AMENDMENT OF FOREIGN ASSISTANCE ACT OF 1961

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000300070027-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 15
• Document Creation Date: December 23, 2016
• Document Release Date: February 21, 2014
• Sequence Number: 27
• Publication Date: September 15, 1964
• Content Type: OPEN SOURCE

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21416 CONGRESSIONAL RECORD ? SENATE
in a vacuum. They must be tackled by
skilled people fully acquainted with all
the facts and dedicated to finding sound
and workable solutions. The broad and
enthusiastic support given to S. 2 is a
testimonial to the wisdom and popular-
ity of this approach.
Perhaps more than most States, Ne-
braska has water resource problems.
There are several irrigation projects
either under construction or in plan?
ning in the Lower Loup Valley. It is
important to know their ultimate effect
upon the streamflow in the lower reaches
of this river after these projects are com-
pleted. Nebraskans need to know what
effect, if any, these and other projects
will have on domestic water supplies. We
want to know more about our under-
ground water supply. If signs appear
that we are overpumping from that sup-
ply and depleting it, we want some tech-
nical advice and assistance on what to do.
All of these and many other subjects and
problems will fall within the areas of
inquiry supported by this legislation.
As a land-grant college, the University
of Nebraska is eligible for participation
in the piogram established by this year's
act. Officials of the school have assured
me of their keen interest in cooperating
in this new effort and have already given
a great deal of thought to the plans and
proposals that will be submitted for ap-
proval.
The work that has been and is being
done at the university both in Lincoln
and throughout the State in the field of
water research and related disciplines
enjoys international recognition. The
care and diligence with which the people
there have approached this new program
is in keeping with the clear thinking that
has guided all their undertakings.
Our soil and water conservation pro-
grams in Nebraska are internationally
recognized and admired. Many people
in the State have contributed to their
success. Our university has made a
significant contribution and we Nebras-
kans take pride that the perimeters of
that institution's obligations and re-
sponsibilities are not the boundaries of
its campuses in Lincoln and Omaha but
the boundary lines of the State itself.
Once the expected research institute in
Nebraska is established and operating
smoothly, no community, no watershed,
indeed no Nebraskan will be without a
place where information and counsel can
be obtained.
The need for sound planning even in
the initial stages of the implementation
of the new act must be clearly recognized
by all. If our new research programs are
to provide maximum benefits, the plan-
ners in each State must carefully think
through what they want to do with the
funds that will be made available to
them. They must ask themselves, where
do we want to go and what problems do
we want to study.
In this regard, those administering the
program on the Federal level must take
pains not to encourage the States to
shortcut the processes of sound thinking
and careful planning. The States must
not be led to believe that when an ap-
plication for a grant is illed is more im-
portant than what the application
contains.
I have been very pleased to learn that
officials at the agency within the De-
partment of Interior responsible for mov-
ing this program forward are aware of
the dangers I have outlined. It is my
understanding ' that discussions with
water resource leaders in all the 50 States
are planned and that these should be
completed by January. These talks un-
doubtedly will contribute much toward
building a solid basis on which a mean-
ingful long-range program can be con-
structed.
Once the deliberations on the appro-
priations request for this program have
been completed, the Congress will be able
to judge what funds are needed to as-
sure that good progress is made. The
guidelines provided by the Appropria-
tions Committee will be very useful in
this regard. To insure that no time is
lost and that the Department will be in
a position to start receiving applications
for grants at the earliest practicable time,
every consideration should be given to,
providing needed staff and facilities.
Mr. JAVITS. Mr. President, I sug-
gest the absence of a quorum, the time
to be charged equally to each side.
The PRESIDING OFFICER. With-
out objection, it is so ordered; and the
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
MESSAGE FROM THE HOUSE
A message from the House of Repre-
sentatives, by Mr. Hackney, one of its
reading clerks, announced that the
House had passed, without amendment,
the following bills of the Senate:
S. 584. An act for the relief of Yih-Ho Pao
and his wife, Joanne T. Pao;
S.1737. An act for the relief of Arthur
Wendell Bolta;
S. 1966. An act for the relief of Glenda
S. 1986. An act for the relief of Hattie Lu;
S.1999. An act for the relief of Francisco
Navarro-Paz;
S.2205. An act for the relief of Giuseppe
DiCenso;
S.2629. An act for the relief of Czeslaw
(Chester) Kaluzny; and
S. 2812. An act for the relief of Joanne
Irene Taylor.
The message also announced that th
House had agreed to the concurrent r s-
olution (S. Con. Res. 66) wlthdrwf
suspension of deportation of J
September 15
The PRESIDING OFFICER. The
Senator from Ohio is recognized for 3
minutes.
Mr. LAUSCHE. Mr. President, I shall
not support the substitute amendment,
for the following reasons.
In Ohio, in 1903, the Constitution was
amended so as to give each county within
the State one member in the lower house.
The size of the population was not at all
considered in making that allocation of
one member to each county to represent
it in the lower house of the legislature.
In 1903 an amendment was adopted
by the people of Ohio which further pro-
vided for an increased number of repre-
sentatives for the larger counties.
The argument has been made on the
floor that State legislatures have refused
to reform the law dealing with repre-
sentation, so as to conform more closely
to population representation, and there-
fore something had to be done by the
courts.
I point to the situation as it prevails in
Ohio.
In 1913 a constitutional convention
was held. One of the issues discussed in
the convention was whether there
should be an amendment of the consti-
tution to provide representation on the
basis of population in both houses of the
legislature. In that convention the pro-
posal was disapproved.
In 1932, in accordance with the pro-
visions- of the constitution of Ohio, the
following question was submitted to the
people: "Shall there be a constitutional
convention?"
City political bosses, labor leaders, and
others argued that equality of repre-
sentation did not exist in the legislature.
It was argued that the big cities did not
have an adequate voice, and that there-
fore the constitution ought to be
amended.
The appeal was made to the voters of
Ohio that a constitutional convention
should be held, and that the constitu-
tional convention should reform the
State law. That issue went to the vot-
ers. The voters rejected it overwhelm-
ingly. They declared that they wanted
no tampering with the constitution of
Ohio as it then existed.
Now we come down to 1952, 20 years
later. I was Governor of the State at
the time. The issue again was on the
ballot. It was submitted to the people
of Ohio, then about 8 million. The ques-
tion was: "Shall there be a constitu-
tional convention?"
The proponents argued that it was
eeded to procure equity in representa-
tion in the legislature.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. JAVITS. I yield 2 minutes to the
Senator from Ohio.
Mr. LAUSCHE. Again the proponents
were those who said that the big cities
did not have adequate representation.
The opposition argument was that it was
impossible to have good government if
the legislature was dominated by the
big city political bosses and the labor
leaders. That was in 1952. Good gov-
ernment is obtainable only when there
exists the moderating influence of city
AMENDMENT OF FOREIGN ASSIST-
ANCE ACT OF 1961
The Senate resumed the consideration
of the bill (H.R. 11380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
Mr. CURTIS. Mr. President, on be-
half of the minority leader [Mr. DIRK-
SEN] I yield 3 minutes to the distin-
guished Senator from Ohio [Mr.
LAUSCHE].
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1964 CONGRESSIONAL RECORD ? SENATE
and rural representation?one upon the
other.
? There are 88 counties in Ohio. Can-
ton, an industrial city, is located in Stark
County. Akron is located in Summit
County. Akron is also an industrial cen-
ter. Cleveland, our large industrial cen-
ter, is located in Cuyahoga County.
Lucas County has located in it the city
of Toledo, an industrial community.
Dayton is located in Montgomery County.
Hamilton County contains in it Cincin-
nati, another industrial center.
The query could be made: How did
the people of Ohio vote in 1952 on this
issue? The answer is that not one
county in the State?and that included
the counties in which Cincinnati, Dayton,
Cleveland, Toledo, Steubenville, Colum-
bus, Lima, Youngstown, Canton, and
Akron are located?voted in favor of
that measure.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. JAVITS. I yield 1 minute to the
Senator from Ohio.
Mr. LAUSCHE. The people of Ohio
felt that their legislature was properly
apportioned. They did not wish to
change, Mr. President. If they wanted
to change, they had the opportunity to
effectuate the change. They rejected
the proposal.
It is on this basis, representing the
views of the people of my State, that I
shall not vote for the substitute amend-
ment which is now before the Senate.
Mr. JAVITS. Mr. President, I yield
myself 30 seconds to inform the majority
leader that we have reserved as much of
his time as possible, except that the
Senator from Nebraska [Mr. Cur{xis]
yielded 3 minutes to the Senator from
Ohio [Mr. LAUSCHE] and that in order to
equalize the time I also yielded 3 minutes
to the Senator from Ohio.
I yield myself 1 minute.
Mr. President, it has been said that the
"sense" resolutions to which I referred in
my preliminary presentation were direct-
ed primarily to foreign affairs. .
I used the analogy only to demonstrate
that where we do not have the power to
tell the President what to do in a given
situation, the only way we can communi-
cate our intention and desire to a co-
ordinate branch of the Government is
to adopt a "sense" resolution.
These resolutions are very serious mat-
ters. Under a "sense" resolution the
Marines went into Lebanon. The 7th
Fleet defended Taiwan under a "sense"
resolution. The United States stood
firm, in the face of the danger of atomic
war over Berlin, under a "sense" resolu-
tion.
I point out also that where a coordi-
nate branch of the Government is con-
cerned, we do not hesitate to adopt a
"sense" resolution on domestic as well
as foreign policy matters. For example,
I have before me Senate Concurrent Res-
olution 53, which expresses the sense
of the Senate and the House of Repre-
sentatives that Government employees
should travel on U.S. flag air carriers.
This is a matter within the province of
the executive branch.
Therefore, Mr. President, a "sense"
resolution is a technique expressly de-
signed for this kind of situation.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. JAVITS. I yield myself 1 addi-
tional minute.
Before my good friend the distinguish-
ed minority leader came into the Cham-
ber I said what I think he should hear
and what I think is fair to say, namely,
that those of us who support the amend-
ment which we have proposed do not feel
that we have the power to mandate the
Supreme Court in pending cases. That
is what it comes down to. In at least 34
of the 50 States cases are pending in the
Federal courts right now. Therefore, we
do not have the power to mandate be-
cause it is unconstitutional to try to write
a rule of decision for a coordinate body.
The only other alternative we have is to
express our intention and desire. I am
deeply confident that the Supreme Court
would listen to us, just as the President
on many occasions has listened to us.
He did so because it represented the will
and the view of the Congress.
This is the only course we can follow
and the only way in which we can ex-
press ourselves to a coordinate body.
Mr. DIRKSEN. Mr. President, a par-
liamentary inquiry.
The PRESIDING OFFICER. The
Senator will state it.
Mr. DIRKSEN. How stands the time
with respect to the proponents and op-
ponents?
The PRESIDING OFFICER. The
proponents have 18 minutes remaining,
and the opponents have 13 minutes re-
maining.
Mr. DIRKSEN. Mr. President, I yield
myself 5 minute's. '
I pointed out earlier today what the
Attorney General of the United States
said about sense-of-Congress items in
any kind of measure, insofar as their
binding effect is concerned. I am sure
my friend from New York [Mr. JAvrrs1
will readily admit that these resolutions
are wholly advisory, even in the inter-
national domain. The President of the
United States, in his capacity as Com-
mander in Chief under the Constitution,
could have done everything that the
Senator recited without having come to
Congress. Our action had only a shor-
ing-up effect, in order to put some steam
into it, to show that there was unanim-
ity of purpose as between the executive
branch and the legislative branch. But
as the Attorney General said, Congress
could, of course, have embodied its policy
in a provision of positive law, to which
the executive branch would have been
bound to adhere. That, Congress did not
choose to do. So it is significant, not
only in establishing that section without
legal effect, but in determining its proper
interpretation and application as policy.
Out of that, the Attorney General said,
with respect to the wheat deals, that
what was written into the 1961 act had
no binding effect, and the executive pro-
ceeded accordingly.
Either we are going to do something
that will have a positive, affirmative ef-
fect, or we shall leave it on an advisory
basis. But the Supreme Court had al-
ready indicated to the lower courts, and
particularly to the three-judge panels,
that they could exercise discretion, they
21417
could exercise reason; but they did not
do so.
The Senator from Colorado [Mr. AL-
Lorr] is in the Chamber. He knows that
Colorado had 15 days in which to con-
vene its legislature. The three-judge
court said, "The confusion is not of our
making." Its order is before us. So the
court fairly washed its hands of the mat-
ter and took an arbitrary position with
respect to redistricting?and some of the
districts are amazing, to say the least.
The same thing happened in Okla-
homa. I presume the same thing will
happen everywhere. Although the Su-
preme Court said that the lower courts
should use the rule of reason, still the
lower courts did not do so. In conse-
quence, it is necessary to provide some
teeth.
I remember a story about an English
rector who was describing the glories of
heaven and all the felicity there. He
said there would be ambrosia and nectar
for everybody; no cares, no worries, no
anxieties. When he had finished his ser-
mon, an old man came up and said,
"Rector, what am I going to do when I
get to heaven? I don't have any teeth."
The rector looked at him and said,
"Mister, teeth will be provided."
That is what we are trying to do. We
are trying to put a few teeth into this
matter. That is why the substitute of
my friend from New York [Mr. JAvirs]
is, in my judgment, meaningless. In
fact, it is a little more than meaning-
less in the sense that the first part ex-
presses the sense of Congress; but the
second part states that in framing any
kind of future decree, the courts shall
consider whether or not a constitutional
amendment has been initiated. Obvi-
ously, that will require the organization
of a new Congress, the filling in of gaps
on committees, the establishment of sub-
committees, the holding of hearings, the
reporting of a proposed amendment to
the Senate and the House; and then
launching it to the country. How long
will that take? In that time, the Court
could freeze a pattern in so many States
as to cause no end of trouble.
Mr. ALLOTT. Mr. President, will the
Senator from Illinois yield?
Mr. DIRKSEN. I yield.
Mr. ALLOTT. The Senator referred to
the Colorado stituation, which is as bad
as any situation as a result of the Sims
decision. It is only fair to say?and it
also demonstrates the ridiculous situa-
tion in which various elements of the
country are put?that the same three-
judge court that was subsequently forced
to give the Governor 15 days in which to
convene the legislature to reapportion
the State had previously declared the
constitutional amendment in Colorado
constitutional by a 2-to-1 majority.
That decision was appealed to the Su-
preme Court, and as a result of the Sims
case the same lower court was required
to follow the decision of the Supreme
Court. It finally declared the new ap-
portionment constitutional; but it was
immediately declared unconstitutional
by the State supreme court.
Mr. DIRKSEN. It is an impossible
situation.
I allude to a letter I received from a
State senator in Oklahoma. The Okla-
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d?
