissal of the litigation.
But the unfortunate results of Baker flow
from the incongruity of its unpersuasive
proclamation that: (a) Under the guaranty
clause of article IV, legislative apportion-
ment as an eletnent of the republican form
of government is a nonjusticiAle "political
question"; and (b) Under the 14th amend-
ment, legislative apportionment as an ele-
ment of equal protection is not a "political
question", and is justiciable. This distinc-
tion is based upon the Court's adoption of
reasoning which began with Luther v. Bor-
den," and has now come full circle. Chief
Justice Taney wrote for the Court in Luther
that Congress rather than the courts, had
exclusive right to decide which of two dis-
puting State governments was the estab-
lished one. The Court assumed, without ex-
planation, that Congress was charged under
article' IV "to decide what government is the
established one in a State * ? ? before it
can determine whether it is republican or
not."11 The Court disregarded the distinc-
tion between (a) the choice of recognizing
as the established government one of two
claimants and (b) the issue of deciding as
to only a single government whether It was
"republican" in form, and suggested, in what
was dictum with reference to the second is-
sue, that the problem was a "political ques-
tion ? * ? to be settled by the political
power" and accordingly was committed to
Congress?' From this origin, ensuing cases
perpetuated and expanded the notion until
any issue raised under the guaranty clause
was judicially spurned as a "political ques-
tion"?' Now we are told by Justice Brennan
that issues arising under the guaranty clause
are committed to a coordinate branch of the
Federal Government and respect for the sepa-
ration of powers requires courts to regard
9328 U.S. 548.
10 368 U.S. 270.
11 As -Justice Goldberg observed in Watson
v. Memphis, 373 U.S. 526, 533: "The basic
guarantees of our Constitution are warrants
for the here and now and, unless there is
an overwhelmingly compelling reason, they
are to be promptly fulfilled."
127 How. (48 U.S.) 4.
117 How. (48 U.S.) 42.
247 How. (48 U.S.) 46. Justice Brennan
approaches acknowledgment that this part of
Luther i dictum: in stating: "But the only
significance that Lather could have for our
Immediate purposes is in holding that the
guaranty clause is not a repository of judi-
cially manageable standards which a court
could utilize independently in order to iden-
tify a State's lawful government (369 U.S.
223) ."
1" E.g., Highland Farms Dairy v. Agnew, 300
U.S. 608, 612, holding that even if a State
statute were a denial of a republican form of
government as guaranteed by article IV, "the
enforcement of that guaranty, according to
the settled doctrine, is for Congress, not the
courts," citing Pacific States Telephone &
Telegraph Co., 223 U.S. 118; Ohio ex rel. Davis
V. Hildebrant, 241 U.S. 565; and Ohio ex rel.
Bryant v. Akron Metropolitan Park Dist., 281
U.S. 74.
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22046 CONGRESSIONAL RECORD ? SENATE September 24
such as nonjlisticiable "political questions".
But this "bootstrap" reasoning which began
with Chief Justice Taney's dictum in Luther
is something short ' of Justice Bremaan's
standard that a "political question" involves
a "textually demonstrable constitutional
commitment of the issue to a coordinate
political department"." _Luther says the
questions are nonjusticiable because they are
"political questions" and, as such, com-
mitted to Congress. Baker says the ques-
tions are committed to Congress and, as
such, are "political questions". Then, with
Implicit recognition that the guaranty clause
was not satisfactorily explained away, Jus-
tice Brennan undertook to nail down its
coffin lid with a bewilderingly small tack:
"This case does, in one sense, involve
the allocation of political power within a
State, and the appellants might conceivably
have added a claim under the guaranty
clause. Of course, as we have seen, any
reliance on that clause would be futile." 17
It seems equally clear, that, as a guar-
anty clause issue, legislative apportionment
is not a fortiori rendered nonjusticable by
Justice Brennan's alternative standard that
a political question exists where there is a
lack of judicially discoverable and manage-
able standards for resolving the issue.18 If
-standards of legislative apportionment are
judicially discoverable for equal protection
purposes, are they less so for purposes of
article IV? And, if there were serious doubt
regarding the judicial capacity "to decide
the limits of the meaning of republican
form" as Justice Brennan suggests in a foot-
note, where is greater capacity to be found?"
Is it a significant difference that the courts
treat legislative apportionment as a factor
of equal protection rather than as a factor
of the guaranty clause? This involves con-
sideration of the source and nature of the
right which the Federal courts have under-
taken to enforce. It is necessary to respect
the distinction between congressional ap-
portionment and legislative apportionment.
The former is clearly a Federal matter, con-
templating definition by Federal statute. If
congressional apportionment is improperly
defined by Congress or insufficiently imple-
mented by adequate State action, and falls
short of satisfying constitutional standards,
it is clearly a matter of Federal remedy.
Whether that remedy should come from
courts or wait congressional action is an
issue on which there is strong difference of
judgment, but none disputes that a Federal
right is in issue.
THE PROBLEM OF LEGISLATIVE APPORTIONMENT
The Court's position respecting the source
of the required standard for legislative ap-
portionment is More bothersome. On its
facts, Baker might have been limited to pro-
tection by Federal concern of a right vested
in the individual voters by a constitutional
dictate of the State. This restraint would
have left for future consideration the status
of a claim of right to voter-parity in the ab-
sence of State provision, either constitu-
tional or statutory, or against the claim that
the State provision does not satisfy accept-
able standards of voter-parity. Also, further
consideration could have been accorded the
question whether the recognized right is a
federally protected right to be secure in-such
rights as the State has undertaken to define
as the due of all fts voters, or a federally pro-
tected right to federally defined voter-parity.
Similarly, Baker might have been confined
to situations where, as in Tennessee, there
exists no provision for popular initiative.
The lower court found the Tennessee ap-
portionment statute repugnant to the State.
constitution and violative of something am-
biguously described as "the rights of the
plaintiffs." 20 The majority of the Supreme
Court expressly disregarded "rights guaran-
teed or putatively guaranteed by the Tennes-
see constitution" and, in a footnote which
belied the significance of the point, boldly
classified the enforceable right as one derived
exclusively from the equal protection
clause.21 And there's the rub.
We must acknowledge that rights of an
individual to participate in his State gov-
ernment on acceptable voter-parity (bear-
ing in mind the need for definition of that
term) is by its source a Federal right. But
to acknowledge Federal interest in and power
to enforce the individual's relation to his
State government is not to define it. Nor
does it uply the definition to bespangle the
concept, with labels which are attractive,
inviting, euphemistic, and familiar?and
meaningless. Once the right is classified as
a part of the equal protection principle, epi-
thetical jurisprudence supplies labels suffi-
cient to confuse the problem and the solu-
tion: "equal apportionment," "fair repre-
sentation," 22 "equal representation," "equal-
ity among voters," 23 one person, one vote."24
Through label-fixing, the problem is over-
simplified and appears plausibly satisfied by
judicial insistence upon a system of geo-
graphical subdivisions of practically equal
population.
This solution has the appeal of relative
certainty and precision. What, after all, is
more certain than geography and arithmetic?
But, it is also unimaginative, doctrinaire,
and stifling of the representation it purports
to protect." Thus, one sympathizes with the
frustration implicit in Justice Stewart's re-
mark to counsel during argument of WMCA
v. Simon:
"I'm only suggesting that the problems in
these cases are somewhat more complicated
and subtle than the briefs suggest, and can-
not be solved by eighth-grade arithmetic." 28
The Court has abandoned its actual duty
to protect an equal right to share participa-
tion in a republican form of State govern-
ment." It undertakes, instead, to establish
a Federal standard of participation in State
government without allusion to whether
something less, or different, would qualify
as a republican form of government. Indeed,
the Court consciously advoided reference to
-the republican structure as the measure of
acceptability and gratuitously adopted the
substitute test of voter equality, brooking
no "invidious discrimination." It might
have been possible, in the absence of further
expression, to speculate that the States con-
tinued free and viable to invoke different or
modified techniques of realizing representa-
tional government. But, this freedom is
manifestly in jeopardy, and with its restric-
tion the genius of republican government
is seriously prejudiced, inasmuch as the es-
sence of the individual's relation to his
State is no longer voter representation. It
is now voter power to influence legislative
action.
The Supreme Court appears persuaded
that exigencies of present society require
22 1 79 F. Supp. 828.
20369 U.S. 194.
22 See WesberrY v. Sanders, 376 U.S. 1.
28 Mr. Justice Goldberg during argument of
WMCA v. Simon, 32 Law Week 3189.
24 See Gray v. Sanders, 372 U.S. 368, 381;
Wesberry v. Sanders, 376 U.S. 1.
22 For a congressional apportionment case
referring to other factors justifying consid-
eration, see Lund v. Mathas, 145 So. 2d 871
(Fla. 1962).
2632 Law Week 3189.
16 369 U.S. 217.
27 Justice Frankfurter, dissenting in Baker
77369 U.S. 226,
22'7.
v. Carr, recognized the issue as a "guaranty
72 3 69 U.S. 217.
?
clause claim masquerading under a different
" See note 48, 369 U.S. 222.
label." 369 U.S. 297.
that a theory of relatively uniform repre-
sentation be adopted, found or fabricated.
It has refused to recognize that the appli-
cable standard should test whether a chal-
lenged State system is republican in form.
In its inception, the guaranty clause con-
templated that the several States are inter-
ested in the republican character of their
governments and those of their sister States,
and the Federal Government was acknowl-
edged as the repository of power to enforce
that interest." Though the guaranty clause
in form is a statement of assurance to the
several States, it is not confined to a Federal
promise to hold the States free of antirepub-
lican encroachment by the Central Govern-
ment or extraneous forces. As expressed by
Madison, the assurance contemplates that the
States "may choose to substitute other re-
publican forms" with the indulgence and pro-
tection of the Federal Government. Concur-
rently, the States are restricted by the obli-
gation that their respective governments
shall be "republican" in character. The sig-
nificance of this cohtinuing requirement is
as surely a matter of concern to and right of
the individuals within a State, as to the
totality of the -State's citizem7.22 Accord-
ingly, the pre-14th amendment Constitution
should be recognized as a valid source of
Federal guarantee of the right of individuals
to participate in, and live under, a republican
State government. The 14th amendment re-
affirmed that Federal interest and duty. At
least this has been clear since the overruling
of the doctrine of the Slaughter-House
cases,".which held -that applicability of the
14th amendment was limited exclusively to
the rights and status of Negroes.
The central issue is whether the 14th
amendment did more than assure to each
Citizen that, in common with others in his
State, he shares a right of equal protection
under a "republican" State government. Un-
til Baker, there had been no indication that
the 14th amendment had changed or broad-
ened the guaranty clause right." What is
that right? That the individual is due a
"republican form of government" answers
nothing without definition of that term.
THE SEMANTICS OF THE SCIENCE OF
GOVERNMENT -
We have been too long careless of the
semantics of the science of government.
Though the U.S. Constitution guarantees us
a "republican" form of State government, of
habit we have come to think of our govern-
ment as "democratic." What "democracy"
imports to us, respectively, probably is more
closely correlated to subjective criteria of
22 Madison, The Federalist, No. XLIII.
22 See Hone School Dist. No. 46 of Lawrence
County, Arkansas v. Brewer, 137 F. Supp. 364
(E. D. Ark. 1956).
3016 Wall. (83 U.S.) 36. ?
lilt is one of those interesting -quirks of
legal literature that Luther v. Borden, on
which the majority in Baker v. Carr prin-
cipally rely to hold the guaranty clause in-
applicable contains language which recog-
nizes the power of the States to remodel
their governmental structures, subject only
to the limitation oteongressional determina-
tion that it continues "republican" in form.
Chief Justice Taney said: "No one, we be-
lieve, has ever doubted the proposition that,
according to the institutions of this country,
the sovereignty in every State resides in the
people of the State, and that they may alter
and change their form of government at
their own pleasure. But whether they have
changed it or not, by abolishing an old gov-
ernment, and establishing a new one in its
place, is a question to be settled by the po-
litical power. And when that power has de-
cided, the courts are bound to take notice
of its decision, and to follow it [7 How. (48
U.S.) 46]."
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CONGRESSIONAL RECORD ? SENATE 22047
freedom of the citizens under the govern-
ment than to any connotation respecting'
either the structure of that government or
the precise implementation of voting influ-
ence. Considered apart from the concept of
freedom, democratic government is variously
understood. The term can, of course, refer
to a direct democratic form, of the town
meeting type, in which each citizen partici-
pates and votes his will.
Surely there are few, if any, serious ad-
vocates of this as a vehicle for present-day
government. The term can also refer to a
representative democratic form. Such is the
republican government contemplated by the
Constitution. Representative democracy in-
volves the element of consent of the governed
expressed in popular selection of those
charged with administration of government,
including assurance that the selection is sub-
ject to some acceptable mode of review by the
governed. It contemplates that diverse in-
terests and points of view will be communi-
cated and considered in the implementation
of government. It requires a balance of
power for protection of those who, of the
moment, constitute the minority. It con-
notes an orderly system of law to which the
government, as well as the governed, is re-
sponsible and responsive.
Proper legislative apportionment of a rep-
resentative democracy is necessarily related
to the role or charge to which the elected
official is committed as a "representative" of
his constituency. As long as representative
government has been considered, writers
have espoused one or the other alternative
of the familiar dichotomy. Is a representa-
tive chosen to determine the will of the ma-
jority of his constituency and to express that
will through his vote? If this is the extent
of his responsibility, it could be accomplished
better these days by utilization of opinion
sampling and computers. Certainly the rep-
resentative is chosen for a higher and, more
exacting task. Despite the premise of de-
mocracy, "the people" cannot be enlightened
on all intricacies of modern government, in-
formed as to the details of governmental
affairs or sophisticated to the handling of
them.
