AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070011-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 11
• Publication Date: September 22, 1964
• Content Type: OPEN SOURCE

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10'
21814 CONGRESSIONAL REODRI5 ? SENATE
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. MORSE. I yield.
Mr. DOUGLAS. Is it not true that no
man can become a member of the ADA
unless he agrees that he is not a believer
in any totalitarian philosophy, including
the Communist philosophy?
Mr. MORSE. The Senator from Illi-
nois is correct. As a member of ADA and
one ,of its officers, I am proud of the
progressive legislation we have sponsored
in the Congress of the United States,
carrying out the primary obligation we
have as Senators, which is to translate
Into legislation the general welfare
clause of the Constitution, whi
to promote the welfare of '11
People.
AMENDMENT OF FOREIGN ASSI
ANCE ACT OF 1961
The Senate resumed the consideration
of the bill (H.R. 11380) to amend fur-
ther the Foreign Assistance Act of 1961,
as amended, and for other purposes.
?Mr. PROXMIRE. Mr: President, once
again, I shall try to finish this speech.
Since last Wednesday, I have been yield-
ing the floor. I shall try very hard to-
day to complete my speech today.
Mr. DOUGLAS. Mr. President, will
the Senator yield with the understand-
ing that I shall not propose an amend-
ment, but merely ask a question?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. Does not the Senator
from Wisconsin believe that the burden
of providing a quorum expeditiously
should be on the proponents of the
amendment?
Mr. PROXMIRE. That has always
been true in the Senate. It was certain-
ly true as recently as the civil rights con-
troversy, in which we were locked in de-
bate which lasted for many months.
The Senator from Illinois fMr. Dons-
LAS] and others who were in favor of the
civil rights bill, made sacrifices to be
present. They were on the. floor. Quor-
ums were usually developed in 15 or 20
minutes, and often less time than that.
Mr. DOUGLAS. How long did it take
to develop a--quorum today?
Mr. PROXMIRE. Today was much
better than yesterday. It took probably
35 minutes. Yesterday, it required 50
minutes. The Senate was unable to
provide a quorum on Thursday, Friday,
or Saturday. I suspect, if the opposition
cannot produce a quorum more prompt-
ly, that after tomorrow it will be pro-
gressively more difficult to obtain a quo-
rum as time goes on and we approach
closer to the election. It may take a
time certain for a vote to insure round-
ing up the troops. The leadership has
sent telegrams to -Senators and asked
them to return. In spite of that request,
those who favor the Dirksen amendment
and oppose our position are not putting
in an appearance.
The Senator from Illinois has stressed
the fact that almost all of the discus-
sion on the bill has been on the side of
those ' of us who oppose the Dirksen
amendment?and with good reason. The
overwhelming preponderance of consti-
tutional experts agree that the Dirksen
amendment would be an unconscionable
action against the Supreme Court.
Dean Rostow, of the Yale Law School,
has said it would knock out the linchpin
of the Constitution, and destroy the ju-
dicial power.
That argument has not been answered
by those who favor the Dirksen amend-
ment. The argument they make is that
if the U.S. Senate is based on some other
basis than population, being based on
States, we could have one body of a State
legislature that would be based on a sim-
ilar principle.
Mr. President, I have tried to bell that
cat. I have called direct attention to
the authorities, the Founding Fathers,
Madison, Hamilton, Jay, Wilson, and the
others who spoke so eloquently on this
matter at the time of the Constitutional
Convention.
I believe that we have been able to
show in great detail that our Founding
Fathers unanimously agreed on the one-
man, one-vote principle. It was only
when the pistol was pointed at their
heads and they had no choice except, on
the one hand, no union or a compromise
of the principles in which they believed
deeply, that they accepted the compro-
mise.
We should be aware of the fact that
at that time the States were sovereign in
a very genuine and real sense. Today
the counties, cities, towns, and other ad-
ministrative agencies are not sovereign
in any sense.
Mr. ANDERSON. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I yield.
Mr. ANDERSON. Does the Senator
see any comparison between the 32 coun-
ties of New Mexico being bumped to-
gether into a State and the States of the
Union coming first under a confederacy,
and finally a constitution, and a situa-
tion in which the representatives of the
State in the Senate were originally re-
garded as something like 'Ambassadors?
Is there any comparison?
Mr. PROXMIRE. No. The Senator
from New Mexico is correct. No one pre-
tends that the countries have any ele-
ment of sovereignty. They can be ex-
panded, reduced in size, or even abolished
by the State. Counties have been totally
abolished in some States.
There is no basis for saying that a'
county is an entity, having any kind of
existence at all, which requires repre-
sentation in the State legislature.
Mr. ANDERSON. In the formation of
counties in many of the States, does the
'Senator from Wisconsin see anything
comparable to what happened in the f or-
_mation of the Federal Government? I
think, for example, of the establishment
of a county in New Mexico. The county
was referred to by three or four different
names as it went along. At the first
formation of the county, it was called
Pyramid. Pyramid County consisted of
an area which later became Hidalgo
County. But, in the process, it was
called four or five different names., The
legislature did not want to provide a
name at that time. There had been a
commitment made for the formation of a
September 22
county. The legislature, in its despair,
kept changing the name of the county.
At one time; to show what sincere inter-
est there was in it, they placed the names
of three permanent members of the press
table in a hat and decided that the name
to be drawn out of the hat would deter-
mine the name of the county. It would
be called _either Smith County, Lyon
County, or Anderson County. Those at
the press table were highly pleased that
there was so much interest in the press
table, and so ilea interest in the
county.
I-do not believe there is anything com-
parable to the effort to bring my State
into the Union and the effort to bring an-
other county into a State. I think they
are wholly different. I am glad that the
Senater from Wisconsin has recognized
that.
Mr. PROXMIRE. The Senator from
New Mexico is eminently correct. It is
particularly important that he stressed
the formation of the Federal Govern-
ment. The formation of the Federal
Government was the result of the coming
together of independent States. Those
independent States provided some kind
of coalition in the Articles of the Con-
federacy. But it was limited. The
States reserved to themselves the right
to tax. They reserved to themselves vir-
tually all of the genuine rights of sover-
eignty. There has been no such coali-
tion of counties to form a State in the
history of our country. In every case
the States were admitted, except for the
Thirteen Original States. And then the
States decided what kind of counties they
should have, what names the counties
should have, what size they should be,
and how they fitted the convenience of
the particular States.
The States in the Midwest?were formed
pursuant to the Northwest Ordinance.
In 1787, the same year in which the Cop-
stitution was adopted, the Founding Fa-
thers said that those States should al-
ways have proportional relationship in
their legislatures.
Today at lunch, a distinguished Sen-
tor, who I believe will speak later,
pointed out that in his State, a Federal
enabling act admitted the State on the
stipulation that its legistlature be 'based
on population.
Mr. ANDERSON. I have noticed the
names applied to counties in my State.
I realize that it required special means
to establish them. One county was
called Catron County. If was named
after Thomas Catron, who was a U.S.
Senator from that State. I recognize
that the Democrats retired him to
private life for a time. But he was a
U.S. Senator from that- State for a
period of time. The legislature, in
trying to pick a name, named the county
aftei him. They interested him in try-
ing to help it along.
It was a long time before another
county came along. There was not too
much interest in it. It was called Hard-
ing County, after the President of the
United States. I believe that, if they had
waited a few years, they would have
named it something quite different from
that. Harding County had a good many
people at the time it was established.
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1964 . CONGRESSIONAL RECORD ? SENATE
It had something hie 1,200 people. I
noticed the other day in the newspaper
that 1,200 people have an equivalent vote
to the population of Bernalillo County,
which has 275,000 people. I believe that
the principle of legislative apportionment
goes badly to pot when we recognize that
1 county with a population of 1,280
and another county a population of 275,-
000 people have equal representation.
It is that very thing which has caused
people to believe that 'perhaps this sys-
tem is not perfectly established. I be-
lieve that the principle that the State of
Wisconsin and other States have been
working on in an effort to bring about a
greater degree of true apportionment is
correct.
I commented the other day that the
State of Michigan had done a wonderful ,
job in the organization of districts. It
started with districts which were widely
differenrin size. It ended with districts
containing from 205,000 to 207,000 peo-
ple. If it can be done there, it can be
done elsewhere.
Mr. DOUGLAS. Mr. President, will
the Senator yield? .
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. The change in
Michigan was made largely in accordance
with court orders.
Mr. PROXMIRE. That is correct.
That is exactly why, if we really believe
In one-man-one-vote, if we really be-
lieve in population representation, we
must support the right of the courts to
intervene and protect the basic right of
the individuals to have an equal vote.
Mr. ANDERSON. Mr. President, will
the Senator yield? -
Mr. PROXMIRE. I yield.
Mr. ANDERSON. Mr. President, does
the Senator believe that the evidence
from Michigan is fairly good evidence
that the courts work out pretty good ar-
rangements? I used it as an example of
how an almost perfect arrangement was
made in creating districts containing
from 205,000 to 207,000 people. They
are almost alike in size. I believe that
an acceptable plan has been worked out.
Mr. PROXMIRE. Yes, indeed. The
experience in Wisconsin was exactly the
same. The Supreme Court of the State
of Wisconsin apportioned our State leg-
islature and has done so very equitably?
within 1, 2, or 3 percent of the popula-
tion?throughout the State. It is an ex-
cellent apportionment.
Mr. ANDERSON. Does that not show
that the courts can do a pretty good job?
Mr. PROXMIRE. Yes, indeed.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. Did not the Wisconsin
Supreme Court act on the basis of the
guidelines laid down by the U.S. Supreme
Court?
Mr. PROXMIRE. The Wisconsin Su-
preme Court, I believe, acted under the
constitution of the State of Wisconsin,
recognizing that, since 1848, our State
has had that principle written into it.
I am sure that in most States the Changes
made were made under the guidelines of
the U.S. Supreme Court. If it had not
been for the 'U.S. Supreme Court, there
would not have been a real opportunity
to have that kind of apportionment
, brought about.
I should like to make a statement
about the helpful remarks of the able and
eminent Senator from New Mexico [Mr.
ANDERSON]. The Senator from New
Mexico made a real contribution in refer-
ence to the transient, fleeting, tempo-
rary, and tentative nature of the coun-
ties throughout our country, when he
pointed to the example of a group of
newspapermen coming together, put
names into a hat, and draw a name out
of the hat, to decide what the name of a
county should be.
There is a casual attitude toward
counties throughout the country. There
cannot be any pretense that they should
be recognized by having equal ambassa-
dors to their State governments.
So the analogy, does not apply.
Mr. President, yesterday, at some
length, I pointed out how strongly the
father of our Constitution, James Madi-
son, felt about equality of representation.
James Madison has been greatly revered
on the floor of the Senate by the dis-
tinguished Senators from Virginia and
others, who feel very strongly?and
rightly?that he is one of the great
architects of our Republic. Many Sena-
tors have been contending for a special
monument to him in Washington. He is
rightly called the father of our Consti-
tution. He came down as hard as a man
possibly could on the side of equal repre-
sentation, saying that no other princi-
ple could he justified.
Last Wednesday we were discussing
the attitude of Alexander Hamilton. I
should like to refer to No. 22 of the
Federalist papers, because, of course, the
Federalist papers were the great docu-
ments that were written by Hamilton,
Madison, and Jay to justify and explain
the- Constitution. I doubt if any great
document has ever had more able or
clearer exposition than the Constitution
has had, thanks to the Federalist papers.
Alexander Hamilton, more than anyone
else, is viewed by conservatives as their
proper ancestor.
He, more than anyone else, gave the
philosophical justification of conserva-
tism. ?
Alexander Hamilton, also a brilliant
man, felt very deeply about this princi-
ple. In No. 22 of the Federalist papers
Alexander Hamilton attacked at some
length equality of representation by the
States, which means that he favored
equality of representation by the people.
If the States had equal representation,
obviously the smaller States would be
given equal representation with the
larger States, and under those circum-
stances the people in the smaller States
would have more representation than
those in the larger ones.
On December 14, 1787, Hamilton
wrote:
The right of equal suffrage among the
States is another exceptionable part of the
confederation. Every idea of proportion, and
every rule of fair representation conspire to
condemn a principle, which gives to Rhode
Island an equal weight in the scale of power
with Massachusetts, or Connecticut, or New
York; and to Delaware, an equal voice in the
national deliberations with Pennsylvania or
Virginia, or North Carolina. Its operation
21815
contradicts that fundamental maxim of re-
publican government, which requires that
the sense of the Majority should prevail.
Sophistry may reply, that sovereigns are
equal, and that a majority of the votes of the
States will be a majority of confederated
America.
It is interesting to note that this. was
the only philosophical argument that the
brilliant Hamilton could find to oppose
his argument and his strong feeling that
even the Federal Government should
have equal representation of all Ameri-
cans, whether they lived in a large or a
small State. I should like to repeat:
Sovereigns are equal, and that a majority
of the votes of the States will be a majority
of confederated America.
Nobody pretends?and I think we have,
established the point very clearly?that
the counties are sovereign in any sense or
ever have been-Anywhere. So that argu-
ment cannot be made against equal
representation in State legislatures. It
was made, and it was obviously made
with some effect in establishing.our Con-
stitution.
Hamilton went on to answer even that
argument that States are sovereign and
should have equal representation by say-
ing:
But this kind of logical legerdemain will
never counteract the plain suggestions Of
justice and commonsense. It may happen
that this majority of States is a small
minority of the people of- America; and two-
thirds of the people of America, could not
long be persuaded, upon the credit of arti-
ficial distinctions and syllogistic subleties, to
submit their interests to the management
and disposal of one-third:
At least in our distinctions?distinc-
tions of some substance when one is talk-
ing about equal State representation in
the Federal Government?there is a syl-
logistic subtlety. But there is no syllogis-
tic sense at all in providing equal repre-
sentation for towns, as in New Hamp-
shire, or counties, as in many of the other
States.
Hamilton went on to?state:
The larger States would after awhile re-
volt from the idea of receiving the law from
the smaller. To acquiesce in such a privation
of their due importance in the political scale,
would be not merely to be insensible to the
love of power, but even to sacrifice the desire
of equality.
It may be objected to this, that not seven
but nine States, dr two-thirds of the whole
number must consent to the most important
resolutions; and it may be thence inferred,
that nine States would always comprehend a
majority of the inhabitants of the Union.
But this does not obviate the impropriety of
an equal vote between States of the most un-
equal dimensions and populousness; nor is
the inference accurate in point of fact; for
we can enumerate nine States which contain
less than a majority of the people; and it is
constitutionally possible, that these nine may
give the vote.
But this is not all; what at first sight may
seem a remedy, is in reality a poison. To give
a minority a negative upon the majority
(which is always the case where more than a
majority is requisite to a decision) is in its
tendency to subject the sense of the greater
number to that of the lesser number. Con-
gress from the nonattendance of a few States
have been frequently in the situation of a
Polish Diet, where a single veto has been suf-
ficient to put a stop to all their movements.
A sixtieth part of the Union which is about
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2146 CONGRESSIONAL RECORD ? SENATE September 22
the proportion of Delaware and Rhode Island,
has several times been able to oppose an en-
tire bar to its operations.
Then Hamilton went on to say?and
this is one? of those refinements which in
practice is in effect the reverse of what
is expected of it in theory?
This is one of those refinements which in
practice has an effect, the reverse of what
is expected from it in 'theory. In those
emergencies of a nation, in which the good-
ness or badness, the weakness or strength of
its government, is of the greatest importance,
there is commonly a necessity for action.
The public business must in some way or
other go forward. If a pertinacious minority
can control the opinion of a majority re-
specting the best mode of conducting it; the
majority in order that something may be
done, must conform to the views of the
minority; and thus the sense of the smaller
number will overrule that of the greater, and
'give a tone to the national proceedings.
Hence tedious delays?continual negotiation
and intrigue?contemptible compromises of
the public good. And yet in such a system,
it is even happy when such compromises can
take place: For upon some occasions, things
will not admit of accommodation; and then
the measures of government must be injuri-
ously suspended or fatally defeated. It Is
often, by the impracticability of obtaining
the concurrence of the necessary number of
votes, kept in a state of inaction. Its situa-
tion must always savour of weakness?some-
times border upon anarchy.
This was the strong, clear injunction
of Alexander Hamilton against permit-
ting one body of even the Federal Leg-
islature to be founded on some basis other
than equal population representation.
Hamilton, together with Madison and the
other proponents of our Constitution, did
give in so far as the Federal Constitu-
tion is concerned, because there were so
many differences in analogy between
them when compared to State govern-
ments.
Hamilton described, in No. 32 of the
Federalist Papers, the balance between
the States and the Federal Government
under the proposed Constitution, as
shown in the Federalist at pages 199L200:
An intire consolidation of the States into
one complete national sovereignty would im-
ply an intire subordination of the parts;
and whatever powers might remain-in them
would be altogether dependent on the. gen-
eral will. But as the plan of the Conven-
tion aims only at a partial Union or consoli-
dation, the State governments would clearly
retain all the rights of sovereignty which they
before had and which were not by that act
exclusively delegated to the United States.
This exclusive delegation or rather this alien-
ation of State sovereignty would only exist
In three cases; where the Constitution in
express terms granted an exclusive authority
to the Union; where it granted in one in-
stance an authority to the Union and in an-
other prohibited the States from exercising
the like authority; and where it granted an
authority to the Union, to which a similar
authority in the States would be absolutely
and totally contradictory and repugnant.
In Federalist Paper No. 35, James Mad-
ison similarly described the new sys-
tem, in the following words:
The House of Representatives will derive
Its powers from the people of America, and
the people will be represented in the same
proportion, and on the tame principle, as
they are in the legislature of a particular
State. So far the Government is National
not Federal. The Senate on the other hand
will derive its powers from the States, as
political and coequal societies; and these will
be represented on the principle of equality
in the Senate, as they now are in the exist-
ing Congress. So far the Government is
Federal, not National.
? "*
The proposed Constitution therefore is in
strictness-neither a National nor a Federal
constitution, but a composition of both. In
its foundation, it is Federal, not National; in
the sources from which the ordinary powers
of the Government are drawn, it is partly
Federal, and partly National; in the opera-
tion of these powers, it is National, not Fed-
eral; in the extent of them again, it is Fed-
eral, not National; and finally, in the au-
thoritative mode of introducing amend-
ments, it is neither wholly Federal, nor whol-
ly National.
Most of us?with some prominent ex-
ceptions?are highly pleased? with the
Federal aspects of our Government. We
feel that there is a real value in having
the States in a position to intervene be-
tween the massive, military, financial
power of the Central Federal Govern-
ment and the individual. That certain-
ly has a strong basis in the rights of the
individual citizen. However, I have not
heard anyone argue that there should be
a Federal system within a .State. No-
body has contended it. Indeed, although
we haveN50 States, and although we have
had many years of experience with States
that have had all kinds of representa-
tion in their State legislatures, and there
has been ample time to develop this the-
ory with regard to the States, no advocate -
has arisen, and no article has been writ-
ten, to show that the States should be
organized on this baSis. It would be
ridiculous to so argue, in view of the fact
that the real power that must be watched,
that must be limited, is that of the Fed-
eral Government, and that the real part
of our society which must have power also
to do a job would be weakened and be
rendered unable to act if -it had to cope
with divisions within the State opera-
tions.
Madison repeated, in Federalist Paper
No. 40, that the States continued to be
independent sovereigns under the new
Constitution. This is certainly an im-
portant distinction as compared with
counties. He said, in Federalist Papers,
No. 40:
We have seen that in the new Government
as in the old, the general powers are limited,
-and that the States in all unenumerated
cases, are left in the enjoyment of their
sovereign and independent jurisdiction.
The 10th amendment of the Con-
stitution would be the real reliance for
that position taken by Madison.
Likewise, in No. 45, Madison said:
The States will retain under the proposed
Constitution a very extensive portion of
active sovereignty.
This is important to document, be-
cause once again, no pretense has been
made that counties or towns have a right
to sovereignty; but Madison, in Federal-
ist Paper No. 45, said that the States do
have the element of sovereignty. I quote
him:
The State governments may be regarded'
as constituent and essential parts of the
Federal Government; whilst the latter is
nowise essential to the operation or organiza-
tion of the former. -Without the interven-
tion of the' State legislatures the President
of the United Stateecannot be elected at all.