21418 CONGRESSIONAL RECORD ? SENATE September 15
homa primary election law was invali-
dated, and the constitutionality of the
legislature was invalidated. The senator
to whom I refer was elected in 1960 for a
4-year term. The invalidation took
away half of his term. He had engaged
in the primary contest and spent what
money he had. He has no more to spend.
Now he will have to run in a second pri-
mary. What an amazing state of affairs.
I wish to allude to one other event.
Only a few days ago, .in the great State
of Michigan, according to the Washing-
ton Star of September 12 and the Wash-
ington Post of Sunday, September 13, a
decision by the circuit court of Kent
County, Mich., was reported. The court
ruled that, pursuant to the decision
of the Supreme Court, there must be
a reapportionment on the basis of one
man, one vote, the Kent County Board
of Supervisors must be reapportioned.
Mr. President, this situation could be
carried out to apply to park districts and
irrigation districts. I do not know where
it might lead but it is what Justice
Frankfurter referred to, when he was a
member of the Supreme Court, as the
"political thicket" that we get into when
the Court assumes legislative responsi-
bility.
This is serious business. I earnestly
hope that the substitute amendment of-
fered by my good friend from New York
will be voted down and that, at long last,
we may have a vote on the Dirksen-
Mansfield provision, which has been be-
fore the Senate for a good many weeks.
Mr. JAVITS. Mr. President, I yield
myself 4 minutes. I do so in order to
answer several points made by the dis-
tinguished Senator from Illinois. He has
constantly referred to the aihendment
as my amendment. It is not.
Mr. DIRKSEN. I am sorry.
Mr. JAVITS. That is quite all right.
The amendment is joined in by the two
Senators from Minnesota [Mr. HUM-
PHREY and Mr. MCCARTHY] . It is very
much a bipartisan effort. The language
that has now, been substituted has been
developed?and I say this with their per-
mission?by the Senator from Illinois
[Mr. DOUGLAS] and the Senator from
Wisconsin [Mr. NELSON]. We have had
the intermediation of a number of other
Senators, including the Junior Senator
from Montana [Mr. METCALF] .
What does our proposal come down
to? It comes down to this practical
question: If one does not agree that the
Supreme Court has the power to make
the decisions that it made in Baker
against Carr and in Reynolds against
Simms, and if one feels that Congress has
the power to mandate the Supreme Court
as to how to decide pending cases, then
obviously this "sense" amendment is
meaningless. But if one believes, as I
do, and as I deeply believe a majority of
the Senate should, that the Supreme
'Court has the power to decide cases
under the 14th amendment and that the
Supreme Court has power to deal with
pending cases, notwithstanding any
mandate we may give the Court to the
contrary, then we face a problem of
power as between two coordinate
branches of Government. In my judg-
ment, it is essential to the security of
this Republic that each branch respect
the other as it would itself wish to be
respected, and that the legislative
branch not seek to assert power which
would compel the Supreme Court to say,
if it is to be left as an institution at all,
and to have any self-respect, that we do
not have.
It is the function of governance to
avoid dreadful confrontations. That is
the reason we take the position we do;
and, also, because there is a doctrine in
the courts, secure in law, known as equi-
table abstention. I shall be happy to give
the citation to sustain my view. There
is the case of Louisiana Power & Light
Company v. City of Thibodaux City, 360
U.S. 25, and also the case of Harrison
v. N.A.A.C.P., 360 U.S. 167. Both cases
invoke the doctrine-of equitable absten-
tion, which means that the Court, deal-
ing with equity cases?and the appor-
tionment cases are all equity cases?has
the power to stay its hand, and will stay
its hand, for whateyer reason it believes
equity dictates. -
One of the classic reasons for doing so
is in a case involving the construction of
State statutes, to give an opportunity to
the State courts to decide that issue in
the first instance, without in any way
surrendering Federal power. Another in-
stance, which we are now invoking, is to
give the States and the Federal Govern-
ment a reasonable opportunity to work
their will. By passing the "sense" reso-
lution, we inform a coordinate branch
of government as to what we wish done
in this regard.
I do not believe that we have the power
to tell the Supreme Court how it must
decide a great majority of State appor-
tionment cases, because they are all
pending cases. The precedents, in my
'judgment, are clear that it represents a
rule of decision which the Court would
have to strike down.,
We face another practical question.
There are not enough votes in the Sen-
ate for , cloture. We realized that re-
cently.
The PRESIDING OFFICER (Mr. BATH
in the chair) . The time of the Senator
from New York has expired.
Mr. JAVITS. Mr. President, I ask
unanimous consent that I may proceed
for 2 additional minutes.
The PRESIDING OFFICER. Without
objection, the Senator from New York is
recognized for 2 additional minutes.
Mr. JAVITS. Cloture failed not by a
yard, but by a mile. There are not
enough votes to table the Mansfield-Dirk-
sen proposal. The country is standing
still right now in terms of our activities.
It is our duty as legislators to find some
honorable way out. I believe that we
have given the Senate an honorable way
out, consistent with the powers of co-
ordinate branches of government, con-
sistent with respect and dignity of each
body, and consistent with the needs of
the situation.
The Senator from Colorado, the Sena-
tor from Illinois, and I, complaining
about the New York case, state that we
believe some lower courts have gone hay-
wire in this matter and it needs to be cor-
rected by the Supreme Court. What bet-
ter way to correct it than by declaring
to the Court exactly what we propose to
do, step by step, from now on?whether
a constitutional amendment in the Fed-
eral Establishment, or State action to
meet the standards set by the Supreme
Court on apportionment.
Finally, our country is growing into an
urban society. More than 70 percent of
the American people now live in urban
centers. This, it seems, is but a socio-
logical certification of the march of time
and the march of progress. What we
need is the opportunity to conform to it.
What we need is to give the people of
each State the opportunity to decide, if
they choose; and they may choose to
have one house of their legislature not
apportioned by population. They may
take a Federal constitutional amend-
ment. This takes time, so that the de-
cision as between Senators who will vote
for our substitute and those who will vote
against it, I believe in all fairness, is one
between those who agree or disagree with
the fundamental premise of the Supreme
Court. We seek the time to bring that
about. They feel that it is wrong. They
want to direct the Court not to do it. I
do not believe that they can do that con-
stitutionally, except by a constitutional
amendment.
I seek to avoid that dreaded confronta-
tion. Hence, this substitute. ,
Mr. President, I reserve the remainder
of my tune.
Mr. , DIRKSEN. Mr: President, I
yield myself 3 minutes.
The PRESIDING OFFICER. The
Senator from Illinois is recognized for
3 minutes.
Mr. DIRKSEN. I wish I could share
the optimism of the distinguished Sen-
ator from New York as to the impact the
sense of Congress will have on thinking.
In the realm of the decision of
Reynolds against Sims, it seeks to invoke
the lower court to be reasonable, to take
into account the extraordinary circum-
stances. But did they do it? Let me
read from the final order in the Okla-
homa case:
If confusion and hardship results from the
vacation of the primary elections, it is not
of our making.
They washed their hands of it.
Continuing further:
- Our duty is to reapportion the Oklahoma
Legislature in accordance with the estab-
lished law of the land.
If we look to that final order, what
does the three-judge court say?
There is ample time and sufficient funds
for the special elections. In these circum-
stances, we decline to withhold the immedi-
ately available remedy to which the plain-
tiffs are clearly entitled. We accordingly
vacate the primary elections conducted un-
der the Oklahoma court's standby order,
and we find and hold that a vacancy exists
in all of those offices, within the meaning
and as contemplated by, (a decision),.
Yet in Reynolds against Sims, the
Chief Justice himself stated, "be reason-
able."
There is the example of reasonable-
ness. That is why it requires something
more than to say, -"Pretty please, Mr.
Court. Do this. Do that. Be reason-
able. Go slow."
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CONGRESSIONAL RECORD ? SENATE
I should like to see it nailed down and
have some teeth in it, until we can get
around to the constitutional amending
process.
Mr. JAVITS. Mr. President, I yield
3 minutes to the Senator from Minne-
sota [Mr. MCCARTHY].
The PRESIDING OFFICER. The
Senator from Minnesota is recognized
for 3 minutes.
Mr. McCARTHY. Mr. President, I
hope that the Senate will support the
modified amendment-of the Senator from
New York [Mr. JAvirs], which has been
sponsored also by the senior Senator
from Minnesota [Mr. HUMPHREY] and
myself. ?
I believe that it is a prudent and prac-
tical solution to a rather difficult prob-
lem. The effect of it should be satisfac-
tory to everyone who is concerned about
the problem of reapportionment.
The adoption of the amendment
would help to get the Senate on its way
toward passage of the foreign aid bill
and completion of the other unfinished
business which lies before us before we
can finish this session of Congress.
There is a practical problem as to what
would be the effect of the Court's de-
cision on the structure of State legisla-
tures, in the long run and in the short
run. Most Senators are concerned that
State legislatures should not be elected
at large in the next election, if it can
possibly be prevented. In this amend-
ment we are proposing a reasonable ac-
commodation of the position taken by
many Members of this body and of the
House who are concerned over their
State legislatures.
I have some concern as to what might
happen in my own State, because there
?is a case in court in Minnesota relating
to this problem. I believe that if we have
a reasonable time?it should mean not
more than '2 years during which the leg-
islature of the State could act?the prob-
lent could be taken care of; whereas, if
action were taken so as to force an elec-
tion at large in this November's election,
It would certainly cause undue hardship
in the State of Minnesota.
Therefore, I believe that any Senator
concerned merely with the practical and
prudent approach to this problem should
be able to see his way clear to support
this amendment.
Those who wish to express some kind
of legislative declaration that the Court,
should be reasonable and orderly in its
approach to reapportionment will find
enough in this amendment to merit
their support.
Then there are those who support a
constitutional amendment as the proper
way to proceed in meeting the problem
of apportionment and representation in
the States.
The PRESIDING OFFICER. The
time of the Senator from Minnesota has
expired.
Mr. JAVITS. Mr. President, I yield
3 additional minutes to the Senator
from Minnesota [Mr. MCCARTHY] .
The PRESIDING OFFICER. The
Senator from Minnesota is recognized
for 3 additional minutes.
Mr. McCARTHY. The "sense Of Con-
gress" amendment we are proposing
No. 176-5
would enable those who are actively op-
posed to the Court's decisions to ex-
press?as much as Congress has the
power?What their intention is: to try
to secure action on a constitutional
amendment. If Congress, following
public hearings and proper procedures,
were to propose a constitutional amend-
ment in the next session, and if it should
be ratified, then it would be the law of
the land and the States could proceed
to establish legislative districts in ac-
cordance with its provisions.
I therefore believe that this modified
amendment offers to any Senator?no
matter what his point of view may be
with regard to the problem of apportion-
ment?a place in which he can find a
justifiable home and a proposal which
he can support.
It does no violence to the Supreme
Court or to the judicial system of our
country. It does no violence to the House
of Representatives or to the U.S. Sen-
ate. It in no way intrudes upon or
interferes with the operation of the State
legislatures of our, land.
This is sometimes not the case in ac-
tions which we take. It seems to me it
would not have been the case if we had
proceeded with the original Dirksen
amendment, or if we adopted the Mans-
field-Dirksen modification.
I urge all Senators to support this
amendment.
Mr. JAVITS. I thank my colleague for
his cooperation on this occasion, which
I consider to be historic in the history
of our Nation.
I yield 1 minute to the senior Senator
from California.
Mr. KUCHEL. Mr. President, the
American system of government is
unique. The American system provides
for an independent judicial establish-
ment.
. I urge the Presiding Officer and all my
fellow Senators to reject any type of
rider which would destroy the inde-
pendent American judiciary.
There is a way to provide that that
kind of a rider will not be attached to
the foreign aid bill and that is to support
the proposal offered by the senior Sen-
ator from New York [Mr. JAvirs] , the
senior Senator from Minnesota [Mr.
HUMPHREY], and the junior Senator
from Minnesota [Mr. MCCARTHY].
My personal desire is to object to any
kind of attempt to restrict the indepen-
dence of the judiciary. But I am not
in the position of being completely free
in this Chamber. I cannot ask the Sen-
ate to do what I want it to do. So I am
taking what I frankly feel is the lesser
of two evils. I shall support the pro-
posal offered by my colleagues because
it is, in the order of magnitude, far less
than the other alternatives presented to
us.
Mr. JAVITS. Mr. President, I yield
myself 1 minute.
The % PRESIDING OFFICER. The
Senator from New York is recognized for
1 minute.
Mr. JAVITS. Mr. President, it has
been said time and again that this is a
grave constitutional test. I believe that
it is a grave constitutional test, because
it calls upon the Senate to exercise that
21419
spirit of self-discipline which alone can
make this Government work.
That spirit of self-discipline inheres
In the fact that a particular body of
Congress will restrain itself from exer-
cising authority which it believes to be
contrary to the Constitution, because it
believes in the coordinate powers of the
Government to such a degree.
The PRESIDING OFFICER. The
Senator's time has expired.
Mr. JAVITS. Mr. President, may I
have 1 additional minute?
?The PRESIDING OFFICER. The
Senator from New York is recognized for
1 additional minute.
Mr. JAVITS. Mr. President, in this
particular case we have a unique reason
for staying our hand. That reason is
that it seems to be the overwhelming,
prevailing weight of opinion that under
the Constitution, the Supreme Court has
the right to act as it did in these par-
ticular reapportionment cases.
If that is the case, the only way in
which we can act to assert ourselves-in
the face of what we consider to be the
abuses of discretion in the lower courts
Is in this fashion. The history of our
Government, in terms of comity extended
by one coordinate branch to the other,
is well known. The difference between
this case and the case that the Senator
from Illinois [Mr. DnuEszN] has been
using, of the shipment of wheat into the
Communist bloc, is that in that instance
we had the power to act by law, and in
this instance, the basic premise under
which we are proceeding, we who pro-
pose the amendment, is that we do not
have the power to mandate the Supreme
Court in respect to these respective cases.
Therefore, we are doing what respect for
the other coordinate branch of the Gov-
ernment requires that we do, in the only
way we can do it.
Mr. DIRKSEN. Mr. President, I yield
1 minute to the distinguished Senator
from Hawaii.
The PRESIDING OFFICER. The
Senator from Hawaii is recognized for
1 minute.
Mr. FONG. Mr. President, I oppose
this amendment.
The logical extension of the Supreme
Court's decision would be an amendment
to the U.S. Constitution or a Supreme
Court decision requiring reapportion-
ment of the U.S. Senate on the basis of
population in spite of the prohibition
"that no State without its consent, shall
be deprived of its equal suffrage in the
Senate" under article V.
The Supreme Court may rule this pro-
'vision has been Superseded by the 14th
amendment.
