AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070015-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 15
• Publication Date: September 16, 1964
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2014/02/21: CIA-RDP66B00403R000300070015-7
21576 CONGRESSIONAL RECORD ? SENATE
nothing serious to say about either the
causes or the solutions of crime and de-
linquency.
Therefore, I want t,o set the record
straight with the facts.
First, juvenile crime has been increas-
ing steadily from year to year in this
country since 1948 under both Repub-
lican and Democratic administrations.
Second, contrary to Senator GOLDWA-
TER'S statement that under the Eisen-
hower administration the Nation's Capi-
tal was an example of peaceful progress
and a lack of crime, the truth is that the
crime rate had its most significant leap
forward right in the middle of the Eisen-
hower administration. For instance, in
1958 crime in Washington, D.C., rose 23
percent. I do not cite. this fact to lay
crime in the District of Columbia at the
door of the Eisenhower administration.
I cite it to show that any attempt to make
partisan use of crime statistics is pure
charlatanism of the worst sort.
Third, Washington, D.C., which Sena-
tor GOLDWATER says is peculiarly under
the President's influence, is by no means
the most glaring example of crime in this
country, as he seems to feel. According
to the FBI reports, Washington ranks
13th in crime rate among the larger
cities in the country.
By contrast, Phoenix, Ariz., where the
Senator's own influence and that of his
ideology should loom largest, is fourth in
the Nation. No wonder the Senator
wants to declare war on crime in Wash-
ington, D.C., which is about as far away
from Phoenix as he can get. I say to
the Senator, let us start "moral persua-
sion" at home in.Phoenix.
Fourth, the cold statistics do not bear
out Senator GOLDWATER'S contention that
centers of civil rights disturbances are
centers of crime. FBI reports show that
Philadelphia, for instance, has one of the
lowest crime rates among the larger
cities. The three highest centers of
crime, ahead of Phoenix, are Las Vegas,
Los Angeles, and Miami.
Fifth, every attempt by Members of
Congress to encourage action to combat
crime and delinquency was frustrated
and blocked under the previous Republi-
can administration. But many of these
efforts have borne fruit during the Ken-
nedy-Johnson period. The Juvenile
Delinquency and Youth Offense Control
Act, and the package of crime control
bills are monuments to the zeal of Presi-
dent Kennedy in this field.
For the first time, we have had strong
White House support for bills to curb the
criminal traffic in dangerous drugs and
firearms.
'Sixth, whereas the last administra-
tion?that is, the Eisenhower adminis-
- tration?never really went after orga-
nized crime, Attorney- General Kennedy
has made a tremendous fight against it.
Convictions are up 400 percent and for
the first time in our history, the whole
law enforcement apparatus of the Fed-
eral Government has been mobilized to
fight syndicated crime.
Seventh, we have paSsed, over the op-
position of Senator GOLDWATER, a num-
ber of bills to attack the causes of crime:
racial discrimination, poverty, illiteracy,
lack of opportunity, and youth idleness.
I have never wanted to have this issue
put on a partisan basis. I have spent
much of my life in the field of law en-
forcement and dealing with young people.
It has been a rewarding part of my life.
I Would be the last to deal on a partisan
basis, with the very great problems in
this field. But since Senator GOLDWATER
and Representative MILLER have brought
this issue into politics, I say in the Sen-
ate that the Republican response to
crime and delinquency has been one of
inaction, and the Democratic response
has been one of action and I cite the
record to prove it.
Moral persuasion by itself never
stopped a crime wave. Unless Senator
GOLDWATER and Representative MILLER
have something more substantial to offer
the American people than their own pre-
sumed good example, they should quickly
retire from the struggle against crime
and corruption and leave it to those who
view this as a tragic and urgent problem,
and not a political bonanza.
I am grateful to my friend and col-
league the Senator from Wisconsin for
yielding to me at this time. I feel, after
the speech of last night, that an answer
should be made lest the American people
be fooled?which I do not believe will
happen?by such reckless and irresponsi-
ble attacks in the midst of a political
campaign. The only way to curb crime
and delinquency is to face the problem.
It is not a political problem. It never
has been. I do not know of any re-
sponsible person in public life who has
said it is,' until these candidates came
along.
Mr. PROXMIRE. Mr. President, will
the Senator yield?
Mr. DODD. I yield.
Mr. PROXMIRE. I congratulate the
Senator on his excellent and forthright
statement. He, perhaps to a greater ex-
tent than any other Member of the Sen-
ate or House, has devoted a great part
of his -life to law enforcement. He un-
derstands about these probleis and
crime. The Senator from Connecticut
not only calls for enforcement, but
points -to the fact that there has been
vigorous enforcement by our Attorney
General, in cooperation with local
agencies, to a far greater extent than
ever before. ?He points out also that if
we are to meet these crime problems,
there must be positive programs for pro-
viding educational opportunities, job op-
portunities, and housing opportunities,
and getting people out of the bitter life
from which they suffer, where they have
no place to turn, no future, and no hope.
? After all, as the Senator knows, 'there
are some who steal out of necessity.
There are other cases in which crimes are
committed because of the grossest kind
of ignorance.
Of course, as we all know, they are not
the only reasons for crime. But it is
important that we move ahead with the
antipoverty measure, which has been
supported by the administration and by
the Senator from Connecticut, and with
measures for a 'health program, a Na-
tional Service Corps, and the health of
inductees into the- armed services. All
such bills, almost without exception,
have been opposed by the very men who
September 16
are criticizing the administration for
being responsible for crime in our cities.
Mr. DODD. lam grateful for the Sen-
ator's compliments, which I do not de-
serve. Nevertheless, I am grateful. I
am also thankful for his wise observa-
tions on this situation.
I have always taken the view, from the
time I was in the Federal Bureau of In-
vestigation to the time when I came to
the Senate?as I have said I have de-
voted a good part of my life to law en-
forcement work?that poor housing, peo-
ple who are underfed, who do not have a
chance of any kind in life, are the breed-
ing grounds for crime. There is no
question about it. Anyone who has made
an attempt to understand the reasons for
crime in this country and elsewhere in
the world knows it to be a fact. It is a
fact that the Senator and Representa?
tive who are candidates on the other side
have voted against proposals to alleviate
these conditions consistently. I am sure
they would not deny it. It is a matter of
record. Every person in the law en-
forcement field knows that there is more
to the problem than building more jails
and throwing more people into them.
If we are to conquer the problem, we
must approach it from the standpoint
that it has been approached during the
Kennedy-Johnson, and other Demo-
cratic administrations.
I thank the Senator for his co
AMENDMENT OF FOREIG A
ANCE ACT OF 1961
The Senate resumed the conside ation
of the bill (H.R. 11380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
. Mr. PROXMIRE. Mr. President, the
principal argument that has been made
right along against the Supreme Court
decision and in favor of the Dirksen-
Mansfield proposal and recently for the
Javits-McCarthy proposal and the modi-
fied Javits-McCarthy proposal is that
the Supreme Court has been acting in a
fashion that has been too precipitous. It
has been said that they did not consider
the State lagislatures or the fact that it
is particularly difficult job for the State
legislatures to do. It has been said that
they have not given them sufficient
time.
This is absolutely untrue. In fact,
such fears are not warranted by the Su-
preme Court decision. An analysis of the
reapportionment cases demonstrates
that the Supreme Court was well aware
of the political problems posed by reap-
portionment. And the Supreme Court
took pains to ease these problems to as
great an extent as compatible with the
ultimate preservation of constitutional
rights. Anyone who has served in State
legislatures, anyone who has served in
any capacity in State government, knows
that this problem of the legislature ap-
portioning itself is one of the most diffi-
cult and painful problems that there is.
Indeed, we have example after example
of legislatures, required to apportion un-
der their constitution, neglecting to do
it for many years?in some cases, for 50
years. Usually the constitution of the
State will require apportionment after
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1964
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CONGRESSIONAL RECORD ? SENATE 21577
the decennial census, once every 10 years.
We are very proud of the fact that we
have a population representation in both
our Assembly and State Senate in the
State of Wisconsin. We have had it ever
since we became a State in 1848. Never-
theless, we have gone for as long as 20
years?and I believe at one time, 30
years?without apportionment. We
rarely apportion in the period im-
mediately after the decennial census,
which is what the Constitution requires.
This is because there is nothing tougher
or more difficult than persuading mem-
bers of the legislature to apportion them-
selves out of their own seats?and that is
what they would have to do?or, if not
themselves, to apportion a friend out of
his seat. They have to act in a way which
is against human nature.
If there is one common attribute of
people in politics, and particularly people
elected to legislative office, it is the ca-
pacity to like one's fellow officers, to en-
joy them, and to try to win their friend-
ship and support.
Nothing is more likely to aggravate,
annoy, or alienate a colleague than to
vote for a measure which would elimi-
nate or take away part of the constitu-
ency which he represents. This would
weaken his office, prevent him from re-
turning to office, or end his political
career?in fact, murder him politically.
This is what has to be done if the legisla-
tures are to comply with the mandates
of the courts.
It is no wonder that the legislatures
have been reluctant and have only ap-
portioned under duress of court action,
and have apportioned very slowly and
reluctantly. But, analysis further re-
veals that lower courts which force legis-
latures to reapportion without an op-
portunity to fully consider the ramifica-
tions of various plans of reapportionment
will not be complying with the constitu-
tional mandate of the Supreme Court,
but will be acting contrary to the
Supreme Court's instruction to pay close
heed to the necessities of the political
process.
The court has recognized that it is
necessary to proceed with caution,
prudence, care, and consideration for the
great difficulties involved. They recog-
nized that ample time should be allowed
the legislature in which to apportion. It
has directed the lower court to proceed
accordingly. As a matter of fact, there
is probably very little in the Javits-Mc-
Carthy modified amendment that we
acted on yesterday that could not have
come right out of the Supreme Court
decision. The spirit was exactly the same
as the position of the Supreme Court.
As a matter of fact, I suspect that this
was the prime purpose of the authors of
the amendment.
The Court delievered its most extensive
exposition on the question of the timing
of court-ordered reapportionments in the
Alabama, case of Reynolds against Sims.
It stated at page 50 of its opinion in the
case-, that it would not set forth the
proper remedies to be utilized by Federal
courts in cases involving State legislative
apportionment cases because the ques-
tion of remedies in this new and develop-
ing area of law will doubtlessly differ
with the circumstances of individual
cases and with a variety of local condi-
tions. It is important to note the im-
portance of the Court's deference to local
conditions in the setting of the problem
of appropriate remedies. Such deference
nullifies fears that the judiciary will im-
pose a monolithic fiat upon State condi-
tions that vary greatly and that will
respond to a uniform standard with vary-
ing degrees of success or failure.
? On the other hand, congressional ac-
tion would necessarily impose a legisla-
tive monolithic fiat, a lack of flexibility
which the individual courts would not.
The Supreme Court instructs the lower
courts to administer the apportionment
according to the circumstances,, accord-
ing to local conditions, according to all
kinds of local circumstances that differ.
We cannot possibly do that in a legis-
lative enactment in a proposal such as
the Dirksen-Mansfield proposal, which
would have to be unifOrm for all 50 States
and would have to be interpreted and
administered, unfortunately, without
reference to local conditions. There is
not any small Congress, lower Congress,
or subordinate Congress that is in a po-
sition to sit and hold hearings as the
lower courts can hold hearings and act
on the basis of consideration.
Mr. President, who are these lower
courts which are acting allegedly with
such 'precipitous haste? These are not
people from some foreign country.
? These are not people ,who have an in-
born hatred of everyone elected to leg-
islature. These are not unreasonable
people. They are prudent, thoughtful
men appointed by the President of the
United States and confirmed by the Sen-
ate, after years of practice as lawyers,
after demonstrating ability, in many
cases on the bench, men who, in many
cases, have a great understanding of the
legislatures, some of whom have served
in State legislatures. Practically all of
them have an acquaintenance with
members of the State legislatures. They
are men who have a settled habit of con-
sidering their problem in a judicial at-
mosphere, proceeding very carefully, and
allowing ample time in all their deci-
sions. As a matter of fact, the whole
court process in America is ideally made
to enable legislatures under a court or-
der to proceed carefully and with full
consideration.
Mr. President, many State legislatures
have already made good-faith attempts
to reapportion: Some of these attempts
have been successful; others have foun-
? dered on constitutional shoals, these
necessitating further attempts which
have in turn experienced various degrees
of success. On the other hand, some
State legislatures have adopted reappor-
tionment plans which can hardly be de-
scribed as good-faith attempts to give a
fairer degree of representation to those
who have too long been without the pro-
tection afforded by equal representation
In the democratic process. Still other
legislatures have adamantly refused to
make even a gesture in the direction of
equal representation. Under the Su-
preme Court's doctrine that remedial
technique will inevitably vary with the
variations in circumstances and local
conditions, the various degrees of good
faith shown in the preparation of reap-
portionment plans will be a factor in
determining the degree of speed to be
enforced by the courts.
How inapt and how inappropriate is
an edict by the Congress of the United
States that would apply to all State legis-
latures, as compared with the deliberate
process of the court, which can hold
hearings and consider in great detail,
which can hear adverse parties, which
can hear all sides and then carefully,
after weeks, and sometimes months, of
study, hand down a deliberate, thought-
ful decision tailored to meet the specific
case involved.
Which is better? There is no ques-
tion in my mind that anyone who really
believes in justice, anyone who believes
that the proposed apportionment should
take place and take place with the great-
est possible consideration for the local
case, will certainly opt for judicial
action rather than for a flat congres-
sional directive which would interfere
with it.
The degree of good faith shown by
State legislatures is certainly not the
only factor relevant to the Supreme ,
Court's doctrine of local circumstances
and conditions.
The main contention of those who
support the Dirksen proposal is that the
Supreme Court is trying to move too fast,
to rush the legislatures. Indeed, that
was the whole purpose of the Javits-
McCarthy proposal. This is plain wrong.
The facts do not support that conten-
tion. The fact is that the Supreme
Court has requested the lower courts to
proceed carefully, cautiously, and
prudently.
The list of possible variations is as
infinite as the ramifications of the politi-
cal process itself,. An attempt to list or
describe even a fraction of them would
beggar the imagination.
Nevertheless, I shall try to set forth
a few other of the more salient political
problems that are intimately connected
with the question of reapportionment
and which, therefore, will play, a role in
the decisions of lower courts relative to
the speed and timing of reapportion-
ment.
The question of how to insure the
effective representation of minority in-
terests of all sorts is a problem which
will vary with the types of minorities,
the location of minorities, the extent
to which minority interests overlap
with each other and with majority
Interests, and other relevant con-
siderations that vary within given
States. For instance, effective repre-
sentation of rural interests presents a
different problem relative to drawing the
boundary lines of political constituencies
where the rural interests are a small
fraction of total population than where
those interests represent a major frac-
tion of State population. In the former
case, the rural minorities could be
swallowed in districts comprised mainly
of urban citizens unless election districts
are carefully drawn in such a way as to
insure that rural interests can elect a
number of representatives fairly propor-
tioned to their numbers.
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21578 CONGRESSIONAL RECORD ? SENATE
This does not mean the rural areas
would have a greater proportion of rep-
resentation than the urban areas, but
it means that the districts would be so
drawn that the farmers and other rural
people would be able to elect persons
who, in their judgment, would represent
their interests and would not be inimical
to their interests.
Thus, the drawing of boundaries will
doubtlessly be a harder and more time-
consuming process in States where it is
more difficult to insure fair representa-
tion of rural or other minority interests
than in States where it is less difficult to
do so. This fact would clearly be rele-
vant to the speed with which a court
should order reapportionment.
The method of reapportionment
normally used in a particular State is
another varying local factor that is rele-
vant to the timing of judicially ordered
reapportionment. Some States need only
undergo a change in the statutory pro-
visions covering apportionment. In
other words, mere legislative action will
be sufficient to reach the desired end. In
-other States the subject of apportion-
ment is provided for in the State consti-
tution, which will have to be revised
before a permanent reapportionment
plan can be adopted. Permanent,consti-
tutional revision is _bound to be a more
time-consuming process than mere stat-
utory change. Furthermore, the amount
of time consumed by constitutional
change may itself vary with the amend-
ing method used by a particular State.
Some States require a two-thirds vote of
each house of the legislature in order to
amend their constitution. Still others
require that two consecutive sessions of
the legislature approve a constitutional
amendment. Yet other States may call
a constitutional convention, which will
necessitate a previous selection of dele-
gates to the convention. And some
States may utilize an initiative and refer-
endum?a method of submitting pro-
posed constitutional amendments to the
people which may well result in the rejec-
tion of a proposal and a consequent need
to begin anew the process of constitu-
tional amendment. All of these varia-
tions in the amendment process are
relevant to determining the speed with
which a reapportionment plan can be
effected. All of them indicate that the
Supreme Court has not decreed that a
monolithic judicial juggernaut shall roll
uniformly and unthinkingly over the
particularized situations of individual
States.
The Supreme Court is proposing to the
lower courts that they proceed carefully,
based on the particular constitutional re-
quirements, legislative requirements, and
population location. They vary in State
after State. Obviously, for Congress to
say that it should be 1 year or 2 years or
any other length of time, would be most
unwise, and would impose, instead of the
Supreme Court flexible mandate, an ex-
plicit mandate which would be very un-
just to all concerned.
Those who fear that the, recent reap-
portionment cases will result in hasty
and ill-advised reapportionment will
doubtlessly answer the foregoing discus-
sion by asserting that the Supreme Court
did not rest content with noting the im-
portance of local circumstances and con-
ditions. It also stated, at page 50 of the
Alabama case, that it would be the un-
usual case where a court would be justi-
fied in permitting an election to be held
under a plan that has previously been
adjudged unconstitutional. Standing by
itself, isolated from the statements which
surround it and the political milieu in
which reapportionment is set, this state-
ment could conceivably be interpreted to
require immediate reapportionment.
But the aforementioned statement can
not, in fact, be isolated from its deci-
sional or social milieu. For immediately
after stating that it would be the unusual
case where an election should be held
under an adjudged unconstitutional plan
of apportionment, the Supreme- Court
set forth examples of circumstances
where certain elections can be held under
an unconstitutional plan. And it is
probably safe to say that the circum-
stances giving rise to the exception may
be so pervasive as to engulf the general
rule. The Supreme Court said that a
lower court may be justified in withhold-
ing immediately effective relief where an
election is underway and a State's elec-
tion machinery is already in progress. It
, said that lower courts should take ac-
count of the mechanics and complexities
of state elections laws and should act
upon equitable principles. It said that,
A court can reasonably endeavor to avoid
a disruption of the election process which
might result from requiring precipitate
changes that could make unreasonable or
embarrassing demands on a State in com-
plying with the requirements of the court's
decree.
Clearly, then, the Court has set forth
principles whose effective implementa-
tion requires that lower courts exercise
restraint in ordering reapportionment.
It would certainly intefere with the elec-
tion process if, at this late date, any
court was to order reapportionment in
time for the forthcoming November elec-
tions. The primaries have already been
held, both conventions have picked their
candidates, and political campaigns now
occupy the thoughts of those most inti-
mately associated with the political proc-
ess. Thus, under the Supreme Court's
standards lower Federal and State courts
would not be warranted in disrupting the
November election. No other elections
will be held for at least 1 year from this
November.
Some elections would be affected.
These would be elections that would be
held in three States, including New Jer-
sey, in November 1965. In most States,
no other election would be held until 2
years from November. In other words,
there will be ample time for State legis-
latures to reapportion themselves with-
out running the risks of adopting hasty
or ill-advised plans.
On the other hand, what the Dirksen-
Mansfield amendment provides is that
any member of the State legislature can
stay or stop an apportionment which had
been ordered by the Court and was in
adjudication, arid in doing so would be
able to upset an election, including the
coming November, election.
As every day passes, it appears more
likely that the Dirksen-Mansfield
September 16
amendment cannot have an effect on the
coming election, but there is still at least
a chance that perhaps it could. If We
should adopt the Dirksen amendment
in the next few weeks, it would be possi-
ble for a member of a State legislature
to ask for a stay?and members of State
legislatures would certainly do so, be-
cause, after all, their careers would be at
stake?to enjoin the Court and prevent
the election from being held.
Under those circumstances the court
would have to schedule an election with
different legislative districts. That, of
course, would be most confusing. Can-
didates would have filed under the new
election districts, and they would be re-
quired to revert to the old districts. In
some cases it would be physically impos-
sible for the candidates to refile and for
the election to be held in November.
In many cases it would be necessary
to hold another primary election. It
would require an extraordinary inter-
pretation by the court to permit the No-
vember election for many State legis-
latures to be held at all, if we adopted
the Dirksen-Mansfield amendment. In
any State where a State legislator re-
quested a stay, under the clear language
of the Dirksen amendment the Court
would have no choice but to stay and stop
the election and prevent the people from
voting in the election.
As we pointed out, in virtually every
case the apportionment that has been
effected under duress from the courts,
has been apportionment that has been
far more perfect than in the past, in
States like Wisconsin and Michigan, in
providing for a one man-one vote basis;
and it has provided real equality.
If the court abided by the strict lan-
guage of the Dirksen-Mansfield amend-
ment?and I do not know how it could
do other than abide by it?the elections
would be voided. The people cannot be
without representation, and presumably
the old legislatures would hold over.
This is the kind of technical quagmire
that we would get into if we adopted the
Dirksen-Mansfield amendment.
There are very serious technical objec-
tions to the amendment. We are not
only against it on theory?that is the
primary reason, because it is an uncon-
scionable attack on the Supreme Court?
but we are also against it because it
would cause tremendous chaos in elect-
ing our State legislators in State after
State.
Certainly this should be a lesson in the
unwisdom of Congress trying to effect
apportionment in the States, rather than
leaving it to the deliberative, careful,
prudent action of the courts.
The truth of these observations is at-
tested by the commendation which the
Court gave to the lower Federal district
court in the Alabama case. The Su-
preme Court stated that the lower court
had acted wisely in refusing to stay an
impending primary election in Alabama
and in giving the Alabama Legislature
the initial opportunity to correct its
own malapportionment. The Supreme
Court stated, at page 51 of the Alabama
opinion, that the district court had:
Correctly recognized that legislative reap-
portionment is primarily a matter for legis-
lative consideration and determination and
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?
1964 CONGRESSIONAL RECORD ? SENATE
that judicial relief becomes appropriate only
when a legislature fails to reapportion ac-
cording to Federal constitutional requisites
in a timely fashion after having had an ade-
quate opportunity to do so.
This is the case as to which people
have been complaining that the Supreme
Court moved in on a State legislature
and took jurisdiction it did not deserve
and should not have had; that the Su-
preme Court moved in too hastily; that
it was unfair and unjust. But what was
the Court's language? The Court said
that the district court had?