They must in all cases have a great share in
his appointment, and will perhaps in most
cases of themselves determine it. The Senate
will be elected absolutely and exclusively by
the State legislatures:
It is true that since that time there has
been an amendment to the Constitution
which has changed the method of select-
ing Senators, and that Senators are
elected by direct popular vote. Never-
theless, this was the theory. This was
another element reCognizing the author-
ity and power of the States. Said Madi-
son:
Even the House of Representatives, though
drawn immediately from the people, will be
chosen very much under ,the influence of
that class of men, whose influence over the
people obtains for themselves an election
into the State legislatures. Thus each of
the principal branches of the Federal Gov-
ernment will owe its existence more or less
to the favor of the State governments, and
must consequently feel a dependence, which
is much more likely to beget a disposition
too obsequious, than too overbearing toward
them. On the other side, the component
parts of the State governments will in no
instance be indebted for their appointment
to the direct agency of the Federal Govern-
ment, and very little if at all, to the local
influence of its members.
In Federalist Paper No. 54 Madison ex-
plained the basis for the apportionment
of the House of Representatives in the
following words:
It is not contended that the number of
people in each State ought not to be the
standard for regulating the proportion of
those who are to represent the people of each
State. * * * [T]he rule is understood to refer
to the personal rights of the people, with
which it has a natural and universal connec-
tion.
?
It is agreed on all sides, that numbers are
the best scale of wealth and taxation; as they
are the only proper scale of representation.
This proposition seemed to Madison,
Hamilton, and John Jay, the writers of
the Federalist Papers, to be so self -evi-
dent that this is the entire discussion de-
voted to the basic principle of apportion-
ing one of the two houses of the legisla-
ture in their detailed exposition of the
proposed Constitution.
I challenge any Senator who opposes
our position or who favors the Dirksen
amendment to show a phrase in the Fed-
eralist Papers supporting the principle
behind the Dirksen amendment, that
both houses of the State legislatures
should not be based on population.
There is-no such statement in the Fed-
eralist papers. We in this country are
very fortunate to have the magnificent
document, the Federalist Papers, which,
more than any other exposition of the
Constitution, clearly, simply, and con-
vincingly settle the meaning of the
Founding Fathers. Talk about the legis-
lative history we make there. The Fed-
eralist Papers have given us the defini-
tive legislative history of our Constitu- .
tion. In this very history it is clear
that all the Founding Fathers were
unanimously on the sides-of the principle
of one-man, one-vote, in our State legis-
latures.
In contrast,- Madison apparently felt
compelled to explain the apportionment
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1964 - CONGRESSIONAL RECORD ---- SENATE
of the Senate at length in No. 62?the
Federalist, pages 416-417:
The equality of representation in the Sen-
ate is another point, which, being evidently
the result of compromise between the op-
posite pretensions of the large and the small
States, does not call for much discussion. if
indeed, it be right that among a people
thoroughly incorporated into one Nation,
every district ought to have a proportional
share in the 'Government; and that among
independent and sovereign States bound to-
gether by a simple league, the parties how-
ever unequal in size, ought to have an equal
share in the common councils, it does not
appear to be without some reason, that in
a compound republic partaking both of the
national and federal character, the govern-
ment ought to be founded on a mixture of
the principles of proportional and equal
representation.
Mr. President, this is in a compound
republic. As I said before, no one is
arguing, that our States are compound
republics. They are far from it. They
are anything but that. No Founding
Father or other philosopher argued that
there should be a Federal system within
the States. ,
To continue:
But it is superfluous to try by the stan-
dards of theory, a part of the Constitution
which is allowed on all hands to be the result
not of theory, but "of a spirit of amity, and
that mutual deference and concession which
the peculiarity of our political situation ren-
dered indispensable." A common govern=-
ment with powers equal to its objects, is
called for by the voice, and still more loudly
by the political situation of America.
This was the pistol pointed at the
heads of our Founding Fathers.
A government founded on principles more
consonant to the wishes of the larger States,
Is not likely to be obtained from the smaller
States. The only option then for the former
lies between the proposed_ government and a
government still more objectionable. Un-
der this alternative the advice of prudence
must be, to embrace the lesser evil; and
insteadof indulging a fruitless anticipation
of the possible mischiefs which may ensue,
to contemplate rather the advantageous
consequences which may qualify the sacrifice.
In this spirit it may be remarked, that
the equal vote allowed to each State, is at
once a constitutional recognition of the
portion of sovereignty remaining in the in-
dividual States, and an instrument for pre-
serving that residuary sovereignty. So far
the equality ought to be no less acceptable
to the large than to the small States; since
they are not less solicitous to guard by every
possible expedient against an improper con-
solidation of the States into one simple
republic.
And in No. 58 Madison summarized the
difference in functions between the
House and Senate:
One branch of the legislature is a repre-
sentation of citizens; the other of the States.
(Id. at 392.)
That last quotation simply and con-
cisely expresses all the difference be-
tween our Federal Government, on the
one hand, and State governments, on the
other.
There are no States within States. If
one branch of a State legislature should
represent citizens, both should represent
citizens.
It is also instructive to read some of
the postconvention materials which il-
lustrate some of the strong reservations
about the Senate, as well as the reasons
for the creation of a body in which the
States are equally represented.
George Mason, who did not sign the pro-
posed Constitution, wrote on a draft of the
Constitution as one of his reasons for this
action that the Senate had "the power of
altering all money bills, and of originating
appropriations of money, and the salaries of
the officers of their own appointment, in con-
junction with the President of the United
States, although they are not the representa-
tives of the people, or amenable to them."
(II Farrand 638.)
Pierce Butler, a delegate to the convention
from South Carolina, wrote to Weedon Butler
on October 8 describing the proposed Con-
stitution (III Farrand 102-103) :
"We, in many instances took the Con-
stitution of Britain, when in its purity, for
a model and surely we could not have a bet-
ter. We tried to avoid what appeared to us
the weak parts of ancient as well as modern
republics. View the system then as resulting
from a spirit of accommodation to different
interests, and not the most perfect one that
the deputies could devise for a country better
adapted for the reception ?fit than America
is at this day, or perhaps ever will be. It is
a great extent of territory to be under one
free government. We have, as you will see,
taken a portion of power from the individual
States, to form a General Government for the
whole to preserve the Union. The General
Government to consist of two branches of
legislature and an executive to be vested in
one person for 4 years, but eligible again?
the first branch of the legislature to be
elected by the people of,the different States,
agreeable to a ratio of numbers and wealth,
to serve for 2 years. The second to consist
of two-Mernhers from each State, to be ap-
pointed by the legislature of the States to
serve for 6 years. The powers of the General
Government are so defined as not to destroy
the sovereignty of the individual States.
It was the clear understanding of our
Founding Fathers that there was only
one reason why the Senate does not
represent the people of American on an
equal basis. This was that the General
Government shall not destroy the sov-
ereignty, the identity, of the States
themselves.
In October 1787, a pamphlet was printed
defending the Constitution which consisted
largely of a speech written by Charles Pinck-
ney of South Carolina which was intended
to have been Made to the Convention on
May 29. He attached the weakness of the
Constitution, including as one cause (III
Farrand 108) :
"The inequality of the principle of Repre-
sentation, where the largest and most incon-
siderable States have an equal vote in the
affairs of the Union."
Because of the many defects in the exist-
ing system, he proposed that the Conven-
tion (ibid.) :
"Consider the subject de novo. That they
will pay no further attention to the Con-
federation, than to consider it as good mate-
rials, and view themselves as at liberty to
form and recommend such a plan, as from
their knowledge of the temper of the people,
and the resources of the States, will be most
likely to render our Government firm and
united. This appears to me, far more proper
than to attempt the repair of a system, not
only radically defective in pricinciple, but
which, if it was possible to give it operation,
would prove absurd and oppressive."
Pinckney stated that (id. at 109-110) :
. "The first important alteration is, that of
the principle of representation, and the dis-
tribution of the different powers of govern-
ment. In the Federal councils, each State
ought to have a weight in proportion to its
21817
Importance; and no State is jusstly entitled
to a greater. A representation is the sign of
the reality. Upon this principle, however
abused, the parliament of Great Britain is
formed, and it has been universally adopted
by the States in the formation of their legis-
latures."
This observation by Pinckney back in
1787, once again underlines and affirms
the argument I have been making;
namely, that at the time of the adoption
of the Federal Constitution the State leg-
islatures were constituted strictly on the
basis of population.
Unfortunately, some Senators do not
seem to appreciate or recall this. At any
rate, they have been making contrary
arguments on the floor of the Senate.
Following-the adoption of the Consti-
tution, Pinckney observed that this prin-
ciple, that each person, each voter,
should have an equal vote has been uni-
versally adopted by the States in 'the
formation of their legislatures.
Those who attack the Supreme Court,
In connection with Reynolds against
Sims, and call this a new, radical innova-
tion apparently have forgotten what our
Founding Fathers had said on this point.
One of the colurfinists, publishing his
column in last night's Washington Star,
in his usual intemperate and unfortunate
observations on the Federal Government,
brought his name-calling, which is
largely confined to,Members of the Sen-
ate, to-apply to the Supreme Court. He
argued that this Supreme Court action
was a radical departure from past prac-
tice.
Obviously he has not read the Federal-
ist papers. If he has, he has forgotten
what was written in the Federalist pa-
pers, and also the observations of the
other Founding Fathers. The Federal-
ist papers make it clear that these Su-
preme Court decisions were no radical
departure by the Supreme Court; indeed,
the Supreme Court affirmed an ancient
procedure, which is older than the Con-
stitution itself.
It is a principle that has been affirmed
over and over again. Every person in
America, black or white, rich or poor,
rural or urban, should have equal repre-
sentation in their State legislature.
There is no basis whatsoever in principle
for saying that city people cannot be
trusted, that suburbanites cannot be
trusted, or that when a person leaves a
farm and comes to the city, he leaves his
vote behind. There is no such principle
in our history or in the observations of
the great men who formed our Constitu-
tion.
Pinckney goes on to say:
The abuse of this equality?
That is the equality of having each
person equally represented?
has been censured as one of the most dan-
gerous corruptions of the English Constitu-
tion; and I hope we shall not Incautiously
contract a disease that has been consuming
them. Nothing, but necessity, could have
induced Congress to ratify a Confederation
upon other principles. It certainly was the
opinion of the first Congress, in 1774, to
acquire materials for forming an estimate of
the comparative importance of each State;
for, in the commencement of that session,
they gave as a reason, for allowing each
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21818 CONGRESSIONAL RECORD ?SENATE
colony a vote, that it was not in their power,
at that time, to procure evidence for deter-
mining their importance. ,
In other words, they did not have a
census. They did not know accurately
the population of the Colonies. They
had no provision for determining accu-
rately enough where the people were,
so that they could give each Colony pro-
portional representation. Continuing:
"This idea, of a Just representation, seems
to have been conformable to the opinions of
the best 'writers on the subject, that, in a
confederated system, the members ought to
contribute according to their abilities, and
have a vote in proportion to their impor-
tance. But if each must have a vote, it can
be defended upon no other ground, than
that of each contributing an equal share of
the public burdens: either would be a perfect
system. The present must ever continue
irreconcilable to justice.
"The Senate, I propose to have elected by
the house of delegates, upon proportionable
principles, in the manner I have stated,
which, though rotative, will give that body
a sufficient degree of stability and independ-
ence. The districts, into which the Union
are to be divided, will be so apportioned, as
to give to each its due weight, and the Sen-
ate, calculated in this, as it ought to be in
every government, to represent the wealth
of the Nation."
This method of representation was based
on Pinckney's view as to the proper relation-
ship of the new National Government and
the States (id. at 112) :
"I apprehend the true intention of the
? States in uniting, is to have a firm? National
Government, capable of effectually executing
its acts, and dispensing its benefits and pro-
tection. In it alone can be vested those
powers and prerogatives which more par-
ticularly distinguish a sovereign state. The
members which compose the superintending
Government are to be considered merely as
parts of a great whole, and only suffered to
retain the powers necessary to the adminis-
tration of their Btate systems. The idea
which has been so long and falsely enter-
tained of each being a sovereign state, must
be given up; for it is absurd to suppose there
can be more than one sovereignty within a
government. The States should retain noth-
ing more than that mere local legislation,
which, as districts of a General Government,
they can exercise more to the benefit of their
particular inhabitants."
This idea has persisted ever since the
founding of our Constitution: That
there is an element of sovereignty within
the States and is affirmed in the 10th
amendment to the Constitution, and so
stated over and over again, which was
the only argument given for composing
the Senate as it has been composed, with
every State, large and small, having
equal representation, and disregarding
the principle of equal representation for
every American citizen.
I continue:
In concluding, Pinckney comments on the
proposed constitution and states as one of
his two objections to it the composition of
the Senate. (Id. at 127.)
In a letter explaining why he had not
signed the proposed constitution, Elbridge
Gerry wrote that (HI Farrand 128-129) :
"As the- convention was called for 'the sole
and express purpose of revising the Articles
of Confederation, and reporting to Congress,
and the several legislatures, such alterations
and provisions as shall render the Federal
Constitution adequate to the exigencies of
government, and the preservation of the
Union.' I did not conceive that these powers
extend to the formation of the plan pro-
posed: but the convention being of a dif-
ferent opinion, I acquiesced in it, being fully
convinced that to preserve the Union, an
efficient government was indispensably nec-
essary; and that it would be difficult to make
proper amendments to the Articles of Con-
federation
"The Constitution proposed has few if any
Federal features; but is rather a system of na-
tional government. Nevertheless, in many
respects, I think it has great merit, and, by
proper amendments, may be adapted to the
'exigencies of government, and preserva-
tion of liberty.'"
I should not say "national"; I should
say, in the words of Madison, that this
is the Federal aspect of our Republic, not
the national aspect.
Perhaps Luther Martin best conveyed
the difference between State govern-
ment, which represents the people, and
National Government, which represents
States:
From December 28, 1787, to February 8,
'1788, Luther Martin's "Genuine Information"
was printed in the Maryland Gazette and Bal-
timore Advertiser. It consisted of an ex-
panded version of the speech he made to the
Maryland House of Delegates on November
29. M'artin stated that the believers in a
Federal system Were (III Farrand 179-186) :
"For taking our present Federal system as
the basis of their proceedings, and, as far
as experience had shown us that there were
defects, to remedy those defects; as far as
experience had shown that other powers
were necessary to the Federal Government
to give those powers. They considered this
the objectfor which they were sent by their
States, and what their States expected from
them.
Those who advocated [inequality of rep- _
resentation in the first branch] urged, that,
when the Articles of Confederation were
formed, it was only from necessity and ex-
pediency that the States were admitted each
to have an equal vote; but that our situa-
tion was now altered, and therefore those
States who considered it ;contrary to their
interest, would no longer abide by it. They
said, no State ought to wish to have influence
in government, except in proportion to what
It contributes to it; that, if it contributes
but little, it ought to have but a small vote;
that taxation and representation ought al-
ways to go together; that if one State had
16 \times as many inhabitants as another, or
was 16 times as wealthy, it ought to have 16
times as many votes; that an inhabitant of
Pennsylvania ought to have as much weight
and consequence as an inhabitant of Jersey
or Delaware; that it was contrary to the
feelings of the human mind; what the large
States would never submit to; that the large
States would have great objects in view, in
which they would never permit the smaller
States to thwart them; that equality of
suffrage was the rotten part of the constitu-
tion, and that this was a happy time to get
clear of it. In fine, that it was the poison
which contaminated our whole system, and
the source of all the evils we experienced,.
"This, Sir, is the substance of the argu-
ments, if arguments they may be called,
which were used in favor of inequality of
suffrage. Those who advocated the equality
of suffrage, took the matter upon the orig-
inal principles of government; they urged,
that all men, considered in a State of nature,
before any government is formed, are equally
free and independent, no one having any
right or authority to exercise power over an-
other, and this without any regard to differ-
ence in personal strength, understanding, or
wealth. That, when such individuals enter
into government, they have each a right to
September 22
an equal voice in its first formation, and
afterwards have each a right to an equal
vote in every matter which relates to their
government. That, if it could be done con-
veniently, they have a right to exercise it in
person. Where it cannot be done in person,
but for convenience representatives are ap-
pointed, to act for them, every person has a
right to an equal vote in choosing that rep-
resentative; who is instructed to do for the
whole, that which the whole, if they could
assemble, might do in person, and in the
transaction of which, each would have an
equal voice."
This is an extremely interesting analy-
sis by Luther Martin, because it recalls to
mind quite vividly the gross distortions
that now exist in California, where the
county of Los Angeles, with a population
of 6 million, has 1 State senator, while
another county, having a population of
13,000, has 1 State senator. That means
that if everyone in that area of California
were to attend a gigantic assembly, Los
Angeles citizens, in effect, would be per-
mitted to have only 1 citizen in 600 vote,
whereas in the other county everybody,
all citizens, would be allowed to vote.
Perhaps the inequality which Luther
Martin shows so vividly in analyzing the
Constitution can be demonstrated with
regard to the States.
The remarkable thing, to me, is that
what exercised our Founding Fathers so
much was that a representative of Dela-
ware and Rhode Island might have 16,
17, or 18 times the influence that a repre-
sentative of Pennsylvania or New York
might have. Now we have a situation
within the States in which a citizen of
one county may have a thousand times
the influence?that is not an exaggera-
tion?in electing the members of a State
legislature that another citizen has.
Mr. DOUGLAS. Mr. President, will
the Senator from Wisconsin yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. My own State of Illi-
nois certainly is not the worst State in
the Union in this matter, but I intro-
duced material into the RECORD yester-
day which showed that in one senatorial
district there were only 54,000 people,
and in another senatorial district there
were 570,900 people. One person in the
smallest district had more than 10 times
the voice of a person in the registered
district, or 1 person was equal to more
than 10 persons in the largest district.
I illustrated other examples of a district
with 57,000, 59,000 and 67,000 on the one
hand, and districts having over 400,000
and 505,000 on the other. Interestingly
enough, it was the suburban districts
which had the biggest population and
were, therefore, the most underrepre-
sented.
Mr. PROXMIRE. That is a dra-
matic and immediate illustration of the
kind of unfortunate injustice which the
Supreme Court has contended against,
and which it has endeavored to correct
patiently, slowly, gradually, over a period
of many years. The Senator from Illi-
nois has been at great pains to say that
for more than 60 years most States have
been malapportioned so that the Su-
preme Court has not acted precipitately
but gradually.
Luther Martin goes on to say:
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1964 CONGRESSIONAL RECORD ? SENATE 21819
That, if we were to admit, because a man
was more wise, more strong, or more wealthy,
he should be entitled to- more votes than an-
other it would be inconsistent with the if
and liberty of that-other?
Luther Martin reported the delibera-
tions of our Founding Fathers at the
time the Constitution was being set up,
and he has been acknowledged to be an
honest, fair, and objective reporter?
and would reduce hini to slavery. Suppose,
for instance, 10 individuals in a state of
nature, about to enter into government, 9
of whom are equally wise, equally strong, and
equally wealthy, the 10th is 10 times as wise,
10 times as strong, or 10 times as rich; if,
for this reason, he is to have 10 votes for each
vote of either of the others, the 9 might as
well ,have no vote at all; since, though the
whole 9 might assent to a measure, yet the
Vote of the 10th would countervail; and set
aside all their votes.
Mr. DOUGLAS. Mr. President, will
the Senator from Wisconsin yield?
The PRESIDING OFFICER (Mr. Mc-
'INTY8E in the chair) Does the Senator
from Wisconsin yield to the Senator from
Illinois?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. This is precisely what
the oil millionaire, H. L. Hunt, proposes.
He has written a book in which he states
that people should have votes in propor-
tion to their wealth.
Mr. PROXMIRE. The' examples he
has given, if votes are in proportion, can-
not even be justified on the basis of taxes
and wealth, on the wisdom of individ-
uals, their strength, the work they have
done, or the experience they have had.