This is not to suggest that public inquiry
and interest should be discouraged; nor is
it to discount lay expertise respecting limited
areas in the public concern. But, it is un-
realistic to suppose that individual voters,
much less an aggregate of those in a con-
stituency, have an informed and formulated
judgment to which their representatives are,
or should be, bound. Accordingly, we must
accept the alternative theory that the repre-
sentative is charged to become infOrmed and
then to vote his informed judgment and
conscience. His judgment is not informed by
any inherent omniscience. It must become
so through reflection on information and at-
titudes of others. To broaden the base of
that reflection, the widest possible variety of
responsible opinion should be avaliable be-
fore decision. To effect this fundamental
purpose of supplying that diversity of opin-
ions is the end of representation.
Mindful of this simple principle, Baker and
its successors measure distressingly wide of
the mark. In extending itself beyond Jus-
tice Stewart's recognition that Federal juris-
diction lies, and undertaking to establish an
arithmetically and geographically oriented
definition of acceptable standards of equal
protection, these cases tend to adopt two in-
valid predicates: (a). a definition of constitu-
tionally sufficient representation cast in
terms of the power consequences indirectly
effected by the voter through his representa-
tive; and (b) an assumption that geograph-
ical subdivisions are reliable, and perhaps ex-
elusive, bases of the several interests properly
in need of articulate representation.
These two predicates are commingled in
the misleading principle adopted as the goal
of reapportionment under the grossly over-
simplified shibboleth, "one person, one vote,"
which dominates the Court's theme. So
Committed are we to respect for "equality"
that we tend to prompt, unchallenging and
reverent acceptance of any idea couched in
terms suggesting absence of discrimination.
It is not inappropriate to exact "equality"
among the several voters within a defined
constituency, so that the representative of
that group may be selected by a majority.
But, it is a quite different thing to require
that the several constituencies shall be so
defined that the arithmetical prospect of in-
fluencing ultimate legislation shall be equal-
ized between a voter in constituency "A" and
a voter in constituency "B".32 If this were
the true goal, a myriad other factors of great
practical influence logically would require
similar equalization. Should each expect
that, in common with every other voter, he
Is entitled to have his representative func-
tion as chairman of the most powerful com-
mittee in the legislative body? Should a
voter be constitutionally offended if the rep-
resentative of another constituency is more
politically sophisticated, articulate, compe-
tent, or successful? Has he a constitutional
right to expect that there shall be no dis-
parate committee assigriments? The equal-
ity of voter influence implicit in the "one
person, one vote" concept is invalid when
it is not limited to equality in the correlation
between voters in a common constituency.
The true issue involving a voter's due re-
specting his representation is primarily
whether he' has an equal voice in the choice
of the representative of him and his fellow
constituents; it is only secondarily involved
with the relative influence of his representa-
tive in shaping legislation compared with
the influence of other representatives.32
Without discounting the unfortunate em-
phasis assigned to the promise that each
voter must have equal ultimate influence,
an even more disturbing consequence of the
cases is their apparent ultimatum that con-
stituencies be geographical divisions of equal
population.
Of habit we have become accustomed to
geographical districts. It is a familiar
scheme, and we have not troubled ourselves
seriously to consider alternatives.34 But al-
ternatives there are, and because of their
relative validity as vehicles to implement
representative government, we should be
astonished, concerned, and perhaps out-
raged that they seem to have been elimi-
nated from adoption, or even consideration,
as variations from the Court's preconceived
commitments to representation by cohesive
geographical districts. It is one thing for
the Court to restrain the States from in-
vidious discrimination against fair repre-
sentation. It is quite another thing for the
Court to indicate that prima facie avoid-
ance of unacceptable discrimination must
commence with constituencies defined as co-
hesive geographical districts practically
equal in population.
32 See concurring opinion of Justice Stewart
In Gray v. Sanders, 372 U.S. 368, 381.
3, See, for conscious adoption of both goals,
Moss v. Burkhart, 220 F. Supp. 149, 151 (W.
Okla. 1963) .
34de Grazia, op. cit. supra note 6, at 153:
Some State courts have been charged with
the review of apportioning procedures for
years. Mr. Arthur L. Goldberg has cited 54
cases in which apportionments were invali-
dated, prior to Baker v. Carr. There is even
a smattering of theory about representation
and apportionment to be found in court
decisions going back to earliest times. At
the same time, almost all of these cases may
be shown to be highly tentative and apolo-
getic incursions into the province of the
legislature. Moreover, the great number of
affected voters have remained, until Baker v.
Carr, generally oblivious and unaroused.
In the first place, the obligation can re-'
quire shifting of voters from a constituency
with which they have been traditionally al-
lied, and with which their felt interests are
to some extent associated, to a different con-
stituency with which there is relatively less
community of interest for the rather arti-
ficial reason that the districts will then be
equal in population. Within the purposes
the Court professes to serve, the shifted
group is disserved, and its influence on ul-
timate legislative action, in fact, is dimin-
ished.
In the second place, there is not a rational
justification for adopting a definition of
constituencies which Is committed to a geo-
graphical essence. It is conceivable that in
some past day the interests of voters in pub-
lic affairs were reasonably correlated to geo-
graphical residence, and segregation of
interest groups by the vertical division of
geography may have had acceptable validity.
If it were so in the past, it is doubtful that
this obtains today. The mere circumstance
of a, voter's place of residence may well be
one of the least of the reasons which arouse
his interest in the public concerns. Is it not
conceivable, or even likely, that a Democrat-
ic naillworker with no school-age children
and a leaning toward public power, though
he resides in geographical district X, has
more in common with a similarly oriented
millworker residing in district Y, than he
has with his neighbor in district X, a Re-
publican utilities employee and the father
of four public-school students?
Should the two millworkers, by the chance
of their-remote residences, be denied oppor-
tunity to choose a common representative?
Or, suppose that in districts "X" and "Y,"
respectively, there are 5,000 of our hypotheti-
cal millworkers and 4,000 of our hypothetical
utilities workers. If more numerous mili-
workers elect the representative in each of
the districts, 8,000 utilities employed would
be without a legislative spokesman. The
"tyranny, of the ? majority" of which De
Tocqueville warned, and against which the
essence of republican government is directed,
can then become a foreboding potentiality.
In the third place, an uncompromising re-
quirement of geographical representation
virtually precludes the possibility of provid-
ing within the legislative framework for
selection of representatives from among
available persons of competence, respected
over the State, but not "politically known"
in their districts of residence and unpre-
pared to engaged in the rigors of a cam-
paign for localized 'support. It will be an
expensive error for us to aggravate the ten-
dency, upon which John Stuart Mill and
others have commented, for representative
government to attract to its assemblies per-
sons who are less than the best qualified.32
Some of the alternatives to the geographi-
cal-arithmetic representation base have been
rather specifically expounded- or employed.
Professor de Grazia has classified the sys-
tems by which constituencies are appor-
tioned as involving one or more of the follow-
ing criteria: "territorial surveys; govern-
mental boundaries [cities, counties, town,
etc.] : official bodies [e.g., the electoral col-
lege, or election of a mayor by the popularly
elected city council]; functional divisions
of the population [i.e., "nonterritorial ag-
gregates of persons who share social or eco-
nomic interests," including taxpaying
groups, nationality groups, university
groups, professional groups, factory groups.
and general occupational groups]; and free
population alinements."34 The most corn-
J. S. Mill, "On Representative Govern-
ment," c. 7. See also, "de Tocqueville, De-
mocracy in America," c. XIII; Bryce, "The
American Commonwealth," c. XLV.
36de Grazia, op. cit. supra note 6, C. 2, pages
20-26.
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22048 CONGRESSIONAL RECORD ? SENATE
prehensive free population plan is that pro-
posed by Thomas Hare in 1859 rg and en-
thusiastically championed by John Stuart
Mill as a system of "personal representa-
tion * * * among the very greatest improve-
ments yet made in the theory and practice
of government?' a8
It is not suggested here that all, or any
one, of the schemes heretofore tried or
espoused would be advisable for adoption by
any of the United States. But, it is insisted
that insofar as the Federal courts, by im-
plementation of Baker v. Carr or otherwise,
impose upon the States an obligatory for-
mula of geographically equal districting it
will irretrievably dilute and weaken State
government.
? The hazard from diminution of State
government is not primarily the risk of
offense taken by the States on account of
some vague invasion of sovereignty. The
hazard is that it will preclude or discourage
pragmatic experimentation into political
ways and Means which characterizes a viable
government. In an earlier day, the Court
observed:
"The science of government is the most
abstruse of all sciences; if, indeed, that can
be called a science which has but few fixed
principles, and practically consists in little
more than the exercise of a sound discretion,
applied to the exigencies of the state as they
arise. It is the science of experiment." ??
The significance of that experimentation
?
was dramatically revealed by the talented
British observer, James Bryce:
"It has been truly said that nearly every
provision of the Federal Constitution that
has worked well is one borrowed from or
suggested by some State constitution; nearly
every provision that has worked badly is
one which the convention, for want of a
?precedent, was obliged to devise for itself."
Dicey once characterized the United States
as "A nation concealed under the form of a
federation," 41 Baker v. Carr moves inescap-
ably to confirm that observation. It does
more than move from the States to the Fed-
eral Government jurisdiction over problems
now of national scope. It tends to under-
mine the health of State government, and
its consequences should not be underrated.
Mr. MANSFIELD. Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. Does the
Senator yield time?
Mr. MANSFIELD. Mr. President, will
the Senator from Illinois yield time from
his side?
Mr. DIRKSEN. I yield time.
The PRESIDING OrviCER. The
clerk will call the roll.
The Chief 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 (Mr. Mc-
INTYRE in the chair). Without objec-
tion, it is so ordered.
? Mr. DIRKSEN. Mr. President, on the
12th day of August the Senate began
37 Hare, "The Election of Representa-
tives."
28 J. S. Mill: "On Representative Govern-
ment," c. 7. For current support to a com-
parable plan, see Prof. Charles V. Laughlin's
article, "Proportional Representation: It Can
Cure Our Apportionment Ills," 49 A.B.A.J.
1065 (1963).
"Anderson v. Dunn, 6 Wheat. (19 U.S.)
204, 226.
40 1 Bryce, "American Commonwealth," 35
(3d ed.).
41 Dicey, "Introduction to the Law of the
Constitution," (9th ed. 1939) App. 604.
consideration of the Dirksen-Marisfield
amendment to the pending bill. That
was 6 weeks ago. For 6 weeks, with some
variation, we have been on this matter.
For a good many weeks the Senate has
done exactly nothing except to consider
the pending business. The majority
leader was kind enough to agree with
my contention that it should not be set
aside for any other business, including
the Senate calendar.
So, at long last, we are up to the point
where, perhaps, God willing, we can dis-
pose of this matter one way or the other.
We have witnessed the filibuster during
all this time by the very Senators who
have always found the filibuster to be a
hideous device. It depends entirely
upon whose ox is gored.
We?speaking for myself and other
Senators?would not accept the bill with-
out this amendment. They, on the other
hand, would not accept the bill with the
amendment. Therefore, we experienced
the ensuing stalemate.
I must say that the action has not been
willful. But at least there has been a
misrrepresentation of what I believe is
the basic issue. We have never obscured
it. We have endeavored not to permit it
to be obscured, if we could help it.
We started with the premise that was
laid down in the dissenting opinion of
Justice John Marshall Harlan, that the
14th amendment did not clothe any agen-
cy in the Federal Establishment?or even
the Supreme Court for that matter?with
the authority under the equal protection
clause to dip into a matter of the com-
position of State legislatures. It was
that simple. That wits the burden of the
Harlan decision. It was supported, I be-
lieve, by all the historic documents that
any decision ever required.
We were not able, in the compass of
time within which this Congress would
still be alive, to maneuver a constitution-
al amendment. In view of the fact that
the shortest period of time within which
to secure ratification of an amendment is
7 months, it could not be consummated.
Therefore, we had to resort to a statutory
proposal to make the Supreme Court de-
cision in the Reynolds against Sims case
inapplicable where there was an applica-
tion to stay it from being applied under
certain circumstances.
That was the burden and the purport
of the original Dirksen-Mansfield pro-
posal. It is that condition which brought
about the stalemate in the proceedings
of the Senate.
We had intended to follow it up in the
next Congress, immediately, with a joint
resolution calling for a constitutional
amendment; and that we shall still do.
We have not seen anything yet, so far
as this decision is concerned. Only a
handful of States have thus far been
affected. Wait until the rest of the
States become involved.
Justice Harlan put it very clearly when
he said that this is the beginning of a
trend or a movement that must reach out
into the other 44 States of the Union.
When all of them are affected, I believe
we shall discover that this is indeed an
incandescent national issue. And it will
remain that way until it has been re-
solved.
September 24'
Ithas been stated that in terms of the
language offered by my distinguished
friend the senior Senator from Montana
[Mr. MANSFIELD] in the Mansfield sub-
stitute, the court can do nothing other
than act reasonably in view of all the
debate. Let us examine that statement
for a moment.
This debate started on the 12th day
of August, 6 weeks ago. Only last Fri-
day a three-judge court in the State
across the river, the Commonwealth of
Virginia, hacked up the senate of that
State, cutting in two the terms of sena-
tors who were elected in 1962 for a 4-
Year. term, under the law and the Consti-
tution of the Commonwealth of Virginia.