Hawaii has only 700,000 of our Nation's
192 million people. On the basis of pop-
ulation, with 100 Senators, Hawaii would
be entitled to but one-third of a Sena-
tor?in Other words, none.
As a Senator from Hawaii, I must
vigorously protect Hawaii's voice in the
Senate and oppose any moves which
might deny or diminish that voice.
The State of Hawaii did not send me
here to liquidate the representation of
the State of Hawaii in the Senate of the
United States.
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A move to so amend the U.S. Constitu-
tion is not at all farfetched. Recently
the New Republic, a well-known liberal
publication with nationwide circulation,
cited Hawaii as a State which is grossly
overrepresented in the U.S. Senate. It
further stated that the "wildly malap-
portioned U.S. Senate, like the British
House of Lords, has got to be reformed."
Therefore I ask my colleagues to vote
down this proposal.
Mr. JAVITS. Mr. President, I yield 1
minute to the Senator from Illinois [Mr.
DIRKSEN].
Mr. DIRKSEN. Mr. President, I yield
2 minutes to the distinguiihed Senator
from Colorado.
Mr. ALLOTT. Mr. President, I should
like to raise two or three points. First
of all, the Mansfield-Dirksen amendment
is not a mandate to the Supreme Court.
It is a substantive piece of law which
would prevent the continuation of a de-
cision which is utterly wrecking the legis-
lative process in the legislative systems
of the country.
I believe Senators should understand
that this is not a matter of telling the
Supreme Court what to do. We canna
do that. It is, rather, a piece of sub-
stantive law to prevent the decision of
the Supreme Court from going into ef-
fect. '
Second, I wish to make the point that
I have just read article V of the Consti-
tution. We are asked now to act upon
a totally meaningless amendment. It
has no mewling. It has no substance. It
is a "sense" amendment. In fact, it is
a negative amendment. If we were to
Pass it, we would be saying that we did
not have the will or the courage, as the
case may be, to vote on a substantive
amendment that meant something.
? The real significance of the amend-
merit now being offered and of the Dirk-
sen-Mansfield amendment, is that they
assume that the Congress of the United
States will, in the next few months, sub-
mit, by a two-thirds vote of each House,
a constitutional amendment to the legis-
latures of the States. By that \time, the
legislatures of the country will be legis-
latures which have been built up under
the one man, one vote principle in both
Houses. No one in the country can pos-
sibly be so foolish as to believe that they
would adopt a constitutional amendment
which would legislate themselves out of
office.
Mr. JAVITS. Mr. President, I yield 1
minute to the Senator from Wisconsin.
Mr. NELSON. Mr. President, I join
in the comments made by the senior
Senator from California [Mr. KucHEL]
I would prefer that there be no amend-
ment or no resolution pending.
I believe the issue at stake is not
whether a Senator is for or against a
Population apportionment of both houses
of the legislature. No matter what a
Senator's position may be on that issue,
he ought to stand firm against any reso-
lution which requests the Supreme Court
to suspend temporarily, or which ex-
presses the sense of Congress that the
Supreme Court suspend any constitu-
tional right for any period of time.
This resolution does not do that. It
expresses our concern that a reasonable
time be given in which to comply with
the Constitution. That is what the Su-
preme Court has done, anyway. It sim-
ply says that in the event a constitu-
tional amendment is submitted to the
States, the Supreme Court should take
that into consideration in drafting their
decree.
It is a perfectly reasonable, sensible
resolution. It does not compromise the
integrity of the Supreme Court.
Mr. JAVITS. Mr. President, I yield 1
minute to the Senator from Rhode
Island.
The , PRESIDING OFFICER. The
Senator from Rhode Island is recognized
for 1 minute.
Mr. PASTORE. Mr. President, I
shall vote for this amendment, not be-
cause I believe it belongs in the bill. I
believe that it has no place in the foreign
aid bill. But I believe it is the only way
out of the impasse that the Senate finds
itself in.
I wish to make one observation to the
Senate. This is no decision of It packed
Court. Two of the Judges who decided
this matter, 8 to 1, were appointed to
this Court by Franklin Roosevelt. One
of them was appointed to this Court by
Harry Truman. Some were appointed
to this Court by General Eisenhower,
some were appointed by John F. Ken-
nedy. Eight members of the Court were
appointed by four Presidents. To sit here
and say that this is an awful decision,
I believe is a reflection upon the free ex-
pression of the Supreme Court of the
United States.
? I do not believe they are disrupting
anything. They are merely saying that
ours is a representative form of govern-
ment, and every man is entitled to the
full force and effect of his vote. That is
the lemon I am voting for it?not be-
cause I like it, but because it is innocu-
ous and it is the way out of this im-
passe.
The PRESIDING OFFICER. The
sponsors of the amendment have 1 addi-
tional minute remaining.
Mr. JAVITS. Mr. President, I yield
the remainder of my time to the Senator
from Minnesota [Mr. HUMPHREY].
First, I ask for the yeas and nays.
The yeas and nays were ordered.
The PRESIDING OFFICER: The
Senator from Minnesota is recognized
for 1 minute.
Mr. HUMPHREY. Mr. President, in
the minute that remains I should like
to underscore what I believe is involved
in the amendment offered by my col-
league from Minnesota [Mr. MCCARTHY],
the Senator from New York [Mr. JAviTs],
and myself, and which I know is widely
supported by other Senators.
First, the amendment would protect
the integrity of the Senate.
Mr. MANSFIELD. Mr. President, may
we have order?
The PRESIDING OFFICER. The
Senate will be in order. The Senator
from Minnesota may proceed.
Mr. HUMPHREY. First, it would pro-
tect the integrity of the Senate as a par-
liamentary body.
Second, it would protect the integrity
of the Court in its responsibility under
S ep6mb er 1 5
our Constitution to interpret and apply
the constitutional provisions.
Third, it would respect the doctrine
of the separation of powers between the
different branches of our Government.
Finally, the amendment is one of rea-
son. It would express the sense of the
Senate, asking that the Court take into
consideration some of the factors which
are involved in thetime that is neces-
sary for reapportionment by the State
legislative bodies. It also takes into con-
sideration the possibility of a constitu-
tional amendment.
I hope that the question may now be
decided by an affirmative vote for the
amendment.
The PRESIDING OFFICER. All time
has expired. The question is on agree-
ing to the amendment of the Senator
from New ? York [Mr. JAVITS] and the
Senators from Minnesota [Mr. HUM-
PHREY and Mr. MCCARTHY], OS modified,
to the so-called Dirksen-Mansfield
amendment. On this question, the yeas
and nays have been ordered.
Mr. DIRKSEN. Mr. President, a par-
liamentary inquiry.
The PRESIDING OFFICER. The
Senator will state it.
Mr. DIRKSEN. My understanding is
that the vote comes upon the new lan-
guage which was offered in place of the
earlier substitute by the same authors
who reserved the right to change their
amendment.
The PRESIDING OFFICER. The
question is on agreeing to the modified
amendment offered by the Senator from
New York [Mr. Jams] and the Senators
from Minnesota-.[Mr. HUMPHREY and Mr.
MCCARTHY] to the so-called Dirksen-
Mansfield amendment. On this ques-
tion, the yeas and nays have been or-
dered, and the clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. WALTERS (when his name was
called) . I have a pair with the Senator
from Missouri [Mr. SYMINGTON]. If he
were present and voting, he would vote
"yea." If I were at liberty to vote, I
would vote "nay." I withhold my vote.
The rollcall was concluded.
Mr. HUMPHREY. I announce that
the Senator from Idaho [Mr. CHURCH],
the Senator from Alaska [Mr. GRUEN-
ING], the Senator from Indiana [Mr.
HARTKE], and the Senator from Utah
[Mr. Moss] are absent on official busi-
ness.
I also announce that the Senator from
Massachusetts [Mr. KENNEDY], and the
Senator from Alabama [Mr. HILL] are
absent because of illness.
I further announce that the Senator
from Washington [Mr. JACKSON], the
Senator from Wyoming [Mr. McGEE],
and, the Senator from Missouri [Mr.
SYMINGTON] are necessarily absent.
I further announce that, if present and
voting, the Senator from Indiana [Mr.
HARTKE] would vote "yea."
On this vote, the Senator froth Kansas
[Mr. CARLSON] is paired with the Sena-
tor from Massachusetts [Mr. KENNEDY].
If present and voting, the Senator from
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CONGRESSIONAL RECORD ? SENATE 21421
Massachusetts would vote "yea," and the
Senator from Kansas would vote "nay."
On this vote, the Senator from Idaho
[Mr. CHURCH] is paired with the Senator
from Texas [Mr. TowER]. If present
and voting, the Senator from Idaho
would vote "yea," and the Senator from
Texas would vote "nay."
On this vote, the Senator from Alaska
[Mr. GRUENING] is paired with the Sena-
tor from Iowa [Mr. MILLER]. If present
and voting, the Senator from Alaska
would vote "yea," and the Senator from
Iowa would vote "nay.",
On this vote, the Senator from Wash-
ington [Mr. JACKSON] is paired with the
Senator from Massachusetts [Mr. SAL-
TONSTALL]. If present and voting, the
Senator from Washington would vote
"yea," and the Senator from Massa-
chusetts would vote "nay."
Mr. KUCHEL. I announce that the
Senator from Kansas [Mr. CARLSON], the
Senator from New Hampshire [Mr. COT-
TON], the Senator from Arizona [Mr.
GOLDWATER], the Senator from Idaho
[Mr. JORDAN], the Senator from Iowa
[Mr. MILLER], the Senator from Mas-
sachusetts [Mr. SALTONSTALL], the Sena-
tor from Pennsylvania [Mr. Scow], and
the Senator from Texas [Mr. TowER] are
necessarily absent.
On this vote, the Senator from Kansas
[Mr. CARisoN] is paired with the Sena-
tor from Massachusetts [Mr. KENNEDY].
If present and voting, the Senator from
Kansas would vote "nay," and the Sena-
tor from Massachusetts would vote "yea."
On this vote, the Senator from Penn-
sylvania [Mr. Scow] is paired with the,
Senator from Idaho [Mr. JORDAN].
If present and voting, the Senator
from Pennsylvania would vote "yea," and
the Senator from Idaho would vote
"nay."
On this vote, the Senator from Iowa
[Mr. MILLER] is paired with the Senator
from Alaska [Mr. GRUENING]. If present
and voting, the Senator from Iowa would
vote "nay," and the Senator from Alaska
would vote "yea."
On this vote, the Senator from Mas-
sachusetts [Mr. SALTONSTALL] IS paired
with the Senator from Washington [Mr.
JACKSON]. If present and voting, the
Senator from Massachusetts would vote
"nay," and the Senator from Washington
would vote "yea."
On this vote, the Senator from Texas
[Mr. TOWER] is paired with the Senator
from Idaho [Mr. CHURCH]. If present
and voting, the Senator from Texas
would vote "nay," and the Senator from
Idaho would vote "yea."
The result *as announced?yeas 40,
nays 42, as follows:
[No. 573 Leg.]
YEAS-40
Anderson Hayden Nelson
Bartlett Humphrey Neuberger
Bayh Inouye Pastore
Beall Javits Pell
Brewster Keating Proxmire .
Burdick Kuchel Randolph
Case Long, Mo. Ribicoff
Clark Magnuson Salinger
Dodd McCarthy Smith
Douglas McGovern Williams, N.J.
Edmondson McIntyre Yarborough
Fulbright McNamara Young, Ohio
Gore Metcalf
Hart Muskie
NAYS-42
Aiken Ervin Morton
Allott Fong Mundt
Bennett Hickenlooper Pearson
Bible ? Holland Prouty
Boggs Hruska Robertson
Byrd, Va. Johnston Russell
Byrd, W. Va. Jordan, N.C. Simpson
Cannon Lausche Smathers
Cooper Long, La. Sparkman
Curtis Mansfield Stennis
Dirksen McClellan Talmadge
Dominick Mechem Thurmond
Eastland Monroney Williams,-DeL
Ellender Morse Young, N. Dak.
NOT VOTING-18
Carlson Hill Moss
Church ? Jackson Saltonstall
Cotton Jordan, Idaho Scott
Goldwater Kennedy Symington
Gruening McGee Tower
Hartke Miller Walters
So the amendment of Mr. JAVITS, Mr.
MCCARTHY, and Mr. HUMPHREY, as modi-
fied, to the DIRKSEN-MANSFIELD amend-
ment, was rejected.
DIRKSEN. Mr. President, I move
to reconsider the vote by which the
amendment to the amendment was
rejected.
Mr. ALLOTT. Mr. President, I move
to lay that motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The
question now recurs on the Dirksen-
Mansfield amendment.
Mr. THURMOND. Mr. President, on
behalf of the Senators from Virginia
[Mr. BYRD and Mr. ROBERTSON], the
Senator from Nebraska [Mr. Curais],
the Senators from Mississippi [Mr.
EASTLAND and Mr. STENNIS], and myself,
I offer the amendment which I send to
the desk and ask to have stated.,
The PRESIDING OFFICER. The
amendment offered by the Senator from
South Carolina, for himself and other
Senators, will be stated.
The Chief Clerk read the amendment,
as follows:
At the end of the bill, add the following
new title:
"TITLE V-DEFINING THE JURISDICTION OF THE
UNITED STATES SUPREME COURT AND ALL 'FED-.
ERAL COURTS INFERIOR THERETO, IN CERTAIN
INSTANCES
"SEC. 501. Following section 1258 of title
28 of the United States Code (28 U.S.C., sec.
1258) add a new section as follows:
"1.259. Supreme Court, limitation of ap-
pellate jurisdiction
"The Supreme Court shall not have the
right to review the action of a Federal court
or a State court of last resort concerning any
action taken upon a petition or complaint
seeking to apportion or reapportion any leg-
islature of any State of the Union or any
branch thereof.'
"SEG. 502. Amend title 28, section 1331 of
the United States Code (28 U.S.C., sec. 1331)
by adding at the end thereof a new subsec-
tion to read as follows:
" '(c) The district courts shall not have
jurisdiction to entertain any petition or com-
plaint seeking to apportion or reapportion
the legislature of any State of the Union or
any branch thereof.'"
Mr. THURMOND. Mr. President?
Mr. MANSFIELD. Mr. President, will
the Senator from South Carolina yield,
without losing his right to the floor?
Mr. THURMOND. I yield.
Mr. MANSFIELD. May I have the
attention of the Senate? I am about to
propound a unanimous-consent request.
I ask unanimous consent that there be
a time limitation on the pending Tuck
amendment of 2 hours, 1 hour to a side. -
Mr. DOUGLAS. Mr. President, I ob-
ject.
The PRESIDING OFFICER. Objec-
tion is heard.