There is no basis for this discrimination
whatsoever. They happen to live in an
area which, because people have left it, is
given more influence than another, or
they are disadvantaged because they
happen to live in an area which is attrac-
tive and progressive, and into which peo-
ple have moved.
Luther?Martin goes on to say:
Having thus established these principles,
with respect to the rights of individuals in a
state of nature, and what is due to each.
on entering into government (principles es-
tablished by every writer on liberty), they
proceeded to show, that States, when once
formed, are considered, with respect to each
other; as individauls in a state of nature;
that, like individuals, each State is consid-
ered equally free and equally independent,
the one having no right to exercise authority
over the other, though more strong, more
wealthy, or abounding with more inhabi-
tants. That, when a number of States unite
themselves under a federal government, the
same principles apply to them, as when a
number of individual men unite themselves
under a State government.
There we have a beautiful, clear, and
simple explanation of how to justify the
U.S. Senate. Although the States are
artifical creatures, they have a real
identity, real sovereignty, and we have
treated them equally. But no one?no
author of the Dirksen amedrunent, no
strongest supporter of the Dirksen
amendment, or author of the Tuck bill,
for that matter?has ever argued that
there is anything like such sovereignty
and identity, or any need for the equal-
ity of justification, for equality within
No. 182-14
the States, the counties, or any other
governmental body.
Luther Martin goes on to say:
That every argument which shows one
man ought not to have more votes than an-
other, because he is wiser, stronger, or
wealthier, proves that one State ought not
to have more votes than another, because
it is stronger, richer, or more populous.
And, that by giving one State, or one or two'
States, more votes than the others, the
others thereby are enslaved to such State or
States, having the greater number of votes,
in the same manner as in the case before
put, of individuals, when one has more votes
than the others. That the reason why each
individual man in forming a State govern-
ment should have an equal vote, is because
each individual, before he enters into gov-
ernment, is equally free and independent.
So each State, when States enter into a Fed-
eral Government, are entitled to an equal
?vote; because, before they enter into such
Federal Government, each State was equally
free and equally independent.
That argument cannot be made for
towns and it cannot be made for coun-
ties. It can be made only for individual
persons, or, in the case of federated gov-
ernments consisting of individual States
and nations, it can be made, perhaps, on
the basis of their identity as individual
States or nations.
Luther Martin goes on to say:
?"That the 13 States are 13 distinct political
Individual existences, as to each other; that
the Federal Government is, or ought to be,
a government over these 13 political indi-
vidual existences, which form the members
of that Government; and that, as the largest
State, is only a single individual of this Gov-
ernment, it ought to have only one vote;
the smallest State, also being one individual
member of this Government, ought also to
have one vote.
"It was denied that the equality of suffrage
was originally agreed to [in the confedera-
tion] on principles of necessity or expedi-
ency; on the contrary, that it was adopted
on the principles of the rights of men and
the rights of States, which were then well
known, and which then influenced our con-
duct, although now they seem to be
forgotten."
When the large States threatened that they
would never agree to a system of equal rep-
resentation, Martin said that the small States
answered (III Farrand 186) :
"That slavery was the worst that could
ensue, and we considered the system pro-
posed to be the most complete, most abject
system of slavery that the wit of man ever
devised, under the pretence of forming a
government for free States."
He described the iss'ue whether there
should be one or more legislative bodies as
a conflict between those in favor of National
and Federal Government (id. at 191-193) :
"Those who were for two branches in the
legislature, a House of Representatives and a
Senate, urged the necessity of a second
branch, to serve as a check upon the first, and
used all those trite and commonplace argu-
ments which may be proper and just, when
applied to the formation of a State govern-
ment, over individuals variously distin-
guished in their habits and manners, for-
tune and rank * * *. But, on the other side,
it was urged, that none of those arguments
could with propriety be applied to the for-
mation of a Federal Government over a num-
ber of independent States."
Luther Martin was an accurate, widely
accepted reporter of the debates at the
time of the constitutional convention.
He said that the arguments made in
favor of equal State representation, not
popular representation, in the U.S. Sen-
ate, were strictly based on the notion
that States had an individual, separate,
sovereign identity, and that they rose or
fell upon the acceptance of that theory.
That was the only theory and the only
principle. There was no argument that
there was some reason to provide area
representation or anything of that kind.
Luther Martin goes on to say:
It is the State governments which are to
watch sover and protect the rights of the
individual, whether rich or poor, or of mod-
erate circumstances, and in which the demo-
cratic and aristocratic influence or principles
are to be so blended, modified, and checked,
as to prevent oppression and injury?
The argument of those who contend
for the Senate to be organized as it is?
that the Federal Government is to guard and
protect the States and their rights, and to
regulate their common concerns; that a Fed-
eral Government is formed by the States, as
States, that is in their sovereign capacities,
in the same manner as treaties and alliances
are formed; that sovereignties, considered as
suCh, cannot be said to have jarring interests
or principles, the one aristocratic, and the
other democratic.
. It was urged, that the Government we were
forming was not in reality a,Federal, but a
National Government; not founded on the
principles of the preservation, but the aboli-
tion or consolidation of all State govern-
ments; that we appeared totally to have for-
got the business for which we were sent,
and the situation of the country for which
we were preparing our system?that we had
not been sent to form a government over the
inhabitants of America, considered as indi-
viduals; that as individuals, they were all
subject to their respective State govern-
ments, which government would still remain,
though the Federal Government should be
dissolved.
Whereas it was urged, that the principles
on which a Federal' Government over States
ought to be constructed and ratified, are the
reverse; that instead of the legislature con-
sisting of two branches, one branch was suffi-
cient, whether examined by the dictates of
reason, or the experience of ages; that the
representation, instead of being draWn from
the people at large, as individuals, ought to
he-drawn from the States as States, in' their
sovereign capacity; that, in a Federal Govern-
ment, the parties to the 'compact are not the
people, as individuals, but the States, as
States; and that it is by the States as States,
In their sovereign capacity, that the system
of government ought to be ratified, and not
by the people, as individuals.
It was further said, that, in a Federal
Government over States equally free, sover-
eign, and independent, every State ought to
hate an equal share in making the Federal
laws or regulations, in deciding upon them,
and in carrying them into execution; neither
of which was the case in this system, but the
reverse; the States not having an equal voice
in the legislature, nor in the appointment
of the executive, the judges, and the other
officers Of government. It was insisted, that,
in the whole systent there was but one Fed-
eral feature?the appointment of the Sen-
ators by the States in their sovereign capac-
ity, that is, by their legislatures, and the
equality of suffrage in that branch; but it
was said, that this feature was only Federal
in appearance.
Mr. Martin went on to say:
In a State government, I consider all power
flowing immediately from the people in their
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21820 CONGRESSIONAL RECORD ? SENATE
individual capacity, and that the people, in
their individual capacity, have, and ought to
have the right of choosing delegates in a State
legislature, the business of which is to make
laws, regulating their concerns, as individ-
uals, and operating upon them as such; but
in a Federal Government, formed over free
'States, the power flows from the people, and
the right of choosing delegates belongs to
them only mediately through their respec-
tive State governments which are the mem-
bers composing the Federal Government, and
from whom all its power immediately pro-
ceeds; to which State governments, the
choice of the Federal delegates immediately
belongs.
I repeat the first part of that state-
ment by Luther Martin. After years of
reporting on the origins of our Federal
Constitution, the debate led up to the
adoption of our Federal Constitution.
Luther Martin makes this notation,
which is so crucial:
In a State government, I consider all power
flowing immediately from the people in their
individual capacity, and that the people, in
their individual capacity, have, and ought to
have the right of choosing delegates in a
State legislature, the business of which is to _
make laws.
It is the people in their individual ca-
pacity who can elect a member of a State
legislature in proportion to the one man-
one vote principle. The Federal Govern-
ment is, in part at least, a federation of
independent and sovereign States. The
Federal Government has Senators who
represent States?not individuals, but
States.
A look at the conventions which
ratified the Constitution further illus-
trates the ideas of the Senate as a body
representing the sovereign States. I be-
lieve that this is one of the clearest and
best evidences that we have that at the
time of the adoption of the Constitution,
not only in the debate that went on when
it was ratified, by the delegates to the
Constitutional Convention, but also in its
actual ratification by the individual, in-
dependent States, was this concept of in-
dividual State sovereignty. This was the
only reason that the one man-one vote
principle was abridged in adopting our
Federal Constitution.
I continue to read:
In the Massachusetts Convention, various
delegates emphasized the sharp distinction
between the function of the Senate and the
House of Representatives. Fisher Ames, later
a Congressman, stated that (II, "The Debates
In the Several State Conventions on the
Adoption of the Federal Constitution" (Elliot
editor, 2d ed., 1854, p. 11)": "The Senators will
represent the sovereignty of the States. The
representatives are to represent the people."
Christopher Gore similarly remarked (id.
at 18) : "The Senate represents the sover-
eignty of the States; the House of Represent-
atives the people of the United States."
And E. Pierce said (id. at 22) : " [T] he Fed-
eral Represenatives, who are to form the
democratical part of the general government,
are to be a check on the representatives of
the sovereignty, the Senate *
In the debate on the constitution of the
Senate, Fisher Ames defended the provision
that Senators serve for 6 years (II Elliot 46) :
"The Senators represent the sovereignty of
the States; in the other house, individuals are
represented. * * * [Senators] are in the qual-
ity of ambassadors of the States * *
Did anyone propose .that a member of
a State legislature represented the gov-
ernment of a country, town, or any other
administrative convenience? Of course
not.
I continue to read:
"If they would be brought by that means
more immediately under the influence of the
people, then they will represent the State
legislatures less, and become the representa-
tives of individuals. This belongs to the
other house. The absurdity of this, and its
repugnancy to the Federal principles of the
Constitution, will appear more fully, by sup-
posing that they are to be chosen by the
people at large. If there is any force to the
objection to this article, this would be proper.
But whom in that case, would they repre-
sent??Not the legislatures of the States,
but the people. This would totally obliterate
the Federal features of the Constitution."
Continuing this debate, Rufus King, a del-
egate to .the Congress under the Confedera-
tion and to the Federal convention, noted
(id. at 47) :
"[A] s the Senate preserved the equality
of the States, their apportionment is equal."
In the debate on article I, section 4, which
gives Congress power to regulate Federal elec-
tions, George Cabot, later a U.S. Senator,
stated (II Elliot 25-26) : "[A] free and equal
representation is the best, if not the only
foundation upon which a free government
can be built; and, consequently, that the
greatest care should be taken in laying it.
* * * I consider the democratic branch of the
national government, the branch chosen im-
mediately for the people, as intended to be
a check on the Federal branch, which latter
is not an immediate representation of the
people of America, and is not chosen by them,
but is a representation of the sovereignty of
the individual States, and its members dele-
gated by the several State legislatures * *
Immediately thereafter Theophilus Par-
sons, a leading attorney, said (id. at 26-27) :
"In the Congress, not only the sovereignty
of the States is represented in the Senate,
but, to balance their power, 'and to give the
people a suitable and efficient check upon
them, the Federal Representatives are intro-
duced into Congress. The legislatures of the
several States are the constituents of the
Senate, and the people are the constituents
of the Representatives * * *. [A State
legislature] might make an unequal and
partial division of the States into districts
for the election of Representatives or they
might even disqualify one third of the
electors. Without these powers in Congress,
the people can have no remedy; but the
fourth section provides a remedy, a con-
trolling power in a legislature,' composed of
Senators and Representatives ,of 12 States,
without the influence of our commotions
and factions, who will hear impartially and
preserve and restore to the people their equal
and sacred rights of election."
Continuing the debate on this provision,
Dr. Charles Jarvis argued (id. at 29) : "The
right of election, founded on the principle of
equality, was, he said, the basis on which
the whole superstructure was erected; this
right was inherent in the people; it was un-
alienable in its nature, and it could not be
destroyed without presuming a power to
subvert the Constitution, of which this was
the principal; and by recurring to the 2d
section, it would appear that 'representatives
and direct taxes shall be apportioned among
the several States according to their respec-
tive numbers': it equally appeared that
30,000 inhabitants were entitled to send a
representative, and that wherever this num-
ber was found, they would have a right to
be represented in the Federal Legislature."
Judge Francis Dana, who was a Member of
the Congress under the Confederation and
September 22
who was chosen to attend the Federal Con-
vention but was unable to do so, also de-
fended article I, section 4: "The Legislature
of Rhode Island has lately formed a plan to.
alter their representation to corporations,
which ought to be by numbers. Look at
Great Britain, where the injustice of this
mode is apparent. Eight-tenths of the peo-
ple there have no voice in the elections. A
borough of but two or three cottages has a
right to send two representatives to Par-
liament, while Birmingham, a large and
populous manufacturing town, lately sprung
up, cannot send one. The Legislature of
Rhode Island is about to adopt this plan,
in order to deprive the towns of Newport and
Providence of their weight, and that thereby
the legislature may have a power to counter-
act the will of a majority of the people."
Rufus King immediately agreed with
Dana in support of article I, section 4 (id.
at 50-51) : "In Connecticut, they do not
choose by numbers, but by corporations.
Hartford, one of their largest towns, sends
no more delegates than one of their smallest
corporations, each town sending two, except
latterly, when a town was divided. The
same rule is about to be adopted in Rhode
Island. The inequality of such representa-
tion, where every corporation would have
an equal right to? send an equal number
of representatives, was apparent. In the
Southern States, the inequality was greater.
By the constitution of South Carolina, the
city of Charleston has a right to send 30
representatives to the general assembly; the
whOle number of which amounts to 200. The
back parts of Carolina have increased great-
ly since the adoption of their constitution,
and have frequently attempted an altera-
tion of this unequal mode of representation;
but the members from Charleston, having
the balance so much in their favor, will not
consent to an alteration; and we see that
the delegates from Carolina in Congress have
always been chosen by the delegates of that
city. The representatives, therefore, from
that State will not be chosen by the people,
but will be thd representatives of a faction
of that State."
Later in the debate, two speakers empha-
sized that most American legislatures were
apportioned on the basis of population.
John Coffin Jones said (U Elliot 75) : "[T]he
people of the United States are an enlight-
ened, well-informed people, and are, there-
fore, not easily imposed on by designing men.
Our right of representation, concluded Mr.
J., is much more just and equitable than
the boasted are of Great Britain, whose rep-
resentatives are chosen by corporations or
boroughs * *
Similarly, James Bowdoin, a Member of
the Congress under the Confederation and
former Governor, remarked that (id. at 127) :
"The equality of representation is deter-
mined in nearly all the States by numbers;
so it is in the Federal Constitution."
It was, as far as the House of Repre-
sentatives is concerned. As I pointed out,
the senate was a necessary, and at the
same time was considered by many to be
an unfortunate, but necessary compro-
mise, which could be justified on the basis
of a Federal system protecting the rights
of individuals within the States.
Continuing to read:
In the Connecticut convention, Oliver Wol-
cott a delegate to the Continental Congress
and later Governor, defended the proposed
constitution. In doing so, he said (II Elliot
202) : "The Senate, a constituent branch of
the general legislature, without whose assent
no public act can be made, are appointed
by the States, and will secure the rights of
the several States. The other branch of the
legislature, the Representatives, are to be
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196.4 CONGRESSIONAL RECORD ?SENATE
elected by the people at large. They will
therefore be the guardians of the rights of
the great body of the citizens."
Similarly, during the New York conven-
tion, Melancton Smith, a delegate to the
Continental Congress,? said (II Elliot 311) :
"[A] s the Senators are . the representatives
of the State legislatures, it is reasonable and
proper that they should be under their
control."
Alexander Hamilton described the conflict
over representation in Congress (id. at 236) :
"On the other hand, the small States, seeing
themselves embraced by the Confederation
upon equal terms, wished to retain the ad-
vantages which they already possessed. The
large States, on the contrary, thought it im-
proper that Rhode Island and Delaware
should enjoy an equal suffrage with them-
selves. From these sources a delicate and
difficult contest arose. It became necessary,
therefore, to compromise, or the Convention
must have dissolved without effecting any-
thing."
Robert Lansing likewise said (id. at 272) :
"When the subject of the apportionment of
representatives came forward, the large
States insisted that the equality of suf-
frage should be abolished. This the small
States opposed contending that it would
reduce them to a state of subordination.
There was such a division that a dissolution
of the Convention appeared unavoidable,.
unless some conciliatory measure was
adopted."
Later in the Convention, Lansing described
the nature of the Senate (id. at 289):."I
believe it was undoubtedly the intention of
the framers of this Constitution to make the
lower house the proper, peculiar representa-
tive of the interests of the people; the Sen-
ate, of the sovereignty of the States."
That refrain runs over and over in
the constitutional debates and during
the. ratification of the Constitution by
the various States. It was Lansing who
said that the Senate represented the
sovereignty of the States.
Continuing to read:
Patrick Henry, the great orator of the
Revolution and former Governor, was one
of the leading opponents of the Constitution
at the Virginia Convention. One of his
principal objections to the Constitution in-
volved representation in Congress (III El-
liot 46-47) : "[The Constitution] says that
there shall not be more Representatives than
1 for every 30,000. Now, sir; how easy is it
to evade this privilege. 'The number shall
not exceed 1 for every 30,000.' This may be
satisfied ? by one Representative from each
State. Let our numbers be ever,' so great,
this immense continent may, by this artful
expression, be reduced to have but 13 Rep-
resentatives * * '. When populatiOn in-
creases, and a State shall send 'Representa-
tives in this proportion, Congress may re-
mand them, because the right of having 1 for
every 30,000 is not clearly expressed. ? * *
[WI e may fairly conclude that they may re-
strain the number to ' one from each State.
Perhaps the same horrors may hang over my
mind again."
Later in the debate, he similarly contend-
ed (id. at 324) : "The honorable gentleman
was pleased to say that the representation of
the people was the vital principle of this
Government. I will readily agree that it
ought to be so. But I contend that this
principle is only nominally, and not sub-
stantially, to be found there."
Continuing:
"We contended with the British about rep-
resentation. They offered us such a repre-
sentation as Congress now does. They called
it a virtual representation. If you look at
that paper, you will find it so there. Is there
but a virtual) representation in the Upper
House? The States are represented, as
States, by two Senators each. This is virtual,
not actual. They encounter you with Rhode
Island and Delaware. This is not an actual
representation. What does the term 'repre-
sentation', signify? It means that a certain
district?a certain association of men?
should be represented in the Government, for
certain ends. These ends ought not to be
impeded or obstructed in any manner. Here,
sir, this populous State has not an adequate
share of legislative influence. The two petty
States of Rhode Island and Delaware, which,
together are infinitely, inferior to this State
in extent and population, have double her
weight, and can counteract her interest. I
say that the representation in the Senate, as
applicable to States, is not actual. Repre-
sentation is not, therefore, the vital princi-
ple of this Government. So far it is wrong."
A man as eminent as the great Gover-
nor of Virginia, considered perhaps the
most eloquent orator of our Revolution-
ary period, opposed the Constitution and
opposed it strictly on the basis of the
fact that the U.S. Senate was not orga-
nized on a one-man, one-vote basis.
I think that those who contend that
this principle is not a deep, proven, or
basic constitutional principle should rec-
ognize how very strongly our Founding
Fathers -felt about it, and those who ac-
cepted the principle in the Constitution
did so with the greatest reluctance.
Continuing to read:
Another opponent of the Constitution;
William Grayson, a former Member of the
Continental Congress and later to be a 'U.S.
Senator, similarly argued (HI Elliot 280) :
"A democratic branch marked with strong
features of aristocracy, and an aristocratic
branch with all the impurities and imperfec-
tions of the British House of Commons,
arising from the inequality of representation
and want of responsibility. There will be
plenty of Old Serums ?a rotten borough?
if the new Constitution should he adopted.
Do we love the British so well as to imitate
their imperfections? We could not effect it
more than in that particular instance. Are
not all defects and corruptions founded on
an inequality of representation and want of-.
responsibility?"
A few moments later, Grayson said (id. at
281) : "That the British House of Commons
are corrupted from the same cause that our
representatives will be: I mean from the Old
Serums among them?from the inequality
of the representation."