Yet, this debate had been going on for
6 weeks. That court chamber is within
a stone's throw of this Chamber. If the
justices of that court had not taken ac-
count of the debate by last Friday, I
ask in all conscience whether they ever
will take account of all the debate that
has taken place here.
The substitute of my friend the senior
Senator from Montana is predicated on
a' false hope and an illusion that will
never become a reality. The court will
do precisely what it did in the Oklahoma
case.
In that case, the court made that clear
In language that was unmistakable, when
it said; "This is a matter not of our do-
ing, and we intend to apply the decision
of the Supreme Court of the United
States."
The rest is very simple. The resolu-
tion, in its first sentence, begins, "It is
the sense of Congress"?we do not have
to read further. It makes no difference
what else is written in that resolution.
It has no validity. It has no legal effect.
That was amply demonstrated in the So-
viet wheat case. ,The Attorney General
researched all the cases and said that if
Congress intended to take positive and
affirmative action, it would have said so
instead of relying upon the language that
it is a declaration of policy, or the sense
of Congress.
, My regard for my distinguished friend,
the senior Senator from Montana, being
what it is, I can only say, if I propose
to be candid with the Senate, that this
document is not worth the paper upon
which it is printed, so far as concerns
its impact or binding effect upon the Su-
preme Court, or any other Federal spurt.
It is a prayer. It is a hope. It is an
entreaty. It is as much as to say,
"Please, sir"? and then to be ignored as
the Commonwealth of Virginia was ig-
nored last week when the blow fell. It
was a blow, indeed, as everyone who
reads the press knows.
So what we shall vote on directly will
be the substitute proposed by the distin-
guished majority leader for what he and r
I originally proposed, the Dirksen-Maris-
field proposal, which had some teeth in it
and made it possible for a Governor, an
Attorney General, and a member of the
State legislature to go before a court and
file an application for a stay of proceed-
ings until two things could happen: First,
that a regular session of the legislature
would act?
The PRESIDING OFFICER. The
time of the Senator has expired.
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1964- CONGRESSIONAL RECORD ? SENATE
Mr. MANSFIELD. Mr. President, I
yield 2 additional minutes to the Senator
from Illinois.
The PRESIDING OFFICER. The
Senator from Illinois is recognized for
2 additional minutes.
Mr. DIRICSEN. Second, that there
would be an election under the State con-
stitution and State law. The language
of the amendment is meaningless so long
as it is nothing more than an expression
of the sense of the Congress.
So I earnestly hope that the Senate
this afternoon will vote down the Mans-
field substitute, first, because it is mean-
ingless; second, because it would settle
exactly noth1ng; third, because the issue
would continue to engross the attention
of every State of the Union. That is no
way to resolve the question.
So I can Only hope that the amend-
ment will be voted down and that we can
recur to the original Dirksen-Mansfield
proposal and have it approved before the
afternoon runs out.
I had intended to offer a motion to
table the amendment. I have decided
not to do so. I think it is just as well
for the Senate to vote on the merits of
the Mansfield substitute and resolve it
once and for all.
I am grateful for the time yielded to me
by my distinguished friend, the majority
leader.
Mr. HOLLAND. Mr. President, will
the Senator yield?
Mr. DIRKSEN. If I have any time
remaining, I yield.
Mr. HOLLAND. As the Senator
knows, I returned from Miami. When
I left there my understanding was that
the Senator from Illinois would move to
lay on the table the amendment of the
Senator from Montana. Why has the
distinguished Senator decided not to
make such a motion?
Mr. DLRICSEN. Because there might
be two rollcalls covering the same
amendment. There might be a motion
to table, and then another rollcall on
the merits of the amendment. Instead
of going through that process, we thought
it would be just as well to vote on the
substance of the resolution, because I be-
lieve Senators know what is in it.
? The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. HOLLAND. Mr. President, will
the Senator from Montana yield a min-
ute to me?
Mr. MANSFIELD. I yield 1 minute.
Mr. HOLLAND. So far as I am con-
cerned, I would rather have the two is-
sues presented, because I would like to
vote on a motion to table the Mansfield
substitute. I believe it is much weaker
and much less desirable than the original
Dirksen-Mansfield amendment. Then
if we should lose on that measure, we
might have to take iomething much
weaker than we want to take.
Mr. DIRKSEN. The Senator may have
that opportunity. 1VIy understanding is
that the distinguished Senator from Ore-
gon [Mr. MORSE] proposes to move to
table the original Dirksen-Mansfield
amendment. So there will be a vote on
that question.
Mr. KEATING. Mr. President, will
the Senator yield to me?
Mr. MANSFIELD. I yield 1 minute to
the distinguished Senator from New
York.
Mr. KEATING. I support the Mans-
field resolution expressing the sense of
Congress that Federal courts should al-
low the State Governments more time
for redistricting of legislative seats.
This resolution is a necessary and re-
sponsible affirmation both of the need for
legislative reapportionment in certain
cases and of the practical difficulties of
accomplishing equitable reapportion-
ment under a restrictive time schedule.
This resolution seems to me the only
feasible method of resolving the impasse
which has developed.
I also favor and will support a consti-
tutional amendment to permit appor-
tionment of one house of the State leg-
islature on a basis other than strict
Population statistics. If the voters of
a State choose to make provision in one
house of the legislature for special town,
county, or city representation through a
statewide referendum or other equitable
procedures, I believe they should not be
barred from taking such action. The
vitality of local government often de-
pends upon the ability of local govern-
mental bodies as well as individual citi-
zens to make their voices heard in legis-
lative councils.
The Supreme Court's action stems di-
rectly from the failure of Congress and
State legislatures to take appropriate ac-
tion themselves, to remedy gross abuses
in legislative districting. In the 87th
Congress, I authored a resolution with
Senator CLARK, DOUGLAS, HART, JAVITS
and Scow to provide for a complete
study of population disparities in con-
gressional and State election districts.
Had my resolution been adopted, the
study might well have culminated in
congressional initiative to remedy in-
equitable districting and thus might have
obviated the need for judicial inter-
vention.
Since the Congress and the legislatures
did not act, the Supreme Court per-
formed a necessary service in bringing
this issue to the forefront of U.S. po-
litical thinking. Nevertheless, the words
of the Supreme Court Justices must be
viewed not as the end but as the be-
ginning of a responsible national review
of legislative apportionment.
This sense of Congress resolution will
allow the people of the United States,
the 50 State legislatures, and the Con-
gress full opportunity to review the terms
of proposed constitutional amendments.
It will encourage full-fledged national
debate on the underlying principles of
legislative authority.
It therefore becomes-the obligation of
those with knowledge and experience in
public and particularly legislative life
to study the questions raised by the Su-
preme Court decision. This can be done
better by a thorough and judicious de-
bate of proposed constitutional amend-
ments than by hastily contrived make-
shifts. Certainly, the Mansfield resolu-
tiOn should make clear to all Federal
courts that reapportionment is an issue
which will demand national attention for
some time to come.
22049
Mr. MANSFIELD: I yield 1 minute
to the Senator from Ohio.
REAPPORTIONMENT: LEITER OF CHARLES P. TAFT
Mr. YOUNG of Ohio. Mr. President,
the debate on the pending amendment
regarding the Supreme Court reappor-
tionment decisions is one of the most
Important- and far-reaching legislative
proposals ever to come before the Sen-
ate. Within the past few weeks this im-
portant matter has engaged the atten-
tion of thoughtful Americans throughout
the Nation and has assumed the propor-
tions of a great national debate.
How the Senate disposes of this legis-
lative proposal will shape the form of
our State and Federal Governments and
the lives of all Americans for generations
to come. In effect, it is a civil rights bill
of the highest magnitude, for it affects
the voting rights of well over half of the
citizens of our Nation.
My position is clear. I favor the Su-
preme Court decision, although I regret
that it was necessary for the Federal
courts to intervene. However, had the
States taken the necessary corrective
action, it would not have been necessary
for the Supreme Court to rule on this
matter. The people who are tieing de-
prived of fair representation?for the
most part Americans living, in metro-
politan areas?had no alternative but to
appeal to the Federal courts once their
petitions were rejected by their State
courts.
MY opponent, in Ohio, for election as
U.S. Senator voted for the Tuck bill. It
would attempt to strip the Supreme
Court of its power to rule on reappor-
tionment cases. In effect, this was not
only a bill affecting reapportionment,
but also a direct attack on one of the
three coordinate branches of our Federal
Government and therefore an attack on
the very composition of our Government.
He has also indicated that he favors the
amendmenut pending before the Senate.
Mr. President, on September 8, 1964,
there appeared in the Columbus Citizen-
Journal, a great newspaper of my State,
a letter to the editor from Charles P.
Taft, an outstanding American who has
served his community, State, and Nation
well over the years. Charles P. Taft is
the brother of the late Senator Robert
Taft and the uncle of my senatorial op-
ponent. His letter is a cogent and con-
cise summary of the one-man, one-vote
concept central to the debate. It is a
strong defense of the Supreme Court de-
cision. I commend thjs letter to my col-
leagues and ask unanimous consent that
it be printed in the RECORD at this point
as part of mY remarks:
There being no objection, the letter
was ordered to be printed in the RECORD,
as follows:
CHARLIE P. TAFF DISSENTS
DEAR MR. EDITOR: I note with interest
your editorial on apportionment of State
legislatures. Your argument is summarized
in the last paragraph, which read as follows:
"Why shouldn't it be made constitutional
for the voters of Ohio, for instance, if they
so choose, to set up one house of its legisla-
ture on an other-than-population basis to
keep Cuyahoga County from dominating its
legislature?"
You neglect one very important historical
fact. The ' Constitution provided for two
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22050 CONGRESSIONAL RECORD ? SENATE September 24
Senators from each State as the "great com-
promise" essential to secure the ratification
of the Constitution. The smaller States
would not have gone along except on this
basis.
The great compromise has been damned
at frequent intervals since 1787, especially
after events like the defeat of the League
of Nations by the Senate in 1920, or the
kowtowing to the "silver" Senators at vari-
ous times in the last 30 years before silver
became scarce.
Your suggestion of one house not based
on population, designed to protect the rest
of the State from Cuyahoga County, clearly
implies that the people of Cuyahoga County
are somehow second-class citizens.
In 1647, the famous Putney debate took
place between Cromwell and the Levellers
who were the representatives of Cromwell's
army. Cromwell claimed that if anything
but property qualifications qualified a man
to vote, then those without property, being
more numerous, would take the property
away from those that had it.
The Levellers insisted that the poorest
man in England had a life to live as much
as the richest man, and "Therefore, sir, I
think it is clear that no man should be under
a government except by his own consent."
Cromwell has been proven wrong, and the
Levellers right.
This is the heart of our democracy, and
your proposal rejects it.
Mr. MANSFIELD. I yield 1 minute to
the Senator from Missouri.
Mr. SYMINGTON. Mr. President, I
support the revised Mansfield reappor-
tion amendment.
It has now become clear that, should
the Senate fail to approve this amend-
ment, in all probability Congress would
not act in this area during the present
session.
The pending amendment would ex-
press the sense of Congress that the next
election of members of the State legisla-
tures, following the effective date of this
act, be conducted in accordance with the
laws of such State which were in effect
on September 20, 1964.
In addition, the amendment would
give the State legislatures an opportu-
? nity to reapportion themselves.
By adopting this amendment, we would
? also avoid serious constitutional ques-
tions raised by other proposals; and,
clearly, nothing would be gained by now
adopting an amendment which later
_.. might be declared unconstitutional by
the courts.
My support for this proposed substi-
tute amendment does not, in any way,,
change my intention to cosponsor, or, if
need be, to introduce, a constitutional
amendment which would allow the peo-
ple of each State, if they so desired, to
apportion representation in one house of
their legislature-on some basis other than
population alone.
Mr. MANSFIELD I yield 2 minutes
to the Senator from Iowa.
Mr. HICKENLOOPER. Mr. Presi-
dent, in the August issue of the Farm
Journal, the largest of our farm publica-
tions, appeared an article relating to the
Supreme Court decision. I would like to
read a few paragraphs from that article.
In one sweeping, historic gesture, the U.S.
Supreme Court has voted (6 to 3) to:
Reach- down into each State and remake
the State legislatures across the land.
The Court has ordered that States must
stir themselves to district both houses of
their State legislatures on the basis of popu-
lation?and the population in each district
must be "substantially equal." This is likely
to force 40 or more States to revamp their
legislatures.
This will toss into the ashcan one of the
basic, time-honored cornerstones of our sys-
tem of American representative government.
Since colonial days, States and the Federal
'Government have selected one house on the
basis of population, and the other house
partially or entirely by area. It has been
one of the vital parts of our check-and-bal-
ance governmental system.
? The new Court decision shears farm people
of a good share of the influence they've had
In their State governments.
A -State senate based largely on area per-
mits representatives of farm sections to better
serve widely scattered farm people and their
economic and minority interests."
? Also it has served as a brake against popu-
lation centers running off with all the mar-
bles, or imposing the "tyranny of the ma-
jority"?a point held dear by the Founding
Fathers.
If this Court decision stands, it will bring
one of the most sweeping overnight changes
in American government since the Revolu-
tion. Farmers and rural areas will feel it
most.
Mr. President, I do not believe that
farmers should be confused about
who is doing what to whom.
Judging by the vote on the previous
McCarthy, Javits, Humphrey substitute
for the Dirksen amendment, the over-
whelming support for leaving the Su-
preme Court decision unclistrubed is the
? Democratic Party and the leadership of
the Democratic Party.