Correctly recognized that legislative reap-
portionment is primarily a matter for legis-
lative consideration and determination and
that judicial relief becomes appropriate only
when a legislature fails to reapportion ac-
cording to Federal constitutional requisites
in a timely fashion after having had an ade-
quate opportunity to do so.
The Supreme Court could not have
been clearer in saying that the lower
court should not be precipitate; should
not proceed too rapidly. That is why
all the concern expressed by many Sena-
tors, including some who support our po-
sition, that the Supreme Court is acting
too fast, is based on a failure to read the
cases. The Supreme Court has not acted
precipitately in any of these cases. It
has acted with the greatest caution.
The Supreme Court had the alternative
either of walking away from the situa-
tion and saying that it would ignore it
until the situation was clearly wrong and
conspicuously unthinkable, and that
there was a great demand for action; or
of acting at once, as it did. But when
It acted and stepped into the case, it did
not require the State legislatures to move
with great speed. Quite the opposite.
The Supreme Court said that State legis-
latures should be given every opportu-
nity to act; that it was their function to
act; and that they should act; but that
only when the State legislatures failed
to act would the Supreme Court move in.
In other words, by commending the
district court in the Alabama case, the
Court has instructed lower Federal
courts that legislatures are not only the
most suitable bodies for working out re-
apportionment plans, but that courts
should give legislatures adequate oppor-
tunities to develop such plans.
The Court went on to state that the
district court had acted properly after
the Alabama Legislature had refused to
apportion itself properly, in ordering its
own temporary plan of reapportionment
into effect at a time sufficiently early to
Permit the holding of elections without
great difficulty. In other words, not only
has the Supreme Court said that it is
proper for the Federal courts to construct
reapportionment plans only after legis-
latures have had adequate opportunity to
do so themselves; it has also said that
courts should not draw up and effectuate
their own reapportionment plans unless
such plans will not disrupt elections.
This is the second confusion. Sena-
tors have argued that the Supreme Court
has stepped in and disrupted elections.
They cite the Oklahoma case. We dis-
cussed the Oklahoma case in great de-
tail. What did we find? We found that
the Oklahoma Legislature had not ap-
No. 177-8
portioned since 1921; that there was a
glaring inequity against people who live
in the populous areas in Oklahoma; that
the old apportionment was most unfair;
that far from the Supreme Court requir-
ing swift action or inconsiderate action,
the Supreme Court had been very careful
and had ordered the 1962 legislature to
act. The 1962 legislature acted, but it
acted in a way that obviously contra-
dicted the Court, completely flouted the
Court requirement that there be a one-
man, one-vote apportionment. There
was no real attempt to do so. What was
left for the local court to do except to up-
hold its own dignity by insisting, once
again, that the legislature apportion?
Then there were such delays that there
was some inconvenience. Nevertheless,
the Governor of Oklahoma has ordered
an election, which is to be held on Sep-
tember 29, and held on the basis of popu-
lation apportionment. In that ball
game everyone will be given 3 strikes;
not, for some batters, 1 strike, for some
10 strikes; everyone is to be treated
equally.
It seems to me that this action was
careful, thoughtful, and prudent; but the
Oklahoma case has been cited again and
again as an example of precipitate speed
by the Supreme Court.
I should like to make one final point
to demonstrate that courts will adopt an
attitude of moderation in their dealings
with legislatures that are making good-
faith efforts to reapportion themselves.
In only one of the six cases decided on
June 16 did the Supreme Court lay down
a hard and fast time limit on reappor-
tionment. Let me say that again: In
only one of the six cases decided on June
16?the famous cases making the one-
man, one-vote principle clear, as a mat-
ter of individual right?did the Supreme
Court impose a hard and fast time limit
on reapportionment.
In the Maryland case, it said that un-
der no circumstances should the 1966
elections be held under the present un-
constitutional plan of apportionment.
What is wrong with that? What is un-
reasonable about that? If a State has 2
years in which to reapportion, is that
rushing it? Is that too great speed?
The Supreme Court permitted 21/2 years
for compliance. Where is the great
speed that has been alleged? The Mary-
land legislators who will be elected in
1966 will hold office until 1970. The 1966
elections are more than 2 years away.
There is ample time for the Maryland
Legislature to reapportion in a most un-
hurried manner.
The electoral process in Maryland will
not be disrupted. It would be unfair to
deprive the citizens of Maryland of ef-
fective representation until 1970. In
short, the Supreme Court has laid the
groundwork for fair rules in the other
States, as well, without requiring that
there be a specific, definite, hard-and-
fast time limitation. The only time limi-
tation the Court provided is, as I have
said, more than 2 years away; and that
is certainly generous on the basis of any
consideration.
This has been a crucial example to
those of us who oppose the Dirksen
amendment. Those on the other side
21579
have said that the Dirksen amendment
should be adopted because it is necessary
to delay this action in order to give States
time to apportion; to permit time for a
constitutional amendment to be sub-
mitted. The fact is that the record is
as clear as it can be that ample time in
every case has been provided by the
Court, and that the Supreme Court has
been judicial in the best sense of the
word. It has been thoughtful, careful,
and prudent in requiring apportionment.
Most important of all, the Supreme Court
has done something that Congress can
never do. The Supreme Court has said
that the lower courts shall use flexibility
and shall interpret the requirement for
apportionment on the one-man, one-vote
basis to permit State legislatures to act;
shall grant ample time, so that the legis-
latures can act, and act with prudence,
care, and consideration of their own con-
stitutions and the ',locations of the people
who live in the various States, who will
gain or lose representation.
NO COMPARISON BETWEEN CONGRESS AND THE
STATE LEGISLATURE
The second objection to the Supreme
Court's decision in Reynolds against
Sims, the Supreme Court's basic prin-
ciple that every man should have equal
representation in the State legislature?
and this is, frankly, a most common ob-
jection today?is that there is a Federal
analogy or a Federal comparison. I have
encountered this many times in Wiscon-
sin. I am sure that every Senator who
has gone home and discussed this prob-
lem with his constituents has encoun-
tered it.
They ask, "If the Senate is not based
on population, why should the State leg-
islatures not follow the wisest Constitu-
tion any country ever had in history?
Should one State legislative body not
also be based on an area representation,
or county representation, or something of
the kind?"
This argument goes as follows: The
Senate is composed of two Senators from
each State, no matter how large or small,
how populous or how sparsely populated.
Why should not the State legislature
have the same right? Even were I to
accept the reasoning?which I do not?
I would have to reply that the Dirksen
amendment does not apply to any one
house of the State legislature, but to both
houses. It would prevent either house of
a State legislature from reapportioning
for at least 2 years, despite the fact that
the Supreme Court has affirmed the con-
stitutional necessity of "one man, one
vote" in the House of Representatives.
However, returning to the Federal
analogy, there is no really fair compar-
ison between the State's acceptance of
representation and the State's legisla-
ture, and Federal representation in the
Congress. This is the statement made
by the Supreme Court in the case of
Reynolds against Sims. That decision?
it was an 8-to-1 decision?a majority
decision written by Chief Justice War-
ren, states on page 37:
Much has been written since our decision
in Baker versus Carr about the applicabil-
ity of the so-called Federal analogy to State
legislative apportionment arrangements.
After considering the matter, the court be-
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21580 CONGRESSIONAL RECORD ? SENATE
low concluded that no conceivable analogy
could be drawn between the Federal scheme
and the apportionment of seats in the Ala-
bama Legislature under the proposed con-
stitutional amendment.
Thomas Jefferson repeatedly de-
nounced the inequality of representation
provided for under the 1776 Virginia
constitution and frequently proposed
changing the State constitution, to pro-
vide that both Houses be apportioned on
the basis of population.
In 1816, Thomas Jefferson wrote,
that? \
Government is a republic in proportion
as every member composing it has his equal
voice in the direction of its concerns, by
representation chosen by himself.
A few years later Thomas Jefferson
wrote:
Equal representation is so fundamental a
principle in a true republic that no prejudice
can justify its violation. Prejudice itself
cannot be justified.
Those are quotations from Jefferso-
nian letters. While Jefferson took many
contradictory positions on many things,
including freedom of the press, he never
varied from this principle. He stuck by
it to the end of his days, namely, that
State legislatures should be apportioned
strictly on a population basis.
The Court goes on to say:
We agree with the district court, and find
the Federal analogy inapposite and irrelevant
to State legislative districting schemes. At-
tempted reliance on the Federal analogy ap-
pears often to be little more than an after-
the-fact rationalization offered in defense of
maladjusted State apportionment arrange-
ments. The original constitutions of 36 of
our States provided that representation in
both houses of the State legislatures would
be based completely, or predominantly, on
population.
Mr. President, let me emphasize those
words "the original constitutions of 36
of our States"?the overwhelming ma-
jority?nearly three-quarters?provide
that representation in both houses would
be based completely or predominately on
population.
The argument that our Founding
Fathers had other ideas for State legis-
latures is not true.
Continuing the quotation from Chief
Justice Warren:
And the Founding Fathers clearly had no
Intention of establishing a pattern or model
for the apportionment of seats in State legis-
-latures when the system of representation in
the Federal Congress was adopted. Demon-
strative of this is the fact that the North-
west Ordinance?
Under which Wisconsin was carved and
I believe the States of Michigan and Illi-
nois also were carved?
adopted in the same year, 1787, as the Fed-
eral Constitution, provided?
And our Founding Fathers of course
wrote that Northwest Constitution?
for the apportionment of seats in territorial
legislatures?
On what basis? On area? No, Mr.
President. Continuing the quotation?
solely on the basis of population.
Mr. President, I quote from the North-
west Ordinance:
The inhabitants of said territory shall
always be entitled to the benefits * * * of
a proportionate representation of the people
in the legislature.
In this case we are going along with the
malapportioned State legislatures in the
States?where the Founding Fathers af-
firmed they shall always be on a popula-
tion basis?permitting them to destroy
this basic principle as old as the Consti-
tution itself, a principle affirmed and re-
affirmed over and over by our Founding
Fathers.
Mr. HART. Mr. President, will the
Senator from Wisconsin yield?
Mr. PROXMIRE. I yield.
Mr. HART. I am delighted that the
Senator from Wisconsin is developing
the point he is underscoring at the mo-
ment. I find that there is a widespread
misconception concerning it. I should
like to inquire of the Senator from Wis-
consin if his experience is similar to mine.
Many people feel that the composition of
the Senate as contrasted with the
House of Representatives is the pattern
against which the composition of State
legislatures should be judged. Perhaps it
is more accurate to say that many peo-
ple feel that those who support the Su-
preme Court decision in the Reynolds
case are inconsistent if at the same time
they insist that the composition of the
Senate and the House is sound.
The Senator from Wisconsin is making
the point historically sound, and persua-
sive in reason, that there is a vast dif-
ference between the negotiations and
final settlement leading to the creation
of a union of independent States and
the organization within each of the in-
dependent States of its legislature.
I ask the Senator from Wisconsin if
it is not his experience, as it has been
mine, that the single most frequently
voiced reason for criticism of the Reyn-
olds case is premised on the assumption
that a comparison between State legis-
latures and the Federal Congress should
be made.
Mr. PROXMIRE. Yes, indeed. That
is true. As I said when I began my re-
marks?it is something I have often en-
countered in Wisconsin. That observa-
tion is offered even by people who might
sympathize with my position and rec-
ognize that both houses of the legisla-
ture should be based on population.
Some of them are critical of the Senate
as being not based on population, but
at any rate they feel that there is funda-
mental justification. We have a fine
Constitution. It is the greatest Consti-
tution any' nation has ever had. It has
endured throughout the years. It is the
oldest Constitution in effect in any na-
tion. Thus, it deserves reverence be-
cause it has served us so well. Why
should it not be a model for a State gov-
ernment?
My strong feeling is that this is a
model for a great, massive, powerful Fed-
eral Government, and that we have a
Federal Government that has a virtual
monopoly on military power. It has
great national taxing power. It makes
all the sense in the world to have a Fed-
eral system in which the States reserve
to themselves, by constitutional right,
September 16
certain powers, which permit a division
of powers and protects the individual
against the massive power of the Federal
Government. It is understandable and
proper that we should jealously protect
that right. One way to preserve the in-
tegrity of the State, the right of the
State, or the real power of the State, is
to invest every single State with author-
ity to elect the highest legislative body in
the Nation with an equal number of
representatives?two representatives.
They not only can serve as representa-
tives of the people of the State, but they
can also come to Washington as ambas-
sadors from their States. The State re-
serves to itself the very real power under
the 10th amendment The Federal sys-
tem should do this. Where is the analogy
with the States? There is no such
monopoly of military power in any State.
The Federal Government has that power.
The State does not have it. Thus, from
that standpoint, there is no analogy at
all.
There is no monolithic, overwhelming,
economic or taxing power that a State
has. The Federal Government reserves
this power to itself. It is such an enor-
mous power that we do not have it.
So, from that standpoint, of a protec-
tion of individual right against the over-
whelming power which might develop,
and has developed in many governments,
the Federal Government serves us well
indeed. But I have not heard one single
argument?and I have been on the floor
a great deal during this debate?and I
challenge any Senator to point to any
argument has has been made to the
effect that there must be protection
afforded against State power by provid-
ing that every country shall have equal
representation in a State legislature.
The Senator from Michigan knows as
well as does the Senator from Wisconsin
that our States create the counties.
They can abolish the counties. They can
merge the counties. They can separate
the counties. Indeed, in the State of
Wisconsin within the past 3 or 4 years,
a new county, Menominee was created
out of two or three other counties. There
have been serious proposals concerning
abolishing other counties because people
feel they have inefficient governments.
This, after all, was the progmatic com-
promise that our Founding Fathers
made. Either we had a union, or we
had not. The States were sovereign
countries. They were sovereign nations.
They had their own armies. They had
their own taxing systems. They had
articles of federation that were about as
loose as those of the NATO system. The
only way that our Founding Fathers
could persuade a State like Delaware to
come into a union with larger States
was to provide that they not lose their
identity, but preserved their sovereignty
by having equal representation in one
branch of Congress.
When we take into consideration their
clear, immediate, pragmatic problem, I
defy anyone to show any line in the Fed-
eralist Papers which would say that be-
cause of what the States have done in
coming into the Union, a State should
provide for something other than a pop-
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1964 ColT6RESSIi*Al! liE66111) SENATE
ilation ,representation in the State legis- bate 'and 'the issue that 'confronts the
iature. ? ? _ Senate it far more baSiothan that: ' ?
Mr. HART. As the Senator from Wis- .1 wonder if the Senator *dm Wiscon-
consin has just reminded us, the beat sin would not agree ,with me that we
representation Of such a claim lies not invite to our- cause those who disagree
alone in the silence of the Federalist Pa- with the Reynolds decision. We invite
Pers, but the action in 1787 in the North- to our cause those who feel that because
west ?Ordinance, where, indeed, recogni- of tradition, experience,. or whatever it
tion was given to the proposition that is, One man, one vote is not .desirable for
equal apportionment in the State legis- a State legislature. We nonetheless
latures was the order of .the day. vite them to our cause for the reason that
Mr. PROXMIRE. Yes, indeed. we have a written Constitutions We
Mr. HART. They were the same pride ourselves on it. It enumerates
Founding Fathers talking at that time certain rights which are guaranteed to
that we are -told would now, tell 3.1s. that each citizen. That Constitution estab-
is not so. ? lishes three coequal branches of the
Mr. PROXMIRE. They said in the Government.
Northwest Ordinance, article II, para- The Supreme -Court,. as is Its charge in
graph 14, of the Northwest Ordinance of the Constitution, is given the responsi-
1787: bility of identifying constitutional rights,
The inhabitants of . the Federal territory and, in. the event they are jeopardized,
shall always be entitled to the benefits -of a assuring- those rights to any citizen from
proportional representation of the people in whom it is proposed that they be taken.
the legislature. Why should not each Member of Con-
gress, whatever his view on reapportion-
ment of, State legislatures might be, seek
to insure that the written Constitution
shall continue to guarantee rights which,
in fact, in the printed letter it grants? If
the day-should come when the indepen-
dent judiciaryyis. fictional, if the day
should come when, because of frustra-
tion, Or for any other reason, public opin?
ion concludes that a Tight guaranteed to
an individual by the Constitution, as as-
serted by the ,by
Court, is distaste-
ful; all that is needed to deny it is for
the Congress of the United States to say
to the Supreme Court, "From now on,
you are not going to have jurisdiction to
protect that right." Why . does it. not
follow that from that day forward, which
would mark the decline of the Republic,
the written COnstitutien would. be 'worth
exactly. the coat of the paper on which
it is.printed? Why would we then. not
be said to have joined those other .na-
tions which have delightfully written
constitutions which 'provide all sorts of
guarantees to their citizens? - But life
in those,cotintries is.undesirable. Why?
Because there is nO independent judiciary
to protect ,the rights. The legislative
branch can 'suspend the rights at' any
time it desires tO do so.'
It, seems to 'me that, this is, at .root,
what we are really confronted with.
Everyone on both :Sides of the aisle,' 'arid
across' the Country, would agree that if
the Senator from Wisconsin this afterr
noon were to pass out. submachineguns
to the 100 Members of the Senate?if we
*could find ?
,Mr. PROXMIRE. It would be easier
to find the machineguns. ? ,
Mr. HART. Suppose We Were to Say,
"Let us march across the plaza to the
'supreme Court - and .line those fawn
up against the wall and say, We do not
like your decision in the Reyncilds ease.
Change it, Or go out of business on that
issue." Everyone' Would say, if that were
to happen, ,that that. Would be the end
of the Republic. Is not that correct?,
' Mr. PROXMIRE; They would, indeed.
Mr. HART. We can fire on that dciurt
With words and with resolutions which; in
the long. run, can be just as destructive
of the Court as machineguns stuck in
their faces.
How can it be more explicit or clear?
The Founding Fathers said, emphasized,
underlined, and wrote into the law that:
When we create States out of this great,
massive' territory that obviously in the future
will have States, it must be done on a popu-
lation basis. .
There is no qualification to it. ?
Mr. HART. ? We were talking. 'about
the territory from which -mite the State
that the 'Senator from Wisconsin Is priv-
ileged to represent, And the State that
the Senator 'from Michigan is Privileged
to represent:
? Mr. PROXMIRE. Yes, 'indeed.
Mr. HART. I think the Senator from
Wisconsin has spoken most responsively,
to the point that, sometime's' glibly, al-
most facetiously; Senators who are priv-
ileged to represent States which are larg-
er in population than the average State
In the Nation, 'sometimes suggest, "We
are ready for proportional 'representa-
tion in the Senate." ? ?
In truth, We are not, for the' very rea-
sonS that the Senator froni Wisecinsin
pointed out. It is highly: desirable; in
view of the enormous power 'that reposes
in the Federal Government, that there
be the U.S. Senate in which the smallest
State in 'terms of population nonethe-
less mayhave an equal vote to the vote of
the California's and,New York's. ?
I think 'the Senator from Wisconsin
has presented a' Very reasonable argu-
ment in support of the position which, at
root, is' a defense of the Reynolds Case.
He has contributed a great deal, over
these days of debate,' to a public, under-
standing of the situation that 'exists.
For weeks the debate has largely per-
tained to this matter. Does the Sena-
tor believe it desirable that one man's
vote be equal in weight to any Other otie
man's vote in the organization of ,State
legislatures?
We,
We, have, appeared to be arguing the
desirability of one man, one vote. There
are those of Us who take this position
and feel that the 14th amendment clearly
guarantees that One Mr. Smith shall not
have any more vote than any other Mr.
-Smith in Any legislature; whether di-
rectly, or in terms ''f the representation
that is permitted. But, for me, the de-
215
? My hope is that as the debate develops';
more and more 'people will realize that
the argument is not over whether we
like one man, one vote for 'State legisla-
tures or whether we do not like it. The
question really is, Shall we turn at that
point in the road marked, "This is the
end of constitutional governments?" It
is inconceivable to me .that if we with-
draw jurisdiction from the courts and
prevent them from protecting this ,and
right, we shall have .not set a
precedent which will permit us at our
whim. to withdraw a whole series of con-
stitutional rights. 'Once we should have
done that, 'to what Would John Citizen
turn? Where would be look'for the"prciL
tection of the right to counsel, the right
to hold up -a picket sign, the right freely
to worship? ,Those are treasures of Ours.
We Cannot alone erode them. :We can-in-
cinerate them if we 'once take a course
which asserts a right in Congress to
nullify any section of the Constitution
with respect to rights guaranteed indi-
viduals. There are ways to amend the
Constitution, if we do not like the oird-
nian, cinervote approach, but ,having the
Congress line the Court up against the
Wall faced with either ,guns or resolutiol*
Is not the way. .
Would nOt the Senator from WlsOon
sin hope that," as the debate develops,
we can enlist those who May .indeed feel
that the Reynolds 'case. states an'unde-
sirable proPosition, but nonetheless un-
derstand that in the .long judgment of
history it would be a sad day should the
Congress attempt to tell the Court,
"Move over. We are sitting- on the
bench?"
Mr. PROXMIRE; The analogy ,of the
'Senator from Michigan of lining the
Court against a wall faced with guns is
"shocking. ?
Mr.- HART. It is an overstatement,
and I plead guilty to it.
-Mr. PROXMIRE. There is ? no ques-
tion that the amendment Would have' a
similar 'effect. As the Senator from
Michigan well knows, we have as one of
the' strongest proponents on our side a
man wh'a has made an eloquent speech
for us and who will fight-to the end, if he -
has to sit here until Christmas or Christ-
mas 10 years from now, to oppose the
.Dirksen amendment, who does not agree
with the one-man; one-vote principle and
'has never pretended that he did. He
has been very frank that he does not
Agree with 'that Principle, but he feels
very strongly about the point whiCh the
Senator from Michigan has made, and
that is the crucial point involved: ? The
question is, Shall We have a Court that
has dignity, respect, authority, power,
and the ability to review and declare acts
of Congress unconstitutional, or shall We
not? If Congress should act in this case
and overrule the Court, there is no ques7
,tion that .we ,would destroy _the: Court.
. ,
Only a very few months ago this par-
ticular -Congress acted like a two-bit dic-
tator with regard, to the Court. A ma-
jority of Senators did not,
like the' Court,
so what did the Senate de over the pro-
tests of the Senator: from Michigan and
the Senator from Wisconsin? ? The Sen-
ate refused to give them the salary in-
crease that it took for its own Members.
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21582 CONGRESSIONAL RECORD ? SENATE
We refused to give them the salary in-
crease which the House recommended.
We refused to give the members of the
Supreme Court the salary increase that
the Randall Commission recommended.
That is the kind of cheap, petty action
of people who have no understanding
of dignity and independence and the
right to disagree.
Fundamentally the amendment is in
?the same spirit as that action. Those
who have proposed the amendment are
fine and decent persons. The fact is that
the only force behind it that I can under-
stand is exactly the same attitude that
motivated our petty performance in re-
fusing the salary increase for the Su-
preme Court Justices. The only talk I
heard around the Chamber, at least off
the floor and in the cloakrooms, was that
"They had it coming to them because we
do not like their decisions."