William Grayson, later to be a U.S.
Senator, and an opponent of the Con-
stitution, said, in speaking of the
Congress:
The people are represented according to
their numbers. In the upper House, the
States are represented in their political
capacities. Delaware or Rhode Island has
as many representatives here as Massachu-
setts. Why should the Senate- have a right
to intermeddle with money, when the repre-
sentation is neither equal or just?
In defending the need for congres-
sional control over Federal elections pro-
vided in article I, section 4, James Madi-
son said:
- Elections are regulated now unequally in
some States, particularly South Carolina,
with respect to Charleston, which is repre-
sented by 30 Members.
William Richardson Davie, a delegate
to the National Convention, described its
proceedings to the North Carolina ratify-
ing convention. As to Congress, he
stated:
2121.
The House of Representatives are immedi-
ately elected by the people. The Senators
represent the sovereignty of the States; they ,
are directly chosen by the State legislatures,
and no legislative act can be done without
their concurrence.
James Iredell, one of the initial mem-
bers of this Court, was one of the leading
supporters of the proposed Constitution
at the North Carolina convention. In
doing so, he defended the balance of the
new Federal system:
-Thus, then, the general Government is to
be taken care of, and the State governments
to be preserved. The former is done by a.
numerous representation of the people of
each State, in proportion of its importance.
The latter is effected by giving each State
an equal representation in the Senate. The
people will be represented in one house, the
State legislatures in the other * ,* *. The
House of Representatives ? * * will repre-
sent the immediate interests of the people.
* *? * The respectability of their constitu-
ents, who are the free citizens of America,
will add great weight to the representa-
tives * * *.
Throughout these justifications and
rationalizations for the U.S. Senate, we
can see the distinction made, empha-
sized, and underlined that Senators rep-
resent sovereign States, with the indi-
viduality of the sovereign States; and
that they were selected?until a consti-
tutional amendment in this century?by
the State legislatures. There is no
analogy whatsoever between a Federal
Congress, one branch of which is repre-
sentative of the people, and the State
legislatures.
Subsequently Mr. Iredell said:
It is true that it would be very improper
if the Senate had authority to prevent the
House of Representatives from protecting the
fl
people. It would be equally so if the House
of Representatives were able to prevent the
Senate from protecting the sovereignty of
the States.
Richard Dobbs Spaight, a delegate at
the Federal convention, explained the
reason that the Senate was required to
concur in treaties:
[I]t was thought better to put that power
into the hands of the Senators as repre-
sentatives of the States?that thereby the
interest of every State was equally attended
to in the formation of treaties?but that it
was not considered as a legislative act at all.
Davie likewise defended this require-
ment, saying that it was "indispensable
to give to the Senators, as representa-
tives of States, the power of making, or
rather ratifying, treaties. Although it
militates against every idea of just pro-
portion that the little State of Rhode Is-
land should have the same suffrage with
Virginia, or the great Commonwealth of
Massachusetts, yet the small States
would not consent to confederate with-
out an equal voice in the formation of
treaties."
It is interesting that, even though the
burden of my remarks has to do with
the distinction between Federal and-
State bodies, intruding in this debate by
the Founding Fathers is the principle
that the Supreme Court will defend and
protect the rights of individual Ameri-
can citizens from an unconstitutional
abridgement of that right by acts of
Congress or of the State legislatures:
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21822 CONGRESSIONAL RECORD ? SENATE
Charles Pinckney, a delegate at Philadel-
phia, described the proceedings in the South
Carolina convention. Concerning the ques-
tion of representation, he said that (IV El-
liot 256-257) : "The degree of weight which
each State was to have in the Federal council
became a question of much agitation. The
larger States contended that no government
could long exist whose principles were
founded in injustice; that one of the most
serious and unanswerable objections to the
present system was the injustice of its ten-
dency in allowing each State an equal vote,
notwithstanding their striking disparity.
The small ones replied, and perhaps with
reason, that, as, the States were the pillars
upon which the general government must
ever rest, their State governments must re-
main; that, however they may vary in point
of territory or population, as political asso-
ciations they were equal; that upon these
terms they formally confederated, and that
no inducement whatsoever should tempt
them to unite upon others * * ?*."
Mr. President, I pause here to point
out again that what the Senator from
Illinois [Mr. DOUGLAS] said some time
ago about how the creation in our Con-
stitution of a Senate that would not be
composed on the basis of population re-
sulted only from the fact that a pistol
was pointed at the heads of the Found-
ing Fathers to make them choose be-
tween that plan and no Union at all, has
been confirmed by what Mr. Pinckney
stated:
After much anxious discussion?for, had
the convention separated without determin-
ing upon a plan, it would have been on this
point?
This was the issue then. This was
the point that divided the Convention
and the Founding Fathers more than
any other point. It was the point on
which they felt most deeply. During
this debate, which has been led by the
senior Senator from Illinois, and in
which many of us have joined, this same
principle has been at issue. It is the
principle which divided the Constitu-
tional Convention and which made it so
difficult for the Constitutional Conven-
tion to arrive at a decision.
This is such an important principle
that We are willing at great incon-
venience to contend against the Dirksen
proposal, because of the principle on
which we feel so deeply.
Of course, there is another principle
which is even more precious than that.
We feel that the Supreme Court of the
United States? must be preserved in its
capacity to review an act of Congress as
to its constitutionality, and in its capa-
city to defend individual constitutional
rights. If we do not protect this prin-
ciple, our freedoms do not mean very
much.
As Charles Pinckney said
"A compromise was effected, by which it
was determined that the first branch he so
chosen as to represent in due proportion the
people of the Union; that the Senate should
be the representatives of the States, where
each Should have an equal weight."
Charles Cotesworth Pinckney, another del-
egate to the Federal Convention, likewise
stated (id. at 282-283): "As we have found
It necessary to give very extensive powers to
the Federal Government both over the per-
sons and estates of the citizens, we thought
it right to draw one branch of the legisla-
ture immediately from the people, and that
both wealth and numbers should be con-
sidered in the representation."
Pinckney supported the provisions con-
cerning Congress (id. at 304) : "[I]n the gen-
eral Constitution, the House of Representa-
tives will be elected immediately by the
people, and represent them and their per-
sonal rights individually; the Senate will be
elected by the State legislatures, and repre-
sent the States in their politieal capac-
ity" * * *.
Having indicated the strong conflict
existing between State sovereignty and
national unity at the time our Constitu-
tion was drafted, and the compromises
this conflict resulted in, I should now like
to examine some of the arguments made
for using the .Federal analogy in State
legislatures by reading from a pamphlet
entitled "Reapportionment and the Fed-
eral Analogy," Written by Robert B. Mc-
Kay. I shall read only the high spots:
The issue, now sharply drawn, may be
stated as follows: Since the U.S. Senate
provides equal representation for all States
regardless of population, while the House
of Representatives provides representation
according to population, is not a similar
arrangement permissible by analogy in State
legislatures? The contention is that, since
the national governmental structure has
proved reasonably satisfactory, and since the
system was approved by the framers of the
Constitution, a similar formula should be
acceptable in State legislatures.
The argument has a surface appeal that
has led to uncritical acceptance of the
analogy without noting the reasons for
which application of that scheme might be
inappropriate in the State legislative forum.
Typical of the unreasoned acceptance of this
too-easy argument is the statement of Mr.
Justice Harlan in his dissent in Baker.
- Mr. President, this is the cornerstone
and the only philosophical reference
which those who support the Dirksen
amendment have made. They con-
stantly come back to the argument of
Justice Harlan, who said:
It is surely beyond argument that those
who have the responsibility for devising
a system of representation may permissibly
consider that factors other than bare num-
bers should be taken into account. The ex-
istence of the U.S. Senate is proof enough
of that (369 U.S. at 333) .
Mr. President, I -wish Justice Harlan,
before he had written those words, had
studied the amicus curiae memorandum
which was prepared by the Department
of Justice to assist the Court in making
its decision. It was prepared in October
1963. It is true that the Reynolds against
Sims decision was rendered later. How-
ever, this azriicus curiae certainly an-
swered any contention that there is any
analogy. It answered it chapter and
verse. ?There is no analogy, and the de-
bates in the constitutional convention
and the writings of the Founding
Fathers and the Federalist Papers prove
that there is no analogy.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. PROXMIRE. ?yield to the Sen-
ator from Illinois.'
Mr. DOUGLAS. Not only was equal-
ity of representation of States, regard-
less of population, put into the Constitu-
tion under article I at the point of a pis-
tol and under the threat by the small
States that otherwise they would not
September 22
join and, indeed, would make treaties
with foreign powers, but the Small States
determined to rivet that provision into
the Constitution in article V. Article V,
In its concluding passage provides:
Provided, That no amendment which may
be made prior to the year 1808 shall in any
manner affect the first and fourth clauses
of the ninth section of the first article?
That dealt with the slave trade?
and that no State without its consent, shall
be deprived of its equal suffrage in the
Senate.
There is no limitation. The one rea-
son why this provision has never been
changed is that it is the one feature of
the Constitution which cannot be
changed.
We of the big States have suffered un-
der the principle of equality of repre-
sentation of the States in the Senate.
States of less than a quarter of the pop-
ulation have a majority of the-Members
in the U.S. Senate, and control this body.
The residents of the larger States pay
the major share of the taxes. Repre-
sentatives of the smaller States deter-
mine where the money is to go.
We of the larger States bear a heavy
burden and a heavy cross. We accept it,
because this is the price of continued
union, just as the big States accepted it
originally.
The mere fact that it has continued
through all this time is not proof that it
is the ideal system. 'Even if it is due to
the fact that the small States got this
provision in perpetuity when they made
it the price of admission to the Union,
we do not approve of it. We acquiesce
in it because we want to preserve the
,Union, but it is a heavy price that we pay.
Certainly it is not an example which
should be copied by any government.
Mr. PROXMIRE. The Senator from
Illinois makes a very strong and logical
argument, but I do not "buy" it. I be-
lieve We ought to be aware of the fact
that those of us who oppose the Dirksen
amendment do not depend on that argu-
ment. Those of us who feel that the
Federal Government was based on a wise
principle which has worked well do not
rely on the argument that every State
should have representation in the Senate
based only on its population. We can
still contend, as I contend?and as I be-
lieve perhaps most Senators contend?
that each State should have equal rep-
resentation, that each State should have
two Senators in the Senate, and at the
same time contend that this principle
should not apply to State governments.
because there is an analogy and no com-
parison.
Mr. MAGNUSON. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I yield.
Mr. MAGNUSON. Mr. President, I
may be able to contribute a little to this
discussion along the lines which the Sen-
ator from Illinois and the Senator from
Wisconsin have been discussing. The
States came into the Union Under an en-
abling act. I have looked up the enabling
act of February 27, 1889, which provided
for the admission of North Dakota, South
Dakota, Montana, and my own State of
Washington. Under the provisions laid
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1964 CONGRESSIONAL RECORD -- SENATE
down by the enabling act to allow the
people of my area and those of other
areas to become States, the enabling act
passed by Congress provided, in section
3:
SEC. 3. That all persont who are qualified
by the laws of said Territories to vote for
representatives to the legislative assemblies
thereof, are hereby authorized to vote for and-
choose delegates to form conventions in said
proposed States, and the qualifications for
delegates to such convention shall be such as
by the laws of said Territories, respectively,
persons are required to possess to be eligible
to the legislative assemblies thereof; and the
aforesaid delegates to form said conventiOns
shall be apportioned within the limits of the
proposed States, in such districts as may be
established as herein provided, in proportion
to the population in each of such counties
and districts, as near as may be, to be ascer-
tained at the time of making said apportion-
ments by the persons hereinafter authorized
to make the same, from the best information
obtainable, in each of which districts three
delegates shall be elected, but no elector shall
vote for more than two persons for delegates
to such conventions; that said apportion-
ments shall be made by the Governor, the
chief justice, and the secretary of said Ter-
ritories; and the Governors of said Territories
shall, by proclamation, order an election of
the delegates aforesaid in each of said pro-
posed States, to be held on the Tuesday after
the second Monday in May, eighteen hundred
and eighty-nine, which proclamation shall be
issued on the fifteenth day of April, eighteen
hundred and eighty-nine; and such election
shall be conducted, the returns made, the re-
sult ascertained, and the certificates to per-
sons elected to such convention issued in the
same manner as is prescribed by the laws of
said Territories regulating elections therein
for delegates -to Congress; and the number of
votes cast for delegates in each precinct shall
also be returned. The number of delegates to
said conventions, respectively, shall be seven-
ty-five; and all persons resident in said pro-
posed States, who are qualified voters of said
Territories as herein provided, shall be en-
titled to vote upon the election of delegates,
and under such rules and regulations as said
conventions may prescribe, not in conflict
with this Act, upon the ratification or rejec-
tion of the constitutions.
Surely the people of my territory,
when they sought to enter the Union,
were, by the enabling act passed by Con-
gress, directed to do exactly as I have
just read. The apportionment was to
be "in proportion to the population in
each of such counties and districts, as
near as may be" ascertained.
Mr. PROXMIRE. That is a most
valuable contribution and is most ap-
propriate. As I understand, Washing-
ton, Montana?
Mr. MAGNUSON. North Dakota and
South Dakota entered the Union tinder
this enabling act, the Act of 1889.
Mr. PROXMIRE. At that time the
clear provisions of the enabling act were
that the State legislatures should be
based on population?one man, one vote.
Mr. MAGNUSON. That is.the way I
interpret it. In effect, that is what the
language provides. This was a part of
the contract the people of the territories
made with the Federal Government in
order to become States.
? Mr. PROXMIRE. In what year was.
that?
Mr. MAGNUSON. That was in 1889.
Mr. PROXMIRE. Seventy-five years -
ago our predecessors in Congress
thciught that this principle was true.
They felt that new States should have
representation in their legislatures
based on the principle of one man, one
vote.
The contribution just made by the
Senator from Washington reminds us
once again of how the States of the
Northwest Territory were to be organ-
ized. That great ordinance also pro-
vides clearly that all States to be carved
out of the Northwest Territory?and
those States today include Wisconsin,
Illinois, Michigan, Indiana, Ohio?must
provide for their people representation
in the State legislatures baseeon popu-
lation, and must do so in perpetuity.
There is no question about it. Those
who adopted the Northwest. Ordinance
were among the same Founding Fathers
who adopted our Federal Constitution.
This shows how strongly they felt about,
each person having one vote.
Mr. MAGNUSON. In addition, the
States to which I have referred were re-
quired, first, to have an assembly to
establish the legislative body. The en-
abling actS further provided that even
the assemblies that would establish the
legislative bodies in those States had to
be selected according to population, as
nearly as possible.
Mr. PROXMIRE. So not only the
State legislatures, but also the assem-
_ blies that would establish the legisla-
tures, were required to have equal or
equitable representation.
Mr. MAGNUSON. Yes.
Mr. PROXMIRE. TO return to the
argument by Justice Harlan, who was
the lone dissenter in the -ease of Baker
against Carr, Justice Harlan said:
"The existence of the U.S. Senate is proof
enough of that."
But the answer is not as delusively simple
as Mr. Justice Harlan suggests. Indeed, care-
ful analysis of the issue suggests an exactly
opposite conclusion; namely, that the Federal
analogy is not relevant in deterraining
whether a State, apportionment plan is or is
not consistent with the equal protection
clause of the 14th amendment. Uncritical
application of that standard may well lead
into constitutional error.
The arguments favoring the application Of
the Federal system to the States were sum-
marized by Judge 0. Bowie Duckett of the
Circuit, Court for Anne Arundel County,
Md., in his opinion in Mary/and Com-
mittee for Fair Representation v. Tawes
(May 24, 1962) :
"Such an arrangement protects the minor-
ities. It prevents hasty, although popular,
legislation at the time. It is based upon
history and reason and helps to -protect the
republican form of government guaranteed
by article IV, section 4, of the U.S. Constitu-
tion. It preserves the checks and balances of
the State government which has worked so
well under the Federal. Moreover, there
would be little advantage in having a bi-
cameral legislature if the composition and
qualifications of the members were similar."
The arguments above stated are essentially
three: (1) The Federal experience, as de-
veloped through history, is sufficient prece-
dent. ( (2) Two houses, differently consti-
tuted, operate to restrain hasty and ill-con-
sidered legisla4on. (3) If, not differently
constituted, the two houses would not serve
the separate functions for which established.
Each argument deserves examination and, it
is believed, rejection.
21823
CONSTITUTIONAL CONVENTION AND THE
"GREAT COMPROMISE"
The egalitarian ideal of fairness in political
representation was emphatically stated in the
Declaration of Independence and frequently
thereafter during the late 18th and early 19th
centuries. Thomas Jefferson, writing in 1819, -
was characteristically eloquent: "Equal ren-
resentation is so fundamental a principle in
a true republic that no prejudices can justify
its violation because the prejudices them-
selves cannot be justified."
Yet during those early years not even the -
most ardent exponents of -political equality
contemplated the wide diffusion of the fran-
chise which we take for granted today. There
was no thought that women should be el:1'7
titled to vote and few doubted that owner-
ship of property, or even religious tests,
might be proper qualifications for voting
eligibility. Certainly few thought it odd that
the Constitution provided for the election
of Senators by State legislators without any
direct participation by the people and that
the President should also be chosen indirectly
through the medium of electors to be ap-
pointed in each State "in such manner as the
legislature thereof may direct." Yet over the
years all these concepts have been challenged
as fundamentally inconsistent with the dem-
ocratic ideal. _
Surely no State would today justify limita-
tions on the franchise based on these 18th-
century notions, now long rejected.
In this 18th-century context of limited
recognition of a popular base for the exercise
of the franchise, it would not have seemed
strange if the framers of the proposed Con-
stitution had all been agreed upon a plan for
nonequal representation in both houses.
There were many abridgments and
compromises with the notion of purely
democratic representation. It was point-
ed out that women did not have any vote.
Senators were chosen by State legisla-
tures and not by, the direct vote of the
people. That was a situation which my
own predecessor in this chair, some time
removed, old Bob La Follette, had a great
deal to do with correcting.
The fact that most people did not have
a voice in electing their Senators and
could do so only indirectly through their
State legislatures, was a defect which led
to corruption, and the reason why the
Senate was known as the millionaires
club or the rich man's club. '
Also, at the time of the founding of
the Constitution, the most powerful of-
fice, the Presidency, was selected not di-
rectly by the people but determined by
the electors who at that time considered
themselves, to a considerable extent, to ,
be independent of the vote which had.
been registered in the presidential elec-
tion. It was only at a later time that
it became clear that electors were bound,
in some cases legally but in all cases
morally, to vote in accordance with the
popular vote in the State from which
they were chosen.
There were many compromises with-
the principle which we now consider to
be a truism, a platitude, that if we have
a democracy, the people should have a
direct vote in the selection of public of-
At the same time, Mr. McKay points
out that there was no -difference of opin-
ion on the right the people should have
to equal representation in their State
legislatures.
As he writes:
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21824 CONGRESSIONAL RECORD ? SENATE
Yet the exact opposite was the proposal
which most of the delegates originally favored
and would ultimately have adopted but for
the intransigent oppositron of the small
States.' The Virginia plan proposed by Ed-
mund Randolph, based on what he called
the "Republican principle," provided for a
popularly elected first branch of the Congress
which was then to choose the second from
nominees proposed by the State legislatures.
Significantly, a favorable vote was actually
cast at one time for representation in both
Houses to be proportional to population (ex-
cept that five slaves were to be counted as
three freemen).
Nevertheless, the opposition of the smaller
States, although less than 'a majority, dem-
onstrated that a viable instrument of Gov-
ernment could be achieved only by partial
relinquishment of the principle of equality.
In this lay the genesis of what has come to
be called the "Great Compromise" or, as it is
sometimes described, the "reluctant" com-
promise. Max Farrand has said:
"The important feature of the compromise
was that in the upper House of the legisla-
ture each State?
Not each person?
should have an equal vote. The principle of
proportional representation in the lower
House was not a part of the compromise, al-
though the details for carrying out that prin-
ciple were inVolved." (The Framing of the
Constitution of the United States, p. 105
(Yale paperbound 1962) .)