Many of those who profess to be the
best friends that farmers have are behind
this effort to curtail farmers' influence in
State legislatures.
I had welcomed the assistance of the
distinguished majority leader, in his co-
operation with the minority leader, to
give the people, the States, and the Con-
gress a little time to analyze this issue
and to perhaps find a better answer to
the situation created by what Justice
Harlan called the Draconian decision
. of the Supreme Court.
I must express my disappointment that
the majority leader has now switched
sides and is supporting action which is
little better than no action so far as any
. influence it may have on the future
course of events is concerned. ,
The President has been silent on this
matter. Yet, what conclusion can we
draw with respect to his position when
? we note that the Senate majority leader
and the Senate assistant majority leader,
. the Democratic candidate for the vice-
presidency, are the leaders in the effort
to set aside meaningful action and sub-
stitute the feeble admonishment of the
substitute now offered.
It is a great disappointment to me that
- the President and the Democratic vice-
? presidential candidate could not have
taken what I would consider to be a broad
gage statesmanlike approach to the is-
sue, even though it may be their personal
view that the Supreme Court decision
should stand undisturbed. It seems to
me that consistent with this view they
might have advocated a procedure that
would give the people of , the United-
States an opportunity and a little time-
to look at the issue and to reach. a con-
sensus of national opinion by this process.
The people are to have nothing to say
about this issue if the counsel of the
Democratic leadership is to prevail. By
the time this Congress meets again and
is organized to do anything, the courts
.will have foreclosed the issue in many
States.
It seems to me that under these cir-
cumstances the President and the Demo-
cratic vice-presidential candidate might
well have said to the country: This is an
exceedingly important issue. It involves
a basic reorganization of State legisla-
tures in most of the States. It appar-
ently involves, too, a basic reorganiza-
tion of the structure of many county and ,
city governing boards. It involves the
most important and far-reaching consti-
tutional change of our time.
We need not therefore hurry. We
-should proceed to debate the issue at
every level. After all, our government
structure has existed for 170 years, and
It has not been an unsuccessful structure.
So we should hold the issue in abeyance
for a short time?giving an opportunity
to debate the issue?to reach a consensus
of national opinion. Let the democratic
process prevail.
Yes, I think the President and the
Democrat vice presidential candidate
might have and should have advocated
this approach, even though it may be
their personal opinion that representa-
tion on both bodies of every State legis-
lature and on the governing boards of
local units of government should be on
a strictly population basis.
I think this approach to the problem
would have brought commendation from
all concerned, would have been' welcomed
by almost everyone, irrespective of what
their individual views might be.
So let us not be confused?let us recog-
nize that it is the leadership of the Demo-
crat Party that is telling us today that
the issue should be settled now?as it
would probably be settled by the pro-
posed substitute offered us today?that
the people and State governments should
be foreclosed from having any say as to
the disposition of the matter, that there
shall be no national debate of the issue
before it is settled. This proposal offered
us today is not in my view the way the
most important constitutional issue of
our time should be decided.
So let us not be confused. Those who
hold out to farmers one hand in friend-
ship, but who stab them in the back with
a pitchfork with the other, cannot con-
sistently pose as their friend. No talk
of how much they love farmers can hide
what they propose to do to farmers and
the manner in which it is proposed to be
done.
Mr. MANSFIELD. Mr. President, I
suggest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. MANSFIELD. Mr. President, I
ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. MANSFIELD. Mr. President?
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CONGRESSIONAL RECORD ? SENATE 22051
The PRESIDING OFFICER. The
Senator from Montana is recognized.
Mr. MANSFIELD. Mr. President, yes-
terday, when I introduced the pending
substitute amendment?and I was under
no illusion?I gave the background which
dictated the necessity of making a fur-
ther effort in changing the original lan-
guage in view of the total stalemate that
had developed in this body. When the
will to talk shows no sign of waning,
when the listeners demonstrate the in-
ability to invoke cloture, when the body
as a whole refuses to table the measure,
it is clear the rules provide no further
remedy; then reasonable and responsible
men must at that point make some fur-
ther effort. The distinguished majority
leader did just that. We sat down in an
attempt to rework our original language
to take into account the criticism that
had been directed at it. We did this, but
we found that even the new language
promised more weeks of educational
debate.
I conferred again with the distin-
guished minority leader; he has had
, strong views on this measure from the
beginning. He had demonstrated on two
separate occasions his willingness to ad-
just greatly his original views in the
effort to work out a solution.
It would have been -unreasonable of
me to insist at this point for the minority
leader to go to the well with me again
when on our last two trips we found it
dry.
I regret that some have interpreted
the proposals on this matter offered by
the minority leader and myself consti-
tuted an uneasy alliance. Nothing could
, be more untrue. The minority leader's
intentions in this matter have been made
very clear on several occasions. They
halve, I must admit, differed from mine.
The language we worked out, however,
did injustice to neither of our intentions.
I have been interested from the be-
ginning in extending to the States the
hand of reasonableness, on a deliberate
speed basis, in adjusting to the Consti-
tution as interpreted by the Supreme
Court, while at the same time confirm-
ing the basic precepts of our land that
the Supreme Court is vested with the
final authority in interpreting our Con-
stitution and that the Constitution can-
not be suspended for any period of time,
for any purpose without the adoption of
a constitutional amendment. The lan-
guage we worked out on both occasions
would clearly effectuate this purpose
without abusing these basic precepts.
The language presently before us is en-
tirely consistent with this purpose and
this responsibility. I have chosen this
path?to offer this substitute alone?be-
cause I realize the realities of the pres-
ent parliamentary stalemate and the re-
sponsibility of the leadership position
which dictated a third and somewhat dif-
ficult trip to the well.
I am convinced that this present sub-
stitute will both express the keenness of
11he congressional interest in the reap-
portionment problem and show what
course of action this -deliberative body
considers most effective in permitting the
No. 184-9
States to adjust to this constitutional
mandate.
I urge the adoption of the substitute.
Mr. DIRKSEN. Mr. President, a par-
liamentary inquiry.
The PRESIDING OFFICER. The
Senator will state it.
Mr. DIRKSEN. Do I correctly under-
stand that the question will be on the
Mansfield substitute for the original
Dirksen-Mansfield amendment, and that
the substtiute is a "sense of Congress"
resolution?
The PRESIDING OFFICER. The
Senator is correct.
Pursuant to the unanimous-consent
agreement entered into yesterday, the
hour of 2:30 p.m. having arrived, the
Senate will now proceed to vote.
The question is on agreeing to the
modified amendment of the Senator
from Montana [Mr. MANSFIELD] in the
nature of a substitute for the Mansfield-
Dirksen amendment to the Foreign As-
sistance. Act of 1961. On this question
the yeas and nays have been ordered,
and the clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. BYRD of West Virginia (when his
name was called) . On this vote I have
a pair with the Senator from Washing-
ton [Mr. JACKSON]. If he were present
and voting, he would vote "yea." If I
were at liberty to vote, I would vote
"nay."
Mr. SMATHERS (when his name was
called) . On this vote I have a pair with
the senior Senator from Minnesota [Mr.
HUMPHREY] . Were he present and vot-
ing, he would vote "yea." Were I at lib-
erty to vote, I would vote "nay." I
therefore withhold my vote.
Mr. SYMINGTON (when his name was
called) . On this vote I have a live pair
with the senior Senator from Louisiana
[Mr. ELLENDER] . If he were present and
voting, he would vote "nay." If I were
at liberty to vote, I would vote "yea." I
therefore withhold my vote.
The rollcall was concluded.
Mr. MANSFIELD. I announce that
the Senator from Idaho [Mr. CHURCH],
the Senator from Louisiana [Mr. ELLEN-
DER] , the Senator from Minnesota [Mr.
MCCARTHY] , and the Senator from Alas-
ka [Mr. GRUENING] are absent on official
business. ?
I also announce that the Senator from
Massachusetts [Mr. KENNEDY] and the
Senator from Alabama [Mr. HILL] are
absent because of illness.
I further announce that the Senator
from Nevada [Mr. CANNON] , the Senator
from Mississippi [Mr. EASTLAND] , the
Senator from Minnesota [Mr. Hum-
PHREY] , the Senator from Washing-
ton [Mr. JAcxsoN], and the Senator
from Oregon [Mrs. NEUBERGER] are nec-
essarily absent.
I further announce that, if present and
voting, the Senator from Alaska [Mr.
GRUENING] , the Senator from Idaho [Mr.
CHURCH], and the Senator from Massa-
chusetts [Mr. KENNEDY] would each vote
"yea."
On this vote, the Senator from Ne-
vada [Mr. CANNON] Is paired with the
Senator from Oregon Mrs. NEUBERGER].
If present and voting, the Senator from
Oregon would vote "yea," and the Sen-
ator from Nevada would vote "nay."
On this vote, the Senator from Mis-
sissippi [Mr. EASTLAND] is paired with
the Senator from Massachusetts [Mr.
KENNEDY] . If present and voting, the
Senator from Massachusetts would vote
"yea," and the Senator from Mississippi
would vote "nay."
On this vote, the Senator from Min-
nesota [Mr. MCCARTHY] is paired with
the Senator from Texas [Mr. TOWER]. If
present and voting, the Senator from
Minnesota would vote "yea," and the
Senator from Texas would vote "nay."
Mr. KUCHEL. I announce that the
Senators from Kansas [Mr. CARLSON and
Mr. PEARSON] , the Senator from Arizona
[Mr. GoLDw&TEx], and the Senator from
Texas [Mr. TowEs] are necessarily ab-
sent.
On this vote, the Senator from Texas
[Mr. TOWER] is paired with the Senator
from Minnesota [Mr. McCemTny] . If
present and voting, the Senator from
Texas would vote "nay," and the Sena-
tor from Minnesota would vote "yea."
If present and voting, the Senators
from Kansas [Mr. CARLSON and Mr.
PEARSON] would each vote "nay."
The result was announced?yeas 44,
nays 38, as follows:
[No. 580 Leg.]
YEAS-44
Anderson
Bartlett
Bayh
Beall
Brewster
Burdick
Case
Clark
Dodd
Douglas
Edmondson
Fulbright
Gore
Hart
Hartke
Aiken
Allott
Bennett
Bible
Boggs
Byrd, Va.
Cooper
Cotton
Curtis
Dirksen
Dominick
Ervin
Fong
Hayden
Inouye
Javits
Keating
Kuchel
Long, Mo.
Long, La.
Magnuson
Mansfield
McGee
McGovern
McIntyre
McNamara
Metcalf
Moss
NAYS-38
Hickenlooper
Holland
Hruska
Johnston
Jordan, N.C.
Jordan, Idaho
Lausche
McClellan
Mechem
Miller
Monroney
Morse
Morton
Muskie
Nelson
Pastore
Pell
Proxmfre
Randolph
Ribicoff
Salinger
Scott
Smith
Walters
Williams, N.J.
Yarborough
Young, Ohio
Mundt
Prouty
Robertson
Russell
.Saltonstall
Simpson
Sparkman
Stennis
Talmadge
Thurmond
Williams, Del.
Young, N. Dak.
NOT VOTING-18
Byrd, W. Va. Goldwater McCarthy
Cannon Gruening Neuberger
Carlson Hill Pearson
Church Humphrey Smathers
Eastland Jackson Symington
Ellender Kennedy Tower
, So Mr. MANSFIELD'S substitute amend-
ment, as modified, for the amendment
proposed by Mr. DIRKSEN and Mr.
MANSFIELD (No. 1215), was agreed to.
Mr. ANDERSON. Mr. President, I
move to reconsider the vote by which the
amendment to the amendment was
agreed to.
Mr. MANSFIELD. Mr. President, I
move to lay that motion on the table.
The motion to lay on the table was
agreed to.
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22052 CONGRESSIONAL RECORD? SENATE
Mr. MORSE. Mr. President, I have a
brief statement which I shall read pre-
paratory to moving to lay on the table
the Dirksen amendment as amended by
the Mansfield substitute as modified.
I assure Senators that I shall not make
my motion without providing adequate
time to other Senators to discuss the mo-
tion. I wish to make a brief statement,
and then I should like to have an under-
standing with the leadership that I may
withhold my motion to lay on the table
for the purpose of debate. After that I
shall have an opportunity to make my
motion.
The PRESIDING OFFICER (Mr. Mc-
INTYRE in the chair) . The Chair in-
forms the Senator from Oregon that
under the unanimous-consent agreement
entered into previously the time is con-
trolled, with 15 minutes allowed to each
side.
Mr. MORSE. I shall need only 3 or
4 minutes to read my statement.
Mr. President, whenever I drive down
a highway that carries a billboard
screaming: "Impeach Earl Warren" I
renew my determination that so long as
I am able, I shall do all in my power to
defeat and offset all such assaults upon
this great Chief Justice and the Court
he heads, from whatever source.
? During the 1940's, when the Supreme
Court was also reversing decisions of
long standing and opening new areas of
personal liberty for the American people
through application of the Bill of Rights
and the 14th amendment, it was known
as the Roosevelt Court. It was known
for the man who? appointed the Justices.
But the Court of the 1950's and 1960's
is known for the man who is its chief.
It is called the Warren Court, not the
Eisenhower Court.
Under the magnificent leadership of
Earl Warren, the Federal judiciary has
been the protector, advocate, and guard-
ian of the personal liberties of American
citizens. It has, despite all the distor-
tions to the contrary, advanced the per-
sonal liberty of individuals by protecting
them from encroachments by all levels
of government, both local and Federal.