If the Congress of the United States
adopted that kind of attitude toward the
Congress, that certainly could be the
end of the Republic. That is what is at
stake here. It is far more important
that the one-man, one-vote principle,
which the Senator from Michigan and
the Senator from Wisconsin enthusi-
astically support.
Certainly it makes sense that many
Senators who disagree with us recognize
how great the Court's power of Judicial
review is. As Dean Rostow of the Yale
Law School said, if we should adopt the
Dirksen amendment, we would knock out
the linchpin of our Constitution. We',
would destroy the independence of the
judiciary and the authority of the Su-
preme Court to fulfill its prime obliga-
tion under our Constitution and Court
interpretations of our Constitution.
Mr. HART. Mr. President, I hope that
as the debate develops, it will be to that
point, importantly, that the discussion
will be aimed. I have said before, and I
welcome the opportunity to say again,
that the Senator from Wisconsin is mak-
ing a contribution which at the moment
may not be very much noticed. It seems
much ado about something that really
is not very exciting, but in the long haul
will be regarded as a contribution of
leadership to what I suspect will be the
most important issue that will confront
him, me, and the others in the Congress,
or so long as we are permitted to remain,
absent alone, so far as the Senate is con-
cerned, a resolution declaring war. And
in one sense, a declaration of war would
be less difficult to resolve, because we can
win wars, and we would still have an in-
dependent judiciary, costly in blood
though the intervening period might be.
I hope that the effort that the Senator
from Wisconsin is making to raise the
debate to the point at which there is
national awareness of what is really in-
volved will succeed. What is really in-
volved is not so much the question of the
reapportionment of State legislatures.
What is really involved is the question
whether we shall continue to have a ju-
diciary which is free ?and independent
to review the question of whether some-
one's constitutional right has been de-
nied. Nothing is more basic to the sys-
tem which we preach to the world as so
desirable, and nothing could so quickly
destroy the system as the elimination of
that independent review.
The Senator from Wisconsin has
raised the level of the debate to that
?
point, and I hope that we shall main-
tain it.
Mr. PROXMIRE. I thank the dis-
tinguished Senator from Michigan for a
highly useful contribution. r think this
is a point that Senators will recognize.
What is at stake is far more important
than representation in State legislatures,
vital .as that question is. That is a very
important right. What is at stake is the
question whether or not the Supreme
Court will in effect be able to maintain
its effective independence and its power
of judicial review.
That is not merely the opinion of Sen-
ators who are opposing -the amendment.
It is the opinion of no less an author-
ity than Dean Rostow, of Yale Law
School. Dean Rostow is a prudent,
thoughtful, and careful man.
I continue with the analogy, reading
briefly from the Court's decision in the
case of Reynolds against Sims. I refer
to the case of Reynolds against Sims to
show why there should be no Federal
comparison, why it is not fair or honest
or accurate to compare the State govern-
ments with the Federal GOvernment.
The Court states:
The system of representation in the two
Houses of the Federal Congress is one in-
grained in our Constitution, as part of the
law of the land. It is one conceived out 'of
compromise and concession indispensable to
the establishment of our Federal Republic.
Arising from,unique historical circumstances,
it is based on he consideration that in es-
tablishing our type of federalism a group of
formerly independent States bound them-
selves together under one National Govern-
ment. Admittedly, the Original Thirteen
States surrendered some of their sovereignty
in agreeing to join together "to form a more
perfect Union." But at the heart of our
constitutional system remains the concept
of separate and distinct governmental en-
tities which have delegated some, but not all,
of their formerly held powers to, the single
National Government. The fact that almost
three-fourths of our present States were
never in fact independently sovereign does
not -detract from our view that the so-called
Federal analogy is inapplicable as a sustain-
ing precedent for State legislative appor-
tionments. The developing history and
growth of our Republic cannot cloud the
fact that, at the time of the inception of the
system of representation In the Federal Con-
gress, a compromise between the larger and
smaller States on this matter averted a dead-
lock in the Constitutional Convention which
had threatened to abort the birth of our Na-
tion.
In other words, this was the only way
in which we could have a Federal Union.
We either had to have that or nothing.
To pretend that this was not a compro-
mise made only for this purpose is going
a long distance. I have stated that this
compromise has served our purposes
well, because there are powers which the
Federal Government has, and which the
State governments obviously do not
have, and there are other clear powers
which the States have that no counties,
by any stretch of the imagination, have.
One of the interesting things about the
question of Federal analogy is that when
people ask about the difference between
September 16
the Federal and State governments, are
answered, there is usually no argument.
Once the reason is given for the differ-
ence, there is never a contradiction.
Our opponents move on to some other
subject. There were floor debates on
this question before the conventions, but
there was no real effort to make a re-
spectable argument that there is an
analogy between the Federal and State
legislatures. The strongest and most
eloquent champion, or any champion, for
that matter, of the proposal has not really
argued that there is an analogy. They do
not base their argument on that point.
They do not try to do so. And yet the fact
is that this is by far the most popular
single reason for justifying malappor-
tioned State legislatures and for having
one house based on something other than
population. Knock it out, and there is
precious little left.
Continuing with the case of Reynolds
against Sims:
In rejecting an asserted analogy to the
Federal electoral college in Gray v. Sanders,
supra, we stated:
"We think the analogies to the electoral
college, to districting and redistricting, and
to other phases of the problems of repre-
sentation in State or Federal legislatures or
conventions are inapposite. The inclusion
of the electoral college in the Constitution,
as the result of specific historical concerns,
validated the collegiate principle despite its
inherent numerical inequality, but implied
nothing about the use of an analogous sys-
tem by a State in a statewide election. No
such specific accommodation of the latter
was ever undertaken, and therefore no vali-
dation of its numerical inequality ensued."
Political subdivisions of States?counties,
cities, or whatever?never were and never
have been considered as sovereign entities.
Rather, they have been traditionally re-
garded as subordinate governmental instru-
mentalities created by the State to assist in
the carrying out of, State governmental func-
tions. As stated by the Court in Hunter v.
City of Pittsburgh, 207 U.S. 161, 178, these
governmental units are "created as conveni-
-ent agencies for exercising such of the gov-
ernmental powers of the State_ as may be
entrusted to them," and the "number, na-
ture, and duration of the powers conferred
upon [them] * * ? and the territory over
which they shall be exercised rests in the
absolute discretion of the State." The rela-
tionship of the States to the Federal Gov-
ernment could hardly be less analogous.
Let me dwell for a moment on the last
point. The Federal Government has no
power to revise the boundaries of a State.
The Federal Government has no power
to abolish a State, or to merge States, or
to dike any action that would diminish
the power or authority of the State. The
Federal Government has no power, in-
deed, to exercise any power over a State
that is not explicitly and specifically
enumerated in the Constitution.
On the other hand, there is no power
that a State does not have over a county.
A county reserves absolutely no power.
It cannot reserve any power, because it
does not have any separate existence
other than what the State decides to give
to it. Under any State constitution that
I have ever heard about, the county is
nothing but a convenient administra-
- tive creation of the State government,
to assist in exercising the functions of
the State government.
?
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1964. CONGRESSIONAL RECORD SENATE
? Under those circumstances, to say that
.because States, which have a real ele-
ment of sovereignty, have individual
Senators, therefore ?curities, which have
no existence other than what States
wish to give them, should have an equal
number of Senators, or that townships
should have an equal number of assem-
blymen, is obviously to try to make an
analogy where there is no analogy.
Let us examine the history of our
Federal Constitution, so that we may
understand more - thoroughly the need
for each State to have two Members in
the Senate, rather than on the basis of
population, which makes this arrange-
ment suitable in our National Govern-
ment and not in our State governments.
I quote from an excellent appendix
in the case of Maryland against Tawes,
which, I understand, was prepared for
the Supreme Court by the Department
of Justice:
1. THE HISTORY OF THE FEDERAL CONSTITU-
TION WITH REGARD TO REPRESENTATION IN
CONGRESS
a. The convention: The Confederation of
the United States, which was formed in 1777
by the thirteen States, was explicity a con-
federation of sovereign States. Articles of
Confederation, Article II. Each State, al-
though it could have two to seven delegates
to the Congress, had a single vote. Id., Art.
V. While the power to make treaties and
wage war was given to the Congress, most
powers were reserved to the States. Id. Art.
II, VI. For example, the Congress could
not impose taxes, but could only ask the
States to contribute particular sums. Id.,
Art. VIII.
The lack of power of the Confederation to
meet the growing problems of the former
colonies led to a serious crisis. See The
Federalist, Nos. 15-22 (Cooke ed., 1961), pp.
90-146. The convention in Philadelphia was
called by the Congress by a resolution dated
February 21, 1787, "for the sole and express
purpose of 'revising the Articles of Confed-
eration and reporting to Congress and the
several legislatures such alterations and pro-
visions therein as shall when agreed to in
Congress and confirmed by the states render
the federal constitution adequate to the
exigencies of Government & the preservation
of the Union." III Records of the Federal
'Convention (Farrand ed., 1911),' 14. On May
18, 1787, a few days after the first delegates
arrived in Philadelphia, Benjamin Franklin
described the Meeting as "a Convention of
/the principal people in the several States,
for the purpose of revising the federal Con-
stitution, and proposing such amendments
as shall be thoroughly necessary." Letter
to Richard Price, May 18, 1787, id. at 21.
Thus, both the Congress and Franklin con-
ceived of the purpose of the convention as
merely to revise the Confederation, but to
keep its essential form.
On the other hand, some of the delegates
arriving in Philadelphia were proposing to
form an entirely different kind of govern-
ment, a national government 'In which rep-
resentation in the legislature would be on
the basis of population.
That is the kind of government we are
proud to have; a Federal Government,
not a national government.
George Mason, a delegate from Virginia,
Wrote his son on May 20, 1787 Farrand
28):
"The most prevalent idea in the principal
States seems to be'a total alternation of the
present Federal system, and substituting a
great national council or parliament, con-
1 Hereinafter referred to as "Farrand."
The terms national and Federal Govern-
sisting of two branches of the legislature,
founded upon the principles of equal propor-
tionate representation, with full legislative
powers upon all the subjects of the Union;
and an executive: and t'o make the several
State legislatures subordinate to the national,
by giving the latter the power of a negative
upon all such laws as they shall judge con-
trary to the interest of the Federal Union."
A few days later, on May 21, Mason wrote
almost identical words to Arthur Lee. Id. at
24. That same day, George Read, a delegate
from Delaware, wrote to John Dickinson, an-
other delegate from Delaware, of a proposal
for a new Federal system (id. at 25) :
"Some of its principal features are taken
from the New York system of government. A
house of delegates and senate for a general
legislature, as to the great business of the
Union. The first of them to be chosen by
the legislature of each State, in proportion to
its number of white inhabitants, and three-
fifths of all others, fixing a number for send-
ing each representative. The second, to wit,
the senate, to be elected by the delegates so
returned, either from themselves or the peo-
ple at large, in four great districts, into which
the United States are to be divided for the
purpose of forming this senate from, which,
when so formed, is to be divided into four
classes for the purpose of an annual rotation
of a fourth of the members.,
Obviously, at that point there was .no
consideration for giving the States equal
representation in the Senate, and there
was to be, apparently, pretty much of
an ,abolition of the States, and a na-
tional council to be developed, very
much in the way the House of Repre-
sentatives is made up now, with the other
body consisting of representatives from
four geographic districts.
Read warned that the small States must
be careful to protect their interests. Ibid.
George Mason wrote his son on June 1 that
(id. at 32) :
"The idea I formerly mentioned to you,
. before the Convention met, of a great na-
tional council, consisting of two branches
of the legislature, a judiciary and an execu-
tive, upon the principle of fair representa-
tion in the legislature, with powers adapted
to the great objects of the Union, and con-
sequently a control in these instances, on
the State legislatures, is still the prevalent
one. Virginia has had the honor of pre-
senting the outlines of the plan."
The convention held its first meeting on
May 14, 1787, but was adjoined because of
lack of a quorum. I Farrand 1. Soon after
regular sessions started on May 25th, the
convention started to do its work through a
Committee of the Whole. On May 31, in
debate on whether the first branch of the
legislature should be elected directly by the
people, George Mason (I Farrand 48-49) :
"Argued strongly for an election of the
larger branch by the people. It was to be
the grand depository of the democratic prin-
ciple of the Government."
During debate on June 6 on whether the
upper house of the new legislature should
be elected by the state legislatures instead
ment were used by the framers themselves
in conflicting ways apparently for partisan
advantages. Therefore, the meaning can be
ascertained only from the particular context
We, however, use national government to
mean a government operating directly on the
people in which the States are plainly sub-
ordinate. We use Federal Government to
mean a government which can regulate cer-
tain areas but with the other areas remain-
ing under the authority of sovereign States.
The New York senate and assembly were
apportioned by eligible voters. New York
constitution of 1777, articles 4, 12.
21583
of the people, Pierce Butler of South Caro-
lina stated that he opposed "determining
the mode of -election until the ratio of Rep-
resentation is fixed?if that proceeds on a
principle favorable to wealth as well as
number of Free Inhabitants, I am Content
to unit wh. Delaware (Mr. Read) in abolish-
ing the State Legislatures, and becoming one
Nation instead. of a confecln. of Republics?"
[King1.4 I Farrand 144. The next day, in
continuing the debate on the same pro-
posals, Madison said that if the Senate was
to be elected by the state legislatures (id.
at 151) :
"We must either depart from the doctrine
? of proportional representation; or admit into
the Senate a very large number of members.
The first is inadmissible, being evidently un-
just. The second is inexpedient."
Madison, that early in the Convention,
was on record against equal representa-
tion in the Senate.
George Madison stated:
George Mason stated (id. at 161):'
"The treaties, leagues, and confederacies
between different sovereign,'Independent
powers have been urged as proofs in support
of the propriety and justice of the single and
equal representation of each individual State
In the American Union; and thence conclu-
sions have been drawn that the people of
these United States would refuse to adopt a
government founded more on an equal rep-
resentation of the people themselves, than on
the distinct representation of each separate,
individual State. If the different States in
our Union always had been as now substan-
tially and in reality distinct, sovereign and
independent, this kind of reasoning would
have great force."
On June 8th, Gunning Bedford of Delaware
complained of attempts (I Farrand 167) :
"To strip the small States of their equal
right of suffrage. In this case Delaware
would have about 1/20 for its share in the
General Councils, whilst Pa. & Va. would
possess % of the whole. This shows the im-
possibility of adopting such a system as that
on the table, or any other founded on a
change in the principle of representation."
The next day, June 9th, the Committee
of the Whole considered the resolution (I
Farrand 181) :
"Resolved, therefore, that the rights of
suffrage in the national legislature ought to
be apportioned to the quotas of contribu-
tion, or to the number of inhabitants, as the
one or other rule may seem best in different
cases." [Yates]
A long debate ensued. William Paterson of
New Jersey said that (id. at 177) :
"The proposition for a proportional repre-
sentation [struck] at the existence of the
lesser States. He wd. premise however to an
investigation of this question some remarks
on the nature structure and powers of the
Convention."
"The Convention he said was formed in
pursuance of an Act of Congs. that this act
was recited in several of the Commissions,
particularly that of Massts. which he re-
quired to be read: That the amendment of
the confederacy Was the object of all the
laws and commissions on the subject; that
the articles of the confederation were there-
fore the proper basis of all the proceedings
of the Convention. We ought to keep within
its limits, or we should be charged by our
constituents with usurpation."
All references to the proceedings of the
constitutional convention are to the official
Journal or to Madison's notes unless other-
wise indicated. Rufus King of Massachu-
setts and Robert Yates of New York also
made notes of part of the proceedings to
which we will occasionally refer.
This quotation is from Mason's notes of a
speech which Farrand believes was given on
June 7. I Farrand 160-161, note 8.
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21584 CONGRESSIONAL RECORD ? SENATE
Paterson then stated (id. at 178) :
"A confederacy supposes sovereignty in the
members composing it & sovereignty sup-
poses equality. If we are to be considered
as a nation, all State distinctions must be
abolished, the whole must be thrown into
hotchpot, and when an equal division is
made, then there may be fairly an equality
of representation."
Paterson's notes for his speech on June 9th
state (id. at 186) :
"Each State is sovereign, free, and inde-
pendent, etc. Sovereignty includes Equal-
ity?
"If then the States in Union are as States
still to continue in Union, they must be con-
sidered as Equals?
"13 sovereign and independent States can
never constitute one Nation, and at the same
Time be States?they may by Treaty make
one confederated Body."
James Wilson of Pennsylvania, a propo-
nent of a strong national government (I Far-
rand 179-180) :
"Entered elaborately into the defence of a
proportional representation, stating for his
first position that as all authority was de-
rived from the people, equal numbers of peo-
ple ought to have an equal no. of representa-
tives, and different numbers of people
different numbers of representatives. This
principle had been improperly violated in
the Confederation, owing to the urgent cir-
cumstances of the time. * * * Mr. P. ad-
mitted persons, not property to be the meas-
ure of suffrage. Are not the citizens of Pena.
equal to those of N. Jersey? does it require
150 of the former to balance 50 of the latter?
Representatives of different districts ought
clearly to hold the same proportion to each
other, as their respective constituents hold to
each other."
One reason why I am laboring this
point is that we should understand care-
fully that when our Founding Fathers
decided on the composition of the Sen-
ate, in the process of doing so they ar-
gued at great length and with strong
feeling the importance of equal repre-
sentation. They understood this prin-
ciple. They understood it thoroughly,
and they supported it. They knew how
vital the principle is to true democracy
or to a true republic. They recognized
how urgent it is, if there is to be any
kind of real fairness and justice.
At the same time, they were con-
fronted with a situation in which they
were not merely trying to reconcile 3
million people who at that time wanted
to form a union; they were confronted
with a situation in which there were 13
separate and distinct entities?in effect,
nations which had their own taxing pow-
er, each one making contributions to the
federated Congress. So it was necessary
to make a compromise. But it should be
thoroughly understood that in those de-
bates, lasting many days, there was clear
protestation and recognition on the part
of all delegates to the Convention of the
fundamental truth, the deep importance,
of equal representation for every citizen.
The fact that the Constitutional Con-
vention eventually reached a compro-
mise, the compromise we know today in
our Federal Union, should not obscure
the fact that frequently, to a man, they
recognized that there was a true, basic,
fundamental, vital principle in which
they believed, and believed deeply;
namely, that politically?not economi-
cally, not socially, but politically?men
should be equal. They should be equal
before the law; they should have an
equal vote.
The next speaker, Hugh Williamson, of
North Carolina (id. at 180) :
"Illustrated the cases by a comparison of
the different States, to counties of different
sizes within the same States; observing that
proportional representation was admitted to
be just in the latter case, and could not
therefore be fairly contested in the former."
Here is an important analogy. Our
Founding Fathers did consider a com-
parison with the States. Every time
they did, they recognized that the sit-
uation was different. The Founding
Fathers had established the State legis-
latures based on population. There was
population representation depending on
the size of the counties in the States.
So they tried to hold that analogy for
the Federal Government. Clearly, there
was a difference, because the counties
had no element of sovereignty or inde-
pendence; they had no foundation on
which to base their claim of representa-
tion, whereas the States clearly had such
a claim.
I read further:
Judge David Brearly of New Jersey agreed
with Paterson (id. at 181-182) :
"If the States will remain sovereign, the
form of the present resolve is founded on
principles of injustice. He then stated the
comparative weight of each State?the num-
ber of votes 90. Georgia would be 1. Vir-
ginia 16, and so of the rest. This vote must
defeat itself, or end in despotism. If we
must have a national government, what is
the remedy? Lay the map of the confedera-
tion on the table, and extinguish the present
boundary lines of the respective State juris-
dictions, and make a new division so that
each State is equal?then a government on
the present system will be just." [Yates.]
In contrast, Edward Carrington wrote
Thomas Jefferson on the same day that the
basic issues before the convention (III Far-
rand 38-39) :
"Are reducible to two schemes?the first,
a consolidation of the whole Empire into
one republic, leaving in the States nothing
more than subordinate courts for facilitat-
ing the administration of the Laws?the sec-
ond an investiture of of [sic] a foederal sov-
ereignty with full and independent author-
ity as to the Trade. Revenues, and forces
of the Union, and the rights of peace and
War, together with a Negative upon all the
Acts of the State legislatures, the first idea,
I apprehend, would be impracticable, and
therefore do not suppose it can be adopted?
general Laws through a Country embracing
so many climates, productions, and manners,
as the United States, would operate many
oppressions, & a general legislature would
be found incompetent to the formation of
local ones, as a majority would, in every in-
stance, be ignorant of, and unaffected by
the objects of legislation. Something like
the second will probably be formed?indeed
I am certain that nothing less than what
will give the foederal sovereignty a compleat
controul over the State Governments, will
be thought worthy of discussion."
On June 11, 1787, a resolution was intro-
duced (I Farrand 192-193) :
"That the right of suffrage in the first branch
of the national Legislature ought not to be
according to the rule established in the arti-
cles of confederation; but according to some
equitable ratio of representation * ? ? in
proportion to the whole number of white
and other free Citizens and inhabitants of
every age, sex and condition, including those
bound to servitude for a term of years, and
three fifths of all other persons not cornpre-
11
September 16
liended in the foregoing description, except
Indians, not paying taxes in each State."
The resolution was passed 9 to 2 by the
Committee of the Whole with only New Jer-
sey and Delaware opposing. Roger Sherman
of Connecticut then proposed for the first
time the plan which was ultimately adopted
for the Congress: "[t]hat in the second
branch of the National Legislature each State
have One vote." Id. at 193. Sherman ex-
plained (id. at 204) :
'That as the people ought to have the
election of one of the branches of the legis-
lature, the legislature of each state ought
to have the election of the second branch,
In order to preserve the state sovereignty;
and that each state ought in this branch to
have one vote." [Yates]
The resolution was rejected 6 states to 5.
Id. at 193.
That, of course, was the resolution
that eventuallly, in very similar form,
became our Federal Government.
James Wilson then proposed a resolution,
which was seconded by Alexander Hamilton:
"that the right of suffrage in the second
branch of the national Legislature ought to
be according to the rule established in the
first." Ibid. This resolution was passed 6
to 5.
That would have provided for popula-
tion representation in both the House
and Senate. There would have been no
equal representation in the States. That
was Hamilton's resolution, and it passed;
whereas the resolution that eventually
became effective faled at first.
The debate on June 11th centered in large
part on whether the legislature should be
apportioned according to inhabitants or
taxes.' John Rutledge of South Carolina
(I Farrand 196) :
"Proposed that the proportion of suffrage
in the 1st branch should be according to the
quotas of contribution. The justice of this
rule he said could not be contested."