Some proponents of the Federal analogy
as a justification for representational im-
balance in State legislatures have sought
support in the Federalist. But such reliance
Is largely misplaced. It must be remembered
that those papers were conceived and pub-
lished as political tracts designed to per-
suade New York voters to ratify the Con-
stitution in the form agreed upon at the
Convention. Even without discounting for
that special pleading, it is interesting to ob-
serve the almost apologetic support given to
the abandonment of the principle of equality
of representation. Thus in No. 62 (probably
Madison) :
I have quoted this before but I wish to
quote it briefly at this time?
"A government founded on principle, more
consonant to the wishes of the larger States
Is not likely to be obtained from the smaller
States. The only option, then, for the former
lies between the proposed government and a
government still more objectionable. Un-
der this alternative, the advice of prudence
must be to embrace the' lesser evil; and in-
stead of indulging a fruitless anticipation of
the possible mischiefs which may ensue, to
contemplate rather the advantageous conse-
quences which may qualify the sacrifice."
History subsequent to the Constitutional
Convention further supports the proposition
that the Federal analogy should not be ex-
tended to State legislative bodies. As already
Indicated, indirect election of Senators and
the President had been incorporated into the
original Constitution. Madison, in The Fed-
eralist, No. 45, specifically endorsed such
indirect election as a proper way of reducing
the influence of the people as a whole in
choice of the leaders of the National Govern-
ment. But these and other nondemocratic
restrictions upon voting rights were not des-
tined to survive. No portions of the Consti-
tution were more altered by amendment or
in practice in the 18th and 19th centuries
than those provisions relating to franchise,
a clear reflection of the inconsistency of some
of the original provisions with the growing
demand for more truly representative gov-
ernment.
This would tend to confirm what the
Senator from Illinois has been contend-
ing, that this nondemocratic provision
in the Constitution might well have been
amended in the course of the 18th or 19th
centuries, as were the other nondemo-
cratic provisions in the Constitution,
were it not for the provision in the Con-
stitution that makes an amendment of
representation in the Senate unconsti-
tutional in effect, because every State
must give consent to it.
Continuing to read:
Section 1 of the 14th amendment, calling
upon the States to provide equal protection
of the laws and due process, reflected senti-
ment for limitation of State action that was
unfair or unequal. That its potential impact
upon the composition of State legislatures
was not specifically contemplated in 1868
does not, under familiar principles of consti-
tutional doctrine, foreclose its application
to such cases where the inequality or unfair-
ness is later demonstrated. The point is
that the 14th amendment does require equal-
ity as to all kinds of State action. The fact
that inequality, as a matter of political ne-
cessity, was built into the national Congress
is thus no longer relevant in explaining simi-
lar inequalities adopted by States that are
forbidden to create invidious discriminations.
It is most important for us to recog-
nize, because frankly, at first I had
some reservations about the 14th amend-
ment interpretation. The point is that
the 14th amendment requires equality
as to all kinds of State action. Election
of the State legislature is perhaps the
most important kind of State action.
Equality of action under the 14th
amendment to the Constitution should
be recognized.
Mr. METCALF. Mr. President, will
the Senator from Wisconsin yield?
Mr. PROXMIRE. I yield.
Mr. METCALF. While it is true that
in our federal system of government we
are a group of affiliations of sovereign
States, and the Senate analogy would
not carry, down to the States; it would
be even more important to require equal
one-man-one-vote representation from
State legislatures than even in the Con-
gress of the United States; is that not
correct? At least it would be equally
important, would it not?
Mr. PROXMIRE. I believe that is
true. There was a very clear historical
reason for the Federal Government to
have a U.S. Senate with two Senators
for each State, inasmuch as it was cre-
ated by sovereign, independent States.
They treated themselves and considered
themselves as having sovereignty.
Later?not at the time of the adoption
of the Constitution, but later?the 10th
amendment to the Constitution was
adopted, which reserved to the States all
powers not specifically given to?the Fed-
eral Government.
This opposition deserves recognition.
A strong argument can be made, which I
would accept?the Senator from Illinois
[Mr. DOUGLAS] would not?that the
States therefore should be recognized on
an equal basis in one branch of the leg-
islature. It is a wise provision in our
Constitution. But, no counties ever got
together to form a State. That was not
the way in which they were formed any-
where.
The distinguished senior Senator from
Washington [Mr. MAGNUSON] pointed
out that when the State of Montana
came into the Union, it came in under
?
September 22
an enabling act, the same enabling act
that covered Washington, North Dakota,
and South Dakota. It required equal
representation in the State legislature.
Mr. METCALF. When the State of
Montana came into the Union, it adopted
a constitution which Contained a pro-
vision that each county should have one
senator and no county should have more
than one senator. A great Governor of
the State of Montana, 75 years ago, when
the constitution was adopted, pointed
out that that was a provision that vio-
lated the Constitution of the United
States. That was Gov. Joseph K. Toole.
He was the first Governor of the State
of Montana. He stated that a republi-
can form of government requires equal
representation. Then he said that if
there were 200 in one county and 200,000
in another county, that 'would not be
equal representation, and that that was a
violation of the Constitution of the
United States.
So this -is not a new matter. This is
not a matter that has just recently arisen
through the Supreme Court of the
United States. They were talking about
it back at that time, concerning how the
States of Washington, Montana, and
North and South Dakota came into the
Union.
Mr. PROXMIRE. That is a very valun,
able contribution. Those who oppose
the Supreme Court decision, oppose it
on the ground that the Court has pro-
posed some radical innovation. They
ask, "Who ever heard of this? It is a
strange, radical innovation."
As was pointed out, we have gone to
some time and trouble to show that the
Founding Fathers overwhelmingly estab-
lished that proposition.
Mr. METCALF. As we go through the
minutes of the Constitutional Conven-
tion of 1787, and as we go through the
Federalist Papers that were written by
those great Founding Fathers, we find,
running throughout those great docu-
ments, the position that one-man, one-
vote, equal representation is a basic pro-
position of "republican" form of govern-
ment.,
When the State of Montana came into
the Union 75 years ago, a great constitu-
tional lawyer from the State of Montana,
who was the first Governor of the State,
pointed out that this malapportionment
and misrepresentation in State senates
and State legislatures was a violation of
the proposition of a representative form
of government, a violation that we have
only recently had an opportunity to cor-
rect through recent decisions of the
U.S. Supreme Court.
This is no recent proposal. This is no
new idea. This is no upstart idea. We
have tried for over a century to correct
the situation.
Mr. PROXMIRE. Mr. President, I
thank the distinguished Senator from
Mentana. The distinguished and able
Senator from Montana is a former State
supreme court justice. He was an emi-
nent judge, a scholar of our Constitu-
tion, of constitutional law, and constitu-
tional government.
He is absolutely correct when he points
out that we can go through the Federal-
ist Papers carefully, and every single
reference to State representation affirms
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1964 CONGRESSIONAL RECORD ? SENATE
the ? right of each individual American
citizen to equal representation. But, as
Madison has said over and over again,
the Federal Constitution is a Federal
Constitution?just that, not a National
Government alone. It is a Federal Con-
stitution. It recognizes the sovereignty,
the dignity of each individual State. It
does give them, in one branch, equal rep-
resentation.
I continue to read:
The little-noticed section 2 of the 14th
amendment expressed further the increas-
ing demand for direct election and, indeed,
the idea of equality of representation, in
replacing those portions of section 2 of article
I relating to the method of apportionment.
The original provision, a minor part of the
great compromise, had specified that repre-
sentatives (and direct taxes) should be ap-
portioned among the States "according to
their respective numbers, which shall be de-
termined by adding to the whole number of
free persons, including those bound to serv-
ice for a term of years, and excluding Indians
not taxed, three-fifths of all other persons."
The 14th amendment changed this to pro-
vide that apportionment shall be exclusively
in accordance with population, "counting the
whole number of persons in each State,
excluding Indians not taxed."
The 15th amendment, in the Same spirit,
was enacted to insure that no restriction of
voting rights could be based on grounds of
race or color. The trend continued with the
adoption'in 1913 of the 17th amendment pro-
viding for the direct election of Senators
and in 1920 with the enfranchisement of
women by the 19th amendment. Recent
expression of the same sentiment is found
in the Civil Rights Acts of 1957, 1960, and
1964.
The fight that we are engaging in now,
in, an effort to protect the dignity of the
Supreme Court in their decision in Rey-
nolds against Sims is the same kind of
historic fight for the preservation of in-
dividual suffrage and for the establish-
ment of what I believe is perhaps one of
the most important defects in our sys-
tem at the present time?the right of
every individual to have equal repre-
sentation in the State government.
I continue to read:
Even without formal amendment to the
Constitution, changes effected by Congress
have also worked toward equality of repre-
sentation. ?Before 1842 Congress had limited
the exercise of its apportionment poN4er un-
der section 4 of article I to prescribing the
number of Representatives to be allotted to
each State. But in the apportionment act of
1842 Congress provided that Representatives
under the current apportionment should "be
elected by districts composed of contiguous
territory equal in number to the number of
Representatives to which said State may be
entitled, no one district electing more than
one Representative."
With this history in mind it seems at best
anachronistic to argue the ready transfera-
bility of the congressional scheme of repre-
sentation into the State legislatures. The
nonrepresentative character of the Senate
did not reflect majority sentiment even when
adopted, but was instead reluctantly accepted
as the required price for establishing an ac-
ceptable, if not the best possible, govern-
ment. The consistent course of events since
that time has been toward enlarged reliance
upon direct and full participation by all
citizens. With this has come increased rec-
ognition of the appropriateness in a repre-
sentative government such as the United
States of representation generally in, close
relation to population. In this light, the
nonrepresentative character of the U.S. Sen-
ate is seen to be an historical anomaly and
not at all a model for State emulation.
FEDERAL ANALOGY AND MAJORITY RULE
Proponents of the Federal analogy claim as
an advantage of two houses, one of which is
less responsive to popular will, a healthy
restraint upon excessive majoritarianism.
This formulation of the argument leaves un-
stated two underlying premises, neither of
which can withstand close analysis.
First, there is a suggestion that majority
rule is not altogether desirable, or at least
that minority groups are likely to be un-
reasonably disadvantaged if the majority
has its way. But is this true? Minorities
are accorded constitutional protection in bills
of rights and elsewhere to assure adequate
hearing for their views and to protect against
oppression by the majority. Once minority
rights have been assured in these important
respects, no sound reason appears for deny-
ing the majority its will in ordinary legisla-
tion. Indeed, if the two houses of a legisla-
ture are chosen in ways that will insure
representation of radically different interests,
an opposite and perhaps greater danger is
threatened, the legislative stalemate. Even
in Congress this has sometimes occurred, but
the risk there is minimized by the greater
physical expanse and cultural diversity rep-
resented in Congress as compared with the
more 'parochial interests within any single
State. The interest groups that operate in
the U.S. Senate and House of Representa-
tives are so numerous and diverse that ordi-
narily there is little risk that the two Houses
can be separately controlled by opposing
interest groups. In short, there are few is-
sues that would pit the area-based Senate
against the population-based House.
In the States the problem is very different,
as illustrated most dramatically in the urban-
rural conflict that is the pattern today in
nearly all the States that have departed
significantly from the? principle of equal
population in one or both houses. Sufficient
evidence of this legislative impasse on
urban-rural issues is found in the repeated
refusal of many State legislatures to follow
their own constitutional mandate of periodic
reapportionment.
Incidentally, one example of that was
Oklahoma. Oklahoma was cited as an
example of the most flagrant interfer-
? ence of the Federal Supreme Court with
the rights of a State. But in the case
of Oklahoma, the State legislature re-
fused to follow the State's own constitu-
tion. They have failed to follow it ever
since 1921.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. The same thing, of
-course, was true in the case of Tennes-
see and Alabama.
They did not reapportion between
1901 and the decisions of the Supreme
Court, which came in 1962 and 1964?
after 60 years of refusal by the legisla-
ture to reapportion according to their
own constitution.
In my own State of Illinois, the con-
stitution required reapportionment every
decennial period until 1955. From 1901
until that day there was no reapportion-
ment, During that time there had been
a great movement of population toward
the cities, which was disregarded. That
has been true in State after State.
Mr. PROX1VERE. Yes, indeed. What
I believe has been overlooked is the fact
that in all these cases?the Alabama
case, the Oklahoma case and others-
21825
Federal district courts?or the Supreme
Court, if it was called upon to support,
to intervene, or to reject the decision
of a lower court?have acted after State
legislatures have been given many years
in which to comply, in most cases, with
their own constitutions, and yet they
have failed to do so.
Mr. DOUGLAS. Mr. President, will
the Senator yield further?
Mr. PROXMIRE. I yield to the Sena-
tor from rilinois.'
Mr. DOUGLAS. The State courts al-
most uniformly have held that while the
legislatures were acting in disobedience
of their own constitutions, there was
nothing that the State courts could do
about it. -
Mr. PROXMIRE. The Senator is cor-
rect. In the Oklahoma case, the Supreme
Court of the State of Oklahoma said
there was nothing it could do. It was
none of their business. It was up to the
State legislatures.
What has happened in some countries
has been that unless the people could get
equality of representation, there would be
an actual physical armed .rebellion. We
do not like to do it that wlay in this coun-
try. The only other recourse is to rely
on having the right upheld in the courts.
Mr. DOUGLAS. In the Federal courts.
- Mr. PROXMIRE. In the -Federal
courts, because, as the Senator from Il-
linois has pointed out, the Sfate courts
have often refused to act.
Mr. President, continuing to read?
It becomes almost axiomatic that the more
severe the malapportionment the less is the
opportunity for legislative correction. All
too often the Federal system in State legis-
latures has worked not to protect the minori-
ties but to frustrate all sense of legislative
responsibility. When legislatures become in-
capable of any action on important matters
and when they flout the constitutional im-
perative of periodic reapportionment, State
government falls into disrepute. Only
through reassertion of State ,legislative re-
sponsibility can the decline of respect for the
State governmental process be reversed.
A second major postulate underlying the
check-and-balance argument's advanced in
support of the Federal analogy is the common
belief that the organization of State govern-
ments is not essentially different from that
of the National Government. The assump-
tion could scarcely be more false. The short
answer is that the United States, aa the very
name implies, is a union composed of the
sovereign States, consenting to centralized
resPonsibility as to certain enumerated
powers but reserving to themselves the bal-
ance. The constituent States, on the other
hand, have uniformly adopted a unitary
structure of government in which no sub-
ordinate political subdivision retains any
sovereignty but exercises only such functions
as are conferred upon it for the convenience
of, and at the pleasure of, the State govern-
ment.
That is the distinction which I have
drawn many, many times, but I think
must be drawn over and over again. The
States are not a federated system. They
are not a Federal system. There is no
sovereignty, no power, no individual rec-
ognition for any area below the State
government as there is in the Federal
Government. Therefore, there is no
basis for saying that there should be
some representation other than popula-
tion representation in the States.
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21826 CONGRESSIONAL RECORD ? SENATE
Continuing to read:
While Congress may not 'alter the terri-
torial boundaries of the States or take from
them the powers over local affairs reserved to
them, it has always been clear that the re-
lationship between a State and its political
subdivisions is very different. "The number,
nature, and duration of the powers conferred
upon 'these corporations and the territory
over which they shall be exercised rests in
the absolute discretion of the State."
Hunter. v. Pittsburgh, 207 U.S:, 161, 178
(1907). At least this freedom to rearrange
political subdivisions is absolute so long as
action by the States does not impinge on a
specific prohibition such as that in the 15th
amendment against depriving a citizen of his
vote because of race. Gomillion v. Lightfoot,
364 U.S. 339 (1961) .
FEDERAL ANALOGY AND BICAMERAL LEGISLATURE
A final argument advanced by advocates
of the Federal analogy is that there must be
differentiation of representation between the
two houses not only to serve the check-and-
balance function already discussed but as
well to justify the existence of a bicameral
legislature. As with many plausible-so'Und-
ing arguments, the difficulty is that the logic
has been pressed beyond defensible limits.
The proponents of this argument must nec-
essarily defend completely different repre-
sentation formulas in the two houses, that
is, one house related to population and the
other totally unrelated.
In fact, however, there are a number of less
drastic ways in which the two houses may
be made to represent quite different interests.
Mr. President, I was fortunate to have
the opportunity to serve in the Wisconsin
State Assembly 13 years ago. There is
no question that the check-and-balance
system works very well in Wisconsin. It
works well although both houses are
based on strict population apportion-
ment. There was a difference between
the length of the terms of members of
the State senate?the upper house?and-
those of members of the State assembly?
the lower house. There was a difference
in the size of the constituency. At that
time a State senator represented 120,000
people. A member of the assembly rep-
resented 30,000 or 40,000 people.
Obviously, the views of legislators tend
to be different when the constituencies
tend to be different or are different, so
that it is frequently possible to have a
working bicameral system. The proof is
not in-theory; the proof is in experience.
Wisconsin has had that experience for
116 years. We have had both houses
based squarely upon population in the
bicameral system?the check-and-bal-
ance system?and it has worked very
well.
Most important is the fact that under any
system no member of one house has the same
- constituency as any member of the other
house. When the lower house is several
times larger than the upper, as is ordinarily
the case, the members of the more numerous
house typically represent persons whose in-
terests are often closely identified with each
other in terms of geography, economics, and
ethnic grouping. Members of the less nu-
merous house, on the other hand, represent
larger, more diverse segments of the State,
whose problems and interests may be quite
different in total impact from those of the
smaller group represented by their opposite
numbers.
Moreover, terms can be, and usually are,
different between the two houses, thus auto-
matically injecting somewhat different po-
litical considerations.
Finally, there is no reason to believe that
rational, that is, reasonable, variations may
not continue, as always, to be based on his-
torical, political, economic or other non-
population factors. As Solicitor General Cox
stated before the Tennessee Bar Association
in June 1962:
"[I]t would not surprise me greatly if the
Supreme Court were ultimately to hold that
if seats in one branch of the legislature are
apportioned in direct ratio to population, the
allocation of seats in the upper branch may
recognize historical, political, and geographi-
cal subdivisions provided that the departure
from equal representation in proportion to
the population is not too extreme."
CONCLUSION
In matters of franchise at the national
level the uniform trend since 1787 has been
toward more extended exercise of the right
to vote, both as to classes of electors and as
to removal of restrictions upon the free exer-
cise of the right. Only in the choice of State
legislaiures, largely through rejection of the
principle of representation in proportion to
population, has the ideal of equality of the
right to vote been limited in significant ways.
To the extent that the Federal analogy is
allowed to survive as a justification for these
practices, present imbalances in representa-
tion can be expected to worsen with the pas-
sage of time and the inevitable further con-
centration of population in urban areas.
Not until the idea of representation with
some reference to population becomes stand-
ard throughout State legislatures can there
be confidence in their responsiveness to
popular needs and demands.
How better to conclude than by invoking
once more James Madison in the Federalist,
No. 39: "It is essential to [a republic] that it
be derived from the great body of the society,
not from an inconsiderable proportion or a
favored class of it."
Before I conclude, I should like to
quote briefly from comments on the al-
leged analogy between the representa-
tion of the States in the U.S. Senate and
the representation of county areas in
State legislatures, which were brought
together by John E. Bebout, director of
the Urban Studies Center of Rutgers
University, which is the State University
of New Jersey:
We know of no extensive general discus-
sion of the historical and constitutional ba-
sis, or lack of basis, for the analogy some-
times drawn between the equal representa-
tion of the States in the U.S. Senate and the
representation of areas, usually counties or
towns, in the State legislatures. The sup-
posed analogy is frequently cited in defense
of particular arrangements as, for example,
the equal representation of the counties in
the New Jersey Senate.
This was an extensive study made by
Rutgers University. To continue the
quotation:
We have found no acceptance, however, of
the validity of this analogy in standard
works on government nor in objective studies
of particular legislatures by recognized au-
thorities. Even in New Jersey, which is one
of only seven States that provide for equal
representation of all counties regardless of
size in one house (and has done so since
adoption of its first constitution in 1776),
the "Federal analogy," though used from
time to time as a debating point, has never
been given authoritative endorsement as pos-
sessing inherent or technical validity. For
example, Chief Justice Joseph C7 Horn-
blower, speaking in the New Jersey Consti-
tutional Convention of 1844, observed:
"Each of the States is sovereign and might
or might not assent to the Constitution and
come into the federation. But our counties
September 22
have not that privilege. Our State is but
one territory, one people, one municipality.