The courts have come under attack
only because they have extended judicial
protection to many liberties not previ-
ously protected by the courts. The Su-
preme Court has come under attack
only because it has upset some long-
practiced and long-established infringe-
ments upon personal liberty that an-
other significant body of citizens prof-
ited from in one way or another.
The courts came under attack when
they put to an end many actions and
practices of State, local, and Federal
Governments that infringed upon or de-
nied to individuals or to whole classes
of citizens personal freedoms that theo-
retically were theirs under the Constitu-
tion.
Despite all that is being said in this
election campaign about alleged en-
croachments of "big government," all al-
legations that the Federal Government is
taking away all our personal freedoms,
the fact remains that the U.S. Supreme
Court has in the last dozen years greatly
advanced and expanded the personal
freedoms of the American people.
Many did not think so because it was
the liberty of others than themselves that
was advanced. In many cases, it was the
personal rights of minorities over whom
the majority long enjoyed some sort of
wardship, or guardianship. The Court
met with disapproval for advancing the
rights of persons whose rights the critics
did not want advanced.
But every protection of free speech,
every protection of freedom of religion,
every protection of freedom of the press,
every protection of due process of law,
every protection of the right to assemble
peacefully and to petition Congress, every
protection of equality before the law,
advance the freedom of every citizen in
these areas.
In nearly all cases, these freedoms were
advanced against government, often the
Federal Government.
We' are engaged in a presidential cam-
paign in which the Supreme Court has
become a niajor target for bombardment,
although because of our historic tradi-
tion, its members cannot and do not
reply.
Every day, in this political campaign
attempts are made to gain votes at the
?
expense of the Supreme Court. He
knows there will be no reply and no de-
fense from its members.
Attackers of the Court know that this
is the cheapest possible way to campaign,
because they are able to beat a horse that
is tied, gagged, muzzled, and hobbled. _
In attacking the Supreme Court, they
are not attacking a McNamara, or a
Johnson, who not only can answer but
can make some attacks of their own.
Enemies of the Court are maligning for
their own political purposes- the one
branch of our Federal Government that
is outside of campaign politics.
This attack comes from those who have
been trying to convince the American
people that big government is taking
away all their liberties. If any group or
institution is going to protect the Ameri-
can people from governmental infring-
ment upon their liberties, it is not the
enemies of the Court, but the very Su-
preme Court and lower courts they are
so anxious to discredit.
Last Sunday, there appeared in the
Eugene Register-Guard, of Eugene,
Oreg., an Associated Press story entitled:
"Earl Warren Still Presides in Silence
and Serenity." It is a summary of the
reasons why the Supreme Court is a cen-
tral point of political attack in this presi-
dential campaign, and I ask unanimous
consent that it be printed in the RECORD
at the conclusion of these remarks. .
The PRESIDING OFFICER. With-
out objection, it is so ordered.
(See exhibit 1.)
Mr. MORSE. Mr. President, the
Mansfield substitute approved today can
be called a victory only to the extent
that it is not as bad as the Tuck bill, the
Dirksen amendment, and the Javits sub-
stitute.
But it still is an interference by way
of gratuitous advice from Congress into
the jurisdiction of the Federal courts.
That is why I voted against it. That is
why I continue to hope that it will dis-
appear from the foreign aid bill before
that bill reaches the President's desk.
September 24
No matter how it is sliced, this lan-
guage is still a slap at the Supreme Court
because its passage carries with it the
understanding that the Federal courts
require supervision and advice from Con-
gress. I say they do not. I say that un-
til Congress writes statutory language
enforcing the 14th amendment, which is
our only constitutional function in this
area, the Supreme Court is entirely able
to supervise the application of the equal
protection clause to the State legisla-
tures. That is its function, in the ab-
sence of enforcement legislation, just as
it was the function of the Federal courts
to supervise the application of the equal
protection clause to racial discrimina-
tion during the 10 years when there was
no enforcement legislation.
I plead with Congress not to aid and
abet the current campaign against the
Federal judiciary by tossing off, with-
out the benefit of so much as 1 day of
public hearings, this unwarranted rebuke
of the Supreme Court.
Let Senators not forget that Earl War-
ren is not Chief Justice of the Supreme
Court, but Chief Justice of the United
States. He is the top judicial officer of
the Federal court system. Senators who
have been saying that the Mansfield sub-
stitute is directed only at the district
courts and not at the Supreme Court at
all seem to be uninformed of the fact
that the Chief Justice and the Supreme
Court are responsible for the adminis-
tration of justice all the way down
through the district courts.
The Mansfield amendment interdicts
that authority. It substitutes the curb-
stone opinion of the Senate for the right-
ful, constitutional authority of the Chief
Justice and the Supreme Court. I sub-
mit that Earl Warren does not need any
reminder of his duty or any pointers on
equity from a Senator DIRKSEN, or MANS-
FIELD, or DOUGLAS, or GOLDWATER, OF
Mona, or from all of us together in a
collective action.
A recent television program on the his-
tory of the Presidency referred to dis-
putes between the President and Con-
gress. It included the words of Presi-
dent Jackson, when he said:
I'll not accept any resolution from those
damned rascals in the Senate.
Earl Warren might say the same of
this sense-of-the-Congress statement,
and he would be right.
. The amendment should be tabled.
Therefore, I shall move to lay on the table
the Dirksen amendment as amended.
However, I withhold my motion to table
until time has been taken to discuss my
statement or anything else, if it is un-
derstood that before the matter is dis-
posed of I shall have the privilege of
moving to table the Dirksen amendment
as amended by the Mansfield substitute
as modified.
EXHIBIT 1
[From the Eugene Register-Guard,
Sept. 20, 19641
TEN STORMY YEARS FOR SUPREME COURT: EARL
WARREN STILL PRESIDES, IN SILENCE AND
SERENITY
(By Bern Price)
(Eorroa's NoTE.?The Supreme Court has
had 10 stormy years since the famous school
desegregation decision, but Earl Warren still
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1964 CONGRESSIONAL RECORD ? SENATE 22053
presides over it, in silence and serenity. And
the storm signals are still flying as the Court,
recently concluding a momentous session,
opens a new term October 5 and prepares to
grapple with civil rights issues.)
WAsinivorox.?There are billboards scat-
tered along some of the Nation's highways
which exhort:
"Impeach Earl Warren."
Earl Warren is, of course, the 13th Chief
Justice of the United States, a three-time
Republican Governor of California, and the
Republican's 1948 vice-presidential candi-
date.
He is also head of the Commission investi-
gating the assassination of President John
Kennedy, and personally heard dozens of
witnesses. The report of the Commission is
expected shortly.
Warren took this assignment, perhaps one
of the most solemn duties he will ever per-
form, only at the insistence of President
Johnson.
Warren was 73, eligible for retirement from
the Supreme Court at full salary of $35,000
annually, when the President assigned him
the tatk. Warren accepted, though it vio-
lated his own firm belief that Supreme Court
Justices should not take outside assign-
ments.
As for the highway signs, they are indica-
tive of the deep controversy which Warren
and the Court he has headed for 11 years has
stirred among countless Americans.
Hotly defended as a protector of individual
rights against the encroachment of authority,
Warren and the Court have been just as hotly
criticized as, among other things, "being soft
on communism," usurping the legislative
powers of Congress, and basing decisions on
emotion and sociological findings rather than
on legal fact.
Senator BARRY GOLDWATER, the Republican
presidential candidate, has stated his opinion
of the Court. A week ago he told the Ameri-
can Political Science Association that the
Court had abandoned the principle of 'judi-
cial restraint with respect to acts of Congress
with which it disagreed but which are
founded on legitimate exercise of legislative
power."
GOLDWATER said he was weighing his words
carefully when he said that of the three
branches of Government "today's Supreme
Court is the least faithful to the constitu-
tional tradition of limited government."
The next day President Johnson said he
could see "nothing to be gained" by involv-
ing the Court in the campaign. Reminded
that the Court had been a live issue in the
days of Franklin Delano Roosevelt, Johnson
said that was because specific proposals had
been made (enlarging the Court) and "I
know of no such proposals now."
On his first campaign swing into the South
GOLDWATER hit the Supreme Court issue hard.
He said that if elected he would use his
power of appointment to Federal courts to
"redress constitutional interpretations in fa-
vor of the public."
He strongly attacked the, Supreme Court
decision ordering reapportionment of State
legislatures. He said he would work to over-
turn a series of Supreme Court decisions on
rights of defendants in criminal prosecutions.
He said he believed in States rights and
would use his "influence and power to see-
that law-enforcement officers, on the State
and local level, get back the power to carry
out their job."
Two decisions which fostered bitterness
against Warren were the decision 1.0 years
ago ordering desegregation in schools and
another the following year which declared
that desegregation must be accomplished
"with all deliberate speed."
In both cases, the rulings were unanimous.
There is little likelihood that Warren Will
be impeached. Even the John Birch Society,
which has been a leader in the movement,
doesn't expect it to happen.
Says John Rousselot, official spokesman for
the society:
"Actually, we know Earl Warren won't be
impeached by the Senate. What we want is
a trial there as provided by the Constitution
that will result in reestablishing where the
legislative authority resides?in Congress, not
in the courts."
While arousing the ire of rightist groups,
Warren has always considered himself a man
of the center in politics. He has described
his philosophy as "progressive conservatism,"
and while he was in politics he urged the
Republican Party to repudiate "extremists
of the right."
Warren's views once prompted Harry S.
Truman to say, "He's really a Democrat and
doesn't know it."
That some men would disagree vehemently
with the Court's interpretation of the Con-
stitution was foreseen long ago by the fourth
Chief Justice, John Marshal, when he wrote:
"A constitution is framed for the ages and
is designed to approach immortality as nearly
as human institutions can approach it. Its
course cannot always be tranquil. It is ex-
posed to storms and tempests."
But whatever can be said of the present
Court-7-called the most important in the 100
years?several things appear quite clear:
It has been a stanch advocate of indi-
vidual freedom, including the freedom to
dissent; it has been a vigorous foe of gov-
ernmental encroachment upon those free-
doms, and a notable number of decisions
in important cases have been unanimous.
The Court has made it quite plain it feels
that before the law, all men are equal, that
none can claim privileges denied to others
by reason of race, creed, or national origin.
Warren's concern with individual rights
has been manifest in a number of opinions.
He has written:
, "The abhorrence of society to the _use of
Involuntary confessions does not turn alone
on their inherent untrustworthiness. It
also turns upon the deep-rooted feeling
that the police must obey the law while en-
forcing the law; that in the end life and
liberty can be as much endangered from il-
legal methods used to convict those thought
to be criminals as from the actual criminals
themselves."
And again:
"The privilege against self-incrimination is
a right that was hard earned by our fore-
fathers. The privilege was generally re-
garded then, as now, as a privilege of great
value, a protection to the innocent through
a shelter to the guilty, and a safeguard
against heedless, unfounded or tyrannical
prosecutions."
In the 11 years, come October 5, Warren
has served as Chief Justice, few men in
judicial history have been damned and de-
nounced quite as much.
The new term of Court, opening Octo-
ber 5, offers little promise of peace between
the Court and its critics. The court has
agreed, as its first act of business, to review
the public accommodations section of the
new Civil Rights Act.
The particular case involves the barring
of Negroes from the Heart of Atlanta Motel
in Atlanta, Ga., and, by extension, the Pick-
rick Restaurant, also in Atlanta, which closed
its doors rather than serve Negroes.
Later, the Court also has on its docket
a case from Florida in which a white woman
was fined for living with a man described
as a Negro. A decision in this case will affect
miscegenation laws in all Southern States.
In still another case, the Court' will decide
whether States are barred by the Consti-
tution from using trespass laws to keep
Negroes from business establishments.
In the days when Warren was a practic-
ing politician an attack would have brought
a devastating counterattack.
"A Senator or a Governor," he once told
an interviewer, "may explain or defend his
position publicly but not members of the
Supreme Court. We can't be guided by what
people think or say, except in legal dis-
cussion. We can't be guided by public
appraisal. If we did, we'd be deciding cases
by other than legal means."
If the white-haired Warren is perturbed
by any of the criticism it rarely shows. He
still turns a sunshiny smile upon the world
and finds refuge amid the highly partisan
crowds at football and baseball games where
he carefully refrains from booing the um-
pires.
On one occasion, however, when he was
asked whether he sometimes wished he might
reply to attacks upon the Court, he replied:
"Oh; boy. Sometimes it makes you cringe,
to see what other people say and write."
There is no doubt that in the 11 years
Warren has occupied the highest judicial
post in the land, the Court has set in motion
vast changes throughout its majority opin-
ions?opinions which go to the root of
American life.
It has ruled that:
Legislatures represent people, not trees or
acres and hence State legislatures should
be apportioned on the basis of population.
States may not segregate school children
on the basis of race, color, creed, or national
origin.
The fifth amendment's protection against
self-incrimination applies to State as well as
Federal courts.
Indigent persons are entitled to legal rep-
resentation provided by the courts in both
State and Federal jurisdictions.
Bible reading and state-composed prayers
as required exercises in public schools clash
with the Constitution's guarantee against
governmental interference with religious.
Racial imbalance in schools does not vio-
late the Constitution.
A Federal law denying passports to Com-
munists was unconstitutional on its face.
These Were just some of the decisions
which stirred the passions of some men
throughout the Nation. In the last session
alone, the Court reviewed 2,410 cases?high-
est in the Court's history. ,
One decision of the past session which
aroused wide reaction, mainly among poli-
ticians, was the ruling that State legislatures
must be apportioned on the basis of popula-
tion.
What this decision does, in effect, is to end
rural domination of State legislatures.