Mr. THURMOND. Mr. President, I
would have no objection to the request
that was propounded. However, I do not
think it would take an hour to a side. I
have only about a 15- or .20-minute
speech. Perhaps other Senators would
like to say a word about it.
Mr. HOLLAND. Mr. President, a par-
liamentary inquiry.
The PRESIDING 0101410ER. The
Senator will state it.
Mr. HOLLAND. Is this an amend-
ment to the Dirksen-Mansfield amend-
ment or a substitute for that amend-
ment?
Mr. THURMOND. Mr. President?
The PRESIDING OFFICER. The
Senator from South Carolina.
Mr. THURMOND. This is a substi-
tute for the Dirksen-Mansfield amend-
ment.
The PRESIDING OFFICER. The
amendment is a substitute.
Mr. HOLLAND. Is that the ruling of
the Chair?
The PRESIDING OFFICER. That is
the ruling of the Chair.
Mr. HOLLAND. I thank the Chair.
Mr. ROBERTSON. President,
will the Senator yield?
Mr. THURMOND. I am pleased to
yield to the Senator from Virginia.
Mr. ROBERTSON. Has the Senator
from South Carolina listed the junior
Senator from Virginia as a cosponsor
of this amendment?
Mr. THURMOND. Yes.,
I will ask the clerk again to read the
names of the sponsors of the amend-,
ment.
The PRESIDING OFFICER. The
clerk will read.
The CHIEF CLERK. An amendment of-
fered by Mr. THURMOND for himself and
MOWS. BYRD Of Virginia, ROBERTSON,
CURTLS, EASTLAND, and STENNIS.
Mr. ROBERTSON. Mr. President, will
the Senator yield again?
Mr. THURMOND. I am pleased. to
yield.
Mr. ROBERTSON. If we could get
the unanimous consent of the Senate to
grant 30 minutes to the Senator from
South Carolina and 30 minutes to the
-opposition, we could get to a vote. This
is an issue we have been debating for a
month. I do not think the debate is
going to change any Senator's viewpoint,
and it seems to me we might be permit-
ted to vote if we had a short debate.
Would the Senator be willing to have
a unanimous-consent agreement for 30
minutes on a side and then vote?
Mr. THURMOND. The majority lead-
er has already obtained unanimous con-
sent for 1 hour to the side.
Mr. MANSFIELD. No.
Mr. ROBERTSON. There was objec-
tion.
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21422
CONGRESSIONAL RECORD ? SENATE Sepamber" 15
Mr. THURMOND. Excuse me. There
was objection to it.
I would not object to 30 minutes to a
side. I do not want to cut any Senator
off. I do not think I will take more
than 15 or 20 minutes, but I would like
to give any other Senator an opportunity
to debate it.
Mr. ROBERTSON. Will the majority
leader make such a request?
Mr. MANSFIELD. It would not do any
good. I tried to obtain a unanimous-
consent agreement. I think the time is
propitious for it. I tried to get 1 hour
on a side, but there was objection.
Mr. RANDOLPH. Mr. President, will
the esteemed Senator yield?
Mr. THURMOND. I am pleased to
yield to the Senator from West Virginia.
Mr. RANDOLPH. Is this the amend-
ment, sponsored by Representative TUCK,
of Virginia; which was passed in the
House, and is now advocated by the
junior Senator from South Carolina, and
other Senators?
Mr. THURMOND. That is correct.
It passed the House by a very large mar-
gin, and. it is almost identical to a bill I
introduced on June 16 of this year, which
was referred to the Judiciary Commit-
tee of the Senate and is still pending, I
believe, in that committee.
' Mr. President, I ask for the yeas and
nays on the amendment.
The yeas and nays were ordered.
Mr. THURMOND. Mr. President, the
amendment is identical to H.R. 11926,
the so-called Tuck bill, which has been
passed by the other body, and is now
on the Senate Calendar. The purpose
of the Tuck bill and this amendment is
to withdraw.from the Supreme Court the
appellate jurisdiction which the Court
has assumed in cases arising from the
apportionment of State legislatures. The
appellate jurisdiction of the Supreme
Court would be withdrawn whether the
?case was attempted to be appealed from
the highest State court or a lower Federal
'court. In addition, the amendment with-
draws all jurisdiction .in reapportion-
ment cases from the Federal district
courts, in the same manner as the Tuck
bill. This would leave the decision af-
fecting the apportionment of any State
legislature with that State's courts, the
State legislature itself, or the people of
the State?where such matters rightfully
belong.
There is sound cons. titutional author-
ity for Congress to withdraw jurisdic-
tion from all Federal courts in the field
of apportionment of State legislatures.
Article III, section 2, clause 2 of the Con-
stitution reads as follows:
In all cases Affecting ambassadors, other
public ministers and consuls, and those in
-which a State shall be party, the Supreme
Court shall have original jurisdiction. In
all the Other cases -before mentioned, the
Supreme Court shall have appellate juris-
diction, both as to law and fact, with such
exceptions, and under such- regulations as
the Congress shall make.
Only in the three specific grants of
original jurisdiction is Congress denied
the authority to make exceptions to the
jurisdiction of ,the Supreme Court. In
all other cases the Congress can modify,
regulate, or completely withdraw appel-
plate jurisdiction of the Supreme Court,
as it sees fit.
This _interpretation was made irrevo-
cable in the case of ex parte McCardle,
an 1868 case in which Congress withdrew
the appellate jurisdiction of the Supreme
Court in certain habeas corpus proceed-
ings after the case had been argued be-
fore the Supreme Court, but before a
decision had been rendered. The Mc-
Cardle case is an extreme example, but
it has been frequently reaffirmed and
approved. The result is to vest an un-
restrained discretion in Congress to cur-
tail and even abolish the appellate juris-
diction of the Supreme Court,- and to
prescribe the manner and forms in which
it may be exercised.
The power of Congress to vest, with-
draw, and regulate jurisdiction of the
lower Federal courts is derived from the
power to create tribunals under article
I of the Constitution, the necessary and
proper clause, and article III, section 1
which vests the judicial power of the
United States in the Supreme Court and
"in such inferior courts as the Congress
from time to time may ordain and es-
tablish." The Supreme Court itself has
Interpreted article III of the Constitu-
tion to mean that Congress has plenary
powers over the jurisdiction of any in-
ferior Federal court which it has estab-
lished by statute. The first case which
so held was Turner against the Bank of
North America, a 1799 case. The most
clearly stated decision on this point, how-
ever, is the case of Cary against Curtis,
an 1845 case where it was stated that the
judicial power of the United States is de-
pendent for its distribution and organi-
zation entirely upon the action of Con-
gress, which possesses the sole power of
creating inferior courts and "of invest-
ing them with jurisdiction, either, limit-
ed, concurrent, or exclusive, and of viith-
holding jurisdiction from them in the
exact degrees and character which to
Congress may seem proper for the pub-
lic good." No clearer and more definite
statement could be found, and no clearer
or more compelling occasion for the ex-
ercise of this power, by 'Congress in the
public good can be found than exists
now.
Just as there can be no question as to
- the authority of Congress over the juris-
diction of the Federal courts, there can
be no question that the Supreme Court
has overstepped its jurisdictional bounds.
Beginning with its first decision on re-
apportionment of State legislatures in
'the case of Baker against Carr, March
1962, down through the decisions handed
down on June 15 of this year, the
-Supreme Court has been treading in a
political no man's land. In discussing
the reapportionment decisions, there is
no need, and indeed no way, to become
involved in legal technicalities. This is
because the fundamental issue involved
is not a legal question. It is purely a
political question, and as such is not
within the jurisdiction of the Court. In
- this regard a statement by Chief Justice
Chase speaking for the Court in Ex parte
McCardle is fitting: ?
Judicial duty is not lea fitly performed
by declining ungranted jurisdiction than in
exercising firmly, that which the Constitu-
tion and the laws confer.
Unfortunately this well stated
philosophy seems to have escaped the
attention of the majority of our present
day Supreme Court Justices.
Political questions are not given to
judicial determinations. They are for
decision of the people exercised by the
ballot and through legislative bodies.
Justice Harlan, dissenting in the Ala-
bama case said:
What is done today deepens my convic-
tion that judicial entry into this realm is
profoundly ill-advised and constitutionally
Impermissible. I believe that the vitality of
our political system, on which in the last
analysis all else depends, is weakened by
reliance on the judiciary for political reform.
Justice Harlan has pinpointed the key
to the apportionment decisions?the
Supreme Court is undermining the struc-
ture of our political system. In so do-
ing, the Court is usurping the power
which has been reserved to the States'
and-to the people under the 10th amend-
ment to the Constitution.
To understand the full consequence
of these decisions, we must, however,
look even beyond the Court's usurpa-
tion of power of the people to decide a
political question. The substance of the
new rule of. political order sought to be
imposed by judicial fiat must be care-
fully examined.
The new political principle sought to
be imposed by the Court is commonly
characterized as "one person, one vote."
This catchword phrase, "one person, one
vote," which the apologists for the Su-
preme Court have now adopted as their
battle cry, is a vast oversimplification of
the issue involved. It is by no means
descriptive of the result of the reappor-
tionment decisions of the Court. It is,
however, a noble sounding oratorical
gimmick with which it is- difficult to
argue, because it is difficult to define as it
applies to any given situation. In ap-
plication, this "one person, one vote"
doctrine means that a State must alter
the weight given to each individual vote.
At the present time the Court is inter-
ested in requiring the State to assure
that the vote of an individual in an
urban area has the same influence in an
election as the vote of an individual in
a rural area. If this theory were applied
nationwide in presidential elections, for
example, the present electoral college
system would also be ruled unconstitu-
tional by the Supreme Court. To illus...
trate this point, a single individual in
the State of New York casts only one
vote in an election for President and
Vice President. However, his vote in-
fluences the election of 43 presidential
electors. A voter in South Carolina also
casts one vote, but his one vote influences
the election of only eight electors. Yet,
Mr. President, there is no hue and cry on
the part of the advocates of "one person,
one vote" for the application of this
principle in presidential elections. As a
matter of fact the opponents of sound
reform in this area, which has been
pending before Congress for a number
of years in the form of a proposed con-
stitutional amendment, are by and large
the same ones who are most vocal in their
support of the Supreme Court decisions
as they affect the States. I have been a
stanch advocate of electoral college re-
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1964 CONGRESSIONAL RECORD ? SENATE 21423
form based on the district plan prefer-
ably, but if not, then the proportional
plan, to bring about a more equitable
voice on the part of individuals in the
smaller States since I became a Member
of the Senate. However, I have not ad-
vocated resort to the courts to solve
this pressing problem, because I have
felt that" the Federal courts have no
jurisdiction in such political questions.
Population is, of course, the principal
basis for apportionment of legislative
representation in all States. But the
various States have found it practical,
workable, just, and beneficial to weight
the apportionment of legislative repre-
sentation with various other factors in
their own States, just as was done in
framing the structure of the Central Gov-
ernment. One factor which has been
considered in many, if not most, States
has been the integrity of local govern-
ing units, such as the counties. Their
independence of action and ability to
best serve the needs of their own peo-
ple is guaranteed by their separate rep-
resentation in both bodies of the State
legislature.
The Supreme Court seemed to be
overly sensitive when it was consider-
ing the apportionment of the upper bod-
ies of the State's legislatures, which
they found to be constituted in such a
way as to favor the rural areas.
Let me point out that such departures
from apportionment based only on pop-
ulation result in purely defensive powers
to those so favored. The U.S. Congress
provides a good example. Each State has
equal representation in the Senate, re-
gardless of its population. Thus Dela-
ware has equal representation in the
Senate with New York, although New
York has at least 35 times more popula-
tion. But Delaware, even with its equal
representation in the Senate, nor everi
In combination with other small popula-
tion States which might give them a
majority in the Senate, does not have
the affirmative power to pass legislation;
for the House of Representatives must
also concur, and its membership is based
on population, or "one person, one vote."
Thus the equal representation of Dela-
ware in the Senate gives it at most an
increased defensive power to what it
would have were representation in Con-
gress based solely on "one person, one
vote."
Similarly, the weighting of representa-
tion in favor of rural residents gives
them an increased defensive power, leav-
ing them less vulnerable to the whims of
a majority.
Agricultural areas are necessarily less
densely populated than nonagricultural
areas. We in the United States, -with
our consistent departure from the con-
cept of "one person, one vote," have
progressed to the point where approxi-
mately 8 percent of the population of
the Nation produces the entire food and
fiber for its consumption, with a large
margin for export. This progress has
been undoubtedly due in part to the fact
that the agricultural sector through its
defensive power stemming from its
weighted representation has managed to
protect its vital interests in the inter-
twined political and economic order.
Nor is the nature of agricultural enter-
prise such that those engaged therein
can protect their vital interests outside
the formal political structure by corn-,
bined economic action through organi-
zation, as is done by industrial labor
through the means of labor unions. So
long as political issues have been left to
the decision of the people, where they
rightfully belong, these factors have been
recognized, and the departures from the
"one person, one vote" concept have not
only been tolerated, but affirmatively ap-
proved by the majority of the people.
Mr. President, it has been stated on
the floor of the Senate that the structure
of the States differs in substantial de-
gree from the structure of the Central
Government. In some cases this is true,
but in most States, there is a striking
similarity; for example, in my own State
of South Carolina each county is repre-
sented by one senator regardless of its
population, and a number of represent-
atives according to its population. This
is, of course, in the same pattern as the
Central Government.
Benjamin Franklin, when asked what
form of government was established by
the Constitution, said that it was a re-
publican form. Since its basic structure
has not been changed since the Constitu-
tion was adopted, the Central Govern-
ment still is a republican form. It is
only logical, therefore, that those States
whose structure of government is pat-
terned upon the Central Government
have a republican form of government.
Article IV, section 4 of the Constitution
provides:
The United States shall guarantee to every
State in this Union a republican form of
government.
Rather than guaranteeing a 'republi-
can form of government in these States,
the Supreme Court is depriving them of
the republican form of government which
they already have.
Mr. President, there is a necessity for
urgent action on this question. Almost
all of the States of this Union can be
reconstructed by judicial fiat if these de-
cisions are implemented across the
board. The resulting chaos would be
detrimental to the continuance of sound
governmental practices in these States.
I urge that the Senate adopt my
amendment to guard against this im-
pending upheaval.
Mr. ROBERTSON. Mr. President, I
support the motion to substitute the Tuck
bill as an amendment to the foreign aid
bill. This amendment would exercise the
authority vested in the Congress by arti-
cle III of the Constitution to give appel-
late jurisdiction to the-Supreme Court,
with such exceptions and under such
regulations as the Congress shall make,
and to ordain and establish inferior
courts, and in doing so to prescribe the
jurisdiction of such inferior courts.