We are, in-fact, only making a municipal law
to govern the State. There is, therefore, no
similarity between the Constitution of the
Federal Union, of an empire, and that of a
sovereign State." Proceedings of the New
Jersey Constitutional Convention of 1844,
page 58.
The following excerpts are typical of the
treatment of this subject in the literature.
Walker, Harvey, "The Legislative Process,"
the Ronald Press Co., New York, 1948, page
172: 'The representation of areas rather
than, or even in addition to, population in
a legislative body has small place in a de-
mocracy; actually, one cannot represent an
area., He must represent the people who live
In it. If they are fewer in number than
those represented in the same body by an-
other legislator, there is an undemocratic
imbalance. The use of artificially created
boundary lines on a map to determine rep-
resentation is as outworn as feudalism. Ex-
cept in a few States, there is an effort to se-
cure equal representation of population in
both houses of the legislature. So while bi-
cameralism makes possible the representa-
tion of areas, it is not always used for that
purpose. Counties are created by the legis-
lature in most States and may be abolished-
or consolidated by the same authority. Re-
form in county government, including con-
siderable reduction in the number of coun-
ties, particularly in the South and East, is
long overdue. Such reform would do much
to show the absurdity of 'area representa-
tion,'"
"Legislative Apportionment in Oklahoma,"
Bureau of Government Research, University
of Oklahoma, May 1956, pages 3-4: "General
misunderstanding concerning the legal posi-
tion, of the county constitutes the chief ob-
stacle to a fair distribution of the member-
ship of State legislative bodies. The county
does not occupy the same constitutional po-
sition in the State that the State holds in
the Union. Its boundaries may be altered
under procedures prescribed by the State,
and the form of government under which it
operates is set up by, and may be altered by,
the State legislature. Unlike the State, the
county can lay no.claim to inherent powers;
It enjoys only those which are specifically
delegated by the parent government.
"In territorial days, the Supreme Court
declared that counties 'are but subdivisions
of the territory created for governmental pur-
poses' * * * and that they 'derive their au-
thority to hold elections and elect officers
from the legislature.' Immediately after
statehood a series of contests occurred over
the constitutional position of counties, in
which the Supreme Court had no difficulty in
reaching the conclusion that 'a county is one
of the territorial divisions of the State cre-
ated for public and political purposes con-
nected with the administration of State
government.'
"This view of the legal status of the county
Is uniformly held among the States, and has
long been accepted by the courts of the
United States. There is no constitutional
basis for the notion that a county, is a unit
in which the right of representation is in-
herent."
Bosworth, Karl, "Law Making in State
Governments," page 85 In "The Forty-eight
States: Their Tasks as Policymakers and Ad-
ministrators" (final edition, background
papers), Eighth American Assembly, Grad-
uate School of Business, Columbia Univer-
sity, 1955: "First, perhaps it needs to be said
that there is no reason why, in a system
that gives allegiance to democratic ideals,
any members of either house should have
significantly different numbersrof constitu-
ents?total populations, citizens or voters.
Many of the constitutions reflect other
theories: that small town and country peo-
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1964 CONGRESSIONAL RECORD ? SENATE
pie and perhaps middle-sized city people are
more deserving of representation than others,
or that counties or towns are, like the States
in the Federal system, independent political
entities to be represented regardless 'of their
population. There is no basic right in the
constitutional theory of any State for coun-
ties or towns to have separate representation.
Unlike the National Government vis-a-vis
the States of the Union, the States can abol-
ish, change the boundaries of, or transform
the governments of counties, towns and
cities. The local governments' legal position
is one of complete dependence upon the
States. Any 'sovereignty' of counties or
towns is based on entrenched political power,
not on constitutional or democratic theory."
There are, of course, numerous statements
on the undesirable effects of the failure of
many State legislatures to be sufficiently rep-
resentative of the people. See, for example,
the findings of the participants in the Eighth
American Assembly, supra, page 138, and the
discussion of the State legislature at pages
38 to 40 of the "Report of the Commission
on Intergovernmental Relations" (Bestn-
baum Commission), Washington, D.C., 1955.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. I congratulate the
Senator from Wisonsin for his thorough
analysis of the difference between the
circumstances under which the U.S.-Sen-
ate was created and the circumstances
attending representation of individuals
in the various State legislatures. The
Senator from Wisconsin has produced a
wealth of testimony to prove his point,
and should have settled the matter be-
yond any possibility of doubt.
I take it the Senator from Wisconsin
Is planning shortly to yield the floor _
under certain conditions. Pending that
time, I should like to ask unanimous
consent that at the conclusion of the
morning hour tomorrow I be recognized
to speak on the subject.
The PRESIDING OFFICER. Does the
Senator mean at the conclusion of morn-
ing business?
? Mr. DOUGLAS. That at the conclu-
sion of the morning business tomorrow
I be recognized to speak oh this subject.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
It is so ordered.
Mr. PROXMIRE. Mr. President, one
more observation before I conclude. The
Senator from Wisconsin has unwillingly
held the floor since last Wednesday.
This is Tuesday. It has taken an entire
week for me to make this speech. It was
not an infinite speech. It took 6 or 7
hours at the most. It was impossible to
complete my speech because those who
favor the Dirksen amendment were not
available to develop a quorum on Thurs-
day, Friday, or Saturday. On yester-
day, Monday, we were able to obtain a
quorum after about an hour of waiting
for it. I spoke and then yielded to the
Senator from Oregon, at which time it
was transparently obvious that we could
not get a quorum, and the Senate
adjourned.
I wish to make it clear that those of
us who are supporting the Supreme Court
in opposing the Dirksen amendment are
desirous of having Senators who op-
pose our position come to state their
No. 182-16
case, to make a quorum, and t o provide
the kind of attentive and intelligent au-
dience which I know they are capable of
making.
Mr. President, I yield the floor to the
distinguished Senator from Maryland
[Mr. BREWSTER] With the understanding
that while he holds the floor there will
be no motion made on the pending ques-
tion Of the Dirksen amendment.
The PRESIDING OFFICER. The Pro-
posal of the Senator from Wisconsin is
not permissible under the rules of the
Senate.
Mr. PROXMIRE. Mr. President, I re-
new my motion. Perhaps I phrased it
improperly. I ask unanimous consent
that I may yield to the distinguished Sen-
ator from Maryland [Mr. BREWSTER],
with the understanding that I shall not
lose my right to the floor, and that while
the Senator from Maryland holds the
floor a motion will not be made on the
pending business.
The PRESIDING OrviCER. Is there
objection? The Chair hears none, and
it is so ordered.
Mr. BREWSTER. Mr. President, I
thank my distinguished colleague from
Wisconsin. I congratulate him on his
very wise and able presentation of this
case and his defense of liberty and rep-
resentative government.
Mr. President, like it or not, we are
caught up in a debate which goes to the
very core of the generally accepted phi-
losophy of our representative Govern-
ment. More than that, we are partici-
pants in a political power play which will
profoundly affect the future of millions
of Americans.
My position on this issue should have
been made clear by my recent votes on
cloture and the McCarthy-Javits "sense
of Congress" resolution. Let me state
here and now so that there can be no
doubt whatsoever?I am climpletely and
unalterably opposed to any attempt to
nullify the Supreme Court's series of
"one man, one vote" decisions.
The Senate has already rejected the
proposition put forth by the House-en-
acted Tuck bill, by a substantial vote.
Now a second attack is being mounted
on the House side in the form of a con-
stitutional amendment sponsored by
Representative PATMAN, of Texas. I sin-
cerely hope that Maryland's Representa-
tives on both sides of the aisle will stand
firm against it.
The, matter before us now is more in-
sidious than either the Tuck or Patman
bills because it purports to be?and to
some may appear to be?milder in its
approach. I, for one, will not buy this.
I believe that the Dirksen rider's real
purpose is to buy time in order that the
antireapportionment forces in both the
House and the Senate may mount a de-
termined campaign for the passage of a
constitutional amendment which will
permanently take away the Supreme
Court's jurisdiction and therefore its
power to protect our citizens' right to
equal representation.
I concur with and subscribe to the
thoughts of the distinguished senior Sen-
ator from New Mexico [Mr. AN-mason]
when he recently said:
21827
We are now engaged in a debate which
centers on the vital organs of our form of
government, and reopens arguments raised
and resolved by the men who shaped the
Constitution of the United States. The out-
come of this debate and the issue which
prompted it could, over the years, have a
deeper effect on more Americans than the
civil rights bill we passed in June. The
House of Representatives has passed a bill,
the Tuck bill, which would bar the Supreme
Court from acting in cases involving the re-
apportionment of State legislatures. This
bill defies the basic principle established by
the Founding Fathers that the Supreme
Court should exercise the role of final ar-
biter in disputes of interpretation of our.
Constitution because it would destroy one of
the foundation stones of our Republic.
The Tuck bill, in my opinion, should have
been defeated. There were those, however, -
who believed that the extreme measure
passed by the House would force this body
to accept some sort of more modest counter
to the Supreme Court's decisions on leg4sla-
tive apportionment in the States. This so-
called more modest measure took the form
of the Dirksen amendment. I am as strong-
ly opposed to the Dirksen amendment?even
though some would label it a modest pro-
posal?as I am to the Tuck bill. No hear-
ings were held on the Tuck bill in the House.
We have not held hearings in the Senate
on the Dirksen amendment, yet we are asked
here to attach this disruptive amendment to
the foreign aid bill.
If this amendment should become a part
of the foreign aid bill and the foreign aid
bill be sent to the President, I would rather
see the President veto that vital legislation
rather than let the Dirksen amendment be-
come the law of the land. The amendment
abrogates the principles for which the Found-
ing Fathers labored long and diligently in
the Philadelphia Convention of 1787. More
than that, it would encourage Congress to
foreclose Supreme Court actions in other
areas which might be unpopular with an
active and influential minority. Even when
the Supreme Court in 1954 handed down its
momentous decision that there should be
desegregation in the public schools, I do
not recall that any measure was introduced
in Congress to deprive the Supreme Court
of the right to rule in such cases. Could it
be that this issue has. generated so much
opposition because reapportionment has
such a profound effect on the political power
structure?
I find it somewhat surprising that the
distinguished Senator from Illinois, who was
one of the architects of the civil rights bill,
should be the principal architect of this
proposal which is nothing else but a civil
wrongs bill, because it would deny to many
the right of equal representation and does
violence to the 14th amendment which was
one of the bases for the civil rights bill.
There are those who say that the Dirksen
amendment accepts the decisions of the Su-
preme Court that both houses of State legis-
latures must be apportioned on the basis of
population, but merely delays implementa-
tion of the rulings. In truth the purpose of
the Dirksen amendment is to buy time?time
in which it is hoped a constitutional amend-
ment can be adopted that will produce the
same results, wholly or partially, as the Tuck
bill if it were enacted. In reality, we would
wind up in the same leaky boat, nullifying
the action of the Supreme Court, but worse,
foreclosing future decisions by the Supreme
Court in this area of fundamental principle.
The Dirksen amendment only delays the day
of final judgment for the inequality and in-
justices which have beeh the lot of large
numbers of Americans for so many decades.
Malapportionment will still be with us. I
am afraid that millions of our citizens will
despair that nothing can be done to erase
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21828 CONGRESSIONAL RECORD ? SENATE
this blot on our democracy. They will be-
lieve that Congress has left them ,hostage to
the whims and will of legislatures which do
not accurately respond to their needs.
I also applaud the proposition set forth
by the senior Senator from New York
[Mr. JAvirs] in urging support for his
"sense of Congress" resolution when he
said:
The question, then, is how Congress May
constitutionally manifest its desire for time
to avoid hasty solutions and perhaps to pro-
pose a constitutional amendment. I do not
believe the Dirksen-Mansfield amendment
can do so validly under the doctrine of the
separation of powers of the coordinate
branches of the Federal Government unless
the Court construes it as a request, not an
order. I have heretofore argued that in my
judgment, the Supreme Court will strike
down the Dirksen-Mansfield amendment un-
less it construes the words "unusual circum-
stances," as contained in the amendment,
to allow it, for all practical purposes, to
consider that amendment as a request, not an
order. That is a dangerous piece of business.
Thea Court may feel constrained, as a matter
of morality in the construction of the law,
to hold that this is an order to the Court,
and to strike it down, and face the terrible
confrontation between Congress and the
Court, which I do not believe anyone who
loves our country and its institutions should
invite. If the amendment is mandatory,
if it is a statute, then it could well be con-
strued as an attempt by Congress to impose
upon the Federal courts what is called, in
words of art, "a rule of decision." This has
been held invalid in cases involving constitu-
tional rights already pending before the
courts. I have argued on the floor of the
Senate the famous McCardle case. There is
a great likelihood, in view of the later Klein
and Glidden cases, that the McCardle deci-
sion is unlikely to be the law of the land as
construed by the Supreme Court at this time.
It is for these reasons that I wish to avoid
this confrontation.
Mr. President, I believe I am correct in
stating that the majority of Senators, on
both sides of the aisle, are attorneys and
were qualified as such before they be-
came Members of the Senate.
As lawyers as well as lawmakers, I
fear that some of us have not paid suf-
ficient attention to the development of
the- law in those cases dealing with re-
apportionment, or more precisely with
malapportiorunent.
For this reason I thought it might
be useful for some of us, at least, to
trace the legal history of one of these
cases. I know that Senators will under-
stand why I have chosen the Maryland
case as my illustration.
It happens that three of the prime
movers in the reapportionment fight in
Maryland are well known to me person-
ally. The first, Royce Hanson, a vigorous
young political science professor from
Montgomery County, Md., organized the
Maryland Committee for Fair Represen-
tation, which served as the principal
vehicle of the proreapportionment
forces in Maryland. The other two,
Alfred L. Scanlan and Johnson Bowie,
are longtime personal friends and prom-
inent Maryland attorneys. It was they
who, with their cocounsel, John B.
Wright, successfully argued the com-
mittee's case before the Supreme Court.
Before going into the details of the
Maryland case, I believe it would be
helpful and interesting to review the
strategy of the successful attorneys.
Mr. Scanlan published an interesting
article on this aspect of the case in the
June 1963 issile of the Notre Dame Law-
yer, published by the Notre Dame Law
School.
In the article, which is entitled "Prob-
lems of Pleadings, Proof, and Persuasion
In a Reapportionment Case," Mr. Scan-
lan wrote:
EXPLANATORY COMMENT
In the-year which has elapsed since the
Supreme -Court's monumental decision in
Baker against Carr, a constitutional ferment
of the greatest dimensions has ensued. As
the victorious attorney of Baker against Carr
perceptively observes, "By every yardstick of
measurement, this historic landmark deci-
sion has had the greatest effeet on State
Governments of any event since our Federal
Constitution was adopted."
By a recent count, cases challenging legis-
lative apportionments had been filed in 36
States, and 25 decisions had been handed
down. In 19 of these decisions, the existing'
apportionment of one or both bodies of the
legislature have been found to be uncon-
stitutional. New reapportionment measures
have been passed in 15 States and are ex-
pected in the near future in 11 more. The
Supreme Court recently noted jurisdiction
in eight cases involving either reapportion-
ment of State legislatures or congressional
redistricting. In addition, the Court already
has struck down, by a vote of 8 to 1, the
invidious unit rule system observed for so
long in primary elections in Georgia.
Parenthetically, the same system, until
quite recently, was followed in my State
of Maryland.
Many talented and dedicated people have
played a part in this battle for constitutional
reform, or, if you prefer, revolt. Political
scientists and professors of government and
public administration have furnished under-
lying theory and plentiful statistics. The
League of Women Voters, the AFL-CIO, and
local chambers of commerce have helped
furnish funds. 'Politicians, at least those
favorably disposed toward reasonable ap-
portionment, have contributed their native
gifts of leadership, direction and productive
political compromise. The courts, of course,
have provided indispensable stimuli toward
necessary legislative action.
In so doing, the judiciary, at last, has given
"meaning to the otherwise sterile insistence
of Mr. Justice Frankfurter that relief from
inequitable apportionment 'must come
through an aroused popular conscience that
sears the conscience of the people's repre-
sentatives.'"
, However, the lawyer has proved to be the
infantryman of this war. The late Robert
Jackson once remarked that America believes
in "government by lawsuit." Sooner or later,
practically all of the great public issues
which confront the Nation find their way to
the courts in one form or another. This has
been especially tame of the reapportionment
controversy. The basic issue is whether rep-
resentative government is to prevail in the
legislative chambers of the States and in the
House of Representatives of the United
States. More precisely, the question pre-
sented is whether there is anything in the
14th amendment that guarantees that the
fundamental principles of representative gov-
ernment and majority. rule? shall -obtain in
the country's legislative bodies. Thus are
raised constitutional issues of the greatest
magnitude, enormous impact, and far-reach-
ing effect.. Under the circumstances, it is
not surprising that it has been the lawyer
who has been called upon to furnish the
technical advocacy so indispensable to the
presentation and resolution of the grave and
complex constitutional questions with which
September 22
the country, the States, and now the courts
are wrestling.
My purpose here is to describe the anatomy
of a reapportionment case as seen through
the eyes of a lawyer who is called upon to
prepare, try, and argue it. From pleadings
through proof, a number of problems, some
unique, some familiar, am encountered by
the attorney who handles a reapportion-
ment or a redistricting case.
BRINGING THE ACTION
1. Where to sue
At the outset the reapportionment advo-
cate must determine, if the choice is open,
whether to bring suit in a Federal or a State
court. If there is an express remedy pro-
vided by the State's constitution, or in its
statutes, perhaps the better course is to in-
stitute the litigation in the State court. For
example, in Asbury' Park Press, Inc. v.
Woolley, a case decided 2 years before BakCr
v. Carr, the New Jersey Supreme Court sus-
tained a claim that the New Jersey Assem-
bly was malapportioned. The court relied on
express provisions of the New Jersey consti-
tution, even though it also indicated, with-
out deciding the point, that the malappor-
tionment under attack violated the 14th
ainendment. Moreover, long before the Su-
preme Court's decision in Baker V. Carr, a
number of State courts had held apportion-
ment statutes to be in violation of State
law. As the Supreme Court of Oklahoma ob-
served in Jones v. Freeman:
"It might be well to point out that in 1938,
the courts of 22 States had exercised the
power, or had stated that they had the power,
to review legislative reapportionment acts
upon (State) constitutional grounds, and
no court had denied that it possessed such
power."
It is perfectly clear also that the 14th
amendment issues can be raised and decided
in a State court, whether or not the com-
plaining petitioners also have valid State
grounds on which to rest their reapportion-
ment action. On the other hand, it may still
be contended that a State court would not
be obliged to decide the Federal equal pro-
tection or due process questions in a reap-
portionment case where, under State law, no
remedy is available by which a decision in
favor of the complaining party could be
enforced.
On balance, the rapid and momentous
events which have transpired since Baker v.
Carr strongly suggest that a three-judge
Federal court certainly is the forum where
the most expeditious decision may be ob-
tained. The decision of such a court is di-
rectly appealable to the U.S. Supreme Court.
In addition, a Federal judge may enjoy a
slightly more independent status than a
State judge. To the extent that the practi-
cal compromises of politics may be signifi-
cant factors to be taken into judicial account
in the resolution of apportionment contro-
versies, these would appear to be considera-
tions less likely to move an appointed judge
than an elected judge.
However, there is at least one caveat about
bringing a reapportionment action in a Fed-
eral court. The Federal courts surely are not
anxious to plunge into the reapportionment
controversy, despite the decision of the Su-
preme Court in Baker v. Carr. Sound and
deeply engrained instincts of judicial ab-
stention have led some Federal courts to hold
their hands until the highest court of a State
was given an opportunity to pass upon an
apportionment law, especially "where the
State constitution was germane to the issue.