Pierce Butler of South Carolina supported
Rutledge's proposal (id. at 204) :
"[M]oney is strength; and every State ought
to have its weight in the national council in
proportion to the quantity it possesses."
[Yates].
(At this point Mr. WALTERS took the
chair as the Presiding Officer.)
Mr. PROXMIRE. I continue to read:
John Dickenson likewise (id. at 196) :
"Contended for the actual contributions
of the States as the rule of their representa-
tion & suffrage in the first branch."
Elbridge Gerry of Massachusetts opposed
the proposal because he (id. at 201) :
"Thought property not the rule of rep-
resentation. Why then shd, the blacks, who
were property in the South, be in the rule
of representation more than the cattle &
horses of the North."
Benjamin Franklin said that he thought
that (id. at 197-198) :
"The number of Representatives should
bear some proportion to the number of the
Represented; and that the decisions shd. be
by the majority of members, not by the
majority of States. This is objected to from
e New Hampshire still apportions its Sen-
ate by taxes paid. The support for this prop-
osition at the convention reflects the belief
that apportionment by taxes as well as by
population was equitable, since the former
constituted the contribution of the States
to the Federal Government. On the other
hand, equal representation to all the States,
regardless of inhabitants or contributions,
was considered by the supporters of appor-
tionment according to taxes to be unfair.
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1964 CONGRESSIONAL RECORD ? SENATE
an apprehension that the greater States
Would then swAllow up the smaller.
"But, Sir, hi the present mode of voting by
States, ? it is equally in the power of the
lesser States to swallow up the greater."
On June 14, the North Carolina delegates
, wrote to Governor Caswell that the problem
of the convention was to form a "Union of
Sovereign States, preserving their Civil Lib-
erties and connected together by such Tyes
as to Preserve permanent & effective Gov-
ernments." III Farrand 46.
The New Jersey plan was presented to the
convention by Paterson on June 15. Its first
sentence emphasized: "That a, union of the
States merely federal ought to be the sole
Object of the Exercise of the Powers vested
in this Convention." III Farrand 611. As
to Congress, the plan provided (id. at 613) :
"Resolved, That every State in the Union
as a, State possesses an equal Right to, and
Share of, Sovereignty, Freedom, and Inde-
pendance?
"Resolved, therefore, That the Representa-
tion in the supreme Legislature ought to be
by States, otherwise some of the States in
the Union will possess a greater Share of
Sovereignty, Freedom, and Independence
than others."
I should like to emphasize that it is
fascinating that the first resolution
passed provided, in the first place, that
the House by a 9-to-2 vote should be on
a population representation basis, and by
a 6-to-5 vote that the Senate should be,
after the present organization was re-
jected; but it was then clear that they
would not be able to obtain assent to this
kind of representation, although the ma-
jority of our Founding Fathers wished
it, even recognizing the serious problems
they had of State sovereignty, State in-
dependence of the small States, which
would obviously lose a great deal of their
representation. Recognizing all that,
our Founding Fathers came down, with
a majority deciding, to have a Federal
Government of both bodies 'with equal
representation.
Mr. DOUGLAS. Mr. President, will
the Senator from Wisconsin yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. Despite the fact that
a majority favored both Houses being
put on a population basis, some of the
smaller States, notably Delaware,
threatened?unless it had equal repre-
sentation with the larger States in at
least one House?not to join the United
States of America. The delegate from
Delaware threatened that Delaware
would make a treaty with a foreign
power. In other words, he presented the
Convention, so to speak, with a pistol
held at its head and asserted, "Unless
you grant equality of representation in
at least one House, we will not join the
Union." It was with that pistol held at
its head that finally the Connecticut
compromise came up, with one House
based on population, the other with two
Senators from each State, regardless of
size.
Mr. PROXMIRE. The Senator makes
an interesting contribution. It under-
lines the fact that representation in the
U.S. Senate, based upon equal represen-
tation in the States, was not arrived at
with great unanimity on the part of the
Founding Fathers. Philosophically it
was felt desirable to give the States their
sovereignty, but only with the greatest
reluctance, recognizing?as the Senator
from Illinois has put it so well?that
there was a pistol held at the head of the
Convention; either that, or no union at
all.
Obviously, they had to agree to that
kind of Federal Government because the
smaller States had a veto power and
would not have to accept. This is not a,
criticism of the Federal 'Government,
which has worked out quite well. We
must recognize that there are those who
are not only for having a federal sys-
tem, but also for having equal represen-
tation in the States.
An excellent justification of this is the
role our federalism plays in protecting
individual freedom. Our federal system
does this. It preserves the rights of the
States and the dignity of the States. No
one has ever argued that there is any
such analogy with the States. The
States do not have any sueh power as
the Federal Government has?the power
of the sword and the power of the purse,
the kind of Overwhelming, massive power
centralized in Washington that is a se-
rious threat to individual liberty.
There is little threat within the States
as long as we have a U.S. Supreme Court
that is judicially supreme. Within the
States there is exactly the contrary prob-
lem?namely, how to get the State gov-
ernment that is sufficiently representa-
tive and cohesive so that it can move,
and move quickly, to solve its problems
at the local and State level, so that it will
not be necessary to come to Washington
and say, "the two branches of our legis-
lature cannot agree. We cannot get the
kind of things we need, because we can-
not get our State legislatures to go along
on urban renewal, on slum clearance.
We cannot solve our educational prob-
lems. - We cannot solve the health prob-
lem; therefore, we have to come to
Washington to do it."
Those who believe in States rights,
those who believe in States responsi-
bility?and they are inseparable?should
recognize the serious importance of per-
mitting the Supreme Court decision to
stand, and supporting it and supporting
It enthusiastically, recognizing that this
is one way we can get the States to oper-
ate in an efficient manner so that they
can solve their own problems.
Mr. DOUGLAS. In the same year in
which the Constitution was approved,
the Continental Congress meeting at the
same time approved the so-called North-
west Ordinance of 1787.
Mr. PROXMIRE. Yes.
Mr. DOUGLAS. That ordinance pro-
vided that in the Northwest Territory,
which was originally to become governed
as one body, which later became the five
States of Ohio, Indiana, Illinois, Michi-
gan, and Wisconsin, the legislative body
was to be based in proportion to popula-
tion.
I should like to read section 9 of the
Northwest Ordinance or the appropriate
portions thereof:
Provided, That for every five hundred free
male inhabitants there shall be one repre-
sentative, and so on, progressively, with the
number of free male inhabitants, shall the
right of representation increase, until the
number of representatives shall amount to
twenty-five; after which the number and
proportion of representatives shall be regu-
lated by the legislature:
21585
Mr. PROXMIRE, Yes. Article 2,
paragraph 14 of this ordinance provides:
The inhabitants of said territory shall al-
ways be entitled to the benefits?of a pro-
portionate representation of the people in the
legislature. -
What could be 'clearer and more ex-
plicit than that?
This is exactly what the Senator has
just stated?at the same time and prob-
ably close to ,the same day when these
debates were going on?that this is the
clear position of our Founding Fathers
so far as the State legiplatures were con-
cerned.
Mr. President, to continue reading:
The next day, Paterson explained the basic
assumptions of the plan (I Farrand 250) :
"If the confederacy was radically wrong,
let us return to our Stated, and obtain larger
powers, not assume them of ourselves. Our
object is not such 'a Government, as may
be best in itself, but such a one as our Con-
stituents have authorized us to prepare, and
as they will approve. If we argu3 the matter
on the supposition that no Confederacy at
present exists, it can not be denied that all
the States stand on the footing of equal
sovereignty. ? ? ? If we argue on the fact
that a Federal compact actually exists, and
consult the articles of it we still find an
equal Sovereignty to be the bails of it. He
reads the 5th. art: of Confederation giving
each State a vote?& the 13th. declaring that
no alteration shall be made without unani-
mous consent. This is the nature of all
treaties."
Turning to the question of representation,
he said (id. at 251) :
"If the sovereignty of the States is to be
maintained the Representatives must be
drawn immediately from the States, not from
the people: and we have no power to vary
the idea of equal sovereignty."
James Wilson replied strongly (id. at 253-
254) :
"He would not repeat the remarks he had
formerly made as the principles of Represen-
tation, he would only [say] that an inequal-
ity in it, has ever been a poison contaminat-
ing every branch of Govt. In G. Britain
where this poison has had a full operation,
the security of private rights is owing en-
tirely to the purity of her tribunals of Jus-
tice ? * *. The political liberty of that Na-
tion, owing to the inequality of representa-
tion is at the mercy of its rulers."
Mr. President, James Wilson's words
are very interesting today, when many
feel that the security of private rights
is indeed due largely if not entirely to the
purity of tribunals of justice?namely,
our Supreme Court.
The political liberty of the Nation,
owing to the inequality of representa-
tion, is at ,the mercy of the rulers be-
cause we do have an inequality of repre-
sentation in our State legislatures.
Continuing to read:
Paterson then responded (id. at 259) :
"[R]epresentation must be drawn from the
states to maintain their independency, and
not from the people composing those States.
"The doctrine advanced?by a learned gen-
tleman from Pennsylvania [Wilson], that all
power is derived from the people, and that
in proportion to their numbers they ought
to participate equally in the benefits and
rights of government, IS right in principle,
but unfortunately for him, wrong in the ap-
plication to the question now in debate."
It is interesting that Paterson, who
was one of the great opponents of hav-
ing both Houses of Congress based. on
population, ? recognized that his op-
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21586 CONGRESSIONAL RECORD ? SENATE
ponents?those who wanted both Houses
based on population?were right in prin-
ciple. There was no disagreement on
the principle of one man, one vote.
There was clear agreement on both sides
of the debate on this matter. But there
was argument by Paterson that this was
inapplicable to the Federal Government
because of the Federal Constitution, and
? it was inapplicable because there was a
sovereignty in the State that had to be
recognized.
I believe that we can honestly say that
there was no difference of opinion on the
part of our Founding Fathers with re-
spect to State governments and other
governments. There would have been no
difference with regard to the _Federal
Government if there had not been the
serious problem of the independence of
sovereignty on the part of the States.
I continue to read:
When independent societies confederate
for mutual defence, they do so in their col-
lective capacity; and then each state for those
purposes must be considered as one of the
contracting parties. Destroy this balance of
equality, and you endanger the rights of the
lesser societies by the danger of usurpation
In the greater.
Let us test the government intended to be
made by the Virginia plan on these, prin-
ciples. The representatives in the national
legislature are to be in proportion to the
number of inhabitants in each state. So
far it is right upon the principles of equal-
ity, when state distinctions are done away;
but those to certain purposes still exist.
I repeat the last statement:
Let us test the government intended to be
made by the Virginia plan on. these prin-
ciples. The representatives in the national
legislature are to be in proportion to the
number of inhabitants in each state. .So far
It is right upon the principles of equality,
when state distinctions are done away; but
? those to certain purposes still exist.
On June 18, 1787, Alexander Hamilton at-
tacked the New Jersey plan (tFarrand 286) :
"Another destructive ingredient in the
New Jersey] plan, is that equality of suffrage
which is so much desired by the small States.
It is not in human nature that Va. & the
large States Should consent to it, or if they
did that they shd. long abide by it. It shocks
too much the ideas of Justice, and every
human feeling."
He also submitted to the Committee of
the Whole a sketch of a plan for the new
government. The plan -set the number of
Representatives at the start for each State
apparently on the basis of population. After
that, the plan provided (III id. at 620) :
"The Legislature shall provide for the
future elections of Representatives, appor-
tioning them in each State, from time to
time as nearly as may be to the number of
persons described in the _ 4 ? of the VII
article, so as that the whole number of Rep-
sentatives shall never be less than one
hundred, nor more than - hundred. There
shall be a Census taken for this purpose
within three years after the first meeting of
the Legislature, and within every successive
period of ten years."
I have previously quoted extensively
from Thomas Jefferson. He was clearly,
consistently, and invariably on the side
of equal representation in the State leg-
islatures. Hamilton was on the side of
equal representation, even in the U.S.
Senate. But there is no difference of
opinion so far as State legislatures are
concerned.
Mr. DOUGLAS. Mr. President, will
the Senator yield? ,
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. Hamilton -is generally
regarded as the leader of the conserva-
tive forces.
Mr. PROXMIRE.. Yes.
Mr. DOUGLAS. So, the man who was
the spiritual leader of the Democratic
forces, and the man who was the party
'leader of the conservative forces agreed
on the principle that representation
should be in proportion to population or
in proportion to population which could
be counted. There was a problem, of
course, as to whether slaves were to be
counted as full persons or not.
Mr. PROXMIRE. Yes. 01 course,
Hamilton was the great champion of the
monied interests, of the financial inter-
ests. He played a very important and
proper role in that capacity. Hamilton
was an extremely wise and brilliant man.
He recognized that there was no real
threat to the financial interest or the
monied interests from having a popula-
tion-representative legislature.. And, in-
deed, there is none now. The Senator
from Wisconsin and the Senator from
Illinois are not making the argument?
and no Senator that I know of is making
the argument?that we are fighting for
a liberal representation;`that this would
better serve the interest of any economic
group; or that it would injure monied
people or peoble with property.
- Hamilton recognized that equal repre-
sentation was -fair and just. What we
? are fighting for is equal representation
for all, and not for any advantage for
any group. The -Senator from Illinois
has gone to great pains to point out that
the greatest beneficiaries would be the
suburbanites. No one argues that they
are the poorest people in our society.
I continue to read:
The composition of the initial Senate was
likewise to be prescribed by the Constitution
but the number for each State had not been
filled in. As to the apportionment of Sen-
ators, Hamilton's plan provided (id. at 621) :
"The legislature shall provide for the fu-
ture elections of Senators, for which purpose
? the States respectively, which have more
than one Senator, shall be divided into con-
venient districts to which the Senators shall-
be apportioned. A State having but one
Senator shall be itself a district. * * *
"The number of Senators shall never be less
than 40, nor shall any State, if the same shall
not hereafter be divided, ever have less than
the number allotted to it in the second sec-
tion of this article; but the legislature may
increase the whole number of Senators, in
? the same proportion to the whole number of
Representatives as 40 is to 100; and such
Increase beyond the present number, shall
be apportioned to the respective States in a
ratio to the respective numbers of their Rep-
resentatives.
"If States shall be divided, or if a new ar-
rangement of the boundaries of two or more
States shall take place, the legislature shall
apportion the number of Senators (in elec-
tions succeeding such division or new ar-
rangement) to which the constituent parts
were entitled according to the change of situ-
ation, having 'regard to the number of per-
sons described in the 4 section of the VII
article."
Thus, the apportionment of the new Sen-
ate was also to be based on population, al-
though no State could have its represents-
?
September 16
tion reduced from that prescribed for the
first Senate.
James Madison returned to the proposal of
Judge Brearly that the boundaries of the
States should be redrawn to provide equal
population and they should be given, equal
representation in the legislature.
There we have, the third of the great
participants in our great Government.
At least, many -people would regard
Hamilton, _Madison, and Jefferson as the
three great participants. Although, Jef-
ferson was the Ambassador to France
and was not present during the initial
deliberations, he played a vital part in
the preparation of the Bill of Rights.
All three were clearly, emphatically, and
consistently on the side of population
representation. They contended that
this was right in principle and should
be translated into reality.
Madison said:
It was admitted by both the gentlemen
from New Jersey, (Mr. Brearly and Mr. Pater-
son) 'that it would not be just to allow
Virginia which was 16 times as large as Dela-
ware an equal veto only. Their language was
that it would not be safe for Delaware to
allow Virginia 16 times as many times. The
expedient proposed by them was that all the
States should be thrown into one mass and
a new partition be made into 13 equal parts.
Madison, however, decided that the plan
was impracticable (id. at 322) :
"The prospect of many new States to the
westward was another consideration of im-
portance. If they shd. come into the
Union at all, they would come when they
contained but but [sic] few inhabitants.
If they should be entitled to vote according
. to their proportions of inhabitants, all would
be right and safe. Let them have an equal
vote, and a more objectionable minority
than ever might give law to the whole."
Alexander Martin, of North Carolina, said
(id. at 324) :
"[The States] entered into the confedera-
tion on the footing of equality; that they met
now to to [sic] amend it on the same foot-
and that he-could never accede to a plan
that would introduce an inequality and lay
10 States at the mercy of Virginia, Massachu-
setts, and Pennsylvania."
On June 20, the convention itself began
to consider the proposals which had been
made in committee. Roger Sherman again
repeated his proposal to have two branches
of the legislature apportioned differently (id.
at 342-343) :
"The disparity of the States in point of
size he perceived was the main difficulty. But
the large States-had not yet suffered from
the equality of votes enjoyed by the small
ones. In all great and general points, the
Interests of all - the States were the
same. -* * If the difficulty on the subject
of representation can not be otherwise got
over, he would agree to have two branches,
and a proportional representation in one of
them, provided each State had an equal voice
in the other. This was necessary to secure
the rights of the lesser States; otherwise
three or four of the large States would rule
the others as they please."
The next day, William Samuel Johnson,, of
Connecticut, noted that James Wilson and
the Virginians had said that they did not
want to abolish the States (I Farrand 355) :
"He wished it therefore to be well con-
sidered whether in case the States, as was
proposed, shd. retain some portion of sov-
ereignty at least, this portion could be pre-
served, without allowing them to participate
effectually in the General Government, with-
out giving them each a distinct and equal
vote for the purpose of defending themselves
In the general councils."
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1964 CONGRESSIONAL RECORD ? SENATE
The debate as to representation continued
on June 25, 1787. Nathaniel Gorham, of
Massachusetts, said that (I Farrand 404-
405) : "? * * he inclined to a compromise
as to the rule of proportion. He thought
there was some weight in the objections of
the small States. If Virginia should have 16
votes and Delaware with several other States
together 16, those from Virginia would be
more likely to unite than the others, and
would therefore have an undue influence.
This remark was applicable not only to
States, but to counties or other districts of
the same State. Accordingly the constitu-
tion of Massachusetts had provided that the
representatives of the larger districts should
not be in an exact ratio to their numbers?.
And experience he thought had shewn the
provision to be expedient."
George Read, of Delaware, complained that
the large States had appropriated the west-
ern lands which should have been applied to
the public debt (id. at 405):
"Let' justice be done on this head; let the
fund be applied fairly and equally to the
discharge of the general debt, and the smaller
States who had been injured would listen
then perhaps to those ideas of just represen-
tation which had been held out."
James Wilson opposed election of tthe sec-
ond branch by the State legislatures (id. at
406) :
"The General Government is not an as-
semblage of States, but of individuals for
certain political purposes?it is not meant
for the States, but for the individuals com-
posing them: the individuals therefore not
the States, ought to be represented in it:
A proportion in this representation can be
preserved in the 2d. as well as in the 1st.
branch; and the election can be made by
electors chosen byqhe people for that pur-
pose."
However, his amendment to this effect
was not seconded.
Pierce Butler, of South Carolina, pros
posed postponing the issue as to the election
of second branch until the question of rep-
resentation was decided. James Madison
seconded the proposal, but it was rejected
7 to 4. I Farrand'407-408. The convention
then voted 9 to 2 to have the second house
elected by the State legislatures, with Vir-
ginia and Pennsylvania opposing. At this
point in his notes Madison dropped a foot-
note (id. at 408):
.1
"It must be kept in view that the largest
States, particularly Pennsylvania and Vir-
ginia, always considered the choice of the
second branch by the-State legislatures as
opposed to a proportional representation
to which they were attached as a fundamen-
tal principle of just government. The smal-
ler States, who had opposite views, were re-
enforced by the members from the large
States most anxious to secure the importance
of the State governments."
James Wilson of Pennsylvania likewise
said at the convention (id. at 418):
"Equality of representation cannot be
established, if the second branch is elected
by the State legislatures." [Yates.]
In the debate on June 27 as to whether
representation in the first house should be
by population, Luther Martin, of Maryland,
supported continuation of the State govern-
ments as under the Confederation. He said
(I Farrand 437-438) :
1 The Massachusetts constitution of 1786
provided that the Senate would be appor-
tioned among the districts on the basis of
taxes paid. Pt. II, ch. I, sec. 2, art. I. One
member of the House of Representatives was
apportioned to each town having 150 votes
and ian additional member for every 225 addi-
tional voters, except that each existing town
was given at least one. Pt. U. ch. I, sec. 3,
art. II.
No. 177-9
"[A]n equal vote in each State was essen-
tial to the federal idea, and was founded in
justice and freedom, not merely in policy:
that tho the States may give up this
right of sovereignty, yet they had not, and
ought not: that the States like individuals
were in a State of nature equally sovereign
and free * * *. [T]he States being equal
cannot treat or confederate so as to give up
an equality of votes without giving up their
liberty: that the propositions on the table
were a system of slavery for 10 States: that
as Virginia, Massachusetts, and Pennsylvania
have 42/90 of the votes they can do as they
please without a miraculous Union of the
other ten: that they will have nothing to do,
but to gain over 1 of the 10 to make them
compleat masters of the' rest * * *: that no
State in ratifying the Confederation had
objected to the equality of votes; that the
complaints at present run not agst. this
equality but the want of power; that 16
members from Virginia would be more likely
to act in .concert than a like number formed
of members from different States; that in-
stead of a junction of the small .States as a
remedy, he thought a division of the large
States would be more eligible."
'Yates' account of this same speech states
(id. at 440-441) :
"This principle a equality, when applied
to individuals, is lost in some degree, when
he becomes a member of a society, to which
it is transferred; and this society, by the
name of state or kingdom is, with respect to
others, again on a perfect footing of equal-
ity?a right to govern themselves as they
please. Nor can any other state, of right,
deprive them of this equality. If such a
state confederates, it is intended for the good
of the whole; and if it again confederate,
those rights must be well guarded * * *.
We must treat as free states with each other,
upon the same terms of equality that men
originally formed themselves into societies.
"If the foundation of the existing confed-
eration is well laid, powers may be added?
you may safely add a third story to a house'
where the foundation is good * * *. Price
says, that laws made by one man or a set of
men, and not by common consent, is slav-
ery?and it is so when applied to States,
if you give them an unequal representation."
The next day, Luther Martin continued his
speech (1 Farrand 411 445):
"[T] he General Government ought to be
formed for the States, not for individuals:
that if the States were to have votes in pro-
portion to their number of people, it would
be the same thing whether their (representa-
tives) were chosen by the legislatures or the
people; the smaller States would be equally
enslaved * * *."
Mr. President, what all that history
does is to reeiaforce once again that the
whole force behind unedual representa-
tion in the Senate was based upon a fact
of life that existed in 1787. That was
that the colonies?the individual
States?had sovereignty. They had
power. They had individual existence.
The argument is entirely an attempt to
state the right of States to have repre-
sentation.