For more than 170 years, up to the
1962 decision in Baker against Carr, it
was universally agreed that questions re-
lating to the organization of States, in-
cluding particularly the composition of
State legislatures, were political ques-
tions beyond the power Of the Federal
courts.
The internal organization of States and
the relationship between the several
States and their inhabitants are clearly
matters reserved to the people and to the
States by amendments 9 and 10 Of the
Constitution. Equally clearly, amend-
ment 14 was not intended to change this
principle or to authorize the Federal Gov-
ernment, including particularly the Su-
preme Court, to interfere with the in-
ternal organization of States. None of
the congressional sponsors of that
amendment and none of the State legis-
lators who ratified it ever dreamed of its
being misused for any such purpose,
either by the Congress, which was given
power to enforce it, or by the Supreme
Court which was given no power either
to rewrite it or enforce it.
Now, in Baker against Carr and in sub-
sequent cases, the Supreme Court has
engaged in judicial legislation of an ex-
traordinary nature, overturning 170
years of history; tossing aside, as scraps
of paper precedents by such formerly re-
spected Judges as Felix Frankfurter; and
embarking on a new course of constitu-
tional amendment and statutory enact- ?
ment.
Each year, in celebration of the birth-
day of our great first President, his Fare-
well Address is read to the Senate. We
all believe it is worth while to be re-
minded of the parting comments of our
first President; and I should like to call
attention to George Washington's views
on amendments to the Constitution?
words which are just as applicable today
as they were when first read:
The basis of our political systems is the
right of the people to make and to alter their
constitutions of government. But the con-
stitution which at any time exists, until
changed by an explicit and authentic act of
the whole people, is sacredly obligatory upon
all.
?
If, in the opinion of the people, the dis-
tribution or modification of the constitu-
tional powers be in any particular wrong,
let it be corrected by an amendment in the
way which the constitution designates.
But let there be no change by usurpation;
for though this, in one instance, may be the
instrument of good, it is the customary
weapon by which free governments are
destroyed.
The Supreme Court, by entering into
the political field of the internal organi-
zation of States, has engaged in chang-
ing the Constitution by usurpation. I
believe we can best carry out George
Washington's recommendation by re-
moving this field entirely from the juris-
diction of district courts and courts of
appeal and from the Supreme Court's
appellate jurisdiction. This would be
done by the proposed amendment.
I ask unanimous consent that an arti-
cle entitled "Heartbreaks and the Con-
stitution," written by S. Bruce Jones,
Esq., of the Virginia Bar, and published
in the 1964 issue of the American Bar-
Association Journal, be printed in the
RECORD.
There being no objection, the article
was ordered to be printed in the RECORD,,
as follows:
HEARTBREAKS FOR THE CONSTITUTION
(By S. Bruce Jones)
(NOTE.?A look at the changes wrought by
the Federal courts in the meaning of the
Federal Constitution is a heartbreaking ex-
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21424 - CONGRESSIONAL RECORD? SENATE
perience, Mr. Jones writes. He points out
the numerous fields in which these decisions
have made the Federal courts the supervisors
Of the States' affairs, contrary to the basic
principle that the meaning of the Constitu-
tion was fixed when it was adopted.)
" "The basis of Our political system is the
right of the people to make and to alter
their constitutions of government. But the
constitution which at any ,time exists till
changed by an explicit and authentic act of
the whole people is sacredly obligatory upon
all * * *.
"If in the opinion of the people the dis-
tribution or modification of the constitu-
tional powers be in any particular wrong, let
it be corrected by an amendment in the way
the Constitution designates. But let there
be no change by usurpation; for though this
in one 'instance may be the instrument of
good, it is the customary weapon by which
free governments are destroyed."?GEoapx
WASHINGTON, Farewell Address.
Thomas M. Cooley wrote: "A cardinal rule
In dealing with written instruments is that
they are to receive an unvarying interpreta-
tion, and that their practical construction
is to be uniform. A constitution is not to
be made to mean one thing at one time and
another at some subsequent time when the
circumstances may have so changed as per-
haps to make a different rule in the case seem
desirable. A prinicpal share of the benefit
expected from written constitutions would
be lost if the rules they established were so
flexible as to bend to circumstances or be
modified by public opinion. It is with spe-
cial reference to the varying moods of public
opinion, and with a view to putting the fun-
damentals of government beyond their con-
trol that these instruments are framed, and
there can be no such steady or imperceptible
change in their rule as inheres in the prin-
ciples of the common law."1
To those lawyers who were taught and
believed in this fundamental principle a look
at the changes made by the Federal courts
in the meaning of the Federal Constitution
is a heartbreaking experience. They find that
at one time the courts say the Constitution
means one thing and at another time they
say it means something else or even the
exact opposite. The clauses interpreted re-
main the same; only the Meaning is changed.
INTERSTATE COMMERCE'S MEANING IS
CHANGED
The power to regulate commerce between
the States and with the Indian tribes was
changed by a divided Court to mean the
power to regulate wages, hours, and working
conditions of persons engaged in the manu-
facture of goods destined for interstate com-
merce., As late as .1935 cOmmerce meant
commerce. It did not mean processing or the
wages and working conditions of those en-
gaged in processing before reaching the stage
of commerce.,
For 70 years the courts held that insurance
was not commerce4 but in 1946 it held that
it was commerce., Even products raised on a
farm for consumption on the same farm are
now held to be subject to regulation by Con-
gress under the interstate commerce clause.
Under this interpretation of the power to
regulate commerce, farmers are now being
fined or imprisoned for raising wheat on
their own farms for use on the same farm.
Under this extension of power the latest
a 1 Cooley, "Constitutional Limitations,"
123 (8th ed. 1927).
2 National 'Labor Relations Board v. Jones
& Laughlin Steel Corp., 301 U.S. 1 (1937).
3 Schechter Poultry Corp. v. United States;
295 U.S. 495 (1935) .
4 Bothwell v. Buckbee, Mears Co., 275 U.S.
274 (1927).
3 United States v. South-Eastern Under-
writers Association, 322 U.S. 533 (1944) .
wage-and-hour statutes practically disregard
the commerce clause and look chiefly to the
type or volume of business as ,the basis for
Federal control?for example, Mrs. Murphy's
boarding house.
On this question Woodrow Wilson wrote:
"May it [Congress] also regulate the con-
ditions under which the merchandise is pro-
duced which is presently to become the sub-
ject matter of interstate commerce? May it
regulate the conditions of labor in field and
factory?
"Clearly not, I should say; and I should
think that any thoughtful lawyer who felt
himself at liberty to be frank would agree
with me. For that would be to destroy all
lines of division between the field of State
legislation and the field of Federal legisla-
tion. Back of the conditions of labor in the
field and in the factory lie all the intimate
matters of morals and of domestic and busi-
ness relationship which have always been
recognized as the undisputed field of /State
law; and these conditions that lie back of
labor may easily be shown to have their part
in determining the character and efficiency
of commerce between the States.
"If the Federal power does not end with
the regulation of the actual movements of
trade, it ends nowhere, and the line between
State and Federal jurisdiction is pbliterated.
But this is not universally seen or admitted.
It is, therefore, one of the things upon which
the conscience of the Nation must make test
of itself, to see if it still retain that spirit of
constitutional understanding which is the
only ultimate prop and support of constitu-
tional government. It is questions of this
sort that show the true relation of our
courts' to our national character and Our
system of government.
"No one can doubt that it was necessary
for the maintenance of the system that the
courts of the Federal Government should
be the arbiters of all questions of disputed
jurisdiction or conflicting authority. But
of course such a principle constitutes the
courts of the United States the guardians of
our whole legal development. With them
must lie the final statesmanship of con-
trol."
BILL OF RIGHTS APPLIED TO STATES
The first eight amendments were limita-
tions on the powers of the Federal Govern-
ment and were expressly held not to be limi-
tations on the powers of the States. Be-
ginning with Gitlow V. New York, 268 U.S.
652 (1925), the courts began the -process of
making these limitations applicable to the
States by applying the doctrine of their
Incorporation into the 14th amendment.
In 1949 the Supreme Court held in Wolf
v. Colorado, 338 U.S. 25, that in a prosecu-
tion in a State court for a State crime the
14th amendment does not forbid the ad-
mission of evidence obtained by unreason-
able search and seizure. But in 1961 Wolf
was expressly reversed by Mapp v. Ohio, 367
U.S. 643, which held that the prohibition
against unreasonable search and seizure in
the 4th amendment does apply by virtue of
the 14th amendment to the admission of
evidence in a State court. In another case
the Court had stated, "We think that the
Wolf decision should not be overruled."
And the Wolf case was overruled although
appellants' counsel expressly disavowed such
purpose (dissenting opinion, footnote 6) .
The Court recognized that it was imposing
a new rule of exclusion on the States, some
of which had a nonexclusionary rule.
LEGISLATIVE APPORTIONMENT NOW COURT
CONTROLLED
The power of the States to apportion their
representatives is now subject to review by
the Federal courts under their own rules.
Irvine v. California, 347 U.S. 128, 134
(1954).
September 15
Until 1962. the Constitution was held to
mean that State apportionment statutes did
not'present a justiciable question. In Baker
V. Carr, 369 U.S. 186 (1962), the exact op-
posite was held. No guidelines were given
as to what relief the courts would afford.
As was said by Justice Frankfurter in his
dissenting opinion: "In effect, today's de-
cision empowers the courts of the country
to devise what should constitute the proper
composition of the legislature of the 50
States. If State courts should for one rea-
son or another find themselves unable to
discharge this task, the duty of doing so is
put on the Federal courts or on this Court,
if State views do not satisfy this Court's
notion of what is proper districting."
What the Court's notion may be is im-
material here. The point is that the Court
is writing into law its own notions, which
will be followed by all the lower- Federal
courts and will take the place of the express
provisions of the Constitution. That they
are notions is shown by the majority opinion
In Wesberry v. Sanders, 376 U.S. 1 (1964)-, and
that they are not law is demonstrated by the
dissent.
The first amendment provides that Con-
gress shall make no law respecting an estab-
lishment of religion or prohibiting the free
exercise thereof. This is an eltpress limita-
tion on Federal power, but it is now inter-
preted by the courts to be an express limita-
tion on State power. By this interpretation
the Court practically added an amendment
that James G. Blaine had unsuccessfully at-
tempted to have included in 1876 and which
was defeated in both the House and the Sen-
ate.'
FEDERAL COURTS BECOME SUPERVISORS OF STATES
The incorporation of the Bill of Rights
into the 14th amendment so that a Federal
constitutional question is raised has resulted
in the Federal courts becoming the supervi-
sors of all procedures in the State courts.
In Griffin v. Illinois, 351 U.S. 12 (1956) , in
a 5-to-4 decision, the Supreme Court held
that an indigent defendant in a noncapital
case in a State court should be furnished
without cost a transcript of the record, al-
though apparently a narrative bill of ex-
ceptions was available.
In another case, Nairn v. Nairn, 350 U.S. 891
(1955), it vacated judgment and remanded a
case to the Virginia Supreme Court of Appeals
in order that it might be "returned" by it to
the circuit court for rehearing, when no such
procedure is possible. It is also requiring
the State courts to provide counsel for in-
digent defendants when the Federal courts
have no provision to compensate counsel
who are appointed to defend indigents in a
Federal court.
By applying its own definition of due proc-
ess of law and its own concept as, to evidence
that is admissible, the Supreme Court reviews
appeals from the State courts of convictions
under State laws and lays down rules in-
consistent with the laws and constitutions
of the State from which the appeals are
taken.
This power of review of State courts for-
merly was exercised only in cases that had
been appealed from the State court. It did
not affect convictions obtained many years
ago. Now by a completely new and unique
use of the writ of habeas corpus the Federal
courts are reviewing State convictions of
many years ago. In Lane v. Brown, 372 U.S.
477 (1963), Indiana felt the use of this pow-
er. In Fay v. Noia, 372 U.S. 391 (1963), de-
cided the same day, New York encountered
the same supervision.
In Tennessee a man released from a Texas
prison kidnaped and shot the driver and
killed the driver's wife, for which in a State
Baker, "The Supreme Court and the Free-
dom of Religion Melange," 49 A.B.A.J. 439, 440
(1963).
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19d.4 CONGRESSIONAL. RECORD RECORD ? SENATE, -
court, after trial by jury, he received a sen-
tence for a term of years. Ten years later,
with' his surviving victim in Sweden, a Fed-
erar district court ordered a new - trial be-
cause hiS court-appointed attorneys refused
to appeal his conviction. -
The Federal district courts are now being
flooded with writs of 'habeas corpus filed by
prisoners who pleaded guilty or were long
ago convicted of State crimes by State courts
after jury trials. The Federal district courts
have noW been appointed supervisors over
the actions of all the State courts where
alleged unlawful detention can be claimed."
FEDERAL POWERS ARE INCREASED
These interpretations of the Federal Con-
stitution extend the power of the Federal
Government, particularly its courts, and de-
crease the powers of the States. They have
invalidated parts of State constitutions and
stand ready to invalidate others. On the
three subjects of schools, courts and State
legislatures, the Federal courts are making
their own ruleS and then changing them
from time to time as they please.
By their own action the Federal courts
have extended their jurisdiction to fields
they formerly refused to enter because they
said they had no right to ehter them. With-
out the aid of legislation of any kind, they
have taken over the supervision of appor-
tionment of representation in the State leg-
islatures, attendance at public schools, su-
pervision of State court procedures and Bible
reading. Since there were no statutes, the
courts are now engaged in writing legislation
in the form of court opinions that will super-
sede the State laws and constitutions and
even their own former opinions. The Su-
preme Court imposed its restrictions on Bible
reading, although the first amendment im-
poses its limitations on Congress alone and
an attempt to put the same limitation on
the States by express amendment had been
defeated. This attempt and defeat occurred
after the 14th amendment (which the Court
says makes the first amendment applicable)
was in effect, but the Court now construes
the Constitution to reach the same result
as if the defeated amendment had been
adopted."
Each change of the Constitution by ju-
dicial fiat is usually looked on with favor
by those who like the particular change and
with disfavor by those who dislike it. Some-
times the praise reaches a crescendo?caning
the Court the keeper of the peoples' con-
science, praising the Justices as activists, and
berating those who believe the Constitution
means what it says. The evil is that the
Court changes the meaning of the Con-
stitution by what its apologists call interpre-
tation. The real amendatory processes
are thus circumvented in violation of the
Constitution itself. Thus the changes are
made by persons who have no constitutional
power to amend and who by later decisions
may amend it again.
These decisions are not the law of the
land but they become precedents binding
on all the lower courts and the determina-
tion of the case, right or wrong, must be
written into all future decisions of the low-
er courts. The rule established by the Su-
preme Court cannot be changed by the lower
courts and it cannot be reversed or modi-
fied except by the Supreme Court itself in
another case subsequently. involving the
same question. The only reason these de-
cisions remain unchallenged is that there
Is no higher court to which an appeal can
be taken.
