October 14, 1964
In the closing days of the 88th Congress, when it appeared we would never adjourn, I found myself hearing echoes of 1937 -- that year when the famous "Nine Old Men" of the Supreme Court had struck down a series of New Deal economic measures and President Roosevelt, in retaliation, tried but failed to "pack" the Court with six more judges who presumably would be more favorable to his point of view. Congress has now adjourned, and we can all take advantage of the "breather" to assess what this latest debate is all about.
The most striking fact to be noted is that the Court's defenders and attackers have switched sides. Conservatives of 1937 regarded that Court as the "country's greatest symbol of orderly, stable and constitutional government," while some conservatives of 1964 view the present tribunal as a "destroyer of the Constitution, enemy of federalism, and perhaps the Communist Party's best friend." Roosevelt attacked the Court for obstructing legislative power; today's charge is that the Court usurps legislative power.
But such attacks and switches are an old story to American historians. Sine 1789 the three separate and equal branches of our national government have often collided in bitter contests of power. And in nearly every era the Supreme Court -- one of those equal branches -- has been a center of controversy. Marbury v. Madison, Chief Justice Marshall's history-making decision of 1801, claimed for the Court the now-accepted right to make acts of Congress invalid; this decision stirred passions for more than a decade. The Dred Scott fugitive slave decision of 1857 wrecked the Missouri compromise and, historians agree, brought on the Civil War.
In all the stormy history of the Court, however, no panel of judges has been involved in more controversy than the "Warren Court" of 1953-64. While the decisions of the "Nine Old Men" of the 1930s centered on economic legislation, the controversial Court decisions of the 50s and 60s have dealt largely with personal freedoms and civil liberties: school desegregation, prayer in public schools, free speech vs. obscenity, and the rights of individuals charged with crime.
Now in this election year of 1964 a new series of decisions has disrupted the Congress, aroused the wrath of hundreds of State legislators, and set off a heated national debate. It seems likely the controversy will be settled only by 1) the defeat or 2) the passage of a constitutional amendment.
THREE DECISIONS IN ALL
These new decisions are based on a theory of representative government with the catchy slogan: "One man, one vote." I have been asked by many people to explain the basis and impact of these decisions on the governments of our 50 States -- and on Arizona's, in particular. Let's take a look at them.
While a large number of separate cases have been
decided, they fall into a pattern of three separate rulings:
UNEQUAL REPRESENTATION: LOWER LEVEL
Whether these "Third Ruling" cases are right or wrong, good or bad, no one can deny that some of the States have allowed thinly-populated areas to exercise extra, and often strikingly disproportionate, power in making State laws. This is a result of 1) the immense growth of cities and the decline of rural populations, and 2) a failure of these States to adjust the allocation of legislative seats as the population distribution has changed.
Consider these statistics: In 1910 the counties in this country having 100,000 or more residents had a combined population of 31 million, or 33 percent of the nation's population. By 1960 counties in this category had a combined population of more than 114 million, or 64 percent of the nation's population. Yet few States had given these counties any additional representation in either house, and there are even examples of their representation having been decreased.
Here are some of the most striking disparities
in lower house apportionment:
What about Arizona? The Arizona House of Representatives, by contrast with the cases cited above, is one of the most fairly apportioned legislative chambers in the nation. Every four years the Secretary of State simply counts the votes for governor in the last election and re-divides the 80 House seats among the counties.
In similar fashion the U. S. House of Representatives is reapportioned after every census. The seats are automatically re-divided by a simple and mechanical notification by the House Clerk to the States.
These are sound procedures which never put an elected legislator in the position of having to decide that ultimately painful political question: "Should my own seat be abolished?" However, our Arizona Constitution provides that each of the 14 counties shall have at least one representative, and this does create some departure from strict, "one man, one vote" apportionment. For example, Mohave's one state representative speaks for 7,700 people, while Maricopa's 40 members represent an average of 14,000 and Pima's 17 members represent an average of 15,000.
UNEQUAL REPRESENTATION: UPPER LEVEL
In State Senates, many of them patterned on the
Federal Congress (with lower house based on population and upper house
on area) the extreme examples are equally startling:
THE FIGHT SHIFTS TO CONGRESS
The ink was hardly dry on the Reynolds and Lucas cases when the first cries of outrage went up from State officials across the country -- and especially State legislators whose jobs might be at stake.
It was quickly apparent that only an immediate constitutional amendment (or perhaps some action by Congress) could prevent the Federal courts from putting this decision into prompt effect in all 50 States. In fact, a few legislatures (Michigan and Oklahoma, for example) have already been reapportioned by Federal court order, and many other suits have been filed but not acted upon. (Included is one directed at the Arizona State Senate.) Governor Fannin has appointed a blue-ribbon, bi-partisan committee to study the impact of the Arizona suit and make recommendations.
The two houses of Congress are sharply divided on their approach to this issue. Most United States Senators owe their election to voting majorities in the large cities found in almost every State. However, a majority of United States Representatives are elected from areas which have large rural and small-county populations with pivotal voting strength. My district is mixed: one large city with 65 percent of the people and four smaller counties with the remaining 35 percent.
In August, Senator Dirksen of Illinois, spokesman for the anti-decision forces, offered the "Dirksen rider" to the foreign aid bill. The rider was designed to hold off enforcement of the "one man, one vote" decisions for two years, giving the States time to pass a Constitutional amendment to legalize the present legislatures. In late September, after a bi-partisan group of urban-oriented senators had conducted a leisurely two-month filibuster against any action to delay the Supreme Court's decisions, the Senate rejected the "Dirksen rider". It did pass a non-binding advisory resolution which, in effect, accepts the Supreme Court decision but states the "sense of Congress" that States should have a reasonable time to set the "one man, one vote" legislatures. This resolution later was stripped from the foreign aid bill in a House-Senate conference, and Congress adjourned without taking any action on the subject.
In the House a group of Members from rural districts
mutinied against the leadership, ignored the House Judiciary Committee,
and brought up for debate a bill by Representative Tuck of Virginia. This
drastic and far-reaching proposal would have deprived the Federal courts
of all jurisdiction to hear or decide or enter orders in
State reapportionment case. This bill passed August 19th by a vote
of 218 to 175. I voted against it for these reasons:
In the 173 years since the 10-amendment Bill of Rights was ratified, the Constitution has been amended only 14 times. I objected to the House of Representatives undertaking what amounted to a backdoor amendment after only two hours of debate when no committee hearings had been held and when most of the people of this country had had no opportunity to consider its implications. The Tuck bill was ignored by the Senate and the whole issue was left open for the 89th Congress convening next January.
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In a subsequent report
I shall discuss the pros and cons of a constitutional amendment and will
suggest a compromise which I think would be a realistic solution to this
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