In Lein v. Sat lire, a three-judge Federal court
In North Dakota stayed the proceedings be-
fore it in order to afford an opportunity for
the Supreme Court of North Dakota to pass
upon questions, arising under the North Da-
kota reapportionment provisions found in
the State constitution.
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1964 CONGRESSIONAL RECORD ? SENATE
2. When to sue
Proper timing may be quits) Amportant.
The apportionment advocate may have to
look sharply to avoid the dilemma repre-
sented by prematurity on the one hand and
mootness on the other. Elections for the
State legislature occur at regular intervals,
and lawsuits take time. To avoid the hazard
that injunctive relief may be denied on the
grounds that the action is too late and the
requested judicial interference with the
electoral processes too severe, the safest
course is to institute the action as far in
advance of the next State election as possible.
The universal rule is that a court will not
pass upon a constitutional issue in an action
prematurely brought. Nevertheless, the ap-
portionment cases decided up to now indi-
cate that the risk of prematurity is not a
substantial one. More usual has been the
experience of those plaintiffs who have `been
told by a court that they have a cause of
action, but tliat relief will be withheld until
the legislature has had another opportunity
to reapportion.
Disappointment at this type of delayed
ruling is eased, however, when the court, as
it did in Lisco v. McNichols, makes it omi-
nously clear that at least a prima facie case
of invidious discrimination has been estab-
lished. The strong implication that correc-
tive court action may follow further legisla-
tive inaction has induced the Legislatures of
Minnesota, New Jersey, Maryland, Florida,
Tennessee, and Delaware, among others, to
reapportion themselves at the next general
or special session following the entry of the
court's interlocutory dec ee retaining juris-
diction of the case.
Still, there is always the possibility that a
reapportionment suit will be rendered moot
as the result of new legislation amending the
existing statutes or pertinent provisions? of
the State constitution. One cannot com-
plain if the legislative action which follows
eliminates the constitutional violations
against voting rights against which the suit
was brought. On the other hand, where the
new legislation still falls sho2t of the mini-
mum requirements of the 14th amendment,
the apportionment advocate may have a diffi-
cult decision to make. In the Georgia unit
rule case, for example, the Legislature of
Georgia amended the statutes attacked by
the complaint, on the same day that the
case was heard before the three-judge court.
However, the plaintiff was allowed to amend
his complaint so as to challenge the amended
act which still fell far short of the one-man,
one-vote principle ultimately upheld by the
Supreme Court of the United States.
The Maryland experience was somewhat
different. The day after the Chancellor had
declared existing provisions of the Maryland
constitution with respect to the representa-
tion provided in the house of delegates to
be in violation of the 14th amendment, a
special session of the Maryland General As-
sembly was convened. Five days later, the
-special session adjourned after having en-
acted stopgap apportionment legislation
which increased the membership of the
house of delegates from 123 to 142 and
allotted the 19 new delegates to the sub-
urban and urban areas. Since the trial court
had withheld ruling on the issue of the ap-
portionment of the State senate, the Mary-
land Legislature naturally did nothing about
that. The petitioners, therefore, had to
choose between starting over with a new
complaint, or appealing on a basis which
eliminated a claim that the house of dele-
gates, as such, was unconstitutionally ap-
portioned. The latter course was chosen.
The question of mootness appears to have
arisen in the Michigan case now pending in
the Supreme Court as Beadle v. Scholle. The
question of the constitutionality of the rep-
resentation provided in the Michigan Sen-
ate is the sole issue. On April 1, 1963, the
people of Michigan in a statewide ref eren-
dum, by a very narrow margin admted a new
State constitution which provides a different
and slightly improved basis for representa-
tion in the State senate. A case of con-
troversy ends if the statute or constitutional
provision which is the basis for the action
or the conduct complained of is repealed or
modified.
3. Who should sue
The problem of who are proper plaintiffs
in a reapportionment action is not signifi-
cant. Indeed, the advocate's problem here
seems primarily to discourage, as diplo-
matically as possible, some of the ambitious
young office seekers who want to have their
names emblazoned not only in the judicial
reports but in the public press as trail blazers
in the vindication of fundamental voting
rights. The standing to sue possessed by a
voter whose vote is diluted or discriminated
against has long been established; it is set-
tled now, so far as reapportionment actions
are concerned, by Baker v. Carr.
Plaintiffs in reapportionment cases may be
residents, taxpayers, or voters. The obvious
course, then, is to secure plaintiffs who
possess all of these characteristics. More-
over, since at least the due process argu-
ment against gross malapportionment finds
a partial basis in a showing of discriminatory
taxation against the taxpayers of the more
populous and underrepresented areas, it is
provident to see to it that the plaintiffs are
taxpayers in good standing from those areas,
in addition to their being qualified voters.
Moreover, if one Of the plaintiffs happens
to be an association, as was true in the Mary-
land suit, or a radio station, as was the case
in New York, WMCA, Inc. v. Simon, individ-
ual plaintiffs should be joined since associa-
tions and radio stations obviously are not
voters.
4. Whom to sue
Generally, the proper defendants in a re-
apportionment suit are the State officials
who have the duty, either under the statutes
or the State constitution to conduct the elec-
tions. It is axiomatic that an official who
acts under the color of an unconstitutional
provision of a State statue or constitution
is-acting ultra vires, and his actions maybe
enjoined. For example, in Gray v. Sanders,
the Georgia unit rule case, the chairman and
the secretary of the Georgia State Demo:.
cratic Executive Committee properly were
named as two of the defendants since, under
the statute, they performed certain admin-
istrative functions ,in the conduct of the
primary elections. /Generally, a declaratory
judgment that the election laws or the stat-
utes providing representation, in the legisla-
ture violate the 14th amendment should be
sought in a reapportionment action, plus
such injunctive relief as is necessary to in-
sure that the election officials will not con-
duct the election on the basis of the illegal
laws.
5. How long to wait for the legislature to do
nothing
Despite the outpouring of litigation fol-
lowing the Supreme Court's decision in
Baker v. Carr, it is apparent that the courts,
State and Federal, remains disinclined to
act in a reapportionment case if there is any
reasonable possibility that the legislature
will do something about the situation.
Nevertheless, courts are not blind to the po-
litical facts of life; they will not ignore what
"all others can see and understand." There
comes a time, and the courts will recognize
it, however reluctantly on the part of some,
when it is manifest that "it would be idle
and futile to * * * (seek relief from malap-
portionment through) the voluntary action
of the body that made it."
Accordingly, the petition ought to contain
allegations which demonstrate, or at least
recite, any extended history of legislative
inaction in the premises. In Baker v. Carr,
21829
this was achieved through an affidavit by
the mayor of Nashville, Tenn., which con-
tained the history of the failure of the Ten-
nesee Legislature, from 1901 through 1960,
to reapportion as required by the State con-
stitution.
In Maryland Committee for Fair Represen-
tation v. Tawes, plaintiffs stated the history
of continuing and increasing malapportion-
ment in Maryland as part of the allegations
of the bill of complaint. The legislative ref-
erence service of the Maryland General As-
sembly was most cooperative in supplying
the dates, numbers, and the disposition of
bills that had been introduced over the yearsi
in vain attempts to secure some reapportion-
ment of the legislature. The Governor of
Maryland also unknowingly cooperated by
stating to the press (quite accurately) that
any proposed 'reapportionment legislation
whereby representation might be reasonably
related to population would be 'in the realm
of the impossible." In addition, some of the
more plain-talking rural legislators supplied
further evidence of determined legislative
inaction for inclusion in the complaint, and
later in the briefs, by their candid acknowl-
edgments of their of their unyielding opposi-
tion to reasonable reapportionment: lest they
thereby be denied the privilege of continuing
minority rule in the Maryland General As-
sembly.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. BREWSTER. I yield.
Mr. DOUGLAS. Do I correctly under-
stand that there are nine Eastern Shore
counties in the State of Maryland?
Mr. BREWSTER. The Senator is en-
tirely correct.
Mr. DOUGLAS. Do I further correct-
ly understand that each of those coun-
ties has a senator?
Mr. BREWSTER. At the present
time, the nine counties on the Eastern
Shore of Maryland each have one sena-
tor in the Maryland State Senate. There
are a total of 29_senatoh. There are 25
members of the Maryland House of Dele-
gates.
Mr. DOUGLAS. Is it true that there
is one county on the Eastern Shore of
Maryland that has a population of
19,000?
Mr. BREWSTER. There are very
small counties by population. Caroline
County, 1 of the smaller counties, ap-
proximates 19,000 people.
Mr. DOUGLAS. Is it true that Balti-
more County, as distinguished -from the
city of Baltimore, has a population nit
more than one-half million and also has
one senator?
Mr. BREWSTER. I am happy that
the ? Senator from Illinois has brought
out that point, because Baltimore Coun-
ty is my home county. I represented
Baltimore County in the Maryland Legis-
lature for more than 8 years. We now
have more than a half million people in
Baltimore County, and we have one State
senator. When I was in,the General
Assembly of Maryland thre were six
members of the house of delegates.
Very recently, by reason of court de-
cisions, we have had stopgap reappor-
tionment in Maryland and the house of
delegates membership from Baltimore
County has been increased to 13. But
Baltimore County, with over one-half
Million people, has 13 delegates and 1
senator, whereas the 9 counties across
the great Chesapeake Bay have 9 sen-
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21830 - CONGRESSIONAL RECORD ? SENATE September 22
ators and 25 members of the house of
delegates.
Mr. DOUGLAS. Is it true that the
population of those 9 counties is ap-
proximately 220,000?
Mr. BREWSTER. That is correct.
The population of our great, wonderful
Eastern Shore is less than half the popu-
lation of that one major suburban and
urban county.
Mr. DOUGLAS. Still they have nine
times the representation of Baltimore
County in the State senate.
Mr. BREWSTER. They have nine
times the representation in the senate,
and they used to have four times the
representation in the house of dele-
gates; now they have two and a half
times the representation in the house of
delegates.
Mr. DOUGLAS. Can the Senator
from Maryland inform me as to the
population of Montgomery County,
which lies in the outskirts of Washing-
ton? Is that over one-half million?
Mr. BREWSTER. There are two
other very large counties in Maryland.
They are both in Washington suburbia.
They are Montgomery County and
Prince Georges County. I believe each
of those counties has a population
slightly in excess of 400,000 people.
Mr. DOUGLAS. So if we consider the
population of the three counties?
Baltimore County?not Baltimore city
but Baltimore County?Montgomery
County, and Prince Georges County?
we would have a total population of
1,300,000 or more. Those counties have
three senators, whereas the nine coun-
ties of the Eastern Shore, with a popula-
tion of less than one-quarter of a million,
have nine senators.
Mr: BREWSTER. That is entirely
correct.
Mr. DOUGLAS. No wonder the Sen-
ator from Maryland is such an able and
devoted sponsor of legislative reform
and true reapportionment.
Mr. BREWSTER. I thank my dis-
tinguished colleague. I might further
comment in respect to our Maryland
situation that until a recent reform, as
a result of court decisions, we had an
even more unfair situation in our pri-
maries in both parties. We had a con-
vention system under which each county
was allocated in the State convention
the same number of votes that it had in,
the legislature, the house and the senate.
A few years ago Baltimore County
would have a total of 7 votes in the nomi-
nating convention, representing one-half
million people, whereas our counties on
the Eastern Shore, with slightly over
200,000 people, had a total of 35 votes,
or 5 times as many votes in the nomi-
nating convention, with one-half or one-
third of the population.
Mr. DOUGLAS. That was the so-
called county unit system.
Mr. BREWSTER. The so-called
county unit system, which I am now very
happy to report to the Senate is no long-
er the law of our State. It is still the
actual statute law, but the statutes have
been set aside by court decisions.
Mr. DOUGLAS. And it was substan-
tially the county unit system that pre-
vailed in Georgia.
Mr. BREWS .u.Ea-t. Our system, though
it was not precisely the same as the
Georgia system, was the same in prin-
ciple. Only in recent years?since World
War II?have we seen a candidate get
the greatest number of popular votes
and still fail to be nominated by his party
because a minority candidate was put
over by the convention system.
Mr. DOUGLAS. I thank the Senator.
Mr. BREWSTER. Continuing in this
history of litigation, with particular ref-
erence to the Maryland situation:
If possible, then, the allegations of the
complaint or petiiton should spell out to the
fullest extent the past history of legislative
inactions. The reapportionment advocate
should emphasize at the outset, and at all
stages of his case the demonstrable futility
of seeking legislative relief prior to an au-
thoritative and compelling ruling by a court
of competent jurisdiction. Even the most
timid of judges will acknowledge that the
law does not require the performance of a
futile gesture as a condition to resort to the
courts.
PROVING THE CASE
1. Flow extensive a hearing
Despite Baker v. Carr, it is still possible
that the allegations of a reapportionment
petition or complaint will be met by .de-
murrer or a motion to dismiss. The grounds
might be that the complaint on its face
shows that a court of equity should abstain
from granting relief in the circumstances
disclosed. Justice Rutledge's concurring
opinion in Colegrove v. Green, could prove
to have more enduring vitality than the
Frankfurter majority opinion, now super-
seded by Baker v. Carr. Want of equity juris-
diction, unlike lack of jurisdiction over the
subject matter, does not go to the power of
a court only to the question whether it
should, not whether it can, afford injunctive
relief.
The lingering possibility of judicial absten-
tion despite jurisdiction to act suggests the
importance of filing a fairly detailed
"Brandeistype" complaint. Nothing is lost
by making the original bill a comprehensive
document. If the case goes up to the highest
court of the State, or to the Supreme Court
of the United States, the record, in the
main, is the one created through the drafts-
manship of plaintiff's counsel. For example,
the petition filed in the Maryland case, in-
cluding eight exhibits attached thereto, oc-
cupied 43 of the 59-page, printed record on
which the case was reviewed by the Maryland
Court of Appeals.
A more critical question, although not en-
tirely the decision of plaintiffs counsel to re-
solve, is whether or not, following the de-
fendant's answer, plaintiffs should seek a
full hearing or elect to proceed by summary
judgment. His nonpaying clients are apt to
urge a full hearing in order to secure the
maximum advantages of publicity which
they imagine will be gained thereby. If he
follows his instinct for the least work the
better, the advocate will choose summary
judgment; moreover, summary judgment has
real advantages. For instance, the three-
judge Federal court before which a full hear-
ing was held in TITMCA, Inc. v. Simon was
very sticky about admitting into evidence
certain proof offered by the plaintiffs.
Plaintiffs were not allowed to present evi-
dence to prove that existing apportionment
represented an intentional discrimination
against the residents of New York City and
the surrounding area, and that as a result
the citizens of the urban areas were sub-
jected to substantial discrimination with re,
spect to the allocation of tax revenues and
distribution of State aid as well as in other
matters affecting the economic, social, and
political welfare of the 'State.
The New York petitioners also were un-
successful in an effort to have the court ad-
mit into evidence a consensus of scholarly
opinion in support of the view that the only
legitimate basis of representation in a State
legislature is population. These difficulties
very likely could have been circumvented by
use of the summary judgment procedure.
One comprehensive affidavit, or several, with
the pertinent- appendixes attached, could
have placed before the WMCA court the
same evidence that it rejected when it was
offered as proof.
Actually, of the reapportionment cases de-
cided to date, only Delaware, New York, Ala-
bama, and possibly Oklahoma, have had
what might be regarded as. full-scale hear-
ings on the merits. In Wisconsin, the court
referred the issues to a special master, before_
whom extensive hearings were held, and
both written and oral testimony was taken.
An objective reading of the comprehensive
report of the special master shows that the
evidence on which, his findings of fact and
conclusions of law are based were all mat-
ters of which a court could take judicial
notice, or, at a minimum, material that
properly could have been brought to the at-
tention of the court in a carefully prepared
brief.
Still, there may be some advantage in
having a full hearing in an apportionment
case. Justice Harlan, for instance, the soli-
tary dissenter in the Georgia unit rule case,
Gray v. Sanders, lamented the lack of a full
hearing on the merits. Certainly, the Su-
preme Court should not be asked to pass
upon momentous constitutional issues on
the basis of a partial or incomplete record.
On the other hand, malapportionment issues
rarely involve complex issues of contested
material facts. In the writer's opinion, the
one apparent advantage of a full trial on
the merits of a reapportionment case is the
possibility that, as a consequence, a court
might be more disposed to nd that the de-
fendant election officials had not adequately
explained away the seemingly irrational and
discriminatory pattern of representation at-
tacked in the suit. Also, since the record in
a full hearing might be somewhat more com-
plete, or at least appear to be, both trial
courts ',and appellate courts might be, as a
result, less chary about splashing around in
waters usually reserved for the legislatures.
2. Judicial notice: A convenient crutch
As the three-judge Federal court in the
Alabama reapportionment case put it:
"We have no disposition to discourage the
introduction of evidence by any party, and
in the ordinary case our opinion as to
whether the plaintiffs will be entitled to ap-
propriate relief should await the introduc-
tion of evidence. However, we take judicial
notice of the same facts which are well
known to the ? ? ? Supreme Court of Ala-
bama and to the people of this State."
In the Georgia unit rule case, the trial
court made liberal use of the doctrine of judi-
cial notice in concluding that the Georgia
unit rule was invidiously discriminatory. I
would encourage the reapportionment advo-
cate to make maximum use of the helpful
doctrine of judicial notice, whether in sub-
mitting proof in document or affidavit form,
or in arguing to the court in a trial memo-
randum or appeal brief. Truly, there is no
persuasive reason why all the material facts
in a reapportionment case cannot be put in
the record through liberal but perfectly ac-
ceptable use of the doctrine of judicial notice.
Courts traditionally have taken judicial no-
tice of matters of common knowledge and
experience.
Population figures, a critical item of proof
in a reapportionment case, are, beyond argu-
ment, statistics of which a court can take
judicial notice. For example, judicial notice
was taken of population statistics furnished
by the U.S. Census Bureau in Tampa Electric
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1964
Co. V. Nashville Coal Co. In other cases,
courts have taken notice, not only of popu-
lation statistics, but even of the comparative
population ratings among different areas,
and the rapidity of the expansion in popula-
tion of a particular area.
Important to a persuasive presentation of
a reapportionment case may be establishing
that the urban and suburban areas, because
of rural domination of the legislature, are
subjected to discrimination in respect to
both taxes imposed and revenues received
back from the State for distribution among
the local political subdivisions. Statistics
of this type, if properly presented, .can be
judicially noticed, although, as pointed out
above, a three-judge Federal court in WMCA
v. Simon rejected an offer of proof of alleged
discriminatory treatment with respect to
both taxation and revenue against the resi-
dents of the urban areas of New York State.
It also has long been settled that courts -..
may take judicial notice of common matters
of public history. Even the mechanics of
State legislative procedure represent infor-
mation or facts of which a court may properly
take judicial notice.
The precedents are available, therefore,
to sustain the advocate who invokes judicial
notice in attempting to place before the court
important items of evidence in a reappor-
tionment case. Apart from the adverse rul-
ings in the New York case, the writer has
discovered no authority with which to argue
against libefal use of the doctrine of judicial
notice in a reapportionment case. The major
areas of inquiry pertain to statistics, projec-
tions, and comparisons, both in respect to
population and to area, of the political sub-
divisions of a State, tax and revenue figures,
the legislative history of a State constitution
or statute, and the public history of the ac-
tion, or, more usually, the inaction of a State
legislature in apportioning the representation
provided in its chambers. These are all mat-
ters of which a court properly can take judi-
cial notice. They should be given every
opportunity to do so.
3. Paucity of State legislative history
materials
In attempting to demonstrate a legislative
purpose to discriminate against urban and
suburban areas in the enactment of appor-
tionment legislation, or in the refusal to
change existing statutes so as to eliminate
gross inequities in representation, there is a
paucity of legislative history material avail-
able, and this may present some problems.
Usually, there are no written committee re-
ports, published hearings, or debates on State
legislation. Such information as can be ob-
tained from legislative journals, etc., may be
useful for tracing the progress of particular
bills. Generally, however, they are of no
help in determining the legislative intent in
their enactment or defeat.