HOW FEDERAL JUDGESHIPS ARE WON
The freehold estate referred to by Jeffer-
son as held by the judges in the Federal
Establishment has been received by them
8 See, Urban? v. New Jersey, 225 F. Supp.
c 798 (D. N.J. 1964) .
" Baker, supra note 7 at 440.
in some instances as a reward for political
activities or as' a result of a political trade.
Some are kicked upstairs to create a va-
cancy somewhere else. All are recom-
mended by the Department of Justice, which
will later appear and litigate before them
hundreds of Government cases. If they ex-
pect promotion it will be only upon recom-
mendation of the same department. All-
are expected to be in reasonably near accord
on basic Government theory with the ad-
ministration that appoints them.
The majority of Federal judicial appoint-
ments comes from the membership of the
party in power. Some have been appointed
although the American Bar Association or
even the State bar association has certified
they were not competent. For their high
office there is no specific qualification of
education, judicial experience, or ability. Be-
ing human beings, they must have at least
some of the bias, predelictions, and frailties
of other humans.
Impeachment being the only remedy and
seldom used, they hold their jobs for life.
Once on the bench they can influence deci-
sions for years without accountability to
anyone. Public opinion is ignorant or in-
different, it has been shaped by the press
and the schools to believe 'that the courts
can do no wrong. Even to question the cor-
rectness of their pronouncements is to court.
ostracism: In their own opinions they have
stated that the only limitation upon their
power is their own restraint.
The great Cooley had his own opinion
about making the Constitution mean one
thing at one time and another at a subse-
quent time: "A court or legislature which
should allow a change in public sentiment
to influence it in giving construction to a
written constitution not warranted by the
intention of its founders, would be justly
chargeable with reckless disregard of official
oath and public duty; and if its course could
become a precedent, these instruments would
be of little avail. The violence of public
passion is quite as likely to be in the direc-
tion of oppression as in any other; and the
necessity , for bills of rights in our funda-
mental laws lies mainly in the danger that
the legislature will be influenced by tempo-
rary excitements and passions among the
people to adopt oppressive enactments.
What a court is to do, therefore, is to de-
clare the law as written, leaving it to the
people themselves to make such changes as
new circumstances may require. The mean-
ing of the Constitution is fixed when it is
adopted, and it is not different at any subse-
quent time when a court has occasion to
pass upon it."
Mr. DOUGLAS. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. DOUGLAS. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. McNAMARA. Mr. President?
Mr. MANSFIELD. ? Mr. President, will
the Senator from Michigan yield first?
Mr. McNAMARA. I am happy to yield
to the Senator from Montana.
UNANIMOUS-CONSENT AGREEMENT
Mr. MANSFIELD. Mr. President; I
should like to propound a unanimous-
consent request, if it meets with the ap-
proval of all concerned.
I ask unanimous consent that there be
30 minutes on the pending Thurmond
substitute, 15 minutes being under the
control of the Senator from South Caro-
21425
lina [Mr. THURMOND], and 15 minutes
being under the control of the Senator
from Illinois [Mr. DOUGLAS].
Mr. DIRKSEN. Mr. President, reserv-
ing the right to object, is the time 30
minutes altogether?
Mr. MANSFIELD. Yes. Then the
Senate will vote. The yeas and nays will
be asked for.
Mr. DIRKSE'N. That is not much
time, is it?
Mr. MANSFIELD. Mr. President, I
modify the unanimous-consent request
to make it 1 hour on the pending Thur-
mond substitute, with 30 minutes to a
side, under the control of the same two
Senators.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and
it is so ordered.
_ Mr. McNAMARA. Mr. President, in
an earlier speech?
Mr. MANSFIELD. Mr. President, will
the Senator from Michigan yield to me
again?
Mr. McNAMARA. I am happy to yield
to the Senator from Montana.
Mr. MANSFIELD. Mr. President, I
ask for the yeas and nays 'on the pend-
ing amendment.
The PRESIDING OFFICER. The
yeas and nays have already been ordered.
Mr. THURMOND. Mr. President, I
have already obtained the yeas and nays
on my, substitute.
The PRESIDING OFFICER. Will
some Senator, under the unanimous-
consent agreement, yield time to the Sen-
ator from Michigan [Mr. McNAMARA]?
Mr. McNAMARA. Mr. President, I do
not wish to speak on the Tuck amend-
ment, I wish to speak on another sub-
ject, the substance of the Supreme Court
bill now before the Senate.
Mr. President, I yield the floor.
Mr. DOUGLAS. Mr. President, I yield
10 minutes to the Senator from Penn-
sylvanitr [Mr. CLARK].
The PRESIDING OFFICER. The
Senator from Pennsylvania is recognized
for 10 minutes.
Mr. CLARK. Mr. President, perhaps
I should note for the RECORD that until
about 30 seconds ago, I had had no in-
tention of speaking against this incred-
ible amendment. In fact, so unlikely did
I think it was that any Senator would
seriously propose it, that I have only now
had an opportunity to read it. Accord-
ingly, I would hope that Senators would
indulge me if my speech in opposition to
the amendment is less erudite and less
closely reasoned than it perhaps could
have been had I had at least a little time
for preparation.
Needless to say, I regret very much
that the substitute amendment proposed
by the senior Senator from New York
[Mr. JAvns] , the senior Senator from
Minnesota [Mr. HUMPHREY], and the
junior Senator from Minnesota [Mr.
MCCARTHY] was defeated a short while
ago. It had seemed to me that that pro-
posal presented a face-saving way?
which would have been acceptable to all
parties?out of the ridiculous dilemma in
which the Senate finds itself. Unfor-
tunately, a majority of those Senators
present and voting decided otherwise.
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21426 CONGRESSIONAL RECORD ? SENATE
So, we are now back where we were a
few days ago, with the Dirksen amend-
ment undisposed of, and with an over-
whelming majority of the Senate unwill-
ing to impose cloture, but with a clear
majority of the Senate unwilling to table
the Dirksen amendment. There are
hopeful procedures and techniques avail-
able to us by which, in due course, that
dilemma can be resolved.
I point out again how fantastic it is
to be operating under rules which permit
a nongermane amendment dealing with
reapportionment?one of the most im-
portant questions ever to come before
Congress?to be added to the foreign aid
authorization bill. No other legislative
body in the civilized world would permit
such chaotic procedure. The only way
out of this situation in the long run,
and the only way out of the problem of
the filibuster, is a drastic revision of the
rules of the Senate.
If anything could make this clear, it
was the 3 months and 10 days we spent
on the civil rights bill earlier this year,
as a result of which we are still here
when we should have gone home months
ago. But, before we can get to an effort
to come to some solution of the Dirksen
amendment, we must dispose of the
Thurmond amendment.
It seems to me that, to most Senators,
It should be enough merely to read the
amendment in order to make clear why
it should never be passed. It is very
short. It contains only two clauses,
really.
The first clause reads:
The Supreme Court' shall not have the
right to review the action of a Federal court
or a State court of last resort concerning
any action taken upon a petition or com-
plaint seeking to apportion or reapportion
any legislature of any State of the Union
or any branch thereof.
I suggest that this is a bald-faced and
patent effort to repeal the 14th amend-
ment. It is true that the proponent of
his amendment, my good friend the Sen-
ator from South Carolina [Mr. THUR-
MOND], believes that the 14th amend-
ment was illegally adopted and is there-
fore null and void. But, I suggest that
that viewpoint is shared by few, if any,
of his colleagues.
I believe that we must assume for pur-
poses of this discussion that the 14th
amendment is a valid part of the Con-
stitution of the United States and that
the appropriate interpretation of that
amendment is not for the Congress of the
United States as a last resort, but for the
Supreme Court of the United States, the
judicial branch.
This has been the history of the inter-
pretation of the Constitution of the
United States ever since it was adopted
in 1789. I see no reason to believe that
it has been changed since that time. I
would therefore take a curbstone view,
because I have not had\an opportunity
to review the cases. But I suspect that
my good friend the senior Senator from
Oregon [Mr. MORSE], who is a far greater
constitutional lawyer than I shall ever
pretend to be, will in a few moments
have something to say on the constitu-
tional question. I believe that the first
clause of the Thurmond amendment?
which is, in effect, the Tuck bill, a bill
which was passed in a hurry by the
House without adequate consideration?
is unconstitutional.
The argument will be made that Con-
gress has the power under the Consti-
tution to determine the jurisdiction of
the various courts of the United States.
It is suggested that 'under that provi-
sion, the 14th amendment can be ripped
out of the Constitution, the Supreme
Court can be deprived of jurisdiction
over a matter of this sort, and Congress
can usurp the judicial power by a tech-
nical device which would deprive one of
the three coordinate branches of our
Federal system of the power to interpret
the law, or the Constitution, on a matter
of great importance to every citizen of
the United States. Whether this provi-
sion is unconstitutional or not, it is
clearly unwise, more than it is presump-
tuous. It was in a fit of pique that this
amendment was proposed seriously, in
an attempt to chastise and punish the
Supreme Court of the United States by
removing its jurisdiction over a matter
with which it is clothed with jurisdic-
tion, and with respect to which it has is-
sued a series of excellent opinions. The
Supreme Court has asserted what the
14th amendment is supposed to mean, ?
that the equal protection of the law has
to do with the right to vote, and the
equal right to vote is given to every citi-
zen under the constitution of the United
States. So, beyond that presumPtion, I
believe it is folly to seriously consider the
adoption of this amendment.
I turn now to the second clause of the
Thurmond amendment which reads:
The district courts shall not have juris-
diction to entertain any petition or com-
plaint seeking to apportion or reapportion
the legislature of any State of the Union or
any branch thereof, nor shall any order or
decree of any district or circuit court now
pending and not fully disposed of by actual
reapportionment be hereafter enforced.
My comment with respect to the first
clause applies with equal validity to the
second clause. It, too, I believe to be un-
constitutional. Very clearly, it is un-
wise. Equally clearly, it is presumptuous.
I would hope very much that the Sen-
ate would defeat this amendment which,
in effect, is the Tuck bill, passed by the
House, I say again, in a fit of pique
against the Supreme Court of the United
States.
Mr. President, I yield back the re-
mainder of my time so that that great
constitutional lawyer, the senior Senator
from Oregon [Mr. Moms] may be heard.
Mr. DOUGLAS. Mr. President, I yield
11 minutes to the senior Senator from
Oregon.
Mr. MORSE. Mr. President, I wish to
say to my teacher on constitutional law,
the senior Senator from Pennsylvania
[Mr. CLARK], that I share completely the
views he has expressed on the 14th
amendment vis-a-vis both the Tuck bill
and the Dirksen_ amendment.
Some time earlier today I listened to
the distinguished Senator from Illinois
[Mr. DnutsEx] speak in support of his
amendment. In my opinion, he is over-
looking and ignoring the fact that a con-
stitutional amendment does not require
???
_ September 15
a stay in court decisions first, but rather
a program by way of his amendment that
seeks a constitutional amendment does
not require a stay of court decisions first.
Of course, that is what the Senator from
Illinois wishes to prevent. He wishes
to prevent the implementation of court
decisions carrying out this historic de-
cision of the Supreme Court in regard
to reapportionment.
Mr. President, wider the Court de-
cision all States could be reapportioned
by the courts. If there is a desire on the
part of the people of this country for
area apportionment?for apportionment
based on area rather than population?
the people can go back to that malappor-
tionment system by way of a constitu-
tional amendment.
I am at a loss to understand how in
the name of logic it is constantly repre-
sented to the Senate by the proponents
of the Dirksen amendment that some-
way, somehow, we must stay the applica-
tion of the 14th amendment in order to
protect what the people may ultimately
decide is their desire.
God forbid that the day shall ever
come when such a constitutional amend-
ment is adopted. But if that day ever
comes, carrying out the rotten borough
system that the Dirksen amendment
seeks to shackle as a yoke around the
people of this country, the people,
through that constitutional amendment
will in effect be able to set aside the de-
cisions of the Court. That is the check
that the Constitution gives to the peo-
ple. It was never contemplated under
our system of three coordinate and co-
equal branches of Government that the
Congress should exercise a check upon
the U.S. Supreme Court in its exercise
of its constitutional povers decreed in
the land-mark decision of Marbury
against Madison in 1803. What the sen-
ior Senator from Oregon has been pro-
testing in this case, as I have protested
on the floor of the Senate for the past 10
years?and I shall shortly refer to some
of those incidents?is the so-called court
"busting" bills that have been attempted
to be steamrollered through the Senate
in the dying days of Congress, without a
single hour, without a single minute of
committee hearings on such bills.
What I have been trying to point out
is that under our Constitution we are
exceeding our legislative authority when
we seek to enact the kind of proposed
legislation which the Dirksen amend-
ment represents, because it seeks to dic-
tate to the Supreme Court how its pro-
cedure shall operate.
Mr. DOUGLAS. Mr. President, will
the Senator yield?
Mr. MORSE. I yield.
Mr. DOUGLAS. Should not every
Senator?indeed, every citizen?read
section 2, article 3, of the Constitution
which begins as follows:
The judicial power shall extend to all
cases, in law and equity, arising under this
Constitution
Mr. MORSE. The Senator is so cor-
rect.
Mr. DOUGLAS. Article 2, section 1,
states:
- The judicial power of the United States,
shall be vested In one Supreme Court?
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./94 CONGRESSIONAL RECORD? SENATE
Mr. MORSE. The Senator is so cor-
rect.
Mr. DOUGLAS. The Constitution
does not provide that the Congress shall
have judicial power or can suspend the
operation of the Constitution. It is the
Supreme Court and the inferior courts
that have jurisdiction over subjects
which involve the Constitution. Is that
not true?
Mr. MORSE. The Senator is correct.
As the Senator will recall, earlier in the
debate?a couple of weeks or so ago?I
made rrir major legal argument against
the Dirksen amendment. One of the
major premises of that speech was the
very section of the Constitution that the
Senator from Illinois now cites.
Mr. President, I say most respectfully
that in my judgment all the Senator from
Illinois [Mr. DIRKSEN] is saying in effect
is that he does not want the people to
have a test of equal repreSentation be-
cause? when they do, they will never go
back to the rotten-borough system. As I
said earlier in the course of the debate, I
speak in behalf of the people of the first
State in this Nation to eliminate mal-
portionment. The people of Oregon led
this Nation in doing away with the rat-
ten-borough system. The people of
Oregon did it because the most direct
democracy under the control of the peo-
ple in this whole Nation exists An my
State under the so-called Oregon system
of initiative, referendum, and recall.