The House of Representatives has already
passed and sent to the Senate a proposal
which would strip the Federal courts -of
jurisdiction in apportionment cases. The
bill, by Representative WILLIAM TucK, Demo-
crat of Virginia, would leave intact the Su-
preme Court's ruling that both houses of a
State legislature must be apportioned on a
population basis. But it would give the
Court no enforcement powers.
Senate Minority Leader EVERETT DIRKSEN,
Republican of Illinois, has given the Tuck
measure little chance of passage in the Sen-
ate. DIRKSEN has his own measure which
would delay enforcement of the reapportion-
ment decision for a year or two.
Whether either the Dirksen or Tuck pro-
posals can be acted upon in this session of
Congress is problematical.
Warren also wrote the 1954 school deseg-
regation decision. In that decision, which
upset some 250 years of Southern tradition,
he declared:
"Education is perhaps the most important
function of State and local governments. It
is the very foundation of good citizenship.
"We conclude that in the field of public
education the doctrine of 'separate but equal'
has no place. Separate educational facilities
are inherently unequal."
But whatever the opposition, Supreme
Court decisions have a way of hardening into
the law of the land. The passage of the 1964
civil rights legislation is indicative.
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22054 CONGRESSIONAL RECORD SENATE
In all his 11 years on the Bench, Warren
has only once come close to answering the
Court's critics. That was in 1963 before the
California Bar Association meeting at San
Francisco.
In that speech Warren said the landmark
cases of the past 10 years had been charged
with emotion, but then so were decisions of
the 1930's and 1940's.
Those earlier decisions, he said, "are now
shorn of emotion and are a part of the set-
tled jurisprudence of the Nation."
Then Warren said:
"There are many people, and, I fear, some
lawyers, who believe that whenever the Court
disapprove of some facet of American life,
it reaches out and decides the question in
accordance with its desires.
"We can reach for no cases. They come
to us in the normal course of events or we
have no jurisdiction. When they do come to
us, we decide them or we do not do our
duty."
As for those who say the Court is invading
the rights of States, Warren had this to
say:
"Where the supreme court of a State is
vigilant in its protection of constitutional
rights, as is the Supreme Court of California
few differences arise between it and the Su-
preme Court of the United States." ?
Warren concluded that speech by saying:
"Too often we find people who believe fer-
vently in that portion of the rule that pro-
tects them in their own sphere of activity
but are intolerant of that portion which pro-
tects other people.
"When we say we have a government of
laws and not of men, we mean at the very
least, that the law protects all men equally
in their property and individual rights, re-
gardless of their race, religion, color, or
wealth."
The lawyers cheered.
To the buffeted Warren, it must have been
a rare balm.
Mr. RUSSELL. Mr. President, I
should like to have 2 or 3 minutes yielded
to me by whomever is in control of the
time.
Mr. DIRKSEN. I yield 5 minutes to
the Senator from Georgia.
Mr. RUSSELL. I thank the Senator.
Mr. President, I shall vote in favor of
the motion of the Senator from Oregon
to table the amendment, but for an en-
tirely different reason from that which
he has assigned. I believe that the adop-
tion of the amendment in the form in
which it is presented would be demean-
ing to the Senate of the United States. I
shall, therefore, vote to table this sense-
of-the-Congress amendment.
If we may judge from some of its more
recent opinions, the Supreme Court does
not have a very high regard for the sense
of the Congress in the first instance. In-
deed, if we abandon so completely our
legislative responsibility and the power
vested in this body under the Constitu-
tion and assume an attitude of obeisance,
subservience, and supplication when we
have the power to pass effective legisla-
tion in this field, then the Supreme Court
is justified in believing that Congress has
no sense. ?
To me, this is a regrettable state of
affairs. I did not initiate the original
amendment. I am not sure the foreign
aid authorization bill was the proper
measure to which to offer it. But after
the matter was brought before the Sen-
ate, it had my heartiest support, and for
that I apologize to no one.
Congress is supposed to be a coequal
and coordinate branch of the Govern-
ment. Legislative power is supposed to
be vested in this body and not in any
judicial branch, anywhere, even though
it be as exalted as the Supreme Court of
the United States. That Court has lost
sight of the fact that the States created
the Federal Government. The States are
not creatures of the Federal Govern-
ment; they are the creators of the Fed-
eral Government. Not a single one of
the legislative bodies of the Original
Thirteen States was apportioned purely
on a basis of population. I agree that
one house of each State legislature should
be apportioned purely on the basis of
population. But there are sound reasons
in the whole history of human affairs, of
government, of its management, and of
society to take into consideration factors
other than the population in determining
the representation of the other body.
It is impossible for every interest and
element of our people to have their
voices heard and their interests protected
if our ever increasing urban centers are
to have the power to elect all members
of both legislative bodies. The peculiar
problems of an ever decreasing rural
population will have no attention what-
ever. They will be lost in the maneuver-
ing as the political leaders of the great
centers of population jockey for position
and p6wer.
Indeed, Mr. President, if both houses
of the State legislatures are to be chosen
on the basis of population alone there is
little reason to retain the bicameral sys-
tem?a one house legislature would be
more economical and arrive at the same
result.
To say that both houses of a State leg-
islature should be apportioned purely on
the basis of population is to invite the
creation of political bosses of political
machines in the great centers of popula-
tion, such as we have seen in the past?
machines which give rise to corruption,
graft and crime and cause people to hang
their heads in shame for many years.
When other factors are taken into con-
sideration, there are checks and.balances,
and City machines cannot control the
States. When all factors other than a
counting of heads are destroyed, a rule
by mob?by a majority of one of the
moment?is created.. That is the very
thing that the Founders Fathers sought
to avoid when they wrote the Constitu-
tion of the United States.
It was never contemplated by the
Founding Fathers that the courts should
have any such authority as to require
both houses of a State legislature to be
apportioned strictly on a basis of popula-
tion. It is an act of cowardice on the
part of Congress to back away from its
responsibility and permit the Court to
assume the powers it has in this instance.
Rather than to be put in a position of
subservience to the Supreme Court, I
shall vote to table this poor, weak, futile
gesture of Congress?a Congress that
once was respected throughout the
United States.
Mr. MANSFIELD. Mr. President, I
yield 2 minutes to the distinguished Sen-
ator from New York.
Mr. JAVITS. Mr. President, I shall
September', 2 4
vote against the motion to table. I be-
lieve that in good faith toward the people
of the country, who have watched this
battle go an in Congress, where the
middle position has finally been success-
Iul?as it so often is in this country?
we should go through with what we have
finally decided as the consensus of this
body.
The reason is that it takes as much
strength to respect a coordinate branch
of the Goverment as it does to try to
override it when we have no power to
override it. The Congress has no power
to override a constitutional interpreta-
tion by the Supreme Court, except by a
constitutional amendment. In my judg-
ment, the argument for tabling is in-
valid because we have a remedy. We
have a remedy under the supreme law,
which would have the same authority as
that which justified the Supreme Court's
decision, namely, a constitutional
amendment, and we have the power and
the right to start such an amendment in
motion. In my judgment, if we seek to
assert an authority over the Supreme
Court that we do not have, we are guilty
of exactly the same kind ' of tyranny
which those who argue for the tabling
motion have argued against the Supreme
Court. This is not strength; it is weak-
ness or pique. I hope the Senate will
not do it.
Mr. MANSFIELD. Mr. President, I
first yield 4 minutes to the distin-
guished Senator from Florida [Mr. HOL-
LAND], and then I shall yield 4 minutes to
the distinguished Senator from Ohio
[Mr. LAUSCHE] .
Mr. HOLLAND. Mr. President, I agree
with everything the distinguished Sen-
ator from Georgia [Mr. RUSSELL] said
except one thing. I do not agree with
his conclusion.
I shall vote against the motion to table
because I believe the Senate and the
House have a positive duty to perform.
When the Supreme Court goes astray, in
the judgment of any Senator or any
Member of the House, I do not know any-
where else that the people of the States
of our Nation can turn for any voice to
be raised in defense of a system they be-
lieve in and have operated under since
1789, or prior thereto, except to Con-
gress.
Another reason why I oppose the mo-
tion is that I do not care to be placed
in the position of maligning the Su-
preme Court. I stood on the floor of
the Senate and suggested, when there
was trouble in Mississippi, that the Gov-
ernor of Mississippi should obey an order
of the Supreme Court or of a Federal
court. I have always stood for obedience
to the courts. But I also stand for the
responsibility of Congress in a matter
which does not enable the people to turn
anywhere else.
It seems to me that while we are given
a very milktoast sort of amendment
now?and I am only sorry, that my dis-
tinguished leader lost faith in his orig-
inal proposal and has gone backward to
this weak, spineless proposal?
Mr. MANSPLELD. Mr. President,
will the Senator yield?
Mr. HOLLAND. At the same time, I
must vote for that, if that is all that he
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ODNGRESSIONADItECORanNATE ? 22055..
could offer, because I believe that the
Senate and House must express ,their
complete disapproval of a departure from
constitutional principles, which reach
back to the very ineeption of the Con-
stitution.
Mr. MANSFIELD. Mr. President, will
the Senator yield?
Mr. HOLLAND. I know, because I
have read every word of the debates on
the submission of the 14th amendment,
that it was stated by the sponsors of the
amendment to others on the floors of
both Houses, that Congress was leaving
out the power to do what the Supreme
Court has done in this case, and for the
very definite reason that Congress felt
that if such power were included in the
14th amendment, the amendment would
not be ratified by the States. Of course,
Congress was correct in that conclusion.
I do not favor the Supreme Court's
amending the Constitution; yet that is
what it is doing in this particular matter.
-I do not know where the people can go,
except to us, to have us lift our voices
against a procedure that we are deeply
convinced is wrong and unconstitutional.
I am not trying to impeach or to
malign anyone; I am standing for what
I think, in good conscience, is right. I
think it is the duty of the elected repre-
sentatives of the people of the States to
stand up for the constitutional privi-
leges and rights of the American people
and the States.
I regret that we are now reduced to a
very weak handling of this subject; but
I would rather do that than to sit here
and makeho effort at all, offer no voice
at all, against an encroachment that I
think marks the breakdown of important
constitutional rights and privileges. I
feel it so deeply that I shall vote for any-
thing that we have an opportunity to
vote for, which addresses itself to oppos-
ing what I think is a teriffic abuse of
constitutional authority by the Supreme
Court.
Mr. LAUSCHE. Mr. President, I con-
template voting against the motion to
table that will be made by the Senator
from Oregon. I would have preferred the.
adoption of the Dirksen amendment.
Since it-has been eliminated, I have con-
cluded that acceptance of. the status as
it is now is better than nothing at all.
I direct my remarks to the possibility
of the court listening to the suggestion
which has been made. It was argued
earlier today that the court will listen
to what we have to say. I wish I could
feel confident about the correctness of
that statement. I am somewhat dubious
about that, but although I am dubious I
still have hope and, therefore, wish to
see the Mansfield amendment, as modi-
fied, adopted.
Mr. President, to illustrate what I
have in mind, I should like to discuss the
Landrum-Griffin bill. In 1959, we had
before us the issue:- Shall secondary
boycotts be prohibited in economic
strikes of labor and management?
The Senate concluded that there shall
be no prohibition. The House decided
that secondary boycotting shall not be
allowed. Inasmuch as the House and
Senate were in conflict, a conference
committee was appointed. That con-
ference committee - made its . decision.
The former President, Senator John F.
Kennedy, was chairman of the Senate
conferees. He reported to the Senate
that the conference had agreed. Under
the agreement, secondary boycotting of
a neutral place of business was to be
prohibited.
What was permitted was the giving
out of handbills or information for radio
use. Former Senator Kennedy reported
that it was agreed that secondary boy-
cotting should not be allowed. When
that statement was made by former Sen-
ator Kennedy, the Senator from Oregon
[Mr. MORSE] obtained the floor and made
the statement:
The bill does not stop with threats and
with legalizing the hot cargo agreement. It
also make it illegal for a union to coerce or
restrain. This prohibits consumer picketing
at a neutral place of business.
After the Senator from Oregon was
finished, former Senator Kennedy took
the floor and made the, statement:
We were not able to persuade the House
conferees to permit picketing in front of
any secondary shop.
Those were the statements made to the
Senate. The Senator from Minnesota
[Mr. HUMPHREY] , the Senator from Ore-
gon [Mr. MoasE] , former Senator Ken-
nedy, and other Senators concluded
that secondary boycotting was not
?allowed.
Then began a strike in the State of
Oregon. Secondary boycotting was re-
sorted to, but secondary boycotting was
resorted to in a peculiar way. Pickets
were thrown around the Safeway Stores.
They carried signs, "Do not buy the prod-
ucts of X company." ,The case went to
the Supreme Court. The Supreme
Court, in the face of what the Senator
from Oregon had said, what former Sen-
ator Kennedy had said, and what the
Senator from Minnesota [Mr. HUM-
PHREY] had said, issued the pronounce-
ment that secondary boycotting was
allowed.
How can I, who was on the floor of
the Senate at that time, and heard the
arguments of the Senator from Oregon,
the Senator from Minnesota, and former
Senator Kennedy, forget the fact that
the Supreme Court said that we did not
do what everyone else said we did: It
is an indefensible unexplainable judg-
ment reached by the Court on the basis
of its wishes and contrary to the clear
intent of the Congress.
The proposal in the Mansfield amend-
ment is better than nothing. It is for
that reason that I shall vote for it, hop-
ing that the courts will understand that
the Nation is alarmed about what .was
done and that reasonable time should
be ?accorded to the States to amend their
constitutions, if they so desire.
