To understand the consequences of these decisions, we must look beyond the Court's usurpation of the power of the people to decide political questions, however, and examine the substance of the new rule of political order sought to be imposed by the Court. The new political principle sought to be imposed by the Court is commonly characterized as one person, one vote. This catch word phrase, one person, one vote, which the defenders of the Supreme 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 reapportionment decisions of the Court. It is, however, a noble sounding oratorical gimmick which is highly susceptible to use in demogogic polemics, because it is difficult to define as it applies to any given situation. In application, 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 interested 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 unconstitutional by the Supreme Court. To illustrate 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 influences 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. Chairman, 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 constitutional 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 staunch advocate of electoral college reform based on the district plan preferably, but if not, then the proportional plan, to bring about a more equitable voice on the part of individuals in the smaller States. However, I have not advocated 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 ap portionment of legislative representation with various other factors in their own States, just as was done in framing the structure of the central Government." One factor which has been considered in many. if not most States, has been the integrity of local governing units, such as the counties Their independence of action and ability to best serve the needs of their own people is guaranteed by their separate representation in both bodies of the State legislature. The Supreme Court seemed to be overly sensitive when it was considering the apportionment on the upper bodies of the States' 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 population 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, regardless of its population. Thus Delaware has equal representation in the Senate with New York, although New York has at least 35 times more population. But Delaware, even with its equal representation in the Senate, nor even in combination with other small population 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 Delaware in the Senate gives it at most an increased defensive power to what it would have were representation in Congress based solely on "one-person, one-vote." Similarly, the weighting of representation in favor of rural residents gives them an increased defensive power, leaving 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 concept of one-person-one-vote, have progressed to the point where approximately 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 of the fact that the agricultural sector through its defensive power stemming from its weighted representation has managed to protect its vital interests in the intertwined political and economic order. Nor is the nature of agricultural enterprise such that those engaged therein can protect their vital interests outside the formal political structure by combined economic action through organization, 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 other than population-have been recognized, and the departures from the one-person-one-vote concept have not only been tolerated, but affirmatively approved by the majority of the people. It has been alleged by defenders of the Supreme Court's rulings, that the structure of government of the States differs in substantial degree from the structure of the central Government. In some cases this is true, but in many, if not most States, there is a striking similarity. I offer as an example the State which I have the honor to represent in the Senate-South Carolina. South Carolina has 46 counties, and each county has one Senator in the upper body of the State legislature, the Senate, regardless of the population of the county. In the lower House of the State legislature, the House of Representatives, each county has a number of representatives according to its popula tion. From the standpoint of legislative representation, this governmental structure is the equivalent of the governmental structure of the central Government, the counties of the State in this particular respect being the counterpart of the States in relation to the central Government and having a guaranteed representation in the upper body of the legislature, without regard to population. This procedure has enabled the counties of my State to function as a close knit local unit of govern ment, being administered to a considerable extent by the county delega tion in the State legislature, which is made up of the county senator and members of the State house of representatives from the county. Largely as a result of this, South Carolina has enjoyed sound government, responsive to the wishes of the electorate. If the Supreme Court's decisions were implemented in South Carolina, it would sound the death knell for the county governmental units. and a system of government which has proved to be beneficial and workable. The result would be confusion