Back in 1951 the people of the State of
Oregon by initiative brought to an end
the rotten-borough system, of my State.
The people of my State, by an initiative
election, brought to an end an area ap-
portionment system that exists still in
too many States of this country. So I
know whereof I speak, based upon the
experience of my State, of the improve-
ment in government that-Ilows from the
application of the Court's decision of one
vote to one person.
As I said a couple of weeks ago in a
major speech I made on the subject,
there are areas in States in which the
vote of 1 citizen has the weight of 40
votes in a city.
We cannot reconcile that with all our
professing about a democratic system of
government, for that is not democracy.
It is not representative government.
That happens to be a polluting of the
stream of democracy. We are seeking to
preserve the judicial functions of the
U.S. Supreme Court without uncalled for
encroachment by the legislative branch
of the Government.
I shall close, since my leader tells me
that the debate on the Tuck amendment
Is about to close. That is what the
Thurmond amendment really is. This
is not the first time in 10 years that the
senior Senator from Oregon, during the
dying days of a session, has been willing
to stand on the floor of the Senate and
talk until Christmas, if necessary, for I
believe it is important, if necessary, that
the Congress remain in session, election
or no election, until Christmas rather
than write a precedential record in an
attempt on the part of the legislative
body to invade the constitutional prerog-
atives of the U.S. Supreme Court. In
that 10 years the senior Senator from
No. 176-6 -
Oregon, along with a little band?and
we had all kinds of unkind names di-
rected at us?stayed on the floor of the
Senate and made clear to the leadership
that we would talk until Christmas in or-
der, for example, to defeat the attempt
to invade the rights of the courts in con-
nection with habeas corpus. We stood on
the floor of the Senate and made it clear
that we would fight until Christmas
against an attempt to repeal the Mal-
lory rule when there had not been a
moment of committee hearing on the
Mallory rule.
There was an attempt on the part of
the Senate of the United States to reverse
the Supreme Court; to substitute itself
for the Supreme Court. We stood on the
floor of the Senate when an attempt was
made, in the dying days of one session
of Congress, to steamroller through this
body, withont committee hearings, a
complete revision of the passport sys-
tem of this country because there were
those in this body who resented deci-
sions of the Court which protected the
constitutional rights of free Americans.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. DOUGLAS. I yield one-half min-
ute to the Senator from Oregon.
Mr. MORSE. Those were Court "bust-
ing" bills. The Dirksen amendment and
the Thurmond amendment and other
similar measures are Court "busting"
bills and attempts on the part of Congress
to supersede the U.S. Supreme Court and
to change our Government from one of
three coordinate, coequal? branches of
government into a government of legis-
lative supremacy.
So to the American people I say, if that
happens they will have lost a share of
their freedom.
Mr. DOUGLAS. Mr. President, in
view of the fact that the proponents of
the Thurmond-Tuck amendment have
taken very little time, and that most
of the time has been used by the oppo-
nents, I think the proponents ought to
state their case at this time.
The PRESIDING OFFICER. Who
desires the floor? Who yields time?
Mr. CLARK. Mr. President, I ask
unanimous consent that I may suggest
the absence of a quorum, without the
time being charged to either side.
The PRESIDING OFFICER. Is there
objection? The Chair bears none, and
it is so ordered.
Mr. CLARK. I suggest the absence of
a quorum.
The PRESIDING OF.toiCER. The
clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. CLARK. Mr. President, I ask
unanimous consent that the order for
quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. STENNIS. Mr. President, I have
been designated by the Senator from
South Carolina [Mr. THURMOND] to have
charge of the time that is allotted to the
proponents of this proposed substitute.
I allot myself 5 minutes or such addi-
tional time as I may see fit to use.
We are dealing now with a matter that
has already been debated to some extent,
21427
but certainly has not been overdebated,
nor has the time spent on it been enough,
in the opinion of the Senator from
Mississippi, considering the importance
and the consequences of the constitu-
tional question before us.
I speak not in derogation of the Court
as an institution, but I speak in the per-
formance of my responsibility as a Mem-
ber of this body. As I was saying, this
matter is so far-reaching and so impor-
tant that I think the Senate has not only
been justified, but doubly justified, in the
time it has used in the consideration of
this qtestion. With great deference to
the Court as an institution of our Gov-
ernment, and a highly important one, I
think it clearly extended its basic con-
stitutional jurisdiction when it first went
into the matter of apportionment of
State legislatures. I said so at the time.
I said, when the Baker case was decided
in 1962, that it spelled trouble. I meant
by that that it spelled the most serious
kind of trouble not only for the Court,
but for the Congress and for every State
and every State legislature in our great
system.
Mr. Justice Frankfurter, one of the
great, strong minds on the Court, pointed
out with great force at that time, with
great learning and lucidity, the problem
involved and the consequences that
would follow from the decision of the
--Court's going into the matter of legisla-
tive apportionment.
It was shown at that time, and it has
been shown by the Senator from Illi-
nois and others, that there have been
abuses in the system; that the State leg-
islatures have been tardy; that they have
not performed in an ideal way; that they
have delayed apportionment that in some
cases has been long overdue.
But if that is to be the reason for
damaging our system in important
aspects, then, if it had a mind to do so,
the Court could rewrite our system on
any basis it desired.
Our system is not -designed for perfec-
tion. Our system is not designed to
carry everything out with ultimate pre-
cision and in a completely and most sat-
isfactory way to all people.
More recently, when the Court went
further into this forest, in the Reynolds
against Sims case, decided this year, 1964,
it gave a further illustration of the
trouble and further, confusion and fur-
ther problems that are irreconcilable and
which should be left for solution by the
State legislatures.
The PRESIDING OFFICER. The
time of the Senator has expired.
Mr. STENNIS. I yield myself 5 addi-
tional minutes.
In the great State of New York, for ex-
ample, a Federal district court has ac-
tually changed the term of the members
-of the State legislatures to a 1-year term,
when they were elected for a 2-year term.
In the great State of Illinois, accord-
ing to what I read last evening, a special
election has been called wherein all
members of the legislature will run at
large, and each voter will therefore be re-
quired to vote for all 177 members of the
legislature. These are illustrations of the
trouble and confusion which have re-
sulted from the Reynolds decision. They
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21428 CONGRESSIONAL RECORD ? SENATE
constitute a sweeping aside, by the Fed-
eral courts, of the constitutional provi-
sions of these States merely because the
reapportionment was not satisfactory to
the Court. It is a great exercise of im-
plied powers, if it can be said to be based
on any constitutional authority. Here
we have two cases in which the people of
these States are thrown into complete
confusion as to how they shall select the
membership of their legislative bodies.
The provisions we have been debating
and voting on would have delayed the
application of this principle, but the pro-
posal we now have before us would bring
in the constitutional powers of Congress,
not to be quickly exercised, of course, but
to meet the problem head on, and to fur-
nish a solution to it.
I find, too, that a great many thinking
and impartial people, even those who can
accept the first decision in Baker against
Carr, do not accept the second decision,
this year, by any stretch of reasoning or
imagination. The average American
cannot accept as a sound constitutional
principle the decision of the Court in
Reynolds against Sims that the least
numerous legislative body of the State
legislature may not be apportioned by
the authorities of the State in any way
except on a one-man-one-vote basis. It
is beyond the grasp of the average Amer-
ican and beyond his imagination and be-
yond his logic. One reason is that it is in
direct contradiction to the theory of our,
Federal system which has been in use
until this day, and in direct contradiction
of the pattern that was in effect when the
Constitution was adoped. It was in effect
then. It was in effect when the 14th
amendment was adopted. It is in effect
today, or at least it was until it was dis-
turbed without any authority by the Su-
preme Court in the Baker case.
Congress not only has the power, but
also the duty and responsibility, to bring
into this forest of confusion, this trouble
area, order out of cha,os, and, in the next
place, has the responsibility to make a
bold, clear-cut assertion of the legisla-
tive authority under our Constitution to
clear up this matter.
I yield the floor.
Mr. DOUGLAS. Mr. President, I yield
3 minutes to the Senator from Michigan.
Mr. HART. Mr. President, it has been
said before in the course of the debate,
and I believe accurately, that few of us
will be permitted service in this body over
a period of years sufficient again to be
confronted with a more basic question
than the one that confronts us in this
series of efforts to put our thumb in the
eye of the Supreme Court.
Much of the debate has dwelt on the
question of whether the apportionment
of State legislatures on the formula of
one-man-one-vote is good or bad.
The junior Senator from Michigan
feels that this indeed is the correct ap-
plication of the 14th amendment's guar-
antees of equal protection of the laws.
I think, however, that more time should
and well could be devoted to a considera-
tion of what is even more basic than the
argument as to whether it is desirable or
is not desirable to assure that one man's
vote in a State does not carry 10 times
the weight of another man's vote, even
if that man is 10 times smarter. Of
course that is not the basis on which he is
given 10 times the vote.
Whatever one's attitude May be with
respect to the effect of the Reynolds case
decision, I suggest that we are confronted
in the Thurmond amendment with a far
more fundamental concern. It would
be the first step on the road which would
result, sooner or later, in the discovery
that the written Constitution, with its
guarantees of rights, is worth exactly the
cost of the paper on which it is written.
That is a lesson of history which our
society should clearly understand.
Other nations have magnificent
written constitutions. They read beau-
tifully. The trouble is that life in those
nations is not desired by free people.
Why? It is because there is no inde-
pendent judiciary available to enforce
the guarantee of rights in that beauti-
fully written Constitution.
The PRESIDING OFFICER. sThe
time of the Senator has expired.
Mr. DOUGLAS. I yield 2 more min-
utes to the Senator from Michigan.
Mr. HART. What is proposed here is
to say that the Court shall not be al-
lowed to review this particular matter of
State apportionment.
If that is done, it is possible to add 10
more constitutional rights and say that
, the courts shall not have an opportunity
to review those rights, or, for that mat-
ter, to review anything, except within
the' jurisdiction which was given to the
court as basic jurisdiction in the Con-
stitution. We could say to the court:
"You are not to pass upon apportion-
ment," and then we could add 10 or
more rights on which the court could not
pass. Having enjoined the court thus
far, we are in a position to deny it other
jurisdiction also.
Do not Senators realize where we are
going?
We have? a written Constitution. A
formula is provided for changing the
Constitution. It is by way of consti-
tutional amendment. We have three
independent branches of government.
The Congress is one of them. Any more
than we would want the Supreme Court
to tell us to stop legislating in the area
of civil rights, or in any other area, we
have no business telling the court, "Do
not sit as judges in matters like civil
rights or reapportionment."
Mr. METCALF. Mr. President, will-
the Senator yield?
Mr. HART. I yield.
Mr. METCALF. Except that the Su-
preme Court is the weakest branch of
government. It is a branch that has
neither the sword nor the purse. The
executive branch has the power of ad-
ministratiOn. We have the power of
the purse.
So we should be careful, in order to
preserve the separation of powers, that
we adhere to a proper confidence in the
dignity of our coordinate branches.
The PRESIDING OFFICER. The
2 minutes of the Senator from Michigan
have expired.
Mr. HART. I hope that the vote on
the Thurmond-Tuck amendment will be
decisive and will reflect the deep convic-
tion that although there may be times
September 15
when I or some other Member of the
Senate may not like a decision of the
Supreme Court, we are not the reviewing
authority of the Supreme Court, and
we are not supposed to put the Su-
preme Court out of business. The day
we do that, history will mark as the day
when this Republic began to disinte-
grate.
The PRESIDING OFFICER. , Who
yields time?
Mr. DOUGLAS. Mr. President, the
Senator from South Carolina is not in
the Chamber.
Mr. STENNIS. I am representing the
Senator from South Carolina.
Mr. DOUGLAS. I shall be happy to
yield back the remainder of my time if
the Senator from Mississippi will yield
back the remainder of his time.
Mr. STENNI8. Mr. President, on my
time, I suggest the absence of a quorum.
The PRESIDING OtoriCER. The
clerk will call the roll.
The Chief Clerk proceeded to call the
roll.
Mr. THURMOND. Mr. President, I
-ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. THURMOND. I yield 3 minutes to
the Senator from Mississippi.
Mr. STENNIS. Mr. President, the
Senator from South Carolina in his pres-
entation of this amendment has already
cited, as a part of his presentation, a part
of article III of the Constitution to show
the authority as well as the responsibility
of Congress to pass on the question pre-
sented by the proposed amendment. I
now read from article III, section 2, which
I believe will complete the record on this
question:
The judicial power shall extend to all
cases, in law and equity, arising under this
Constitution, the laws of the United States,
and treaties made, or which shall be made,
under their authority; to all cases affecting
ambassadors, other public ministers and con-
suls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the
United States shall be a party; to controver-
sies between two or more States; between a
State and citizens of another State; between
citizens of different States; between citizens
of ;the same State claiming lands under
grants of different States, and between a
State, or the citizens thereof, and -foreign
States, citizens or subjects.
That outlines the entire judicial power
of the Federal courts.
The section relating to the original
jurisdiction of the Supreme Court has
already been quoted.
The PRESIDING OFFICER. The
time of the Senator from Mississippi has
expired.
Mr. THURMOND. I yield 3 more min-
utes to the Senator from Mississippi.
Mr. STENNIS. The second sentence
of the third paragraph of article In pro-
vides:
In all the other cases before mentioned,.
the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with
such exception's, and under such regulations
as the Congress shall make:
So this is a case in which Congress
has the authority and responsibility to
pass on the question of whether we shall
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?
1964 CONGRESSIONAL RECORD ? SENATE
make this exception. Thus the argu-
ment of the junior Senator from Michi-
gbm [Mr. HART], with all deference to
him, that Congress should not touch this
subject, regardless of the subject mat-
ter, will not hold up in the face of the
plain language of the Constitution of
the United States.
If we adopt that formula, we can never
go into any subject, grave, serious and
far reaching as it might be. Thus; our
constitutional authority is clear and
positive. Our duty is clear and positive.
I am delighted to support the amend-
ment of the Senator from South Carolina
I Mr. THURMOND].
Mr. THURMOND. Mr. President, in
closing the argument, there is no ques-
tion about the Senate and the Congress
having the constitutional authority to
adopt this amendment. Under the Con-
stitution, Congress has the clear power
to restrict the appellate power of the
Supreme Court. This amendment would
restrict that power in apportionment
cases. It is clear that the field of appor,
tionment of State legislatures has never.
been delegated to the National Govern-
ment. It is reserved to the States. Since
the Supreme Court has seen fit to go into
the field of apportionment and hand
down its decision, as it has done on this
question, this amendment would merely
put the matter back as it was before the
Supreme Court handed down its decision.
