Proponents of the amendment reply. "But we have provided that the people have the right and power to determine the reapportionment plan. Doesn't this protect the public interest?"

Unfortunately, it does not. The amendment's provision for a one-shot referendum on each State's reapportionment plan would actually freeze out even the people. Once the original apportionment plan were approved, even the voters themselves could not correct it. The New York Times called this the most serious defect of the amendment, and continued:

"It permits apportionment on a nonpopulation basis in perpetuity if such a course has once been approved by referendum. But what if the majority in the future changes its mind on this issue? Any amendment on this subject should require the States to reapportion every 10 years and require a referendum each time, to make certain that a majority still favors apportioning one house on a basis other than population. Otherwise, the outrageous malapportionments that the Supreme Court finally intervened to correct could grow up all over again."

The amendment's second defect is the blank check given to the States to use any criteria in determining their reapportionment. The phrase, "upon the basis of factors other than population," gives States a completely free hand. Recently I attended a dinner of legislative correspondents in New Jersey. They proposed a plan, drawn up to fit within the protection of this amendment. which suggests the range which the amendment would allow the New Jersey Legislature:

"Under the plan, counties would be credited with 200,000 residents for each boardwalk, 250,000 for each ferry mooring, 1.3 for each chicken, and 5,34 fr each hundredweight of milk produced. The plan gives Somerset an extra 150.000 residents for its population of foxhounds, as determined under the last census by local hunt clubs. * * * The U.S. Supreme Court has said legislators represent people, not acres, trees, cows, or pastures. The Court was eloquently silent on the specific questions of boardwalks, ferries, chickens, butter, and foxhounds" The plan was proposed in jest, but it illustrates an important point. If the amendment were adopted, States could and some might apportion themselves of the basis of such factors as income level, religious belief, or-most probable— color. I am sure this is not the intent of the distinguished minority leader in proposing this amendment, but recent history suggests that it could very well be the outcome. The lengths to which some Southern States have gone to prevet the Negro from voting indicate that they would not be reluctant to use this amendment as an additional weapon.

The proponents of Senate Joint Resolution 2 claim it is needed in order to "protect minority rights." The rights of minorities as well as majorities must be protected, but how this should be done is another question. The supporters of this amendment seem to think that the only way to provide adequate protertion of the rights of any minority is to give that particular minority a hammerlock on the legislative process. They are usually thinking of citizens in rural or less populous areas. But if the premise is true, is not every minority entitled to the same kind of consideration? That is to say, why not give every minority a hammerlock on the legislative process? Why should one minority be more equal than any or all other minorities?

The fact is that the only reliable safeguards for any minority are to be found in the Constitution and the Bill of Rights and, even more basically, in the selfrestraint and respect for others on the part of the public in general.

I find it surprising that many individuals and groups which traditionally have opposed extensions in the power of the Federal Government are working for adoption of this amendment. If we had set out to hobble the already stumbling institution of State government, we could not have found a better way. The story of many of our State legislatures is one of stall and stalemate, indecision and inaction in the face of urgent issues.

If this amendment should pass, many of the States, already stymied in their efforts to find modern solutions to problems of growth and urbanization, will inevitably look increasingly to the Federal Government.

My colleague from Wisconsin, Senator Proxmire, has stated the issue clearly: "This amendment is calculated to assure the country that State government— which has been too timid, too backward, too reluctant, and as a result has seen its power and initiative go to Washington-will be slowed down to a molasses pace indefinitely. It would do so by striking down the greatest opportunity in many years which the States have had for swift progress."

If this amendment should pass, we will have set the wheels of progress turning backward for State governments. In an age of increasing urbanization and urban problems, in a period when many citizens are la.nenting the growth of the Federal Government, we cannot afford to take such shortsighted action.

STATEMENT OF SENATOR GEORGE MURPHY

As a cosponsor of S.J. Res. 2, which would grant to the people in each State the right to decide whether they wish to be represented in one house of the State Legislature on factors other than population, I am pleased to testify before this distinguished committee.

The Supreme Court on June 15, 1964, in Reynolds v. Sims ruled that both Lonses of a State legislature must be apportioned on the basis of population. This was a precedent-shattering and a far-reaching decision--one I believe that goes to the very foundation of our system of free government. No decision since the birth of the Republic portends greater disruption and alteration of our State legislatures.