and chaos in the place of stability. To explain what I mean, one possible result of implementation of the Supreme Court's decisions in South Carolina would be a grouping of two or more of the less densely populated counties into one senatorial district, and allocating several Senators to the heavily popu lated counties. As a result, some counties would be virtually precluded from ever having a citizen of that county represent them, and their county, in the State senate. Make no mistake, in addition to representing the people of the county, a State senator represents the county in the State senate in the same fashion that a U.S. Senator represents both a State and the people of the State. In the most recent issue of the South Carolina Law Review, there appears an article entitled, "The Reapportionment Cases-An End to Judicial Restraint." A portion of the author's conclusion is particularly pertinent at this point. He says: [T]he assertion that the consideration of historic, economic, or geographie factors in legislative apportionment is per se “arbitrary” or “capricious" has no more merit than the argument that apportionment purely on a population basis does no more than to place a premium on ferticility. There may be no perfect answer to the apportionment dilemma. But one thing is painfully clear: It is much too complex a problem to be solved by any such pronouncement as "legislatures represent people, not trees or acres." Mr. Chairman, I recommend this article, which was written by J. Kendall Few, a law student at the University of South Carolina, very highly as a sound legal analysis of this line of decisions by the Court. I ask that the article be included in the hearing record at the conclusion of my remarks. The Legislature of South Carolina has adopted a concurrent resolution memorializing the Congress of the United States to call a convention for the purpose of proposing an amendment to the Constitution of the United States which is very similar to S.J. Res. 2. This resolution has been printed in the Congressional Record and referred to this committee. I ask that this resolution appear in the printed record following my remarks. The wisdom and foresight of Thomas Jefferson is unchallenged. However, a statement which he made in 1821, placed in the context of our present situation, reaffirms my belief in him. He said that: The germ of dissolution of our Federal Government is in the Federal judiciary: an irresponsible body・・・ working like gravity *** gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. When all government ** in lite as in great things shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we sepa rated. Thomas Jefferson's wisdom led him to anticipate the role and the course of the Supreme Court with astonishing accuracy. In my judgment it is necessary that the Congress of the United States take the first step in countering the trend which is so evident today. For that reason, I ask that the subcommittee give speedy approval to S.J. Res. 2, and I am certain that the States will ratify this proposed Constitutional amendment in short order. I wish to thank you gentlemen for your attention. (The material referred to follows:) THE REAPPORTION MENT CASES-AN END TO JUDICIAL RESTRAINT It may be safely stated as a general principle that it is not within the province of any court to control or review the determinations of the political branch that are within the limits of the Constitution.1 Although this line between judicial and legislative functions in Government has not been drawn with precision, for many years the judiciary has refrained from interference in those fields which it considers purely political in nature. 3 The courts have long felt that each department should be limited to a sphere of activity for which it is best fitted; and consequently they have denied jurisdiction over the subject matter or declared nonjusticiable questions in such fields as foreign relations, validity of enactments," the status of Indian tribes," and legislative apportionment. In 1840 the English justices refused to intervene in "The Duke of York's Claim to the Crown." In 1844 the famous Dorr's rebellion broke out in Rhode Island, and Dorr was elected governor under a government organized by a popular assembly without regard to the existing charter government. Our Supreme Court, called upon to determine the duly constituted government, refused to undertake jurisdiction, holding that the question was one which Congress alone must decide. Then, as late as 1946, the Court refused to exercise its equity powers over a claim challenging the constitutionality of the apportionment of congressional districts in the State of Illinois.10 These decisions have been predicated on the belief that such controversies ought to be determined by the people in their sovereign capacity or that full discretionary powers should be left to the legislative or executive departments." The doctrine that has evolved from these cases has come to be known as the doctrine of "political questions"-a prime example of judicial self-restraint. However the scope of its jurisdiction is a question the Court itself must decide—a fact unquestionably demonstrated by the radical change in the Court's treatment of legislative reapportionment reflected in the cases which follow.13 COLGROVE V. GREEN In 1946 a suit was brought under the Federal Declaratory Judgments Act challenging the apportionment of congressional districts in Illinois as unconstitutional. The district court dismissed the action for want of equity, stating that the issue was of a peculiarly political nature and therefore not within the province of the courts to decide." The Supreme Court in a four to three decision (Justice Rutledge concurring) affirmed the decision of the lower court, finding the "issue to be of a peculiarly political nature and therefore not meet for judicial determination." 