There is no such argument that any-
one has adduced for counties, towns, or
any other entities to have equal repre-
sentation, in effect, and therefore? mal-
apportionment in various State legisla-
tures. No one has pretended that there
is any such problem. There is no
analogy whatsoever. That whole prob-
lem is strictly based on the fact that
? representatives in the legislature now
have constituencies which- are congenial
21587
to them, which they know, which they
understand, and which will elect them.
There is no pretense that there is any
basis of principle in the argument ?car-
ried on in the Congress of the United
States. While some of us may decide
on the side of Hamilton, Madison, and
Jefferson and others on the side of Pater-
son and some of the others, it is very
clear that none of the Founding Fath-
ers would argue that there should be
unequal representation in the States.
Their entire argument is founded on
the fact that the States did have an
existence. They had a sovereignty and
they had a power. As the Senator from
Illinois '[ML DOUGLAS] has so well said,
the smaller States had in effect a gun
at the temple of the larger States. In
effect they said, "Either take this or we
will veto the whole thing and you will
not have a union." -
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. PROXMIRE. I am happy to yield
to the Senator from Illinois.
Mr. DOUGLAS. The Continental Con-
gress indeed called itself the Confederate
Congress, indicating that under the Arti-
cles of Confederation we were not a
federation but a confederation, and that
therefore the residual sovereignty rested
in the States. The Federal Government
had only those powers which the States
voluntarily consigned to them. Of
course, our southern friends said that
the confederation continued in reality
down to and including 1861. We of the
North maintained that out of the con-
federation came' a federation, and that
particularly for the States which joined
we became a nation.
Furthermore, it is true that the Vir-
ginia program?the so-called Virginia
plan?which Madison proposed, provided
for a strong national government. Great
powers were given to the National
Government to legislate for the general
welfare. Madison later was somewhat
ashamed of 'that, and I believe that is
one of the reasons wh'y he did not publish
his journal of the Constitutional Conven-
tion for so many years. But the larger
States yielded only on the question of
equal representation in the Senate, be-
cause that was the price of ? union. If
they had not yielded, the country
probably would have broken up into three
regional federations?the New England
States, the Middle States, stretching from
New York to Pennsylvania, possibly in-
cluding Maryland, and the Southern
States?and our lot would have been very
difficult. In order to get the Union, the
larger States consented to equal repre-
sentation in the Senate.
The Senator from Wisconsin is making
a valuable point?that no one questioned
the fact that, inside the respective States,
the basic principle was to be representa-
tion according to population; and in the
Northwest Ordinance, which a coordinate
body, the Continental Congress, or the
Confederate Congress, passed in the same
year, there is provision for representation
according to population. So the Senator
from Wisconsin is on sound constitu-
tional grounds in this matter.
Mr. 'PROXMIRE. The Senator from
Illinois stresses a point which I think
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21588 CONGRESSIONAL RECORD ? SENATE
must be fully appreciated; and that is
that when our Federal Union was formed,
all the power was in the hands of the
States.
Mr. DOUGLAS. That is, originally.
Mr. PROXMIRE. Yes; originally it
was -.in the hands of the States. The
States formed a Union. There was a con-
federacy that had an agreement to act
j together, in concert, in military matters,
and so forth.
Mr. DOUGLAS. The laws enaeted by
the Continental Congress or the Confed-
erate Congress did not operate directly
upon individuals, but only through the
States.
Mr. PROXMIRE. And the power of
the States was so great that the Con-
tinental Congress had no power to tax.
Mr. DOUGLAS. That is correct.
Mr. PROXMIRE. It accepted con-
tributions.
Mr. DOUGLAS. From the States, but
it had no power to tax individuals.
Mr. PROXMIRE. It is important to
stress the fact that when the Union came
into existence and created the Legislature
the power was in the hands of the States.
On the other hand, when the States de-
cided to create counties and townships,
the States had and retained complete
and total power. They could abolish
county governments. There are many
proposals to do so. Many people con-
ceive a county government as an ineffi-
cient administrative device. All it is is an
administrative device for convenience.
Therefore the argument for equal rep-
resentation by county evaporates. It is
not there, because the counties did not
create the States. Nobody has pretended
they did.
Continuing to read from Yates:
"In a Federal Government, a majority of
States must and ought to tax. /n the local
government of States, counties may be un-
equal?still numbers, not property, govern.
What is the government now forming over
States or persons? As to the latter, their
rights cannot be the object of a General
Government?These are already secured by
their guardians, the State governments. The
General Government is therefore intended
only to protect and guard the rights of the
states as States. * *
"Representation on Federal principles can
only flow from State societies *
"Your General Government cannot be just
or equal upon the Virginia plan, unless you
abolish State interests. If this cannot be
done, you must go back to principles purely
Federal.
*
"The admission of the larger States into
the confederation, on the principles of equal-
ity, is dangerous. But on ,the Virginia sys-
tem, it is ruinous and destructive. Still it is
the true interest of all the States to con-
federate * * ?."
I am laboring the point because the
idea we must recognize is that there are
States and we must recognize that the
States have power and are entities and
have an identification. But where is the
analogy?
To go on with the Yates argument:
"I would rather confederate with any
single state, than submit to the/ Virginia
plan. But we are already confederated, and
, no power on earth can dissolve it but by the
consent of all the contracting powers?and
four States, on this floor, have already de-
dared their opposition to annihilate
it * * 2."
James Madison, in opposing the motion of
Lansing that "the representation of the first
branch be according to the articles of the
confederation" [Yates] (I Farrand 455), said
that (id. at 446-449) :
"[Hie was much disposed to concur in any
expedient not inconsistent with fundamental
principles, that could remove the difficulty
concerning the rule or representation. But
he could neither be convinced that the rule
contended for was just, nor necessary for the
safety of the small States against the large
States. That it was not just, had been con-
ceded by Mr. Breerly [sic] and Mr. Patterson
[sic] themselves. The expedient proposed by
them was a new partition of the territory of
the United States. The fallacy of the reason-
ing drawn from the equality of sovereign
States in the formation of compacts, lay in
confounding mere treaties, in which were
specified certain duties to which the parties
were to be bound, and certain rules by which
their subjects were to be reciprocally gov-
erned in their intercourse, with a compact
by which an authority was created para-
mount to the parties, and making laws for
the goverrunent of them. If France, Eng-
land, and Spain were to enter into a treaty
for the regulation of commerce and so forth
with the, Prince of Monaco and four or five
other of the smallest sovereigns of Europe,
they would not hesitate to treat as equals,
and to make the regulations perfectly recip-
rocal. Would the case be the same if a
council were to be formed of deputies from
each with authority and discretion, to raise
money, levy troops, determine the value of
coin, and so forth? Would 30 or 40 million
of people submit their fortunes into the
hands of a few thousands? If they did it
would only prove that they expected more
from the terror of their superior force, than
they feared from the selfishness of their
feeble associates. Why are 'Counties of the
same States represented in proportion to
their numbers? Is it because the representa-
tives are chosen by the people themselves?
So will be the representatives in the National
Legislature."
It is interesting that Madison should
give that analogy, because he assumed
that within the States the counties would
be represented in proportion to their
numbers. He asked, Why are the coun-
ties of the same State represented, in
proportion to their numbers? It is the
only principle on which it could be de-
fended in the -States. This is exactly
what the Dirksen proposal would destroy.
Madison goes on to say:
"Is it because, the larger have more at
stake than the smaller? The case Will be
the same with the larger and smaller States.
Is it because the laws are to operate im-
mediately on their persons and properties?
The same is the case in some degree as the
articles of confederation stand; the same
will be the case in a far greater degree under
the plan proposed to be substituted. * 2 2
By the plan proposed a complete power of
taxation, the highest prerogative of su-
premacy is proposed to be vest& in the Na-
tional Government. Many other powers are
added which assimilate it to the government
of individual States. The negative on the
State laws proposed, will make it an essen-
tial branch of the State legislatures and of
course will require that it should be exer-
cised by a body established on like principles
with the other branches of those legisla-
tures. * * *
* *
"In a word; the two extremes before us
are a perfect separation and a perfect in-
corporation, of the 13 States, In the first
case they would be independent nations sub-
September 16
ject to no law but the law of nations. In
the last, they would be mere counties of
one entire republic, subject to one common
law. In the first case the smaller States
would have everything to fear from the
larger. In the last they would have nothing
to fear. The true policy of the small States
therefore lies in promoting those principles
and that form of government which will
more approximate the States to the condi-
tion of counties."
Yates reports that Madison said (id. at
457) :
"There is danger in the idea of the gentle-
man from Connecticut. Unjust representa-
tion will ever produce it. In the United
Netherlands, Holland governs the whole, al-
though she has only one vote. The counties
in Virginia are exceedingly disproportionate,
and yet the smaller has an equal vote with
the greater, and no inconvenience arises."
Returning to the analogy of England's
rotten boroughs, James Wilson said (I Far-
rand 449-450) :
"The leading argument of those who con-
tend for equality of votes among the States
is that the States as such being equal, and
being represented not as districts of in-
dividuals, but in their political and corporate
capacities, are entitled to an equality of suf-
frage. According to this mode of reasoning
the representation of the buroughs in
England which has been allowed on all hands
to be the rotten part of the Constitution, is
perfectly right and proper. They are like
the States represented in their corporate
capacity like the States therefore they are
entitled to equal voices, old Sarum (a rotten
borough) to as many as London. And in-
stead of the injury supposed hitherto to be
done to London, the true ground of com-
plaint lies with old Saruins for London in-
stead of two which is her proper share,
sends four representatives to Parliament.",
This rotten borough analogy, which
was criticized when the Senator from
Pennsylvania proposed it in properly
labeling the Dirksen amendment, seems
to me to be perfectly appropriate and
proper. The fact is that we do have rot-
ten boroughs. Nobody has riveted that
fact more clearly during the debates in
the Senate than has the Senator from
Illinois, who pointed out that in some
cases one person has 1,000 times the rep-
resentation in some States than another
person has. If this is not rotten borough
representation, what is?
Mr. DOUGLAS. In the State of Ver-
mont, 1 hamlet of 36 people sends 1 rep-
resentative-to the State legislature, and a
city of 38,000 also sends 1 representative.
Mr. PROXMIRE. One hamlet?
Mr. DOUGLAS. One hamlet of thirty-
six people.
Mr. PROXMIRE. Thirty-six people?
Mr. DOUGLAS. That hamlet sends
one representative to the Vermont House
of Representatives. A city of 38,000 also
sends 1 representative.
Mr. PROXMIRE. What possible jus-
tification can there be for that? That is
certainly a rotten borough situation. It
is an abysmal denial of the rights of
some of the people of Vermont to have a
vote mean something, or mean what it
should mean; namely, that all people
have an equal opportunity.
Mr. DOUGLAS. They are following
the scheme laid down in the constitution
of 1793, 171 years ago.
Mr. PROXMIRE. In the Vermont
constitution?
Mr. DOUGLAS. Yes.
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CONGRESSIONAL RECORD ? SENATE 21589
Mr. PROXMIRE. What they are do-
ing is assuming that the population of
Vermont has not moved at all from farms
to cities for 173 years.
Mr. DOUGLAS. Yes; whereas in the
meantime the cities of Burlington,
Montpelier, and other cities, have de-
veloped.
Mr. PROXMIRE. What we are call-
ing for is recognition of the fact that
when a man moves from one area to an-
other, from a small town to a city, or
from a city to a suburb, he retain his
representation, and does not lose it.
Mr. DOUGLAS. Yes.
Mr. PROXMIRE. When a farmer
moves from his farm to a city, he loses
his representation.
Mr. DOUGLAS. Or has it diminished
to a very' small proportion.
Mr. PROXMIRE. The Senator states
it better.
Mr. DOUGLAS. That is true also in
California, where 1 district with a popu-
lation of 14,500 people sends 1 man to the
California Senate, and the county of Los
Angeles, with more than 6 million peo-
ple, also sends 1 to the senate.
Mr. PROXMIRE. How can there be
any justification for it?
Mr. DOUGLAS. There cannot be.
Mr. PROXMIRE. How can any argu-
ment be made that that is fair and just,
that we should amend the foreign aid
bill and thus deprive the President of the
United States of his right of veto, and
that we should damage the Supreme
Court's dignity and independence and
right of review in order to protect that
kind of injustice?
Mr. DOUGLAS. It passeth human
understanding.
Mr. PROXMIRE. I agree.
Yates says that Wilson stated (id. at 457) :
"I should be glad to hear the gentleman
from Maryland explain him-a-elf upon the
remarks of Old Saturn, when compared with
the city of London. This he has allowed to
be an unjust proportion; as in the one place
one man sends two members, and in the
other 1 million are represented by four
members. I would be glad to hear how he
applies this to the larger and smaller States
in America; and whether the borough,, as a
borough, is represented, or the people of the
borough."
Luther Martin answered that Britain's rot-
ten boroughs were not analogous' since
(Ibid.): ?
"Individuals, as composing a part of the
whole of one consolidated government, are
there represented" [Yates] .
Roger Sherman argued for concessions by
the larger State to protect the smaller. Id.
at 450. He further stated (id. at 457) :
"In society, the poor are equal to the rich
in voting, although one pays more than the
other. This arises from an equal distribu-
tion of liberty amongst all ranks; and it is,
on the same grounds, secured to the states
in the confederation * * *" [Yates].
Mr. President, I should like to inter-
rupt my reading once again to emphasize
that our Founding Fathers, in all these
debates, without any question, agreed
that the Only argument that could be
made for unequal representation in the
Senate is that the States have a degree of
sovereignty, and that that was the only
principle on which it could be done.
There is no analogy so far as our State
governments are concerned. The coun-
ties of the State are the creatures of the
States.
Our Founding Fathers came down
unanimously, without question, on the
side of equal representation in the State
legislatures.
Hugh Williamson, of North -Carolina, sup-
ported?representation based on population
on the ground (id. at 456) :
"If any argument will admit of demon-
stration, it is that which declares, that all
men have an equal right in society. Against
this position, I have heard, as yet, no argu-
inent, and I could wish to hear what could be
said against it * *" [Yates].
Mr. CASE. Mr. President, will the
Senator yield?
Mr. PROXMIRE. I yield:
Mr. CASE. I am interested in the
Senator's argument. I wonder if he
could tell me the name of the document
from which he is reading these very in-
teresting excerpts.
Mr. PROXMIRE. This is a docu-
ment which was prepared by the Depart-
ment of Justice for the Supreme Court,
as amicus curiae, in the Maryland
against Tawes case. It is dated Octo-
ber 9, 1963. It is probably the best and
most concise analysis of the debates in
the Constitutional Convention, when the
delegates decided on the form of our
government and on representation in the
House and in the Senate.
What I am contending is that the most
Popular analogy, the most frequent ob-
jection that one-hears to the one-man,
one-vote rule and against the population
representation principle is the-Federal
analogy.--The U.S. Senate is not based on
population. We defend it, and we are
for it.
There is a great difference between
the U.S. Senate and its responsibility,
and the senate of a State legislature.
The practical argument I make, in ad-
dition to the philosophical argument, is
that we have a Federal system. The
State injects its great power between
the individual citizen of the State and
the Federal Government. It is a division
of power which I believe almost all Mem-
bers of the Senate support.
Mr. DOUGLAS. Mr. President', I
should like to enter a-demurrer to what
the Senator from Wisconsin has said.
He said we believe in equality of repre-
sentation of the States in the U.S. Sen-
ate, and that we will defend that
principle.
I prefer to say that we acquiesce in it.
There is nothing we can do about it.
The fifth article oi' the Constitution
provides that no amendment which may
be made prior to 1808 shall affect the
first and fourth clauses in the ninth sec-
tion of the first article?which relates to
the importation of slaves?and that no
State, without its consent, shall be de-
priVed of its equal suffrage in the Senate.
That part of the Constitution cannot
be amended. That provides for equal
representation in the Senate. There is
nothing we can do about it. We from
the big States bear this cross. It is a
heavy cross.
If anyone wishes to be a second-class
citizen, he does not have to be a Negro
in Mississippi. He need only be a Sena-
tor from a large State. He need only be
a Senator from a large State to really
know what second-class or third-class
citizenship amounts to. The control of
the Senate is in the hands of States of
approximately one-fourth of the popu-
lation of the country.
I do not think it is a wise arrangement,
but this matter was settled 177 years
ago. It is the price which the big States
had to pay for union. We acquiesce in
it. We bow our shoulders under the
yoke. The nails are driven into our body
daily. We suffer from it. The inhab-
itants of our States suffer from it.
There is nothing we can do about it.
Therefore, on the whole, we keep silent
about it.
However, when the Senator from Wis-
consin says that we will defend it, I say
that I will not defend it. I merely ac-
quiesce in it and suffer under it.
Mr. PROXMIRE. There are those -
with whom I disagree who say that the
Senate is the South's revenge on the Na-
tion for the Civil War.
Mr. DOUGLAS. William S. White has
said it. He said that the South in the
Senate is indeed the revenge of the
South for Gettysburg.
Mr. PROXMIRE. It is very uncom-
fortable to find myself in disagreement
with the Senator from Illinois, Who is a
great scholar and a great man and a
leader in this debate. However, I must
say that I disagree vigorously with him,
because I believe our Federal system has
served us well. Wisconsin is, perhaps,
an average State, because Wisconsin has
about 2 percent of the people and we
have appropriate representation in the
U.S. Senate. From that standpoint we
have perfect representation, as a matter
of fact. Michigan, New Jersey, and Illi--
nois are underrepresented, on that basis,
but they have such excellent Senators,
such great Senators, that those States
really do not need more representation.
Mr. DOUGLAS. In Illinois we have 6
percent of the population of the country
but only 2 percent of the representa-
tion. The State of New York has 17
million people, and probably close to 9
percent of the population, but only 2 per-
cent of the representation.
The State of California has 17 million
people, and only 2 percent of the repre-
sentation. The 8 largest States have a
population of 80 million, and at least 45
percent of the population, but have only
16 Senators.
The Mountain States, with a popula-
tion of less than 6 million, have 16 Sen-
ators.
Mr. CASE. With respect to the in-
teresting colloquy between the Senator
from Wisconsin and the Senator from
Illinois, on the wisdom of the system by
which the States are represented in the
U.S. Senate, the Constitution clearly
and unequivocally determines how the
apportionment of State legislatures shall
be accomplished.
Mr. PROXMIRE. The Senator is ab-
solutely correct. The Senator from Wis-
consin, and, I believe, the Senator from
New Jersey and the Senator from Michi-
gan all agree on the fundamental prin-
ciple that there is equal representation
in the State governments, as the, Su-
preme Court decided in Reynolds against
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21590 CONGRESSIONAL RECORD ? SENATE
Sims, our differences over the U.S. Sen-
ate are irrelevant.
Mr. CASE. Mr. President, I ask unan-
imous consent that this word of mine ap-
pear immediately after the most gracious
reference by the Senator from Wiscon-
sin and the Senator from Illinois. I ex-
press appreciation for this most unde-
served encomium.
Mr. PROXMIRE. I thank the Sena-
tor from New Jersey. He is a mighty
valiant ally. It is wonderful to have him
on our side.
On June 29, William Samuel Johnson, of
Connecticut, supported Roger Sherman's pro-
posal that one house be apportioned on pop-
ulation and the other be apportioned equally
among the States. In doing so, he explicitly
based this proposal on a compromise as to
the nature of the new government (I Far-
rand 461-462) .
William Samuel Johnson, of Connecti-
cut?
Mr. DOUGLAS. Not Dr. Samuel
Johnson, of England.
Mr. PROXMIRE. No, indeed; William
Samuel Johnson, of Connecticut. He
said:
The controversy must be endless whilst
gentlemen differ in the grounds of their argu-
ments; those on one side considering the
States as districts of people composing one
political society; those on the other consid-
ering them as so many political societies.
The fact is that the States do exist as politi-
cal societies, and a government is to be
formed for them in their political capacity,
as well as for the individuals composing
them. * * * On the whole he thought that
as in some respects the States are to be con-
sidered in their political capacity, and in
others as districts of individual citizens, the
two ideas embraced on different sides, in-
stead of being opposed to each other, ought
to be combined; that in one branch the peo-
ple, ought to be represented; in the other,
the States.
Here we have, by the gentleman from
Connecticut who supported Roger Sher-
man's proposal, which was eventually
adopted?it was finally agreed upon as a
compromise?an explicit expression, an
explicit recognition of what the Senate
really is. At the time of the Constitu-
tional Convention, Senators were deem-
ed to represent the States?not the peo-
ple of the States, but the States. Indeed,
until an amendment to the Constitu-
tion changed the practice, Senators were
elected by the legislatures of the States.
That was one of the express purposes, I
assume, for electing Senators by the leg-
islatures. We do not represent the peo-
ple; _we represent the States.
What analogy is there to the coun-
ties? Has anyone ever heard of a county
board electing members of the State leg-
islature? That would be ridiculous.
There is no analogy whatsoever.
It seems to me it is necessary to labor
this point in detail, really to nail it to
the mast. There are those who say, "Yes,
but what about the Federal Govern-
ment?" It has been said in the Senate
by some distinguished opponents that
there is such an analogy. But the re-
port from which I am reading is as clear
and explicit as it can be that there is no
analogy as compared with the Federal
Government; that there was no delegate
of the Continental Congress who argued
that the States should be represented on
any basis other than population.
I especially,draw attention to William
Samuel Johnson's assumption that a
parish or a county has influence in pro-
portion to the number of its inhabitants.
This is the principle we are fighting for
today, and it was generally accepted at
the time of the Constitutional Conven-
tion.
Rufus King's account of this speech is (id.
at 476-477) :
"Those who contend for an equality of
votes among the States, define a State to be
a mere association of men and then say these
associations are equal?on the other hand
those who contend for a representation in
proportion to numbers. Define a State to be
a -district of country with a certain number
of inhabitants, like a parish or county, and
then say, these districts shd. have an in-
fluence in proportion to their number of in-
habitants?both reason justly from year
premises?we must then compromise?let
both parties be gratified?let one House or
'branch be formed by one rule and [sic] the
other by another."
?
Certainly every body will agree that
counties are associations of ,men; no one
pretends that they are anything else.
Madison continued to oppose the corhpro-
mise because it overemphasized the sover-
eignty of the States under the new Consti-
tution and because equal representation by
States was unjust (I Farrand 463-464) :
Another point ought to be stressed in
connection with the debates in the con-
stitutional convention. James Madison
is regatded as the father of the Constitu-
tion. He was one of the strongest hold-
outs against the mixed nature of the
Government. Madison was a _prominent
man. He was the strongest oPponent of
even the kind of compromise that was
arrived at to permit the Senate of the
United States to have equal representa-
tion from each of the States. The report
states Madison's views, as follows:
"[T]he mixed nature of the Government
ought to be kept in view; but thought too
much stress was laid on the rank of the
States as political societies. There was a
gradation, he observed from the smallest
corporation, with the most limited powers, to
the largest empire with the most perfect
sovereignty. He pointed out the limitations
on the sovereignty of the States, as now con-
federated * * *. Under the proposed Gov-
ernment, the powers of the States will be
much further reduced. According to the
views of every member, the General Govern-
ment will have powers far beyond those ex-
ercised by the British Parliament when the
States were part of the British Empire. It
will in particular have the power, without
the consent of the State legislatures, to levy
money directly on the people themselves; and
?therefore not to divest such unequal portions
of the people as composed the several States,
of an equal voice, would subject the system
to the reproaches and evils which have re-
sulted from the vicious representation in
Great Britain.