Maryland is no exception to the general
situation; the debates on the floor of the
General Assembly, committee reports and
hearings are not published. However, in
Maryland Committee for Fair Representation
v. Tawes, we were able to circumvent this
handicap by research in the "morgue" or back
files of Baltimore and Washington newspa-
pers. More recent developments were kept
track of by extensive and careful clipping of
the daily newspaper reports of the doings of
the legislature.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. BREWSTER. I yield to the Sen-
ator from Illinois. ?
Mr. DOUGLAS. Is it not true that
one of the greatest newspapers in the
land is the Baltimore Sun?
Mr. BREWSTER. I believe the Bal-
timore Sun is known and respected-
throughout the country as one of the .
finest and oldest newspapers in the land.
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CONGRESSIONAL RECORD ? SENATE 21831
The Baltimore Sun's editorial policy
through the years has consistently been
for fair representation both in the House
of Representatives of the United States
and in the General Assembly Of Mary-
land in Amiapolis.
Mr. DOUGLAS. The Baltimore Sun
had for many years the services of the
learned, vitriolic, beer-drinking H. L.
Mencken, who was a great newspaper-
man. Is that correct?
Mr. BREWSTER. Mr. H. L. Mencken
was one of the great writers, reporters,
thinkers, and users of the English lan-
guage, I believe of our time, or perhaps
of all time. The Baltimore Sun, Balti-
more City, and the State of Maryland
are proud of the enviable reputation
which he established through his writ-
Mr. DOUGLAS. Is it not true that
for a time the people thought of Mr.
Mencken as a "wisecracker," but that by
his book "The American Language" he
showed himself to be a great scholar,
and that his work on the derivatives of
American expressions is better than per-
haps that of any lexicographer? The
University of Chicago brought from Eng-
land Sir William Craigie who brought
the great -Oxford Dictionary to comple-
tion. When he came over to this coun-
try he had a perhaps superior attitude to-
ward American scholarship, but after he
worked through Mencken's book on
"The American Language" he said it was
a most excellent piece of work, accurate
and pungent, and that it rivaled Dr.
Johnson's Dictionary. .
Baltimore can be justly proud of H. L.
Mencken, although in later years he
somewhat deteriorated. Certainly the
Baltimore Sun has been one of the great
newspapers of the Nation.
Mr. BREWSTER. -I thank the Sen-
ator for. his comments. I also recoM-
mend to my colleagues two books which
I greatly enjoyed. They were written
by H. L. Mencken. One is "Heathen
Days," and the other is "Newspaper
Days." It is a great delight to read those
books.
Mr. DOUGLAS. Also "Happy Days."
Mr. BREWSTER. The Senator is en-
tirely correct. "Happy Days," "Heathen
days," and "Newspaper Days."
I remember the first national conven-
tion that I attended, in Philadelphia, in
1948, when I had the pleasure of accom-
panying the Maryland delegation, and
also accompanying Mr. H. L. Mencken,'
who was on one of his last assignments
for the Baltimore Sun, when he reported
the comings and goings of our delegation
in Philadelphia. Not only was it amus-
ing to read his comments, but he wrote
an excellent report. He drew on his vast
experience in politics and public life in
reporting the happenings in Philadel-
phia.
Now continuing with the problems of a
lawyer as he attempts to set aside mal-
apportionment in a State legislature:
While the whole State may know that the
legislature's motive in enacting apportion-
ment legislation, or failing to amend exist-
ing statutes on the subject, was to effect a
discrimination in representation, it may be
difficult to interest a court with this popu-
larly accepted fact. Courts generally will
not inquire into motives which influence the
legislature or its individual members in vot-
ing for or against the 'passage of a statute.
On the other hand, the long continuing fail-
ure of a legislature to act has a significance
which should not be ignored. Moreover, the
Supreme Court has told us on more than one
occasion that the 14th amendment bars "in-
genuous as well as ingenious discrimina-
tions." Legislative motives in enacting or in
refusing to revise reapportionment laws
mould not seem to be immune from judicial
inquiry.
However, in New York, as previously noted,
a three-judge Federal court was not inter-
ested in hearing evidence offered as to the
discriminatory motive of the New York Legis-
lature in enacting apportionment legislation
for that State. On the other hand, in an-
other recent case, involving the claim of
congressional redistricting on the forbidden
basis of race, another three-judge Federal
court in the southern district of New. York
held that the plaintiffs had failed to offer
any proof demonstrating a legislative motive
to discriminate on racial grounds in drawing
the lines of congressional districts in New
York City.
Here also, the difficulty which seemingly-
confronts the apportionment advocate in
presenting evidence of legislative motive is
more imagined than real. If the source
materials are available, such as current or
past newspaper reports, magazine articles,
official notes of a State constitutional con-
vention, etc., little ingenuity or effort is re-
quired to bring the information to the at-
tention of the court. If the doctrine Of ju-
dicial notice is not flexible enough to permit
it, the even more liberal standards of ef-
fective brief writing provide the means for
demonstrating to a court the reasons for the
failure of a State legislature to reapportion.
Long years of inaction are not without com-
pelling significance in furnishing clues to
legislative intention. The courts will listen
to the apportionment advocate who attempts
to supply those clues, if indeed the court
does not already know them.
4. The burden-of-proof problem
The burden of proof in a reapportionment
case is On the plaintiff. He starts with the
proposition that courts will "accept as es-
tablished such reasons for the districting as
are fairly conceivable or inferable in and
from the results. However, "there are limits
to the extent of which the presumption of
constitutionality can be pressed." The re-
cent reapportionment decisions indicate that
once gross discrepancies of representation are
established by appropriate population sta-
tistics, the burden shifts to the defendant
election officials to present evidence to ex-
plain away the disproportions contained in
the statutes. Accordingly, while' numerical
inequalities of voting strength does not
necessarily prove a deprivation of voting
rights guaranteed by the Constitution, it may
establish a prima facie case for that propo-
sition.
Under the circumstances, the apportion-
ment -advocate should play his statistic's to
the limit. In establishing the inequities of
representation that exist, he should not only
use present population figures but, to the ex-
tent possible, project them to demonstrate
that existing gross inequities in representa-
tion will become even greater as the years ,
pass and the suburban areas continue to ex-
pand. He should single out and emphasize
compelling statistics illustrating some of the
incredible inequalities in representation that
may exist. A court which hears that the
vote of a resident of one district counts 33
times that of a resident of another district
must be moved. In the Georgia unit rule
case the Supreme Court listened somewhat
incredulously, if not aghast, - as counsel for
the appellees advised them in oral argument
that 5.5 percent of the population controlled
the Georgia Senate. Again, to argue, as pe-
titioners did in the Maryland case, that the
senator from one large county is elected by
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21832 CONGRESSiONAL RECORD ? SENATE
more people than are required to elect a ma-
jority of the entire State senate, is to at-
tract the judges' attention, if not their vote.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. BREWSTER. I yield.
Mr. DOUGLAS. In other words, Ful-
ton County, which contains the city of
Atlanta, had less representation than ap-
proximately 5 percent of the population
of the State of Georgia in the senate.
Is that correct?
Mr. BREWSTER. In Georgia, prior
to the Court's decision, 51/2 percent of the
voters in Georgia controlled the Senate
of Georgia.
Mr. DOUGLAS. Fulton County, which
has in it the great city of Atlanta, had
only one senator. is that correct?
Mr. BREWSTER. The Senator is cor-
rect.
Continuing, and thanking the Senator
from Illinois for his comments: ,
Remember also the clues which Justice
Clark may have furnished in his concurring
opinion in Baker v. Carr; i.e., "legislative in-
activity," "absence of any other remedy,"
"crazy quilt" patterns of representation.
With these in mind, bring to the Court's at-
tention, either in proof or in argument: the
discrepancies even within the same class; i.e.,
rural or urban; the extent and duration of
legislative inaction; and the absence of the
right of referendum or initiative, if these are
not available under the State constitution.
If the latter remedies are provided, develop
the practical obstacles to effective resort to
them as a means of eliminating or substan-
tially mitigating malapportionment in leg-
islative representation.
Despite the fact that the courts have not
emphasized the point in the apportionment
decisions thus far, the attorney who finds
himself in a reapportionment case would do
well to emphasize such discriminations with
respect to State taxation and the return of
State revenue to the local area as he can
persuasively establish. For example, in the
Maryland case, statistics furnished by offi-
cial agencies of the State were employed to
show that as the result of unfair statutory
equalization formula enacted by the rurally
dominated general assembly, the suburban
counties were severely discriminated against
in the amount of State revenue which was
returned to the local political subdivisions.
Since taxation without adequate representa-
tion may reach the point where due process
is offended revenue and taxation evidence,
although overshadowed by the more com-
pelling statistics regarding gross discrimina-
tion in voting strength, should not be over-
looked. Moreover, such adverse consequences
tend to demonstrate that discriminations in
voting strength and legislative representation
present more than an abstract injustice.
Indeed, to the extent possible, the petition-
ers in a reapportionment case should attempt
to prove and to argue that discrimination to
which they are subjected in the exercise of
voting strength has practical adverse con-
sequences. The petition for certiorari filed
by the appealing Michigan election officials
in Seholle v. Hare, for example, makes a
fairly compelling argument that the appel-
lees had made no showing that the malappor-
tioned legislature "had failed to adapt itself
to modern urban problems." On the other
hand, an amiaus curiae brief filed by the
American Civil Liberties Union in the earlier
case of Magraw v. Donovan, through an ap-
pendix attached thereto, made a convincing
showing of the practical consequences on city
folk of rural domination of the legislature.
An effort also should be made to allay the
fears expressed by Justice Harlan in his dis-
senting opinion in Gray v. Sanders that rea-
sonable reapportionment necessarily means
domination by the city vote. As the newer
statistics demonstrate, the suburban areas
are the Victims of the grosser malapportion-
ment. Moreover, while urban and suburban
interests in mass transportation and educa-
tion may coincide, as frequently as not the
? representatives from the cities may oppose
suburban demands for greater powers of
taxation, zoning authority, etc. Therefore,
the advocate who has the time and the re-
sources would be well advised to provide the
Court with either statistics or arguments in
order to reassure it that reapportionment will
not necessarily mean the substitution of city
rule for country rule.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. BREWSTER. I yield.
. Mr. DOUGLAS. Do I correctly under-
stand the situation in the Senator's own
State of Maryland to be that the city of
Baltimore, as distingushed from the
county of Baltimore, has six members of
the State senate?
Mr. BREWSTER. The city of Balti-
more is divided into six districts. Each
district, for the purposes of representa-
tion in the State legislature, coincides
with a county. Each of the six districts
previously had six members of the house
of delegates and one State senator.
Now, with our temporary reapportion-
ment in the house of delegates alone,
the bigger districts in Baltimore City
have had their representation partially
increased, but their representation in the
Senate of Maryland remains at six.
Mr. DOUGLAS. At six.. What was the
population of the city of Baltimore in
1960? ,
Mr. BREWSTER. The population of
Baltimore City is slightly under 1 mil-
lion. With 6 members of the Senate
of Maryland, out of a total of 29, it is
not too much out of line with the popu-
lation of 900,000, in a State whose popu-
lation is slightly more than 3 million.
Baltimore City does not suffer to the
same extent from malapportionment as
do our suburban counties.
Mr. DOUGLAS. But it is underrep-
resented in comparison with the Eastern
Shore.
Mr. BREWSTER. That is entirely
correct.
Mr. DOUGLAS. The Eastern Shore
has 9 senators, with a population of 220,-
000; the city of Baltimore has 6 sena-
tors, with a population of approximately
900,000.
Mr. BREWS TER. That is correct.
Mr. DOUGLAS. Or 1 for every 150,-
000; whereas the Eastern Shore has 1 for
approximately every 25,000. But in
comparison with Baltimore County,
Baltimore City does very well.
Mr. BREWSTER.. Considering the
city of Baltimore as a whole, it does very
well; but it is interesting to note that the
six districts of Baltimore City are -in no
way whatsoever equal in their popula-
tion. It has some very large districts
with hundreds of thousands of people,
and some very small districts. So again
there is malapportionment.
Mr. DOUGLAS. What the Senator is
saying is that the worst cases Of mal-
apportionment are in Baltimore County,
Montgomery County, and Prince
Georges County, on the one hand, as
compared with the overrepresentation
September 22
of the nine Eastern Shore counties, on
the other.
Mr. BREWSTER,. The Senator from
Illinois is absolutely correct.
Mr. DOUGLAS. And that, therefore,
the suburbs of Baltimore suffer more
than does Baltimore City.
Mr. BREWSTER. The rapidly ex-
panding suburbs of the two great cities
of Baltimore and Washington are the
ones that really "get it in the neck."
Mr. DOUGLAS. That is what the
Senator from Illinois attempted to dem-
onstrate yesterday and today in citing
the figures for Illinois. We have sena-
torial districts of 570,000, 505,000, and
more than 400,000 in the suburbs of Chi-
cago. Then there are districts elsewhere
in the State having populations of 53,000,
57,000, 59,000, and 67,000, approximately.
Mr. BREWSTER. Maryland has com-
parable situations surrounding the Na-
tion's Capital and the great city of Balti-
more?and we hope to do something
about it.
Concluding this aspect of this presen-
tation:
CONCLUSION
The writer is reasonably certain that most
of the suggestions or observations contained
in this paper have occurred, or will occur,
to those of his colleagues called upon to
participate in a reapportionment suit. To
the extent, however, that they may furnish
some shortcuts in research, briefing or argu-
ments, this paper will have been worth its
effort.
All lawyers should take professional pride
In the realization that the reapportionment
battles in which they are engaged, or which
they may be called upon to join, represent
?Nrimarily contests of law and advocacy.
The basic struggle is a constitutional de-
bate in the grand tradition. To that en-
counter, above all, lawyers should come
particularly well equipped by training and
experience, Their services are indispensable,
for it is their professional skills which, in _
substantial measure, will determine the out-
come. I, for one, am not sure what the
ultimate achievements of the reapportion-
ment crusade may turn out to be. Unlike
Professor Bickel, however, I refuse to be-
lieve that Baker v. Carr may be regarded
merely as an exercise in jurisdiction and
justicability, with no real impact on sub-
stantive constitutional law. Perhaps the
Solicitor General of the United States was
closer to the mark when he stated that he
would not be surprised if the Supreme Court
"were ultimately to hold that if seats in one
branch of the legislature are apportioned in
direct ratio to population, the allocation of
seats in the upper branch may recognize his-
torical, political, and geographical subdivi-
sions, provided that the departure from equal
representation in proportion to the popula-
tion is not too extreme." I would prefer,
however, to hope that Anthony Lewis, of the
New York Times, will prove to be the more
accurate prophet. In commenting on the
Georgia unit rule case and the-"one-man,
one-vote" principle on which that decision
rested, Lewis said, and I agree: "Why should
it be permissible to use the device of unequal
legislative districts any more than the unit
rule system, to give one man 10 times the
vote of another?"
PROBLEMS OF PERSUASION
Whatever the final answer, one can be sure
that any renaissance of the principle of
majority rule in the legislative chambers
of the States will be, to a considerable degree,
the fruit of lawyers' dedication and advo-
cates' skills. I am sure that the final tri-
umph, whatever its dimensions, will be
forged on a case-by-case basis, with the Su-
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1964 CONGRESSIONAL RECORD ? SENATE
preme Court of the United States and the
other Federal and State tribunals of the Na-
tion striking down those schemes of repre-
sentation which do not comply with the
minimum requirements of equal protection
and due process. In that type of extended
and litigious campaign, lawyers are pecu-
liarly well trained to participate and to
persist.
I have been privileged to play some small
part in the effort expended in the courts of
Maryland, and am grateful for that oppor-
tunity. I hope that many of my brethren
will have a similar chance. I shall be grati-
fied if anything I have written here provides
them with even slight assistance in carrying
out such assignments as may come their
way. .
I commend my friend, Alfred Scanlan,
on his very able dissertation on the
"Problems of Pleadings, Proof, and Per-
suasion in a Reapportionment Case." I
am happy to take note of the article in
the Notre Dame Lawyer that the many
predictions he makes, and the question
that he advocates, have come to pass in
more recent decisions of the Supreme
Court.
Mr. DOUGLAS. Mr. President, will
the Senator from Maryland yield?
The PRESIDING OFFICER (Mr. MC-
GOVERN in the chair). Does the Senator
from Maryland yield to the Senator from
Illinois?
Mr. BREVVSTER. I yield.
Mr. DOUGLAS. The Senator from
Maryland has made a unique contribu-
tion to this debate. Most of the
speeches, thus far, have dealt with the
reasons contained in the decisions. They
have not dealt with the processes of liti-
gation. This is the first address I have
heard which has really gotten inside the
legal struggle. It has been a unique con-
tribution as to the types of evidence, the
difficulties of pleading, and the prob-
lems which lawyers seeking fair repre-
sentation encounter.
I am sure that the comments of the
Senator from Maryland will be carefully
read, not only by the people of his State
but also by lawyers and people all over
the Nation.
I thank him for his contribution. I
congratulate him upon the high, intel-
lectual level of his performance.
Mr. BRE'WSTER. I am most grateful
for the gracious remarks Of the Senator
from Illinois. I also commend, him on
his valiant participation in this fight for
fair representation in our State legis-
Uoures and in the Halls of Congress.
CORRECTION OF THE RECORD
Mr. DOUGLAS. Mr. President, this
morning I found?
The PRESIDING OFFICER. The
Chair understands that the Senator from
Wisconsin has the floor and has yielded
to the Senator from Maryland.
Mr. DOUGLAS. Then the Senator
from Wisconsin must return to the
Chamber and get back the floor?
The PRESIDING, OFFICER. That is
correct.
Mr. BREWSTER. Mr. President, I ask
unanimous consent that I may be per-
mitted to yield the floor to the Senator
from Illinois under the same conditions
that the Senator from Wisconsin yielded
the floor to me.
The PRESIDING OFFICER. The
Senator from Maryland does not have
the authority to yield, unless he asks for
recognition in his own right.
Mr. DOUGLAS. Mr. President, I
should like to ask for recognition in my
own right.
The PRESIDING OFFICER. The
Senator from Illinois is recognized.
Mr. DOUGLAS. Mr. President, I ask
unanimous consent that I may be rec-
ognized, first to correct an error in the
CONGRESSIONAL RECORD.
On page 21692 of-the CONGRESSIONAL
RECORD for September 21, 1964, I am
made to say:
The average allotment of inhabitants per
senator would therefore be approximately
17,000.
The text should be 173,000, as is evi-
dent from the fact that the population of
the State is 10100,000 and 58 Senators.
I ask that this may be corrected in the
permanent RECORD.
21833
The PRESIDING OFFICER. The cor-
rection will be made.
ORDER OF BUSINESS
Mr. PROXMIRE. Mr. President, it is
my understanding that in yielding to the
Senator from Maryland I did so with the
understanding that I would not lose my
right to the floor.
The PRESIDING OFFICER. The
Senator is correct.
Mr. PROXMIRE. Mr. President, be-
fore I move to adjourn, I should like to
have the parliamentary situation under-
stood, that the senior Senator from Illi-
nois [Mr. DOUGLAS] has received unani-
mous consent to be recognized after
morning business tomorrow.
The PRESIDING OFFICER. That is
correct.
ADJOURNMENT
Mr. PROXMIRE. Mr. President, I
move that the Senate stand in adjourn-
ment until 12 o'clock noon tomorrow.
The motion was agreed to; and (at
5 o'clock and 5 minutes p.m.) the Sen-
ate adjourned until tomorrow, Wednes-
day, September 23, 1964, at 12 o'clock
meridian. ?
NOMINATION
Executive nomination received by the
Senate, September 22, 1964:
COAST AND GEODETIC SURVEY
Subject to qualifications provided by law,
the following for permanent appointment
to the grade indicated in the Coast and Geo-
detic Survey:
To be lieutenant
James G. Grunwell.
CONHEMATION
Executive nomination confirmed by the
Senate, September 22, 1964:
OFFICE OF ECONOMIC OPPORTUNITY
Robert Sargent Shriver, Jr., of Illinois,
to be Director of the Office of Economic Op-
portunity.
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