To implement the Court's decision would in my opinion result in a devastating blow to representative government and bring an unwanted end to the time-tested and successful tradition of our balanced bicameral State legislature-a system under which the States have prospered and grown, a system under which the Lany interests of our many people have been accommodated, and a system under which the will of the majority has prevailed and the rights of the minority have been protected.

The United States has changed drastically since its founding. From the 13 original States of approximately 3 million rural people engaged mainly in agricniture, we have developed into a mighty Nation of 190 million people spanning the continent and reaching many miles into the Pacific to Hawaii. During this development the face of the Nation has changed. Unlike the rural agricultural society of our forebears we became an industrial, urban society. Because of this remarkable growth, it is obvious that the State legislatures have served the people well. True, the work of society is not completed; yet one can discern a Steady forward advance of this great Nation. It is readily admitted that in many cases the legislators failed to reapportion the lower house to reflect the population changes.

Suice reapportioning may unseat present law makers, it is understandable that they would be reluctant to reapportion. As in many other areas, this demonstrates that when States failed to meet their responsibilities. Federal encroachment upon areas better reserved for the States is invited.

In ruling that both houses must be apportioned on the basis of population, the Court plunged headlong into what Justice Frankfurter described as the "politeal thicket." This decision shook the Nation like an earthquake. Many earlier supporters of the Baker v. Carr decision now deserted the Court.

Should factors other than population be considered in the apportioning of ne house in the State legislature? Surely no one would dispute that the 3 milFon American farmers are disproportionately more important to our society than their numbers. Why then should it not be possible, if the people so desire, for such interest to be given greater weight in one legislative body? The present Chief Justice of the Supreme Court, Mr. Warren, apparently had this in mind when he declared in 1948, when he was governor of California: "Many California counties are far more important in the life of the State than their population bears to the entire population of the State. It is for this reason that I have never been in favor of restricting the representation in the (State) senate to a strictly population basis."

Opponents of this resolution maintain that the present system perpetuates the "rotten-borough" system. One may very well find cases illustrating the rural domination of State legislatures has thwarted the people's will, but I would point out history is more replete with examples of corruption and bossism resulting from city political machines. State legislatures patterned after the Federal System provide a balance between the extremes of rural domination and city domination. This balanced structure has blended remarkably well the diverse interests of our Nation. This system by achieving a concensus among the many groups of people has produced effective and fair representation in the proper interest of all.

Many foresee inevitable conflict between rural and urban America. I do not share their fears, for Americans historically have been sympathetic to their fellow citizens' problems. Americans realize that the rural and urban interests complement and are interdependent of each other.

To illustrate this fact, I would like to have incorporated a study prepared by the staff of the California State Legislature outlining the record of the California State Senate on urban legislation. A reading of this document wil completely dispose of the myth that one body of the State legislature based on factors other than population will be unsympathetic to the needs of the urban areas. (See exhibit appearing on p. 389.)

States should be permitted to organize their government in the manner desired by the people. S.J. Res. 2 would establish broad guidelines which would require that one house be truly based on population and at the same time permit the upper house, if the people desired, to be based on factors other than population. Frequently opponents of S.J. Res. 2 also rely on the catchy euphonic one-manone-vote slogan. Yet, supporters of the one-man-one-vote decision by their very opposition seem to fear the result of allowing the citizens such a vote, for one man, one vote is exactly what this resolution commends. Every voter would voice through the ballot box his choice whether he wished to be represented in one house of a bicameral legislature on factors other than population. It allows people to determine whether the State's unique characteristics require that representation in the upper house be based on factors such as geography, economics, area and local political subdivisions.

I wish to make it clear that this is no effort to undermine the Supreme Court Decisions of the Supreme Court, like the operations of the other great branches of our Government, properly remain accountable to the people, the ultimate source of political power in our free society. The courts do not have the final word in constitutional law. Our founding fathers wisely established an amending procedure giving the people the final verdict. I for one believe the people have the right and they should be given the opportunity to express their de cision on this most fundamental question of representation in the State legislature. I urge immediate favorable action by this subcommittee.

Senator BAYH. We are now in adjournment until 10 o'clock on March 17.

(Whereupon, at 5:22 p.m., the committee recessed, to reconvene at 10:00 a.m., on Wednesday, Mar. 17, 1965.)