Mr. DIRKSEN. Mr. President, how
stands the time?
The PRESIDING OFFICER. Nine
minutes remain.
Mr. DIRKSEN. I yield 1 minute to the
Senator from Vermont [Mr. AIKEN] .
The PRESIDING -OFFICER. The
Senator from Vermont is recognized for
1 minute.
Mr. AIKEN. Mr. President, I am dis-
appointed that the Mansfield amend-
ment was adopted. Nevertheless, it is an
expression on the part of the Senate of
disapproval of the action of the Federal
courts of this country; therefore, I shall
vote not to table it.
We must take some action in Congress
and make it our business next session.
What the courts have done is to take this
country a long way away from the demo-
cratic form of governmIent it previously
enjoyed for 170 years.
The action of the courts makes the
Government of the United States unique
among the nations of the world, in
that the United States will be virtually
the only nation in which a tribunal ap-
pointed by one branch of Government
can nullify and reverse the acts of the
legislative branch of the same Govern-
ment.
Mr. DIRKSEN. Mr. President, I yield
myself 4 minutes.
The PRESIDING OFFICER. The
Senator from Illinois is recognized for 4
minutes.
Mr. DIRKSEN. Mr. President, I shall
support the motion to table, as the dis-
tinguished Senator from Georgia [Mr.
RUSSELL] has stated, for reasons quite
other than those ascribed by the dis-
tinguished Senator from Oregon [Mr.
MORSE ] .
When the vote is taken, and assum-
ing, of course, that the motion to table
fails, the very facile gentlemen sitting
above us in the Chamber, who have an
expertise in somehow winnowing truth
from the superfluities and sending it out
on the transmission channels all over
the country,,will probably headline their
stories: "The Dirksen-Mansfield Propos-
al as Amended by the Mansfield Substi-
tute Was Approved by the U.S. Senate
This Afternoon." The people who will
read it will forget that it is nothing more
than the sense of Congress, without
validity, without legality, and without
any real admonition to any Federal court
in the land to pay the slightest attention.
If they were going to pay attention, let
me say to the distinguished chairman of
the Finance Committee, they would have
done it in his State, because we have been
discussing this issue for 6 weeks; but last
Friday the three-judge court tore his
State senate apart and cut their terms
in half.
One dares suppose that the members
of the three-judge court read the news-
papers. One dares assume that they
know what is going on in the Senate.
From that assumption, they did not pay
the least attention to any intent or pur-
pose or objective of the sense of Con-
gress that may have been uttered and ex-
pressed upon this floor in the last 6
weeks.
People will read the newspaper stories,
and some will find comfort in them.
They will say, "The Senate finally came
to the rescue of the State legislatures."
But it will be a deception. It will be an
illusion. I am not going to be a party
to fooling the people of the United States,
if I can knowingly avoid it. That is all
we will get. That is all the "sense of
Congress" resolution is. That is all the
impact it will have on the Court, even as
it did in the State of Oklahoma. The
Court said, "It was not of our making,
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22056 CONGRESSIONAL RECORD -- SENATE
and we expect you to apply the law."
They did.
It should be tabled, but not for the
reasons assigned by the distinguished
Senator from Oregon [Mr. MoasE].
Mr. MORSE. Mr. President, I shall
take only 30 seconds.
Senators have the right to criticize the
Court on the floor of the Senate and on
the political platforms of America; but
I leave them when they seek to use the
legislative process to rebuke the Court,
because when they do that I claim it to
be a violation of the separation of powers
doctrine of the Constitution. That is
the reason why I oppose it.
I move to table the Dirksen amend-
ment, as amended by the Mansfield
amendment, as modified, in the nature
of a substitute. I ask for the yeas and
nays.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the motion of
the senior Senator from Oregon to lay-on
the table the Dirksen amendment, as
amended by the modified amendment of
the Senator from Montana [Mr. MANS-
FIELD] in the nature of a substitute. The
yeas and nays have been ordered; and the
clerk will call the roll.
The Chief Clerk called the roll.
Mr. MANSFIELD. I announce that
the Senator from North Dakota [Mr.
BURDICK], the Senator from Idaho [Mr.
CHURCH], ? the Senator from Louisiana
[Mr. ELLENDER] , the Senator from Alaska
[Mr. GRUENING], the Senator from Min-
nesota [Mr. McCARTHY], and the Sena-
tor from Ohio [Mr. YOUNG] are absent
on official business.
I also announce that the Senator from
Alabama [Mr. Hut.] and the Senator
from Massachusetts [Mr. KENNEDY] are
absent because of illness.
I further announce that the Senator
from Nevada [Mr. CANNON] , the Senator
from Mississippi [Mr. EASTLAND], the
Senator from Minnesota [Mr. HUM-
PHREY], the Senator from Washington
[Mr. JACKSON], and the Senator from
Oregon [Mrs. NEUBERGER] are necessarily
absent. ?
I further announce that, if present and
voting, the Senator from Alaska [Mr.
GRUENING] Would vote "nay."
Mr. KUCHEL. I announce that the
Senators from Kansas [Mr. CARLSoN and
Mr. PEARSON], the Senator from Arizona
[Mr: GOLDWATER] , and the Senator from
Texas [Mr. TOWER] are necessarily
absent.
If present and voting, the Senators
from Kansas [Mr. CARLSON and Mr. PEAR-
soN] and the Senator from Texas [Mr.
TOWER] would each vote "yea."
The result was announced?yeas 27,
nays 56, as follows:
[No. 581 Leg.]
, YEAS-27
Allott Jordan, Idaho Robertson
Bennett McClellan Russell
Byrd, Va. Mechem Saltonstall
Cotton Miller Simpson
Curtis Morse Sparkman
Dirksen Morton Stennis
Dominick Mundt Talmadge
Hickenlooper Pastore Thurmond
Hrusk a Pell Young, N. Dak.
Aiken
Anderson
Bartlett
Bayh
Beall
Bible
Boggs
Brewster
Byrd, W. Va.
Case
Clark
Cooper
'Dodd
Douglas
Edmondson
Ervin
Fong
Fulbright
Gore
Burdick
Cannon
Carlson
Church
Eastland
Ellender
' NAYS-56
Hart Metcalf
Hartke Monroney
Hayden
Holland
Inouye
Javits
Johnston
Jordan, N.C.
Keating
Kuchel
Lausche
Long, Mo.
Long, La.
Magnuson
Mansfield
McGee
McGovern
McIntyre
McNamara
NOT VOTING-17
GoldWater McCarthy
Gruening Neuberger
Hill Pearson
Humphrey Tower
Jackson Young, Ohio
Kennedy
Moss .
Muskie
Nelson
Prouty
Proxmire
Randolph
Ribicoff
Salinger
Scott
Smathers
Smith
?Symington
Walters
Williams, N.J.
Williams, Del.
Yarborough
So Mr. MORSE'S motion to table the
Dirksen amendment, as amended by the
Mansfield amendment, as modified, in
the nature of a substitute, was rejected.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Illinois [Mr.
DIRICSEN], as modified by the amendment
of the Senator from Montana [Mr.
MANSFIELD].
The amendment was agreed to.
ORDER OF BUSINESS
The PRESIDING 0.to.v.LCER. Pursu-
ant to the unanimous-consent agreement
entered into yesterday, the Senate will
next proceed to the consideration of the
question of referring the conference re-
port on the bill (S. 2687) extending the
Agriculture and Trade Development and
Assistance Act of 1954, and for other
purposes, to the Committee on Foreign
Relations for hearing and study, the time
to be equally divided and controlled by
the proponents, the Senator from Arkan-
sas [Mr. FULBRIGHT] , and the opponents,
the Senator from South Carolina [Mr.
JOHNSTON]. The time of 1 hour has
been allotted under the agreement, one-
half hour to each side.
Mr. MANSFIELD. Mr. President, the
time is not to exceed 1 hour.
Mr. President, I send to the desk a
unanimous-consent request and ask for
its immediate consideration. The re-
quest has been cleared with all interested
Senators, I believe. Those I might have
missed have not been overlooked arbi-
trarily. I hope the Senate will see fit to
agree.
The PRESIDING OFFICER. The
proposed unanimous-consent agreement
will be stated.
The Chief Clerk read as follows:
UNANIMOUS-CONSENT' AGREEMENT
Ordered, That, during the further consid-
eration .,of the bill (H.R. 11380), to amend
further the Foreign Assistance Act of 1964,
as amended and for other purposes, debate on
any amendment, motion, or appeal, except
a motion to lay on the table, shall be lim-
ited to 1 hour, to be equally divided and con-
trolled by the mover of any such amend-
ment or motion and the majority leader:
Provided, That in the event the majority
leader is in favor of any such amendment
or motion, the time in opposition thereto
shall be controlled by the minority leader
or some Senator designated by him:
September. 24
Ordered further, That on-the question of
the final passage of the said bill debate shall
be limited to 4 hours, to beequally divided
and controlled, respectively, by the majority
and minority leaders: Provided, That the
said leaders, or either of them, may, from the
time under their control on the passage of
the said bill, allot additional time to any
Senator during the consideration of any
amendment, motion, or appeal.
The PRESIDING OFFICER. Is there
objection?
Mr. HICKENLOOPER. Mr. Presi-
dent, reserving the right to object, I
should like to ask a question of the lead-
ership.
I should like to ask the leadership for
any information available about what
amendments are to be on file and are
likely to be controversial or which would
require any particular discussion?other
than the unfortunate situation that we
just failed to cure by not tabling the
Dirksen amendment, as amended.
Mr. MANSFIELD. Mr. President, to
the best of my knowledge, there are three
amendments at the desk. One, sub-
mitted by the Senator from Kansas [Mr.
PEARSON], relates to sugar. A second
amendment relates to loyalty, and has
been submitted by the Senator from
Vermont [Mr. AncEN]. A third amend-
ment has to do with antisemitism in the
Soviet Union, and has been submitted by
the Senator from Connecticut [Mr. Rim-
coFv].
Mr. HICKENLOOPER. Mr. Presi-
dent, I do not intend to object to the
unanimous-consent request. However, I
believe that before we become tied up in a
constricted situation we ought to know
what we are getting into. I do not know
how much debate the sugar situation
will require.
Mr. MANSFIELD. Not too much, I
understand.
Mr. HICKENLOOPER. I am not try-
ing to inhibit the procedure. I have no
objection.
Mr. DIRKSEN. Mr. President, reserv-
ing the right to object, I should like to
know a little about the so-called loyalty
oath amendment which my distinguished
friend, the Senator from Vermont, pro-
poses to offer.
Mr. AIKEN. I have a .very fine
amendment to offer to the bill. The
amendment would require the recipients
of all contracts under the aid program to
take the same loyalty oath as dropouts
in high school, paraplegics, and poor
children would have to take under the
poverty bill. I believe the amendment is
an excellent one. I cannot conceive of
any Senator not voting for it. I would
be glad to offer it now and have it ac-
cepted, although it would be a wonder-
ful amendment upon which to have a
record vote.
Mr. MANSFIELD. Would the Sena-
tor from Vermont be agreeable to a
unanimous-consent request in relation to
his amendment?
Mr. AIKEN. Yes. I do not believe
that it would require 5 minutes to "sell"
the amendment.
Mr. RUSSELL. Mr. President, if we
are to vote on an amendment, may we
have it stated?
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CONGRESSIONAL RECORD --- SENATE ' 22057
1964
Mr. MANSFIELD. The amendment
has not yet been offered. ?
The PRESIDING OFFICER. Is there
objection to the unanimous-consent
agreement proposed by the Senator from
Montana?
Mr. RUSSELL. Mr. President, I should
like to have the unanimous-consent re-
quest restated. I did not understand that
part about voting immediately on an
amendment without debate.
Mr. MANSFIELD. Mr. President, will
the Senator yield?
Mr. RUSSF.I.T.? I yield.
Mr. MANSFIELD. We have asked for
an agreement that debate on each
amendment be limited to 1 hour, the
time to be equally divided and controlled
by the mover of any such amendment or
motion and the majority leader, provided
that in the event the majority leader is
in favor of any such amendment or mo-
tion, the time in opposition thereto shall
be controlled by the minority leader or
some Senator designated by him. Four
hours would -be allotted for debate on
the bill.
Mr. RUSSELL. The proposed unani-
mous-consent agreement would not pre-
clude the offer of other amendments than
the ones stated.
Mr. MANSFIELD. No.
The PRESIDING OFFICER. Is there
objection?
Mr. HICKENLOOPER. Mr. President,
to which measure does the request apply?
I am uncertain as to which bill this re-
quest applies to.
Mr. MANSFIELD. The foreign aid bill,
which has been the pending business for
35 days, more or less.
Mr. HICKENLOOPER. I am glad to
get that information, and I appreciate it.
I would like to be brought up to date. I
thought it was on the Public Law 480
bill.
Mr. MANSFIELD. No There is an
hour's limitation on that matter.
Mr. HICKENLOOPER. That is, on the
conference report.
Mr. MANSFIELD. Yes. The provi-
sions of this request will take effect fol-
lowing action on that matter.
Mr. HICKENLOOPER. Does the
unanimous-consent request apply to the
majority leader's substitute, which was
just adopted?
Mr. MANSFIELD. No; it applies to
the same bill to which that substitute is
attached.
Mr. HICKENLOOPER. The substi-
tute is already in the bill?
Mr. MANSFIELD. Yes.
Mr. IIICKENLOOPER. So the ques-
tion will not recur on the Senator's sub-
stitute? That has already been adopted.
Mr. MANSFIELD. Yes.