"He entreated the- gentlemen representing
the small States to renounce a principle
which was confessedly unjust, which could
never be admitted, and if admitted must
Infuse mortality into a Constitution which
we wished to last forever."
Yates reports concerning this speech that
Madison said (id. at 472) :
"If the power is not immediately derived
from the people, in proportion to their num-
bers we may make a paper confederacy, but
that will be all."
September .16
Alexander Hamilton likewise supported
apportionment based solely on population
(I Farrand 465-466) :
"Mr. Hamilton observed that individuals
forming political societies modify their rights
differently, with regard to suffrage. Ex-
amples of it are found in all the States. In
all of them some, individuals are deprived
of the right altogether, not having the requi-
site_qualification of property. * * * In like
manner States may modify their right of
suffrage differently, the larger exercising a
larger, the smaller a smaller share of it.
But as States are a collection of individual
men which ought we to respect most, the
rights of the people composing them, or of
the artificial beings resulting from the com-
position. Nothing could be -More prepos-
terous or absurd than to sacrifice the former
to the latter. It has been sd. that if the
smaller States renounce their equality, they
renounce at the same time their liberty.
"The truth is it is a contest for power, not
for liberty. Will the men composing the
small States be less free than those com-
posing the larger. The State of Delaware
having 40,000 souls will lose power, if she
has one-tenth only of the Votes allowed to
Pennslyvania having 400,000: but will the
people of Delaware: be less free, if each
citizen has an equal vote with each citizen
of Pennsylvania. He admitted that com-
mon residence within the same State
would produce a certain degree of attach-
ment; and that this principle might have a
certain influence in public affairs. He
thought, however, that this might by some
precautions be in a great measure excluded:
and that no material inconvenience could
result from it, as there could not be any
ground for combination among the States
whose influence was most dreaded. * * *
No considerable inconvenience had been
found from the division of the State of New
York into different districts, of different
sizes." -
Incidentally, both houses of the New
York Legislature have been apportioned
as to the eligibility of its voters accord-
ing to the New- York constitution of
1777.
Let me repeat that principle of Alex-
ander Hamilton.
There can be no truer principle than this,
that every individual in the community at
large has an equal right to the protection
of government.
That sounds almost like the 14th
amendment. This was stated by Alex-
ander Hamilton in 1787.
To repeat:
There can be no truer principle than this,
that every individual in the community at
large has an equal right to the protection
of government.
It is very interesting that Alexander
Hamilton argued this, when he was talk-
ing about the equal right to vote. He
used the part of this language almost
verbatim which was adopted by our Gov-
ernment, later, when the 14th amend-
ment became law.
Hamilton goes on to say:
"If therefore three States contain a ma-
jority of the inhabitants Of America, ought
they to be governed by a minority? * * *
[The larger, States] are to surrender their
rights?for what? for the preservation of an
artificial being. We propose a free govern-
ment?can it be so if partial distinctions are
maintained? * * * In the State of New
York, five counties, form a majority of repre-
sentatives, and yet the government is in no
danger, because the laws have a-general op-
eration. The small States exaggerate their
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1964,
danger, and on this ground contend for an ,
undue proportion of power."
I can imagine what Alexander Hamil-
ton would have said about this debate.
After all, he was up against a situation
confronting the States which at that time
were recognized as truly sovereign. They
had the sole right to tax. They had given
only modest rights to the Confederacy at
the time. Yet Hamilton felt so strongly
about this principle, he felt that the prin-
ciple was so basic to a democracy that he
argued, even under these circumstances,
that the 'States should have equal rep-
resentation in the U.S. Senate.r
Mr. DOUGLAS. Mr. President, will the
Senator from Wisconsin yield?
Mr. PROXMIRE. I yield.
Mr. DOUGLAS. Is it not a sad thing.
that those who call on the name of Ham-
ilton, who regard themselves as the ex-
ponents of the Hamiltonian tradition,
have so far departed from the principles
of Hamilton that they advocate and de-
fend inequality of representation in the
various State legislatures? '
Mr. PROXMIRE. Yes, indeed; and as
we say, Hamilton was a man who cham-
pioned, by and large, the interests of
property. He recognized deeply the con-
tributions that wealth makes. He was a
true conservative. He was a conserva-
tive in the usual sense. He was a cham-
pion of the *ell-to-do person and the
person who was skilled and able. Yet he
recognized that if we were to have a true
democracy, it must be based upon equal
representation. He further recognized
that this constitutes no threat whatso-
ever to any legitimate need or interest or
protection of property.
Mr. DOUGLAS. Mr. President, in this
'morning's Washington Post, a very il-
luminating letter was published on the
question of apportionment. It was writ-
ten and signed by Henry W. Edgerton.
Mr. Edgerton was, for many years, a
circuit judge in the Federal Circuit Court
of Appeals for the District of Columbia.
He was one of the most eminent jurists
who ever served in that capacity. Prior
to that time, he was dean of the Cornell
Law School, the great law school from
which Charles Evans Hughes was grad-
uated, and which has also produced many
eminent lawyers, such as Myron Taylor,
the former president of the United States
Steel Corp.
Mr. Edgerton was, on many occasions,
mentioned for appointment to the U.S.
Supreme Court. I regret that this ap-
pointment was not accomplished. He
would have added luster to that Court.
Mr. Edgerton has retired from regu-
lar active service as a circuit judge. But
he felt impelled to write this letter as a
citizen. And he made-it clear that he
was writing only as a citizen.
He points 'out that the Constitution in
article III states:
The judicial power of the United States
shall be vested in, one Supreme Court, and
in such inferior courts as the Congress may
from time to time ordain and establish.
He goes on to point out that the Con-
stitution also declares that "the judicial
power shall extend to all cases, in law
and equity, arising under this Constitu-
tion, the laws of the United States," and
so forth.
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In cases arising under that clause of
the Constitution, we should remember
the first section of the 14th amendment,
which forbids any State to deny to any
person the equal protection of the laws.
In this chain of cases, beginning in the
Tennessee case and going on to the Ala-
bama case, a cognate case, and conclud-
ing with the Colorado cage; the Supreme
Court correctly pointed out that peo-
ple cannot be granted equal protection of
the laws if they are unequally, and
grossly unequally, represented in the leg-
islatures which make the laws.
Several weeks ago the House of Rep-
resentatives passed a bill which would
nullify the Supreme Court decisions by
forbidding both the Supreme Court and
the district courts from considering any
cases dealing with reapportionment. I
am happy that the Senate defeated the
Tuck bill presented yesterday to the Sen-
ate by the very able Senator from South
Carolina ?[Mr. THURMOND], and lam very
glad that it was defeated by a crushing
vote. If that bill had become law and
were to be observed, it would remove re-
apportionment cases, insofar as the Con-
gress could do so, from the judicial power
of the United States.. But, as Judge Ed-
gerton 'pointed out, because those are
cases arising under the Constitution,
Congress has no power to do so.
The , Tuck bill?or the Thurmond
amendment?would undoubtedly have
been declared unconstitutional by the
Supreme Court if it had been passed by
Congress. That would have brought
about not only a direct conflict between
the Congress and the court, against
which the very able Senator from New
York [Mr. JAVITS] has warned us, but it
would have occurred only after a con-
siderable period of time during whiCh the
case would have been tested in the dis-
trict and circuit courts; and perhaps 3
or 4 years would have elapsed before the
Supreme Court would, finally declare the
Tuck bill or the Thurmond amendment
to be unconstitutional. During that time
the processes of reapportionment would
probably have been stilled and stopped,
and the State legislatures would have
been continued in their present mal-
apportioned representation. Ample time
would therefore have been afforded for a
constitutional amendment to be drafted
and submitted to the States. The
amendment could have.been ratified by
the malapportioned State legislatures.
During that time the constitutional
right to the equal protection of the laws
would, so far as Congress is concerned,
have been suspended and, indeed, per-
haps ultimately denied so far as Con-
gress is concerned.
Judge Edgerton was correct in Mint-
ing out that the proposal would have
been a usurpation of power on the part
of Congress which we do not constitu-
tionally possess. For the time being the
Tuck-Thurmond amendment is a thing
Of the past. But the Dirksen-Mansfield
amendment is with us and is the pending
business.
Notice the next sentence in the letter
of Judge Edgerton:
For the same reason, Congress has no
'power to require delay in such cases, as a
different bill now pending in the Senate pro-
poses to do. ?
21591
That "different bill," of course, is the
Dirksen-Mansfield amendment. Judge
Edgerton is saying that just as Congress
has no power to forbid the Supreme
Court or the district courts to consider
the apportionment of State legislatures
for a permanent period of time, so it has
no right to postpone or delay hearing by
the courts in apportionment proceedings.
The rights inhere to individuals and can-
not be postponed or delayed.
Judge Edgerton went on to' say that it
is, of course, true that?
The Constitution says, "The Supreme
Court shall have appellate jurisdiction, both
as to law and fact, with such exceptions, and
under such regulations as the Congress shall
make." And Congress may "ordain and es-
tablish" inferior courts.
Which it did in the judicial bill intro-
duced, I believe, by James Madison in
1789. '
Judge Edgerton went on to say?
But these constitutional provisions no
more authorize Congress to prevent the ju-
dicial power of the United States from en-
forcing the fight to equal protection of the
laws than the same provisions authorize
Congress to prevent the judicial power from
enforcing the right to freedom of speech, or
trial by jury, or any other constitutional
right.
Judge Edgerton continues?
Congress cannot nullify constitutional
rights by the simple device of forbidding
U.S. \courts to decide cases in which these
rights are involved. Congress may redis-
tribute among U.S. courts the judicial power
to enforce constitutional rights, but Con-
gress cannot eliminate or reduce that-power.
The Constitution, like other documents,
must be read as a whole.
rhe constitutional grant to U.S. courts of.
the judicial power to decide all cases "arising
under this Constitution" is not subject to
any implicit proviso to the effect: provided
Congress is willing. The constitutional
grant to Congress of the legislative power to
determine what questions may be decided by
what courts is subject to an implicit proviso
to the effect: provided, that the judicial
power conferred by the Constitution upon
U.S. courts may not be abridged. -
The letter is able, concise, and to the
point. It bears out what the Senator
from Montana [Mr. METCALF], the Sen-
ator from Wisconsin IMr. NELSON], and
others of us -have been contending for
on the floor of the Senate for many
days.
As a great public service this great and
noble judge has given advice to the Con-
gress and to the public. I only hope that
it may be followed and that it may dis-
courage the -sponsors of the Dirksen-
Mansfield amendment from pursuing
their cause any further.
Mr. President, in the same issue of the
Washington Post this morning, there
appeared an editorial on the defeat of the
substitute for the Dirksen-Mansfield
amendment. I do not agree with all the
chastisement which the editorial in-
dulged in about those of us who voted
for the substitute.
We did so in order to avoid a greater
evil and in the belief that the language
was harmless and that it might serve
as a pacifier, so to speak, for those who
wanted to strip the Court of its powers
but were somewhat ashamed of the
action they had taken and were looking
for a way out. But in the cause of the
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21592 CONGRESSIONAL RECORD ? SENA/TE
Court, we are willing to accept chastise-
ment even from our friends, or perhaps
I should say particularly from our
friends.
The final conclusion of the Post edi-
torial is extremely interesting. It reads:
The choice now is between continuation
of the liberals' filibuster against the Dirksen
proposal and 'abandonment of the whole
project. The latter course would be in-
finitely preferable.
Of course it would be preferable.
The editorial does not suggest that
those of us who are opposed to the Dirk-
sen amendment should stop our educa-
tional campaign to inform the country
and the Senate. We do not propose to
stop the educational campaign, because
we are already having an influence on
public opinion. We hope very mtich
that the Dirksen amendment will be
abandoned, laid on the table, relegated
to the ash heap or the garbage can.
'That is really what should happen, and
we hope very much that some Senator
will rise either this week or next week
with a motion to table. We would sup-
port that motion very readily. I think
it would get more votes than it did last
time.
When the Senator from Vermont [Mr.
ADM]] made his motion to table, he did
it in the hope that it would throw the
forces opposed to the Dirksen-Mansfield
amendment into confusion. For a mo-
ment or two it looked as though he would
succeed, because there were some
amongst our number who felt that the
move came So suddenly that some of our
group would not be able to see what was
behind the situation?a motion to table
being not debatable?and would not wish
to expose what was thought possibly
was our weakness.
Though the motion came suddenly,
without debate, the Members of the Sen-
ate rallied around with extraordinary
vigor, and there were 38 votes for tabling,
although the Senator from Vermont
voted against his own motion, and 49
against tabling. At least five Senators
who were absent would have voted f6r
tabling. So there were 43 for tabling.
At the beginning we had no more than
12, so we increased our forces from 12
to 43.
Yesterday in the vote on the substi-
tute Javits-McCarthy-Humphrey revised
amendment, which the members of this
group played a leading part in framing,
we got 40 votes to 42. Again, if we had
been able to obtain the presence of
absent Senators, we would have had a
majority. So our numbers are increas-
ing.'
Who would have thought the Tuck bill,
which carried in the other body by a
vote of 226 to 175, would have been de-
feated in the Senate by a vote of 56 to
21-21/2 to 1?
No, Mr. President; the people of this
country are beginning to find out what
these proposals to rob the Supreme Court
of its legitimate powers and constitu-
tional powers really amount to, and they
are having an effect on the votes in the
Senate.
Mr. PROXMIRE. Mr. President, will
the Senator yield.?
Mr. DOUGLAS. I yield.
Mr. PROXMIRE. Does the Senator
know very many on our side, who would
have preferred the Javits-McCarthy
compromise' to ending the whole thing?
Did we not all want to end it? Did we
not prefer that?
Mr. DOUGLAS. Yes; very much.
Mr. PROXMIRE. Would not the
Senator agree that the great speech
made by the Senator from Oregon [Mr.
MoasE] on this subject yesterday was a
speech we could all support and say
"hallelujah" to, and that we had to
adopt the modifying amendment as a
tactic and with great reluctance?
Mr. DOUGLAS. Yes.
Mr. PROXMIRE. Is it not also true
that the editorial implies that, rather
than have us continue talking on the
matter, it would be better to end the
whole thing? But is that not our very
purpose in talking?
Mr. DOUGLAS. It is our purpose, by
marshaling the information and argu-
ments, that we shall convince the Senate
and the country that the amendment
should be laid aside.
Mr. PROXMIRE. That is the purpose
of our talking.
Mr. DOUGLAS. It is interesting that
the advocates of the Dirksen-Mansfield
amendment have not really defended
their point- of view,. My colleague from
Illinois spoke about an hour and said he
was going to speak again. He has not
spoken. The Senator from Montana
[Mr. MANSFIELD] spoke for about 10
? minutes, and said that was all he was
going to say. Virtually no one, with one
exception, has taken the floor to advo-
cate the measure. They thought they
had the votes. We started out not hav-
ing the votes, but we have argued the
fact of existing malapportionment in
State legislatures, we have argued on the
basis of constitutional law, principles,
and public policy, and we are gradually
convincing the Senate and the country.
I wish our opponents would take the
field and discuss the matter in terms of
what should be done, but they evidently
feel that their cause is so poor that it
should not be exposed to public view.
They will depend upon muscle to get it
through. That musple is fast evaporat-
ing.
We have proven once again that a few
Senators clad in the armour Of righteous-
ness can overpower the forces of evil.
The dragon of malapportionment has
been mortally wounded. It is not yet
dead, but its groans and screams can
be heard in this Chamber and else-
where. The Senator from Wisconsin
[Mr. PROXMIRE] has played the role of
St. George in lancing and piercing the
dragon, just as in Raphael's painting St.
George thrusts the dragon and one al-
most hears the sereams of the dragon.
We have heard the screams, but they
are not screams of victory yet; they are
screams of mortal wounds and ultimate
death.
Mr. PROXMIRE. The Senator from
Wisconsin has been carrying the lance.
The senior Senator from Illinois [Mr.
DOUGLAS] is obviously.St. George.
Mr. DOUGLAS. .0h, no.
Mr. PROXMIRE. I would not iden-
tify the dragon.
September 16
Mr. DOUGLAS. Mr. President, I ask
unanimous consent that, the two edi-
torials from the Washington Post be' in-
serted at the conclusion of my remarks.
? There being no objection, the edi-
torials were ordered to be printed in the
RECORD, as follows:
[From the Washington Post, Sept. 16, 1964]
SUBSTITUTE DEFEATED
Defeat of the c_mpromise "sense of Con-
gress" resolution by the Senate yesterday
leaves that body in a perilous State of calm
in which it can move neither backward nor
forward. Last week-the Senate emphatically
rejected Senator DIRKSEN'S move to cut off
debate. 'Then it refused to discard his
scheme to delay application of the Supreme
Court's decisions in the State reapportion-
ment cases, and now it has voted down a
proposed milder substitute.
We agree with the critics of the Javits-
McCarthy-Humphrey substitute. It was an
unnecessary and unfortunate gesture de-
signed to tell the courts that they should
act reasonably and responsibly. Senator
MORSE was right in saying that it carried
an implied insult to the Supreme Court.
Many of the Senators who voted for it did so
only in the hope of preventing more dras-
tic legislative action.
The choice now is between continuation
of the liberals' filibuster against the DirkSen
proposal and abandonment of the whole
project. The latter course would be in-
finitely preferable. Even if the grave con-
stitutional objections to this venture could
be,' overlooked, there is no indication that
the Senate can agree upon a practical course
of action. And if it did, its emphatic re-
jection of the repulsive -tuck bill passed
by the House indicated that the chance for
reconciliation of the views of the two houses
would be meager.
The 88th Congress cannot afford to have
its final session sputter out in a futile row
over encroachment upon the courts. The ef-
fect would be to defeat vital legislation still
awaiting enactment, to mar an otherwise
creditable record and to frustrate every
Member who is eager to hit the campaign
trail.
[From the Washington Post, Sept: 16, 19641
APPORTIONMENT TANGLE
I have retired from regular active service
as a circuit judge of the 'U.S. Court of Ap-
peals for the District of Columbia Circuit
and am interested in apportionment only as
a citizen.
The Constitution says "The judicial power
of the United States shall be vested in one
Supreme Court, and in such inferior courts
as the Congress may from time to time
ordain and establish." And "The judicial
power shall extend to all cases, in law and
equity, arising under this Constitution, the
laws of the United States," etc. In cases
"arising under" the clause of the Constitu-
tion that forbids a State to deny to any per-
son the equal protection of the laws, the
Supreme Court has decided that both houses
of a State legislature must be apportioned
on a population basis so that each person's
vote shall have equal weight with every
other person's.
The House of Representatives has passed
a bill that would nullify these Supreme
Court decisions by (1), forbidding the Su-
preme Court to review cases concerning ap-
portionment of State legislatures and (2)
forbidding U.S. district courts to decide such
cases in the first place. If this bill were to
become law and were observed, it would re-
move such cases from the "judicial power of
the United States." Because these are cases
"arising undef this Constitution," Congress
has no power to do so. ' For the same reason,
Congress has no power to require delay in
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1964 CONGRESSIONAL RECORD? SENATE
such cases, as a different bill now pending in
the Senate proposes to do.
The Constitution says "The Supreme
Court shall have appellate jurisdiction, both
as to law and . fact, with such exceptions,
and under such regulations as the Congress
shall make." And Congress may "ordain
and establish" inferior courts. But these
constitutional provisions no more authorize
Congress to prevent the judicial power of
the United States from enforcing the right
to equal protection of the laws than the
same provisions authorize Congress to pre-
vent the judicial power from enforcing the
right to freedom of speech, or trial by jury,
or any other constitutional right.
Congress cannot nullify constitutional
rights by the simple device of forbidding
U.S. courts to decide cases in which these
rights are involved. Congress may redis-
tribute among U.S. courts the judicial power
to enforce constitutional rights, but Con-
gress cannot eliminate or reduce that power.
The Constitution, like other documents,
must be read as a whole.
The constitutional grant to U.S. courts of
the judicial power to decide all cases
"arising' under /this Constitution" is not
subject to any implicitproviso to the effect:
provided Congress is willing. The constitu-
tional, grant to Congress of the legislative
power to determine what questions may be
decided by what courts is subject to an
implicit provisio to the effect: "provided, that
the judicial power conferred by the Con-
stitution upon U.S. courts may not be
abridged."
HENRY W. EDGERTON,
Washington.
Mr. PROXMIRE. Mr. President, to
return to the debates of 1787 at the Con-
stitutional Convention, I had read the
very interesting statement by Madison
with respect to the equal rights of in-
dividuals.
Elbridge Gerry of Massachusetts also
agreed with Madison and said:
[W]e never were independent States, were
not such now, & never could be even on the
principles of the Confederation. The States
& the advocates for them were intoxicated
with the idea of their sovereignty. He was
a member of Congress at the time the federal
articles were formed. The injustice of al-
lowing each State an equal vote was long
insisted on. He voted for it, but it was agst.
his Judgment, and under the pressure of
public danger, and the obstinacy of the lesser
States.
Luther Martin replied to Gerry that (id.
at 468) : "[T]he language of the States being
Sovereign & independent, was once familiar
& understood; though it seemed now so
strange & obscure. He read those passages
In the articles of Confederation which de-
scribe them in that language."
The convention rejected the motion of
Robert Lansing to have 'the first branch
elected on same basis as the Congress of the
Confederation, i.e., equal representation by
States, by a vote of 6 to 4 with one State
divided. By the converse vote, the conven-
tion adopted the resolution reported by the
Committee of the Whole "that the rule of,
stiffrage in the 1st branch ought not to be
according to that established by the Articles
of Confederation." (I Farrand 468.)
Oliver Ellsworth of Connecticut then again
proposed the compromise first suggested by
Sherman (id. at 468-469) :
"That the rule of suffrage in the 2d. branch
be the same with that established by the
articles of confederation". He was not sorry
on the whole he said that the vote just
passed, had determined against this rule in
the first branch. He hoped it would become
a ground of compromise with regard to the
2d. branch. We were partly national; Partly
federal. The proportional representation
in the first branch was conformable to the
national principle & would secure the large
States agst. the small. An equality of voices
was conformable to the federal principle and
was necessary to secure the Small States agst.
the large. He trusted that on this middle
ground a compromise would take place. He
did not see that it could on any other. * * *
The existing confederation was founded on
the equality of the States in the article of
suffrage: was it meant to pay no regard to
this antecedent plighted faith."