16 Justice Frankfurter, writing for the majority cited article I, Wilson v. Shaw, 204 U.S. 24 (1907). Finkelstein, "Judicial Self Limitation," 37 Harv. L. Rev. 338, 363 (1924). 15 If the duty asserted may not be judicially identified and its breach judicially determined or if protection for the right cannot be judicially molded, then the claim is nonjusticiable. Justice Brennan for the majority in Baker v. Carr, 369 U.S. 186, 198 (1962). Ortien v. Central Leather Co., 246 U.S. 297 (1918). Coleman v. Miller, 307 U.S. 433 (1939). The Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Colgrove v. Green, 328 U.S. 549 (1946). $3 Rot. Parl. 375 Wambaugh, Cases on Constitutional Law 1 (1460). 'Luther v. Borden 48 U.S. (7 How.) 1 (1849). 19 Colgrove v. Green, 328 U.S. 549 (1946). In re McConaughy, 106 Minn., 392, 119 N.W., 408 (1909). "Weston, "Political Questions," 38 Harv. L. Rev. 296, 302 (1925). "Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders, 372 U.S. 368 (1963); Westberry . Sanders, 84 Sup. Ct. 526 (1964); Reynolds v. Sims, 84 Sup. Ct. 1362 (1964). Colgrove v. Green, 64 F. Supp. 632 (1946). Colgrove v. Green, 328 U.S. 549 (1946). 16 Id. at 552. section 4 of the Constitution providing that the manner of electing representatives "shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations ***" [Emphasis added.] The majority felt that the short article I, section 4 was that the Constitution had conferred on Congress the exclusive authority to secure fair representation in the States, and furthermore, that it would be unwise for the courts "to enter this political thicket." " Justice Black, joined by Justices Douglas and Murphy, dissenting, felt that the complaint presented a justiciable cause and controversy and that the court should exercise jurisdiction. He argued that existing malapportionment amounted to a willful discrimination against urban voters and a denial of equal protection of the laws. Black was of the opinion that the malapportionment of the congressional districts destroyed the effectiveness of the plaintiffs' vote, and that such dilution was no more constitutionally permissible than denying their vote altogether. 20 Justice Rutledge concurred in the affirmance, contending that the "cure sought may be worse than the disease," " and consequently that the case should be dismissed for want of equity. Though he agreed with the dissent that the "Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable,” there are "important points of concurrence" with the reasoning of the majority." Thus it was questionable for some 16 years whether Colgrove "flatly held that there was jurisdiction over the subject matter," or merely denied jurisdiction as a matter of equitable restraint, "though not in the strict sense of want of power." Those per curiam decisions on similar cases after Colgrove did little to answer the question." Some indication of a possible change of position was apparent from the Court's decision in Gomillion v. Lightfoot.” Legislative control of municipalities, no less than other State power, lies in the scope of relevant limitations imposed by the United States Constitution. [Emphasis added.]* In declaring unconstitutional the redefining of the municipal limits of Tuskeegee, Ala., the Court held that the systematic exclusion of Negroes was an abridgment of their rights under the 15th amendment. Colgrove was distinguished as involving merely legislative inaction and the resulting dilution of voting power, whereas Gomillion involved an affirmative action depriving a readily isolated racial minority of their votes and the consequent advantages of the ballot. BAKER V. CARR In 1962 an action was brought challenging the constitutionality of Tennessee's 1901 apportionment statute on the grounds that it denied the plaintiffs and those similarly situate equal protection under the laws. A three-judge district court, relying on Colgrove, dismissed the complaint on the grounds that it lacked jurisdiction over the subject matter and that no claim was stated upon which relief could be granted." On appeal the Supreme Court in six separate opinions (three concurring and two dissenting) reversed the lower court and remanded the case for trial on the merits Justice Brennan, writing for the majority (with whom Chief Justice Warren and Justice Black concurred), held only (a) that the court possessed jurisdiction of the subject matter; (b) that the case stated a justiciable cause of action; and (e) that the appellants had standing to challenge the Tennessee apportionment statutes. The court disposed of Colgrove by * Id. at 556. * Id. at 357, Black dissenting " M. at MA, Rutiidze conenring 2 Id. at 56", Radelse sene irrë # Biker Y Carr, P978, 196977 (1982), Frankfurter dissenting. #Id. at 2. Brennan for the majority, |