The PRESIDING OFFICER. Is there
objection to the unanimous-consent re-
quest? The Chair hears none, and the
unanimous-consent request is agreed to.
EXTENSION OF AGRICULTURAL
TRADE DEVELOPMENT AND AS-
SISTANCE ACT OF 1954?CONFER-
ENCE REPORT
The Senate resumed the consideration
of the report of the committee of con-
ference on the disagreeing votes of the
two Houses on the amendment of the
House to the bill (S. 2687) to extend the
Agricultural Trade Development and As-
sistance Act of 1954, and for other pur-
poses.
Mr. FULBRIGHT. Mr. President, be-
fore Senators leave, I ask for the yeas
and nays on my motion.
The yeas and nays were ordered.
Mr. FULBRIGHT. Mr. President, a
parliamentary inquiry.
The PRESIDING OFFICER. The
Senator will state it.
Mr. FITLBRIGHT. As I understand, I
have 30 minutes, and the Senator from
South Carolina [Mr. JOHNSTON] has 30
minutes.
The PRESIDING OFFICER. That is
correct.
Mr. MANSFIELD Mr. President, I
have taken some of the time of the
Senator from South Carolina, I am sure
with his consent, and the approval of
the Senator from Vermont.
Mr. FULBRIGHT. How much time
has the Senator from South Carolina
left?
Mr. JOHNSTON. I should like to
know. I did not know I was giving away
any of my time.
The PRESIDING OFFICER. Five
minutes have been taken from the time
of the Senator from South Carolina, so
there remain 25 minutes to the Senator
from South Carolina and 30 minutes to
the Senator from Arkansas.
Mr. JOHNSTON. Mr. President, sev-
eral Senators desired to say something
on this matter. I am sorry that time
was taken from my side. ?
Mr. HOLLAND. Mr. President, will
the Senator from Arkansas yield for a
parliamentary inquiry?
Mr. FULBRIGHT. I yield, but not on
my time.
The PRESIDING OFFICER. Time is
now running.
Mr. FULBRIGHT. I cannot yield
now.
I yield one-half minute to the Senator
from Florida.
Mr. HOLLAND. I thank the Senator.
Mr. President, a parliamentary in-
quiry. Suppose the Senate should un-
wisely adopt the motion and send the
conference report to the Foreign Rela-
tions Committee, which has no relation
at all to this particular conference re-
port or this field of jurisdiction. What,
If anything, would the Committee on
Foreign Relations be instructed to do?
The PRESIDING OFFICER. The
Parliamentarian informs the Chair that
all the committee could do would be to
hold hearings. That would be it. It
could taken-no action.
Mr. FULBRIGHT. Mr. President, the
committee could make recommenda-
tions. The Foreign Relations Committee
could hold hearings and make recom-
mendations to the Senate in regard to
those matters in the bill within its juris-
diction.
Mr. President, the question before the
Senate involves a basic issue of foreign
policy and also of the Senate's procedure
in its approach to matters involving our
foreign policy.
We have before us the conference re-
port on the extension of the Agricultural
Trade Development and Assistance Act,
popularly known as Public Law 480. This
act is supposed to do what its name im-
plies?that is, promote the development
of trade in agricultural commodities and
thereby dispose of some of our burden-
some surpluses. It is not supposed to be
a vehicle for casually making fundamen-
tal changes in our foreign policy, and for
restricting by law the legitimate discre-
tion of the President who bears the pri-
mary responsibility for the conduct of
our foreign relations. This, however, is
what the conference report -seeks to do.
It contains several provisions which have
little, if any, relevance to the purpose of
Public Law 480 but which, on the con-
trary, impinge directly and adversely on
the foreign policy of the United States.
The most obnoxious of these provisions
is that which, in effect, prohibits sales for
local currency under title I to Yugoslavia
and Poland.
There have been no hearings on this
proposal in either the House or the Sen-
ate. It was not considered by the Senate
Committee on Agriculture and Forestry,
nor?so far as I know?by the House
Committee on Agriculture. It was not
considered on the floor of the Senate dur-
ing Senate debate on the bill. It was
adopted on the floor of the House, and it
has unfortunately been retained by the
conferees. I hardly need add that it has
not been considered at all by the Com-
mittee on Foreign Relations?nor the
House Committee on Foreign Affairs?
nor has the Department of State had an
opportunity to be heard, despite the fact
that the Department is strongly opposed.
This provision would negate one of the
most important principles of our foreign
policy?the principle that we treat dif-
ferent Communist countries differently.
This principle has been applied consist-
ently and with good results for 15 years,
under Presidents Truman, Eisenhower,
Kennedy, and Johnson. In this period,
Yugoslavia has successfully asserted and
maintained its independence_of the So-
viet Union. This independence, in the
opinion of Mr. George Kennan, our dis-
tinguished former Ambassador to,Yugo-
slavia, has been "conducive to the peace
and stability of the Balkan and Adriatic
areas generally."
The Yugoslav example has also, quite
clearly, been contagious in Eastern
Europe. Since 1956 Poland has moved
significantly toward independence from
Moscow. More recently, Rumania has
apparently set out -on the same course.
It sent a trade commission here for pre-
liminary discussions. There have even
been stirrings in Hungary and Czecho-
slovakia.
Surely, our interests are more ad-
vanced in Eastern 'Europe today than
they would have been if these things had
not happened. Although it would be too
much to say-that our policies, by them-
selves, have brought about these changes,
it is certainly not too much to say that
our policies have helped. They have
made it easier for the Yugoslays to pursue
a policy independent of Moscow. They
have made it easier for the Poles to assert
a modicum of independence. They have
made it easier for the Rumanians to
expand their relations with the West.
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22058 CONGRESSIONAL RECORD ? SENATE
To put it the other way, if we had not
followed these policies, if we had not
come to the aid of the Yugoslays in 1950
and of the Poles in 1957, who can say
with any assurance that Eastern Europe
would not today still be a monolithic but-
tress of the Soviet Union? Reason and
logic indicate that it would be. Would we
be better off if the 15 or 20 Yugoslav divi-
sions were under Soviet command?
Let me quote again from a recent
statement by former Ambassador Ken-
nan, who probably knows Eastern Eu-
rope better than any other American:
The Yugoslav Government is dominated by
a party which uses the name "Communist";
but that government differs in certain very
fundamental respects from other govern-
ments that go by that name. Not only does
it differ in its institutions but it differs even
more in its practices, and particularly its
practices in matters that determine its rela-
tions with us. It is not linked with any
other Communist power by bonds of military
alliance. It is not a member of the Warsaw
Pact or of any other Communist military
political grouping. In its bilateral relations
with us, during the period of my recent
service as American Ambassador there, it
showed itself consistently correct and
proper. It did not default on any obligations
to us. There was no evidence that it was
conducting either independently or in as-
sociation with any other country, improper
activities in this country. No Yugoslav offi-
cial I ever asked to see refused to see me
or treated me otherwise than with complete
courtesy. Americans, official and unofficial,
were treated with exceptional warmth and
kindness throughout the cohntry.
What more do we want, and what is our
complaint? We disagree with the Yugoslav
leaders, certainly, on many questions of in-
ternational affairs. But they have as much
right to disagree with us as we have to dis-
agree with them. Are we supposed to de-
mand agreement with all our views, as the
price of normal relations? If so, why do we
start with the Yugoslays?
Yugoslavia occupies an extremely sensi-
tive and strategic position, between the coun-
tries of the Soviet bloc and the Adriatic. It
commands some of the strongest armed
forces in Europe outside of Soviet control.
For over 15 years its Government has pur-
sued an independent course in its inter-
national relations. This course has not been
identical with ours; but it has also not been
identical with that of Moscow. The policy
implied by the amendment can have only
one conceivable effect: to convey to the
Yugoslays that they have no favorable pro-
spects in their relations with us, no matter
how they treat us, and to impel them, for
lack of alternative, in the direction of a
closer relationship with Moscow. There is
no one?but literally no one?who could
benefit from a movement of the Yugoslays in
that direction except policymakers in Mos-
cow. What is at stake here is not just Yugo-
slavia alone, but also the policies of other
Communist governments which have. been,
and will continue to be, importantly in-
fluenced by the Yugoslov example.
How, Afnbassador Kennan asks, can
"a policy having such effect conceivably
be defended on the grounds that it is
anti-Communist?"
That is a good question, Mr. President,
and an unanswerable one. This is sham
anticommunism. It will please no one
except the Communists in Moscow and
the superpatriots in the United States.
What more eloquent testimony could
we want that people who call themselves
Communists are different; that selling
wheat to one group does not mean selling
out to another?
Aside from the large effect which the
ill-considered provision of the confer-
ence report will have on our overall rela-
tions with Eastern Europe, there is an-
other effect which it will have in terms
of individual human beings. It can only
mean that millions of Poles and Yugo-
slays will be hungrier?through no fault
of their own but only because we disap-
prove not of their actions but how they
describe their Government.
And all of this?I repeat, Mr. Presi-
dent?has been done without hearings
and without consideration by the Foreign
Relations or any other committee. It is
directly contrary to the stand Congress
took a year ago when?after considera-
tion by the Foreign Relations Commit-
tee and debate in the Senate?we voted
to repeal, in effect, a provision of the
Trade Expansion Act prohibiting the ex-
tension of most-favored-nation treat-
ment to Poland and Yugoslavia.
For, the life of me, I cannot understand
why the Congress, or certain Members
of it, persist in gratuitously insulting
countries with whom we would like to
maintain normal and hopefully improv-
ing relations.
There is another matter in the confer-
ence report which would have deleterious
effects on our, foreign relations. This is
the provision for subsidizing the export
of long staple cotton. This is certain to
impair our relations with Peru, and prob-
ably with the United Arab Republic and
Sudan as well. It is probably also in
violation of GATT, and it will invite
retaliation against our other nonsub-
sidized exports. It is the kind of action
which would cause us to apply counter-
vailing duties and invoke the Anti-
Dumping Act if it were taken against us
by another country.
There is a further reason this confer-
ence report should be referred to the
Committee on Foreign Relations. The
report adds a new sentence to section
103(a) of Public Law 480 as follows:
In presenting his budget, the President
shall classify expenditures under this act as
expenditures for international affairs and
finance rather than for agriculture and agri-
cultural resources.
We may pass over, for the time being,
the question of the propriety of the Con-
gress telling the President. how to clas-
sify expenditures in his budget. Con-
gress may, of course, act on the budget or
rearrange it in any way that Congress
desires; but in the first instance, it is the
President's budget, not Congress.
The significant aspect of this provi-
sion of the conference report is that here
is as plain a statement as one could make
that the Agriculture Committees them-
selves view the activities under Public
Law 480 as primarily affecting interna-
tional affairs and finance rather than
agriculture. The advocates of this con-
ference report cannot hale it both ways.
Either Public Law 480 deals primarily
with U.S. agriculture, in which case it
ought not to deal with the U.S. foreign
policy; or it does deal primarily with
U.S. foreign policy?with "international
affairs and finance," in the words of the
September 24
conference report itself?in which case
It comes under the jurisdiction of the
Foreign Relations Committee. In either
case, given the provisions of the con-
ference report, it ought to be referred to
Foreign Relations.
These are matters of serious import,
Mr. President. They should not be
acted on hastily without adequate con-
sideration by the committees most di-
rectly concerned. I have no wish to de-
lay the matter indefinitely. Senators
may argue that if my motion is agreed
to, the bill is dead for this Congress. As
I said yesterday,) even if that were true,
it would not be a calamity. The present
law continues in force until December
31. A new Congress will be here January
3. We could certainly pass another bill?
hopefully, a better bill?within a month _
or two.
However, Mr. President, referral of the
conference report to the Feireign Rela-
tions Committee does not necessarily kill
the bill. I assure the Senate that the
committee will consider the matter. We
will have hearings immediately. We will
report our recommendations, and the
Senate can work its will upon them?
after we have had the benefit of testi-
mony and after these very serious ques-
tions have received the attention they
deserve.
In conclusion, Mr. President, I want
to impress upon the Senate the serious-
ness of the issue that is involved here.
It goes to the heart of our relations with
the Communist third of the world, and,
therefore, to the heart of our whole for-
eign policy. The issue, simply stated, is
whether we proceed on the assumption
that there is any hope of ever improv-
ing, or even ameliorating, those relations,
or ever encouraging even the slightest
diversity within the Communist world;
or whether we proceed on the assump-
tion that any such hope is illusory, that
all Communists?be they followers of
Tito, Gomulka, Khrushchev, or Mao?
are alike in their implacable hostility
to us, and that consequently our only
safe course lies in implacable hostility
to each and every one of them. The end
result of this latter course is likely to
be nuclear war. If we should adopt a
policy?as implied by this conference re-
port?of never agreeing to anything, this
in itself amounts to an ominous agree-
ment?in a suicide pact.
The question now before us is the same
issue which was involved in the question
of most-favored-nation treatment for
Poland and Yugoslavia a year ago. It is
the same issue which was involved in the
sale of wheat to the Soviet Union. It
is indeed the same issue which was in-
volved in the test ban treaty.
In each of these cases the Senate de-
cided the issue in favor of hope and rea-
son and against fanaticism and despair.
Mr. President, I urge the Senate to
support my motion.
MODIFICATION OF MOTION TO COMMIT
It has been suggested that there could
be some question about the committee
reporting the conference report to the
Senate. I am perfectly willing to modify
my motion. I assure Senators that the
committee will report it back with a rec-
Declassified and Approved For Release 2014/02/21: CIA-RDP66B00403R000300070001-2