Abraham Baldwin of Georgia opposed Ells-
worth's motion on the ground that the,sec-
ond house should represent property. (Id.
at 469-470.) George Read of Delaware agreed
in part with Madison and Hamilton (id. at
471) :
"If [the government was to be] more na-
tional, I would be for a representation pro-
portionate to population." [Yates]
James Wilson, on June '30th, strongly op-
posed Ellsworth's motion to allow each State
an equal vote in the second branch. He re-
jected threats that convention would other-
wise fail (I Farrand 482-484) :
"If the minority of the people of America
refuse to coalesce with the majority on just
and proper principles, if a separation must
take place, it could never happen on better
grounds. The votes of yesterday agst. the
just principle of representation, were as 22
to 90 of the people of America. Taking the
opinions to be the same on this point, ? ? *
the question will be shall less than % of the
U. States withdraw themselves from the Un-
ion, or shall more than % renounce the in-
herent, indisputable, and unalienable rights
of men, in favor of the artificial systems of
States, If issue must be joined, it was on
this point he would chuse to join it. The
gentleman from Connecticut [Ellsworth] in
supposing that the prepondenancy secured
to the majority in the 1st. branch had re-
moved the objections to an equality of votes
in the 2d. branch for the security of the
minority narrowed the case extremely. Such
an equality will enable the minority to con-
troul in all cases whatsoever, the sentiments
and interests of the majority."
?
I digress here to call attention to Wil-
son's interesting words, that if the minor-
ity of the people in the small States
should have this control over the Union,
the ones in the majority would renounce
the inherent, indisputable, and unalien-
able rights of men, in favor of the artifi-
cial systems of States.
The first man to bring -this into this
debate was the senior Senator from Il-
linois [Mr. DOUGLAS], who was challenged
as to why he would not agree to a con-
stitutional amendment which would pro-
vide that one House should be based on
population.
He said there are certain unalienable
rights. I remind the Senate that these
were the precise words used in 1787 by
James Wilson in making precisely the
same point, but making it on a weaker
basis, because he was opposing even giv-
ing the States equal representation in
our U.S. Senate.
Mr. DOUGLAS. Thomas Jefferson
- was ahead of both of us, because in the
preamble to the Declaration of Independ-
ence he speaks of the unalienable rights
of man, which it is the purpose of govern-
ments to secure.
Mr. PROXMIRE. John Locke, of
course, preceded Thomas Jefferson. He
wrote almost the verbative text of the
Declaration of Independence before
Thomas Jefferson.
21593
Mr. DOUGLAS. Except that Locke
etnphasized life, liberty, and property,
whereas Jefferson emphasized life, lib-
erty, and the pursuit of happiness as
being the basic rights. Property had its
rights, but it was subordinate to the pur-
suit of happiness. George Mason de-
serves a great amount of credit, because
he emphasized something more than
mere life, liberty, and property.
Mr. PROXMIRE. Oh, yes; his con-
tribution was great. But I wish to stress,
of course, that it was James Wilson and
PAUL DOUGLAS who agree that this un-
alienable concept relates to the equal
rights that people should have in rep-
resentation in their legislatures.
The Senator from Illinois has argued
that this is an unalienable right in the
State legislature. I believe that all our
Founding Fathers would agree.
Mr. DOUGLAS. When the Senator
revises his remarks for the RECORD, I hope
he will omit my name; because I do not
regard myself as worthy of unloosing the
latches of the shoes of James Wilson,
Thomas Jefferson, or George Mason.
Mr. PROXMIRE. No Senator is more
worthy.
I continue to read:
Seven States will controul six; seven States
according to the estimates that had been
used, composed No of the whole people.
It would be in the power of less than % to
overrule % whenever a question should hap-
pen to divide the States in that manner.
Can we forget for whom we are forming a
Government? Is it for men, or for the imag-
inary beings called States? Will our honest
Constituents be satisfied with metaphysical
distinctions? Will they, ought they to be
satisfied with being told that one third,
compose the greater number of States. The
rule of suffrage ought on every principle to
be the same in the 2d. as in the 1st. branch.
? * * If the motion should be agreed to,
we shall leave the U.S. fettered precisely as
heretofore; with the additional mortification
of seeing the good purposes of ye fair repre-
sentation of the people in the 1st. branch,
defeated in 2d. Twenty four will still con-
troul sixty six.
Ellsworth replied that (id. at 484-485) :
"The capital objection of Mr. Wilson "that
the minority will rule the majority" is not
true., The power is given to the few to save
them from being destroyed by the many. If
an equality of Votes had been given to them
in both branches, the objection might have
had weight * * * No instance [of a con-
federacy] 2 has existed in which an equality
of voices has not been exercised by the mem-
bers of it. We are running from one extreme
to another. We are razing the foundations
of the building. When we need only repair
the roof. No salutary measure has been lost
for want of a majority 'of the States, to favor
it. If security be all that the great States
wish for the 1st. branch secures them, * * *
He appealed again to the obligations' of the
federal pact which was still in force, and
which had been entered into with so much
solemnity, persuading himself that some re-
gard would still be paid to the plighted faith
under which each State small as well as
great, held an equal right of suffrage in the
General Councils."
Supporting Wilson, Madison said that
speakers had urged (id. at 466):
"Continually that an equality of votes in
the 2d. branch was not only necessary to se-
cure the small, but would be perfectly safe
to the large ones whose majority in the 1st.
Farrand has taken this phrase from the
account of Yates. I Farrand 484, note 5.
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21594 CONGRESSIONAL RECORD ? SENATE
branch was an effectual bulwark. But not-
withstanding this apparent defence, the
Majority of States might still injure the
majority of people."
1. They could obstruct the wishes and in-
terests of the majority.
I suppose that has happened in the
Senate too.
2. They could extort measures repugnant
to the wishes and interest of the majority.
I believe that has happened occasion-
ally.
3. They could impose measures adverse
thereto; as the second branch will probably
exercise some great powers, in which the
first will not participate. ,
? That obviously is also a wise observa-
tion by Madison.
William Richardson Davie of North Caro-
lina agreed with Ellsworth, opposing the res-
olution approved by the Committee of the
Whole (I Farrand 487=488) :
"The Report of the Committee allowing
the Legislatures to choose the Senate, and
establishing a proportional representation in
it, seemed to be impracticable. There will
according to this rule be ninety members in
the outset, and the number will increase as
new States are added. It was impossible
that so numerous a body could possess the
activity and other qualities required in
it. * * * ?[I]f a proportional representation
was attended with insuperable difficulties,
the making the Senate the Representative
of the States, looked like bringing us back
to Congs. again, and shutting out all the
? advantages expected from it. * * * He
thought that in general there were extremes
on both sides. We were partly federal, partly
national in our Union. And he did not see
why the Govt. might not in some respects
operate on the States, in others on the
people."
Attempting to meet Davie's objection, Wil-
son (id. at 488) :
"Admitted 'the question concerning the
number of Senators, to be embarrassing. If
the smallest States be allowed one, and the
others in proportion, the Senate will cer-
tainly be too numerous. He looked forward
to the -time when the smallest States will
contain 100,000 souls at least. Let there be
then one Senator in each for every 100,000
souls, and let the States not having that no.
of inhabitants be allowed one. He was will-
ing himself to submit to this temporary con-
cession to the small States: and threw out
the idea as a ground of compromise."
Benjamin Franklin then`summarized the
debate (I Farrand 488) :
"The diversity of opinions turni on two
points. If a proportional representation
takes place, the small States contend that
their liberties will be in danger. If an equal-
ity of votes is to be put in its place, the large
States say their money will be ,in danger.
Wheh a broad table is to be made, and the
edges- of planks do not fit the artist takes a
little from both, and makes a good joint. In
like manner here both sides must part with
some of their demands, in order that they
may join in some accommodating propo-
sition."
To resolve the impasse, he proposed the
following resolution (id. at 489) :
"That the Legislatures of the several States
shall choose & send an equal number of
Delegates, namely who are to compose the
2d, branch of the General Legislature?"
However, while the resolution also gave
each State an equal voice on several impor-
tant issues involving the States such as
issues, affecting their sovereignty, voting
strength was to be calculated by taxes paid
with regard to appropriations bills:
Benjamin Franklin explained that (id. at
499) :
"Let the senate be elected by the states
equally?in all sots of sovereignty and au-
thority, let the votes be equally taken?the
same in the appointment of all officers, and
salaries; but in passing of laws, each state
shall have a right of suffrage in proportion to
the sums they respectively contribute."
[Yates]
Rufus King rejected all proposals for giv-
ing each State an equal vote and said that
he was (I Farrand 489-490) :
"Filled with astonishment that if we were
convinced that every man in America was
secured in all his rights, we should be ready
to sacrifice this substantial good to the
phantom of State sovereignty: * * * that he
could not therefore but repeat his amaze-
ment that when a just Governt. founded on
a fair representation of the people of America
was within our reach, we should renounce
the blessing, from an attachment to the
ideal freedom & importance of States: that
should this wonderful illusion continue to
prevail, his mind was prepared for every
event, rather than sit down under a Govt.
founded in a vicious principle of represen-
tation and which must be as shortlived as
it would be unjust. He might prevail on
himself to accede to some such expedient as
had been hinted by Mr. Wilson: blithe never
could listen to an equality of votes as pro-
posed in the motion."
Mr. President, that argument by Rufus
King once again emphasizes the fact
that the only way that our Founding
Fathers ever could contemplate provid-
ing equal representation for the States
in the Senate was to recognize that, illu-
sion that it might be, and artificial crea-
ture that a State might be, at least it
was a distinct and real entity with a
power that was great enough to be a
real power; in my judgment the only
basic and overriding power in existence
in this place at the time.
There was a confederacy, but it was a
weak, tentative confederacy; it was
, nothing more than a treaty or an alli-
ance among the States. Yet, in spite of
this, many of the Founding Fathers, close
to a majority?in fact, those representing
a majority of, the people in the Colonies
at that time?felt' that even under those
circumstances, the U.S. Senate should be
based on population.
So EL compromise was made, and it was
made because it was recognized that it
was the only way there could be a union.
But the Founding Fathers also recog-
nized that the States did, in fact, have
sovereign power, an existence, a reality;
and also that if there were to be a Federal
system, the States should have the dig-
hity of having two representatives in the
national body, so that the dignity and
sovereignty of the States would be rec-
ognized.
Mr. President, I am happy to yield to
the distinguished Senator from Illinois.
Mr. DOUGLAS. Mr. President, I con-
gratulate the Senator from Wisconsin
for his able statement.
It is my understanding that the Sena-
tor from Wisconsin will shortly move,' at
the instance of the Senate leadership,
that the Senate adjourn until the time
for ? convening tomorrow. When that
motion is made, I wish to make some
comments of my own; namely, that the
Senator from Wisconsin should be
granted the right to the floor when the
Senate convenes tomorrow. I shall not
make that request now, but I shall make
Septembei. 16
it when the motion for adjournment is
made.
SILVER FOR DEFENSE NEEDS
Mr. PROXMIRE. Mr. President, I
ask unanimous consent that I may yield
to the distinguished Senator from Col-
orado [Mr. DomiNrcx], without losing
my right to the floor, and that his re-
marks will appear after mine.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. DOMINICK. Mr. President, I ap-
preciate the courtesy of the Senator
from Wisconsin in yielding to me at this
time.
Mr. President, on September 14, 1964?
last Monday?I was privileged to appear
before and speak to the annual conven-
tion of the American Mining Congress
in PortlankOreg.
In that speech I outlined the source of
many of the basic problems facing the
mining industry, problems based on Gov-
ernment management and control in
great degree.
I clwelt at some length on the silver
crisis. I called the situation a mess, and
I likened the Government's position to
the story of the Italian general in World
War II who, after a disastrous battle,
stood on a hill with his aide and watched
his troops streaming all over the coun-
tryside in all directions. He turned to
his aide and cried, "Where are they run7
fling? Where are they running? I am
their leader and must run in front."
This is the Government's position, so
far as silver is concerned, and the crisis
we are in right now.
Mr. President, I ask unanimous con-
sent to have printed in the RECORD the
text of my speech previously referred to.
There being no objection, the address
was ordered to be printed in the RECORD,
as follows:
ADDRESS BY SENATOR PETER H. DOMINICK TO
THE AMERICAN MINING CONGRESS, PORTLAND,
OREG., SEPTEMBER 14, 1964
Mr. Chairman, colleagues, ladies and gen-
tlemen, it is always a pleasure to have the -
chance to meet with those men and women
whose daily business activities fall into the
highest of all categories, productive creativ-
ity. Without the development of our natural
resources, from water to uranium, this coun-
try, and in fact the world, would still be
existing in the dark ages. It,is a privilege for
me to have the opportunity of discussing with
you some problems of your industry which
daily become more difficult to solve as we
seem to continue the trend toward an all-
powerful central government.
* ?
Now it strikes me that the Federal Govern-
ment instead of trying to keep half of you
flying all the time has been going out of its
way to prevent half of you from flying. In
every mining field there are constantly in-
creasing Federal controls over yotir activities.
Let's just outline a few. In the lead-zinc
field, continued State Department pressures
have prevented passage of realistic legisla-
tion- to cut back import quotas and provide
support for the domestic industry. As a re-
sult, the country becomes more and more
reliant on foreign supplies.
In the gold mining field, constant and
fierce resistance has been expressed by the
executive departments of the Federal Gov-
ernment to all efforts to explore programs to
revitalize the gold mining industry. Opposi-
tion has been sharply expressed even to hold-
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1964 CONGRESSIONAL RECORD 77 SENATE
ing hearings on the problems and as a result,
no legislation has been possible.
In the uranium field, the Government en-
tered into long-range contracts to purchase
concentrate from South Africa and Canada.
Then lt provided economic exploration
stimuli for U.S. production and very soon
we had enough supplies in this country to
supply foreseeable needs. At that point the
Federal Government started cutting back on
domestic uranium procurement, limited mill-
ing contracts, and decimated the domestic
uranium mining industry while leaving a
few companies in a position to stay alive
perhaps long enough to enter the private
industrial field.
In the meanwhile the foreign contracts
were stretched out and we continue to buy
foreign uranium concentrates.
In the shale oil field the Interior Depart-
ment has created more complexities than a
Philadelphia lawyer could invent. I have
just attended the reopening of the Rifle oil
shale facility for research and development
of this fabulous natural resource, the re-
opening representing the culmination of
years of intensive effort by legislators and
private industry against an array of Federal
executive opinion. But this reopening, while
a significant step forward, is only the first
of a series of steps that need to be taken.
The solicitor's office has raised a myriad of
problems with respect to patent applications
on oil shale lands. Recent decisions of the
Department, in fact, raise questions which
might well deter even the most resolute from
trying to establish a valid discovery in any
type of mineral. It now seems to be their
position that no mining location can he
patented unless the applicant can prove that
the mineral is commercially profitable at the
very moment of the decision. The fact that
it might be a valuable mineral in the ordi-
nary sense of the word, or that it might have
been commercially operable a month before
presentation or might be commercially op-
erable 1 month later with an anticipated
change in price or technology is apparently
not enough. This, of course, effects all min-
erals but is even more pointed when di-
rected at oil shale where commercial develop-
ment has not yet occurred. In addition, de-
spite a horde of suggested rules and regula-
tions submitted to Interior at its-request by-
private industry, and educational research
groups, no visible progress has been made in
developing programs for leasing of public-
lands for oil shale research and development.
Without trying to detail all the problems,
which are probably better known to you than
to me, I do want to outline for you what can
only be called a crisis?to put it mildly the
silver situation is a mess. The industry has
been urging the Treasury for more than 3
years to develop programs to handle the
problem but to no avail. It affects every
person who wants to get a cup of coffee, a
coke, or a pack of cigarettes from a vending
machine. It affects the manufacturers of
photographic equipment, batteries and other
items to which silver is an essential ingredi-
ent. It affects our dollar bills, our banks and
our national defense. It has been tenta-
tively discussed by Treasury officials and
some witnesses for industry before, the Sen-
ate Banking and Currency Committee and
the House Committee on Government Op-
erations. It has involved the Federal Re-
serve system in disputes with its own mem-
bers and has led to a fiury of activity in the
mints.
The law of supply and demand and the
efforts to avoid its effect are certainly key
factors in the situation. A few figures_ will
make this crystal clear.
As of the end of 1963, consumptive demand
for silver is estimated as follows, in million
ounces:
No. 177-10
Consumptive demand for silver
[In million ounces
United
States
Other
coun-
tries
Total
Industrial
110.0
137.0
247.0
Coinage
111.3
00.9
172.2
Total
221.3
197.9
419.2
Against these totals production for the
same period is estimated at United States, 36,
other countries, 174.5; total, 210.5.
? -From this you can see that total world
production in 1963 was 11 million ounces less
than U.S. demands alone and approximately
one-half of total demands. In addition, you
will note that U.S. silver production Was
about one-sixth of U.S. consumption.
To offset this imbalance the United States
had a major supply of silver, located at
West Point and San Francisco, estimated, at
the end of 1963 to be 11/s billion ounces. Ob-
viously, this amount even at the noted rate
of depletion would suffice for a considerable
period of time but as anticipated by many
industry leaders and legislators, consump-
tive pressures have risen sharply and changed
the picture.
As we all know silver coins in the United
States have become more and more scarce.
It has been necessary to offset this with
crash programs to provide more pennies,
nickels, dimes, quarters,- and half dollars.
New presses have been dug out of Defense
warehouses, contracts have been given by the
Mint to private suppliers for the necessary
metallic strip, and productive capacity of our
two Mints has been sharply increased. It is
estimated that by the fall of 1964, U.S. coin
production will have tripled over the compar-
ative period of 1963. This, of course, is a
necessary and highly commendable effort
by the Mint officials to meet the needs of all
Americans. At the same time it can be seen
that our use of silver for coins will increase
at a tremendous rate and there is every
indication that the need for this increased
use of silver for coinage will continue.
In April 1964, the Treasury informed me
that for the 10-month period, June 1963 to
April 1964, 91 million ounces of silver had
been set aside for coinage and added that
there was on hand sufficient silver for coin-
age requirements to 1972. Once again, as an-
ticipated and noted above, the demand has
far exceeded the hearing estimates.
In 1963, the. Silver Purchase Act was re-
pealed and provision made to retire all $1
silver certificates and replace them with
Federal Reserve notes. Silver certificates
in bulk have been presented to the Treasury
for silver bullion and for the period June 4,
1963, to April 2, 1964, the Treasury has
informed me that $215.5 million worth of
silver certificates were redeemed.
At that time there remained outstanding
$1.9 billion of silver certificates and redemp-
tions of these continue at an accelerated
rate.
These pressures in turn have steadily in-
creased the silver price on the open market
until it threatens to break through the
silver value of $129 in a silver dollar. If the
price should push hs far as $1.3, approxi-
mately equal to the silver content in lesser
coins, considerable fear has been expressed
that all U.S. coins will be melted into silver
bullion and drive coinage wholly out of
circulation.
Hence, the Treasury releases silver from its
Supply in amounts approximately equal to
silver certificates returned to the Federal
Reserve System and to date has held the price
to $1.29+ to protect its coinage.
From this brief summary you can see that
we have a mess. The law of supply and de-
,
.21,595
mand wants to raise silver prices substan-
tially. The Treasury releases have prevented
this. The time is not far off when Treasury
supplies will not be sufficient to hold the
price and supply silver for coinage. The
vending companies want to keep present
coinage as their machines Use them at an an-
nuhl_rate of $3.2 billion. Industrial Users
want to continue to get silver at cheap prices.
Producers recognize that silver output can-
not be substantially increased without a sub-
stantial price rise.
The situation at the moment can only be
, compared to an overheated pressure cooker,
with a blocked release valve. Everything is
cooking but no one has yet turned off the
flame or rigged a substitute relief valve. Re-
liable estimates now indicate that the whole
matter will explode in or before 1966 unless
solutions are found.
Some of your industry have been working
hard on the problems and various trial- bal-
loons have been floated by the Treasury.
These have ranged.from doubling the mone-
tary value of existing coins, to calling back
all existing COillS and replacing theni with
nonsilver alloys. The former would auto-
matically increase silver prices to the users
and, hence, is being resisted strenuously.
The latter would involve not only opposition
from the vending companies which would
have to revamp all their machines at enor-
mous cost, but the political reaction of the
American people to demonetization, par-
ticularly by an administration which has
often been termed fiscally irresponsible.
I suggest_that a number of solutions to
the silver problem are feasible.
We need silver for defense. Then let's set
aside within existing Treasury supplies an-
amount sufficient to meet these needs?per-
haps 300 to 500 million ounces.
We need relief for our coinage. Perhaps
this could be worked out with less capital
dislocation to industrial users by issuing a
new series of coins in 20-, 30-, 40-, and 70-
cent pieces containing a lower silver content.
Sooner or later under Gresham's law these
would drive out existing, coins but it might
give-needed time relief by letting silver prices
rise to stimulate production without intro-
ducing nonsilver coins.
I do not pretend to have a pat solution
for all of these problems but there are some
facts which stand out.
Production of silver is artificially low be-
cause of -governmental restraints on the op-
--eration of the law of supply and demand.
Production of lead-zinc is artificially low
because of. governmental insistance on im-
proving the economy of other countries.
Production of gold is artificially low be-
cause of governmental enforcement of a 1935
price-setting order.
Production of oil from oil- shale is being
Sharply hampered because of governmental
legal and policy restrictions.
As a result of these go.veriunental policies,
the -mining industry has been forced into
programs calling for subsidies and the crea-
tion of artificial markets for its products. I
know that you do not like this, but you have
been, forced to agree in many cases in order
to survive, even on a limited basis.
The American mining industry has an
astounding resilience. My faith in it leads
me to believe that these problems can and
will be solved. Almost all solutions will
require some kind of Federal legislative action
or the pressure cooker will explode. Need-
less to say, I look forward to working with
you in, finding these solutions.
Mr. DOMINICK. Mr. President, upon
my return, I had received more recent
informatiOn from Mr. Robert' V. Roosa,
Under Secretary of the Treasury. I be-
lieve that this information further high-
lights the crisis we face and the mess we
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21596
are in. I ask unanimous consent to in-
sert at this point in the RECORD a copy of
my letter of September 8, 1964, to Under
Secretary Roosa and a copy of his reply,
together with the tables provided.
There being no objection, the letters
and tables were ordered to be printed in
the RECORD, as follows:
' SEPTEMBER 8, 1964.
The Honorable ROBERT V. ROOSA,
Under Secretstry for Monetary Affairs,
Department of the Treasury,
Washington, D.C.
DEAR MR. ROOSA : As you know, I have been
concerned with the silver situation for some
time and have spoken to you about it on the
telephone as well as in committee hearings.