REAPPORTIONMENT OF STATE LEGISLATURES

WEDNESDAY, MARCH 17, 1965

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:10 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding.

Present: Senator Bayh.

Also present: Larry Conrad, chief counsel.

Senator BAYH. The subcommittee will please come to order.

Before starting we should note that the hearings for today and tomorrow were published in the Congressional Record of March 11, 1965.

This morning we have two distinguished Senators from Colorado, our colleague, Senator Dominick, and one of the former Senators who made the Senate what it is today, Senator Johnson.

Senator Dominick, why do you not lead off?

Senator DOMINICK. Mr. Chairman, I appreciate the chance of appearing before you. I have already had the opportunity of giving my own personal testimony and today I have an even more signal honor.

For a long time the gentleman on my right has been a good friend of mine a different political party, but I think one of our most distinguished Colorado public servants that we have ever had.

Senator Ed Johnson, Gov. Ed Johnson, Big Ed, as he has been called colloquially and lovingly by people in Colorado for many years, was one of the major spearheads of the constitutional amendment which was placed on the ballot for the Supreme Court to look at after we passed it by an overwhelming vote of the Colorado people in 1960. I think he probably knows as much about the Colorado situation with regard to reapportionment as any man in the State. He certainly has been as active in it as anybody that I can think of and has done it in a very distinguished way. So to have him here testifying in this I think will give great prestige to the hearing record and I hope will prove very enlightening as far as the committee itself is concerned. So, Mr. Chairman, it is my pleasure at this time to recommend to you my good friend, Senator Ed Johnson.

Senator BAYH. It is an honor to have you testify before the committee.

To those of us who are relatively newcomers to the Senate, we have looked upon your past career in this body as a goal toward which we should direct our attention.

48-124-65- -32

STATEMENT OF HON. EDWIN C. JOHNSON, A FORMER U.S. SENATOR FROM THE STATE OF COLORADO

Senator JOHNSON. Thank you, Mr. Chairman. I am happy to have some excuse to come back here and associate with the present Senators. I read about you all the time and now I am glad to be here personally for a little renewal of my long acquaintance with the membe of this very great body.

I appreciate the very generous and kind remarks of Senator Don nick. It places me in somewhat of a handicap, however, to try to live up to the praise that he has bestowed upon me. But I think we all understand these things and I appreciate very much this opportuni to come here before you and speak to you on a question that is tremendous importance to me personally.

Now, Mr. Chairman, I won't read what I have here, the first part graph of what I have here as to my record, but I would like to have it go into the record.

Senator BAYH. I might make one note if I could for the record.

For someone who has served in as many different posts of honor and retired from each voluntarily is a record that is pretty difficult to com pete with.

Please proceed.

Senator JOHNSON. Thank you, sir. Please accept my most sincete thanks.

Gentleman, for the record, my name is Edwin C. Johnson. I live at 901 Sherman Street, Denver, Colo. I served four terms in the horse of the Colorado legislature; one term as Lieutenant Governor of Col rado and president of the Colorado State senate; three terms as Gove nor of Colorado; and three terms as U.S. Senator. I retired vo'tari from each of these offices. At the present time I am Commissioner the Upper Colorado River, which serves four Rocky Mountain States. I was appointed to this high and vital office by a Democratic Governoz and reappointed by a Republican Governor.

Please accept my most sincere thanks and appreciation for this o portunity to submit testimony, on proposals to amend the Constituti of the United States. This is indeed a most serious problem. T preservation of local government at the State level is the issue. To obtain this protection, the U.S. Constitution must be amended to bri to an end Federal court oppression in the field of State legislati apportionment.

In his magnificent "Farewell Address" George Washington, t Father of His Country said:

This Government *** in the distribution of its powers contains with r itself, a provision for its own amendment, and thus has a just claim to your confidence and support.

The Founding Father is saying to the States: "You can amend t Constitution." The record would show that I have not been prejudice against the Supreme Court of the United States. I have been for the Supreme Court. When the 16th General Assembly of the States, Chicago on December 6, 1962, proposed three amendments to the Co stitution, I engaged in public debate against all three. They were: 1. Revise article V, so as to modify provisions for State initiation of amendments, without the necessity of a convention;