Our National Government is so con-
stituted that Senators come from large
and small areas. A small State such as
Rhode Island, for instance, has two Sen-
ators, just as many Senators as the State
of Texas, a big State, or the State of
Alaska, the biggest State. To counter-4
balance this, the House of Representa-
tives is based on population.
What is wrong with allowing the peo-
ple of a State to-say whether they wish
to have the kind of system similar to the
National Government, or whether they
wish to have a unicameral system, or
some other kind of system?
The people of each State, in my judg-
ment, should have that power. If they
did not have it already under the Con-
stitution?which they clearly do?I
would favor giving that power to the
States of the Nation.
We must remember that in this coun-
try there are 51 governments. We do
not have a United States composed of
subdivisions. We have 50 sovereign
States which have all the powers in the
world except certain specific powers
which the States have delegated to the
National Government. They have not
delegated the field of -apportionment.
Therefore, they have reserved it to them-
selves. But the Supreme Court has en-
tered the field and has deprived the
States of their authority in this field.
Thus, my amendment is intended to
correct that decision of the Supreme
Court.
As I stated, we have 50 States and we
have a Central Government. There are
functions for the States and there are
functions for the Federal Government.
The function of State legislative appor-
tionment should be left to the States.
That was the intention of the Founding
Fathers. It was left with the States
throughout the 173 years of American
history until the Supreme Court handed
down its initial decision. It is strange
that it took the Supreme Court of the
United States down through history, all
the ydars of the existence of our National
Government, before it acted in this field.
Previous Supreme Courts have not dared
to entei? this field because there was no
jurisdiction for the Supreme Court to act
in the field of apportionment. But the
present Supreme Court has seen fit to
do so.
My amendment is intended to correct
that situation. It is intended to leave
the field of jurisdiction with the States
just as those who wrote the Constitution,
our Founding Fathers, intended, in the
first instance.
Mr. President, if the Senator from Illi-
nois speaks, I may wish to reply to him.
Mr. DOUGLAS. I had not intended to
speak on the proposal of the Senator
from South Carolina.
The ACTING PRESIDENT pro tem-
pore. The Senator from Illinois has 4
minutes remaining.
Mr. DOUGLAS. Mr. President, I had
not intended to speak on the amendment
of the Senator from South Carolina, but
certain of his recent statements demand
a reply.
The Senator from South Carolina is
assuming that there have been no
amendments to the Constitution after
the 10th amendment, which provided
that:
The powers not delegated to the United
States by the Constitution, nor prohibited by
it to the States, are reserved to the States
respectively, or to the people.
We are all aware, or should be aware,
that there is a 14th amendment. The
14th amendment provides, in section 1:
No State shall make or enforce any law
which shall abridge the privileges or immu-
nities of citizens of the United States; nor
shall any State deprive any person of life,
liberty, or property without due process of
law; nor deny to any person within its juris-
diction the equal -protection of the laws.
That is as much a part of the Consti-
tution as any other feature?indeed, it
supersedes other features.
?rAs the Supreme Court has properly
asked, how can we have equal protection
of the laws if we have grossly unequal
representation in the legislatures which
make the laws. I believe that the Su-
preme Court was completely correct in
its decisions, both in the Tennessee case
and in the Alabama case, because if we
have grossly unequal representation in
one house, that can be a power of veto
over the State's laws.
The Tuck amendment would close off
both the Supreme Court and the courts
of lower Federal jurisdiction from con-
sidering any reapportionment cases, and
would perpetuate the existing, unequal,
unjust situation which the State legisla-
tures have refused to correct.
Mr. ROBERTSON. Mr. President, will
the Senator from Illinois yield?
Mr. DOUGLAS. Not on my time, but
the Senator may do so on the time of
the Senator from South Carolina.
Mr. ROBERTSON. I need only 30
seconds.
21429
Mr. THURMOND. Mr. President, I
am happy to yield to the Senator from
Virginia, and ask unanimous consent
that the Senator may proceed for 30
seconds.
The ACTING PRESIDENT pro tern-
pore. The Senator from Virginia is
recognized for 30 seconds.
Mr. ROBERTSON. Does the Tuck
amendment apply to the house or to the
senate of the State?
Mr. DOUGLAS. What is before us is
the proposal of the Senator from South
Carolina.
Mr. ROBERTSON. Does the amend-
ment apply only to.the senate? I do not
know whether the amendment applies
to both house or senate of a State.
Mr. CLARK. It does not apply to
either. It strips the Court of all juris-
diction. It has nothing to do with either
senate or house.
Mr. DOUGLAS. The Senator from
Pennsylvania is correct. If we can
deny-
- Mr. THURMOND. Mr. President, I
wish it understood that I am not yield-
ing any more time while the Senator
from Illinois continues.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
Mr. DOUGLAS. If we can deny juris-
diction to the Supreme Court, or to the
district or circuit courts, on any matter
dealing with reapportionment, then we
can deny jurisdiction on any other-mat-
ter?such as the right to vote, and the
other feature of equal protection of the
laws. Thus, I hope that the amendment
will be soundly beaten.
I wish that we might have been able
to discuss this amendment for a longer
period of time. In a moment of good
fellowship, I agreed to a limitation of
debate. I now regret that I did so, but
it was done in a desire to oblige.
Mr. PASTORE. Mr. President, will
the Senator from Illinois yield for a
question?
Mr. DOUGLAS. I am glad to yield to
the Senator from Rhode Island.
Mr. PASTORE: How can we legislate
to deprive the Supreme Court of author-
ity which it has under the Constitution?
Mr. DOUGLAS. I cannot understand
it.
Mr. PASTORE. This amendment is
absolutely unconstitutional.
Mr. DOUGLAS. If the amendment
should be adopted, it would require 3 or
4 years for the Court to pronounce it
unconstitutional; in the meantime it
would have done vast damage.
Mr. PASTORE. Apart from that, I do
not believe that any Member of the Sen-
ate should vote for any amendment
which is patently unconstitutional.
Mr. DOUGLAS. Mr. President, so far
as I am concerned, I am ready to yield
back the remainder of my time.
Mr. THURMOND. Mr. President, it
has been suggested that my amendment
is unconstitutional. That is not true.
As I stated in my original statement,
article III, section 2 of the Constitution
provides:
In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in
which a State shall be Party, the supreme
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21430 CONGRESSIONAL RECORD ? SENATE
Court shall have original Jurisdiction.
the Other CaseS?
I repeat?
in all the other Cases?
In all
That includes reapportionment?
before mentioned, 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.
It is absolutely clear that Congress has
the power to remove jurisdiction in the
field of apportionment from the Stiprerne
Court if it wishes to do so. I am amazed
? that some Senators should wish to de-
prive the people of their own States?
the people of Illinois, the people of Rhode
Island, the people of Wisconsin, or of any
other State?of the right to decide on
the type of legislation they want. They
want to let the Supreme Court decide it.
I am willing to trust the people. I am
willing to trust the people of South Caro-
lina. If they want a unicameral legisla-
tion, they ought to have the right to have
it. If they want some other kind of gen-
eral assembly, they ought to have the
right to have it.
I do not believe that the Supreme
Court of the United States ought to dic-
tate to any State the type of legislative
body it should have. I do not believe the
Supreme Court should say to the States:
"You are compelled to have this type of
legislative body, although you desire an-
other type of legislative body."
This amendment would merely give
the decision to the people of the States,
and let each State have the type of leg-
islature it desires.
? There is no question as to the con-
stitutionality of this amendment. I hope
the Senate will see fit to adopt it. That
would remove the jurisdiction in appor-
tionment cases from the Supreme Court,
as those who wrote the Constitution in-
tended it in the first instance.
Mr. President, I yield back the re-
mainder of my time.
The ACTING PRESIDENT pro tern-
pore. All time has been yielded back.
The question is on agreeing to the
amendment of the Senator from South
Carolina.
The yeas and nays have been ordered;
and the clerk will call the roll.
The legislative clerk proceeded to call
the roll.
Mr. WALTERS (when his name was
called) . Mr. President, on this vote I
have a pair with the Senator from Mis-
souri [Mr. SYMINGTON] . If he were
present and voting, he would vote "nay."
If I were at liberty to Vote, I would vote
"yea." I withhold my vote.
The rollcall was concluded.
Mr. HUMPHREY. I announce that
the Senator from Idaho [Mr. CHURCH],
the Senator from Alaska [Mr. GRUEN-
ING], the Senator from Indiana [Mr.
HARTKE], the Senator from Utah [Mr.
Moss], and the Senator from Missouri
[Mr. LoNc] are absent on official busi-
ness.
I also announce that the Senator from
Massachusetts [Mr: KENNEDY] and the
Senator from Alabama [Mr. HILL] are
absent because of illness.
I further announce that the Senator
from Washington [Mr. JAcxsoN], the
Senator from Wyoming [Mr. McGEE],
and the Senator from Missouri [Mr.
,SYMINGTON] are necessarily absent.
I further announce that, if present and
voting, the Senator from Idaho [Mr.
CHURCH], the Senator from Alaska [Mr.
GRUENING], the Senator from Indiana
[Mr. HARTKE] , the Senator from Wash-
ington [Mr. JACKSON], the Senator from
Massachusetts [Mr. KENNEDY], and the
Senator from Missouri [Mr. LONG] would
each vote "nay."
Mr. KUCHEL. I announce that the
Senator from Kansas-[Mr. CARLsoN], the
Senator from New Hampshire [Mr. COT-
TON], the Senator from Arizona [Mr.
GOLDWATER], the Senator from Idaho
[Mr. JORDAN] , the Senator from Iowa
[Mr. MILLER], the Senator from Mass-
achusetts [Mr. SALTONSTALL] , the Sena-
tor from Pennsylvania [Mr. SCOTT], and
the Senator from Texas [Mr. TowER]
are necessarily absent.
Also, the Senator from Utah [Mr.
BENNETT] , the Senators from Nebraska
[Mr. CURTIS and Mr. HRusKA], and the
Senator from Delaware [Mr. WILLIAMS]
are necessarily absent.
On this vote, the Senator from Utah
[Mr. BENNETT] is paired with the Senator
from Idaho ( [Mr. JORDAN]. If present
and voting, the Senator from Utah would
vote "yea" and the Senator from Idaho
would vote "nay."
On this vote, the Senator from New
Hampshire [Mr. COTTON] is paired with
the Senator from Nebraska [Mr.
HRUSKA]. If present and voting, the
Senator from New Hampshire would
vote "yea" and the Senator from
Nebraska would vote "nay."
On this vote, the Senator from
Nebraska [Mr. CuRTis] is paired with
the Senator from Pennsylvania [Mr.
Scorr]. If present and voting, the Sen-
ator from Nebraska would vote "yea"
and the Senator from Pennsylvania
would vote "nay."
On this vote, the Senator from Texas
[Mr. TOWER] is paired with the Senator
from Delaware [Mr. WILLIAMS]. If pres-
ent and voting, the Senator from Texas
would vote "yea" and the Senator from
Delaware would vote "nay."
If present and voting, the Senator
from Kansas [Mr. CARLSON], the Senator
from Iowa [Mr. MILLER], and the Sen-
ator from Massachusetts [Mr. SALTON-
STALL] would each vote "nay."
The result was announced?yeas- 21,
nays 56, as follows:
[No. 574 Leg.]
YEAS-21
Byrd, Va. Johnston
Byrd, W. Va. Jordan, N.C.
Eastland Long, La.
Ellender McClellan -
Ervin Mundt
Hickenlooper Robertson
Holland Russell
Aiken
Allott
? Anderson
Bartlett
Bayh
Beall
Bible
Boggs
Brewster
Burdick
Cannon
Case-
NAYS-56
Clark
Cooper
Dirksen
Dodd
Dominick
Douglas ,
Edmondson
Fong
Fulbright
Gore
Hart
Hayden
_
Simpson
Smathers
Smith
Sparkman
Stennis 7
Talmadge
Thurmond
Humphrey
Inouye
Javits
Keating
Kuchel
Lausche
Magnuson
Mansfield
McCarthy
McGovern
McIntyre
McNamara
Mechem
Metcalf
Monroney
Morse
Morton
Muskie
Nelson
Bennett
Carlson .
Church
, Cotton
Curtis
Goldwater
? Gruelling
Henke
September 15
Neuberger
Pastore
Pearson
Pell.
Prouty
Proxmire
Randolph
NOT VOTING-23
Hill Moss
Hruska Saltonstall
Jackson Scott
Jordan, Idaho Symington
Kennedy Tower
Long, Mo. Walters
McGee Williams, Del.
Miller
Ribicoff
Salinger
Williams, N.J.
Yarborough
Young, N. Dak.
Young, Ohio
So Mr. THURMOND'S amendment, in the
nature of a substitute for the Dirksen-
Mansfield amendment, was rejected.
Mr. McNAMARA obtained the floor.
HEALTH CARE FOR THE ELDERLY
UNDER SOCIAL SECURITY
During the delivery of Mr. MCNAmARA's
speech,
Mr. CLARK. Mr. President, I desire
to propound several parliamentary in-
quiries to the Chair with respect to the
appointment of Senate conferees on the
social security bill. In order that the
Chair may understand the inqiiiries, I
ask the Chair to turn to page 22 of. the
calendar of business for Tuesday, Sep-
tember 15, on which are listed the Senate
conferees appointed on September 3. I
call the attention of the Chair to the
generally recognized rule that a majority
of the conferees representing the Senate
on any legislative controversy must have
supported the position of the Senate on
questions in disagreement with the House
of Representatives. I suggest to the
Chair?and if the Chair is in disagree-
ment with me, I have no doubt that he
will so advise me?that the principal
matter in disagreement between the
House and the Senate in relation to the
social security bill was the Gore amend-
ment, which established health care for
the elderly under social security.
Then I call attention to the voting rec-
ord? of Senators listed as conferees. I
note that Senator BYRD of Virginia voted
against the Gore amendment. Senator
LoND of Louisiana voted against the Gore
amendment. Senator SMATHERS of Flor-
ida voted against the Gore amendment.
? Senator WILLIAMS of Delaware voted
against the Gore amendment. Senator
CARLSON of Kansas voted against the
Gore amendment.
Of the seven Senators listed as con-
ferees, only two?Senators ANDERSON and
GORE?voted for the Gore amendment,
which is the principal matter in disagree-
ment between the House and the Senate.
My first parliamentary inquiry, with
respect to which I would ask the Presid-
ing Officer to turn to page 172 of "Senate
Procedure," authored by our Parliamen-
tarians Messrs. Watkins and Riddick, is
to ask whether it is not the precedent in
the Senate that conferees are designated
by the friends of the measure who are
in sympathy with the prevailing view of
the Senate, and with consideration for
the usual party ratio.
, The ACTING PRESIDENT pro tern-
pore. The Senator is reading from page
172 of the manual entitled "Senate pro-
cedure," which states that conferees are
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