As assistance to my full understanding of
our position, it would be most helpful if
you would have someone on your staff furnish
me with the following data:
1. The amount of silver in fine ounces and
in dollar value held by the Treasury as of
the most recent reporting date;
2. The difference in these figures from the
same figures as of the end of 1963, 1962, 1961,
and 1960;
3. The dollar volume of silver certificates
retired since passage of the recent act, and
the amount of fine ounces released to cover
the retirements;
4. The rate of retirement of silver certifi-
cates on a monthly basis computed in dollars
and in-fine ounces;
5. The estimated amount of Treasury
silver to be used for coinage this year and
for calendar 1965;
6. The actual or estimated amount of silver
released by the Treasury which is going into
the hands of overseas holders;
7. The amount of silver being purchased by
the Treasury, if any;
CONGRESSIONAL RECORD - SENATE
8. The rate of silver withdrawals from the
Treasury to supply demands of other gov-
ernmental agencies computed in dollars and
fine ounces.
I am fully aware that this problem is a
"ticklish" one, that you and others are work-
ing on possible solutions, and that publicity
is being avoided. The above information,
however, is not readily available to me
through other sources and will help my anal-
ysis of proposed solutions which reach me
from private sources.
Sincerely,
PETER H. DOMINICK,
U.S. Senator.
UNDER SECRETARY OF THE TBEASURY,
Washington.
Hon. PETER H. DOMINICK,
U.S. Senate,
Washington, D .C.
DEAR SENATOR Dommticm: This is in reply
to your letter of September 8, in which you
raise several questions about the silver stocks
' of the Treasury.
In answer to the first two questions of
your letter, there is enclosed a table showing
in ounces and dollars the amount of silver
bullion held at the end of calendar years
1960, 1961, 1962, and 1963, as well as the
amount held on September 3, 1964, the latest
date available. For your information, silver
dollars have also been included in the table.
In answer to questions 3 and 4, there is
enclosed a table showing the silver certifi-
cates that have been retired in order to se-
cure silver bullion for coinage, as well as the
silver certificates that have been exchanged
for bullion by the public; also, the number
of silver dollars that have been paid out with
the resulting retirement of silver certificates.
In answer to question 5, on the basis of
present legislation and appropriation, it is
September 16
estimated that 195 million ounces of silver
will be used for coinage in 1964, and 235 mil-
lion ounces in 1965. (It should be noted
that the estimated silver used in coinage in.
1964 and 1965 reflect the high level ot output
required to meet the current coin shortage,
to which hoarding is contributing. As the
shortage is overeome, coinage needs will
decline.)
In answer to your question 6, concerning
private individuals or firms dealing in silver,
we do not attempt to supervise the use of
silver after silver certificates have been re-
deemed, any more than we attempt to super-
vise the use of silver dollars when they are
obtained through the redemption of silver
Certificates. Silver bullion and ore-bearing
materials are exported and imported and as
a rule there is a net importation of silver
into the United States. There are enclosed
tables covering the exports and imports of
silver bullion and ore-bearing materials on a
monthly basis for the calendar year 1963 and
the first 7 months of 1964.
In answer to question 7, the Treasury pur-
chased 242,021.37 ounces of silver in calendar
year 1962; 344,331.14 ounces in calendar year
1963; and 241,229.23 ounces through July of
this year. Practically all the silver pur-
chased was that which was contained as an
' integral part of gold deposits.
The rate of silver withdrawals from the
Treasury to supply demand of other Govern-
ment agencies which you requested in ques-
tion 8, amounted to 674,320.24 ounces in
calendar year 1961; 390,630.15 ounces in cal-
endar year 1962; 6,112,219.75 ounces in cal-
endar year 1963; and 5,071,673.25 ounces so
far in 1964.
I trust this will provide the information
you wish.
Sincerely yours,
Reduction in silver bullion and silver dollars securing certificates, by months, beginning June 1963
[Daily Treasury statement basis]
ROBERT V. ROOSA.
Month
Bullion released for coinage
Bullion exchanged for
certification
Silver dollars
paid out
(net),
, Ounces
Value
Ounces
Value
1963-June 1
,D..901-14sAm.:0901801,14.,4?
???????????????
?????8?????????
$5, 171, 717. 17
$3, 896, 577
July
6, 464, 646. 46
7,080, 350
August
19, 393, 939. 38
-
8,439, 125
September
11, 636, 363, 63
7.72, 481. 5
$998, 764
3, 500,032
October
12, 929, 292. 92
3, 591, 055. 6
4, 642, 981
3, 648,029
November
10,343, 434.34
6, 845, 056. 5
8,850, 174
6,044, 528
December
11, 636, 363. 62
7, 764, 502.7
10, 038, 953
8, 488, 424
1964-January
6, 464, 646. 46
3, 403, 615. 4
4, 400, 634
1, 292, 172
February
March
?
19, 393, 939. 38
19, 393, 939. 38
1,804, 806.4
3, 572, 474. 6
2, 333, 487
4, 618, 957
3,009, 297
21, 309, 365
April
19, 393, 939. 38
7, 281, 678. 9
9, 414, 696
2 (23, 767)
May
18, 101, 010. 09
3,688, 775.6
4, 769, 326
37, 313
June
14, 222, 222. 21
9, 418, 659. 7
12, 177, 661
3,452
July
23, 272, 727. 26
2, 117, 453. 8
2, 737, 718
2 (496)
August
24, 565, 656. 55
5,740,999. 2
7, 422, 706
2 (3,958)
Total
172, 000, 000
222, 383, 838. 2
56, 001, 559. 9
72, 406, 057
66, 720, 443
1 Public Law 88-36 passed June 4, 1963. Increase.
U.S. exports and imports of silver, by months, January through July 1964
[In troy ounces] ,
Exports
s
Imports
Net
(exports (+) or
Ore and base
Bullion
Total
Ore and base
Bullion
Total
imports (-))
bullion
refined
bullion
refined
January
21,025
3, 881,498
3,002, 523
4, 678, 797
718,335
5, 392, 432
-1,480,009
February
69,228
5, 214, 897
5, 284, 125
4,009, 460,
975, 941
4, 985, 401
+298, 724
March
55, 132
3, 295, 987
3,351, 119
4, 028, 941
i 702, 701
4,731, 642
-1, 380, 523
April
51, 488
8,375, 380
8, 426, 868
5,898, 889
621,571
2, 518,400
+5, 968,408
May
71, 303
2, 785, 047
2,866, 350
4, 533, 471
1, 058, 904
,5, 592, 375
-2, 736, 025
June
91,764
3,519, 504
3,611, 268
3, 132, 244
622,322
3, 754, 566
-143, 298
July
65,007
4,674,3704,
739, 877
4, 165,664
963,424
5, 129,088
-389,211
Total
425, 447
31, 746, 683
32, 172, 130
26, 445, 466
5, 658, 198
32, 103, 664
+68, 466
1
Source: Bureau of the Census, Department of Commerce.
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1964 CONGRESSIONAL RECORD - SENATE
U.S. exports and imports of silver, by months, 1963
troy ounces]
21597
?
Exports
Imports
Net
(exports (+) or
imports (-))
Ore and base
bullion
Bullion
refined
Total
Ore and base
bullion
Bullion
refined
Total
January
5,394
2, 054, 195
2, 059, 589
2, 881, 279
I, 002, 818
3, 884, 097
-I, 824, 508
February
108, 000
2, 454, 231
2,562, 231
3, 718, 094
864, 873
' - 4,582, 967
-2,020, 736
March_
17,326
1,200, 096
1, 217, 422
3, 210, 774
3, 217, 007
6, 427, 781
-5,210,319
April
36,800
2, 517, 077
2, 553, 877
2, 936, 474
1, 005, 476
3, 941, 950
-1, 388,073
May
.. 28,100
_ 2, 095, 823
2, 123, 923
3, 978, 088
I, 594, 525
5, 572, 613
-3,448,690
June
18,650
2,005, 692
2, 024, 342
4, 342, 350
1, 360, 005
5, 972, 355
-3,948,013
July
112,928
112, 928
3, 621, 792
1, 706, 989
5, 328, 781
-5,215,853
August
18,000
1, 179, 390
1, 197,300
3, 228, 975
818,426
, 4, 087, 401
-2, 800,011
September
458,982
I, 607, 846
2,096, 828
4, 180, 859
1,841, 083
6, 021, 942
-3,923,114
October_
, 78,500
4, 204, 798
4, 283, 388
2, 682, 594
1, 699, 236
4,381, 830
-98,442
November
497, 702
8, 088, 802
8,586, 504
2, 659, 946
1, 112, 650
3,772, 596
+4,813, 908
December
2,665, 633
' 2,665, 633
4,219, 207
868,617
5,087, 824_
-2,422,191
Total -
1, 297, 544
30, 186, 511
31, 484, 055
41,660, 432
17, 401, 705
59, 062, 137
-27, 578, 082
_
Source: Bureau of the Census, Department of Commerce.
Treasury's holdings of silver bullion and dollars, 1960-63 and Sept. 3, 1964
Silver bullion backing silver
certificatessilver
Other silver bullion
Silver dollars backing
certificates
Total ounces
,
Total dollars
Decrease
Ounces
Dollars
Ounces
Dollars
Ounces
Dollars
Ounces
Dollars
End of calendaryear-..-
1960
1961
1962
1963
Sept. 3, 1964
Total decrease
1, 741, 839, 335. 5
1, 730, 539, 335. 5
1, 654, 494, 335. 4
1, 532, 538, 548.6
1, 382, 873, 446. 3
2, 252, 075, 098. 77
2, 237, 464, 997. 77
2, 139, 144, 189. 75
1, 981, 463, 980. 59
1, 787, 957, 585. 88
123,
28,
36,
25,
21,
528, 745.3
457, 383.6
987, 896. 9
223, 063. 6
092, 766.4
.
88, 899, 932. 12
24, 183, 871, 64
30, 478, 599. 35
18,802, 183.92
19, 761, 663. 91
124, 862, 183. 9
101, 039, 729. 6
73, 642, 576. 3
22, 097, 981. 1
2, 279, 921. 3
161, 437,975
130, 637,220
95, 214, 644
28, 571,127
2, 947, 777
1, 990,
1,860,
.1, 765,
1, 579,
1, 406,
230,
036,
124,
859,
236,
264. 7
448. 7
808. 6
593. 3
134.0
2,
2,
2,
2,
1,
502,
392,
264,
028,
810,
413,
286,
837,
837,
667,
005. 89
095. 41
433. 10
291. 49
026. 79
130,
94,
185,
173,
193,
911,
265,
613,
816. 0
640. 1
215. 3
459. 3
110, 126,
127;448,
236, 000,
218, 170,
910. 48
662.31
141.61
264. 70
- -
-
583,
984,
130.7
691, 745,
979. 10
Mr. DOMINICK. Mr. President, first
of all, in my speech I recommended that
the Treasury set aside a specific amount
of silver in ounces for defense \purposes.
I wish nOw to point out the reasoning
for this, or the reasons behind it; and
I can do it very simply by quoting from
one or two statements made by Under
Secretary Roosa in answering my letter.
The first thing he said was:
The rate of silver withdrawals from the
Treasury to supply demand of other Gov-
ernment agencies which you requested in
question 8, amounted to 674,320.24 ounces
in calendar year 1961; 890,630.15 ounces in
calendar year 1962; 6,112,219.75 ounces in
calendar year 1963; and 5,071,673.25 ounces
so far in 1964.
Thereby showing that there has been
at least an increase of 10 times between
1961 and to date in the demand 'by other
governmental agencies for silver supplies
held by the Treasury. These are largely
used, for example, in batteries, photo-
graphic supplies, and in defense needs,
including the Polaris submarine.
It is worthy of note that unless we
do something about setting a supply of
silver aside for defense needs, we are
suddenly going to find ourselves trapped
in the position where we do not have
enough production of silver in the United
States to even supply the defense needs
of this country.
So long as we have a supply on hand
of silver presently available in the Treas-
ury, it seems to me to be nonsense not
to set aside some portion of this silver
for that purpose.
The Interior Department came out
today to have a study made to meet the
Department of Interior's primary re-
sponsibility to assure an adequate supply
of minerals to meet industrial and stra-
tegic needs of the Nation as effectively
as possible.
So the Interior Department itself is
aware of this situation.
As I pointed out in the speech, the
Treasury informed me in April of 1964
that we had enough silver to take care
of coinage requirements until 1972. And.
even though we were experiencing coin
shortages in April of this year, the prob-
lem has now become much worse. The
Treasury has now embarked ona crash
program to supply enough coins for the
country. This, they hope, will offset the
shortage. They plan to double produc-
tion from 4.3 billion coins in fiscal 1964
to 8 billion in fiscal 1965. This is ex-
tremely important. This is one of the
fundamental things that we must do
through the mint-provide enough coins
to be able to supply the American public
with their needs. ,y.;
After the Treasury stopped their out-
right market sales in November 1961,
the outflow of silver from their stocks
still continued to increase. During the
calendar year 1963, this outflow doubled
from calendar year 1962. It does not
take a mathematical genius to determine
that the Treasury will be out of silver
for coinage purposes, or perhaps for any
other purpose, long before 1972. Some
reliable sources estimate that it may
happen as early as 1966.
Our domestic production of silver con-
tinues'to seriously lag behind our domes-
tic consumption. The United States
consumes six times 'more silver than it
can produce and production continues to
decrease while consumption increases.
Throughout the world the problem is
nearly as acute. World consumption
continues to exceed world production by
a 2-to-1 margin. -In fact, the 1963 world
production figures were 210.5 million
ounces while the consumption of the
United States alone was 221.3 million
ounces, or more than the entire world
production.
The U.S. Treasury continues to serve
as the "bargain basement" for the world.
And, I am talking about their supply of
silver. The Treasury -holds the price of
silver at about $1.29 an ounce by selling
its silver under the guise of redeeming
silver certificates. The law of supply
and demand is thwarted in this manner.
For instance, during 1963 the Treasury
imported 59,062,137 ounces of silver, but
exported 31,484,055 ounces. Through
July of 1964, we have imported 32,103,-
664 ounces, but we have exported 32,172,-
130 ounces. Thus, through July of this
year, we have actually sold, during 1964,
68,466 ounces more silver to foreign
countries than we have purchased from
them. What kind of idiotic nonsense -is
this? Why are we selling more silver
abroad than we are importing? The
answer is simple-it seems to me, at least.
The Treasury is trying to hold the price
at $1.29. They are trying to avoid the
law of supply and demand. If there were
plenty of silver in the Treasury, it might
work; but with our rapidly dwindling
supply, it becomes dangerous. The rea-
son that the Treasury continues to keep
the price down is that they fear a rise
in price would cause our coins to be
melted down for their silver content.
Obviously, coins are already being
hoarded-Gresham's law is already be-
ginning to operate. The thrust of my
remarks today is that we must come to
grips with the basic issue. We will only
be able to produce more silver in this
country when we allow the price of silver
to seek its price in the znarket.
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21598 CONGRESSIONAL RECORD ? SENATE
I do not have any "pat" answer as to
how this may be handled. But I do
have a couple of suggestions which might
be of real use in trying to solve the silver
problem. I insist that we must face our
problems now, while there is yet time,
instead of waiting until our silver is all
gone. We ought at least to be able to
sit down with the authorities, to bring
this problem out into the open, and to
try to find some rational solutions to the
problem. /
? Only today the Department of Interior
announced a program which it described
as designed to alleviate the silver short-
age and stimulate domestic production.
I ask unanimous consent to have a copy
of this release printed-at this point in the
RECORD.
There being no objection, the release
was ordered to be printed in the RECORD,
as follows:
INTERIOR TAKES ACTION To EXPAND SUPPLIES
OF SILVER
The Department of the Interior announced
today that it is taking action to forestall
a possible shortage of silver and to expand
supplies of silver for essential national de-
fense and civilian requirements, 'such as
rocket and jet aircraft construction.
A special study, conducted by the Bureau
of Mines on instructions from Secretary of
the Interior Stewart L. Udall, reveals:
New uses for silver in solid fuel rockets,
supersonic jets, and special purpose batteries,
added to conventional strategic uses, make
any shortage of silver a potential threat to
national security.
While domestic mines have produced an
average of only 34 million troy ounces an-
nually over the past 5 years, average domestic
consumption over the same period has been
106 million troy ounces annually, over three,
times the volume of production from mines.
From 60 to 65 percent of silver from domes-
tic sources is derived as a byproduct from
processing ores mined principally for their
lead,- zinc, or copper content. The report
stated that, as a result, increased silver prices
cannot be wholly effective in stimulating
silver output.
The Nation's principal foreign suppliers of
silver?Oanada, Mexico, and Peru?also ob-
tain most of their silver as a byproduct of
other mining activity. Also, the free world
has been a deficit silver supply area for 5
years. With the outlook for continued short-
age, imports cannot be looked to as a likely
solution.
To meet the Department of the Interior's
primary responsibility to assure adequate
supplies of minerals to meet the industrial
and strategic needs of the Nation as effec-
tively as possible, Secretary4 Udall 'has:
Directed the Office of Minerals Explora-
tion?after he consulted with appropriate
congressional committees to increase the
percentage of Federal financial assistance
from a current maxitthun of 50 percent to 75
percent of the total cost of new private
silver exploration ventures.
Instructed the Office of Minerals and Solid
Fuels to determine potential silver supplies
available to meet mobilization needs and to
develop information needed to establish an
adequate mobilization base.
Ordered the Geological Survey to initiate
a reconnaissance program to outline favor-
able areas for the occurrence of near-surface,
high-silver deposits in Nevada. Initial work
will entail geologic mapping and geothermal
reconnaissance. Later studies will utilize ex-
perimental methods and techniques, and may
include -physical exploration of promising
areas.
Directed the Bureau of Mines to place par-
ticular emphasis on silver in mining and
metallurgical research and also in its nation-
wide resource evaluation investigations.
"We intend to make every effort to insure
a silver supply adequate to the Nation's
needs," Secretary Udall said. "Developments
are being watched closely and the Depart-
ment is giving top Priority to all aspects of
the silver situation."
Mr. DOMINICK. Mr. Pr?dent, the
gist of this announcement is that they
propose to increase the percentage of
Federal financial assistance by the Office
of Minerals Exploration from 50 to 75
percent of the total cost of new private
silver ventures. This proposal would not
affect the price, mind you; it would mere-
ly increase the percentage of Federal
funds to be used in finding new supplies.
We will have to wait to get the opinions
of the mining experts to see how mean-
ingful this proposal may be. -However,
I should like to point out that there is
considerable disagreement between
various silver interests over this issue.
In recent hearings, the spokesmen for
the silver users contended that new do-
mestic silver production could not be
stimulated even if the price of silver
doubled. This is disputed by mining
experts. The Treasury, quite artfully,
has said it does not really know.
I hope that this latest proposal will
be of help, but I must point out that it
still does not come to grips with the
law of supply and demand. No matter
how much Government assistance a
miner gets, he still must market his prod-
uct. If he cannot market his product
at the current market price, then we
have not really solved anything, no mat-
ter how much Federal money we may put
into it.
I must also point out that if additional
silver supplies are discovered through
this stimulation, it will take' a consid-
_erable period of time before production
can be obtained, even if a price rise made
such production profitable.
As I stated, I certainly hope that the
Interior Department's actions will be
helpful to the production of additional
silver supplies. But I would suspect that
it may be more calculated to obtain votes
for western Democratic Senators now
in tough races for reelection.
I say this deliberately. It seems to
me that we have not tried to come to
grips with the fundamental problem.
That problem is that one cannot get mar-
keted additional supplies of silver until
such time as the law of supply and de-
mand has operated, the price 'if silver
has gone up, and thereby stimulated the
production of additional silver. In the
meantime, while we are doing that, ? we
may devise some system to help out with
problems which this- will create in our
coinage problem which we are now fac-
ing.
RELIEF OF NORA ISABELLA
SAMUELLI
Mr. PROXMIRE. Mr. President, the
Committee on the Judiciary yesterday
ordered that two private claim bills, S.
2413 and S. 2414, for the relief of Nora
Isabella Samuelli be favorably reported
to the Senate.
In behalf of the Senator from
September 16
Kentucky [Mr. COOPER], I wish to say
that he had introduced the bills on De-
cember 20, 1963, for himself and the
Senators from New York [Mr. JAVITS and
Mr. KEATING], and is very glad that the
committee has re'commended their en-
actment.
The Senator from Connecticut [Mr.
Dom)] had also introduced a bill on this
subject, and, as a member of the Com-
mittee on the Judiciary, has worked un-
ceasingly to search out the facts and to
secure the approval of the bills.
The Sentaor from Rhode Island [Mr.
PELL] has also joined from the beginning
in the efforts of the Senators to assure,
fair and proper relief for Miss Samuelli.
Also, the Senator from Indiana [Mr.
HARTKE1 has been in touch with the com-
mittee, expressing his support for these
bills.
Because of their deep interest and help
on this case, the Senator from Kentucky
has asked me to ask unanimous consent
that the names of Senator DODD, Senator
PELL, and Senator HARTKE be added as
cosponsors of S. 2413 and S. 2414 when
the bills are reported by the committee.
The PRESIDING OFFICER. Without
objection, it is so ordered.
ADJOURNMENT UNTIL 11 A.M.
TOMORROW
Mr. PROXMIRE. Mr. President, at
the specific request of the leadership, I
move that the Senate adjourn until 11
o'clock tomorrow morning.
Mr. DOUGLAS. Mr. President, will
the Senator from Wisconsin withhold
his motion?
Mr. PROXMIRE. Mr. President, I
withhold my motion.
Mr. DOUGLAS. Before the motion is
made, I ask unanimous consent that
when the Senate reconvenes tomorrow,
the Senator from Wisconsin [Mr. PRox-
MIRE] shall have the right to the floor
and be privileged to continue his speech
after the morning hour.
The PRESIDING Oioltei.CER. After
morning business has been concluded?
Mr. DOUGLAS. After morning busi-
ness has been concluded.
The PRESIDING OF.FICER. Is there
objection? The Chair heats none, and
it is so ordered.
Mr. DOUGLAS. Before the motion to
adjourn is renewed, I invite the atten-
tion of Senators and the country to the
significance of the statement of the Sen-
ator from Wisconsin that this action is
being taken at the request of the Senate
leadership. It is now almost 6 o'clock
in the evening. Generally, the Senate
convenes at 12 o'clock noon. ' But the
Senate leadership wishes to have the
Senate convene an hour earlier tomor-
row. We are very glad to conform to
this request.
The RECORD will bear out the fact that
we who are opposed to the Dirksen-
Mansfield amendment were ready to
have a vote on the Javits-McCarthy-
Humphrey substitute on Monday instead
of _Tuesday, but the leadership found it
impossible to get a group together on
Monday and so asked to have the vote
go over until Tuesday. We have made
every effort to be cooperative.
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