Baker v. Carr – Oral Reargument – October 09, 1961 (Part 2)

Media for Baker v. Carr

Audio Transcription for Oral Reargument – October 09, 1961 (Part 1) in Baker v. Carr
Audio Transcription for Oral Argument – April 19, 1961 in Baker v. Carr
Audio Transcription for Oral Argument – April 20, 1961 in Baker v. Carr

Audio Transcription for Oral Reargument – October 09, 1961 (Part 2) in Baker v. Carr

Jack Wilson:

Mr. Chief Justice, may it please the Court.

Shortly before the recess, I had stated to the Court that it was the appellee’s view that in this case of great importance not only to the State of Tennessee but to the United States of America that there are law and all certain great constitutional principles here involved not mentioned by the appellants which must certainly should be considered by this Honorable Court.

I had mentioned the question of whether this case is a case or controversy whether it does present issues for this Court.

I had mentioned and I now ask the Court to consider the question of what the subject matter of this suit is.

The appellants have said in two arguments that this is a case of individual voting rights.

I take it may it please the Court that if this is not a case of individual voting rights then the appellants must concede that there is no case for this Court.

What does the complaint over here?

Well, it says it’s been denied to write vote but you turnover next page and they said, “Oh no,” it’s — it’s an inadequate legislative representation, well, which is you turnover another page, they say it’s improper and inevitable distribution of taxes.

Now, let’s look at the trials of the complaint.

I think that it should be one of the surest tasks they have for the reason that a practitioner at the bar for instance does not bring a suit for damages based on negligence and free for an absolute divorce.

His trial must be consistent with his complaint.

A practitioner certainly does not ask that a written answer be reformed and then pray that a cooperation be dissolved.

Oh no, the relief ask in this case is that the Legislature of Tennessee be real portioned.

The relief asked is that an election at large be held.

Now, may it please the Court if this isn’t individual voting rights case and I wish to discuss that still above in my argument a little later.

Why is there not a prayer somewhere in the complaint that these appellants be permitted to ridge to say or that these appellants permitted to put their votes in the ballot box?

Oh no, that if not in this complaint.

So what is this lawsuit if — if we must — if the Court must determine whether there is a case and controversy, what is the subject matter of the lawsuit?

Well, it’s legislative representation.

It’s legislative representation.

And how there have the Court’s turned it?

Is this something just being suggested by the appellees here?

Oh no, the District Court said this, “The question of the distribution of political strength for legislative purposes, not to vote, not the right to vote.”

What did this Court say in South against Peters?

How did it turned the question?

The geographical distribution of electro restraint that is the subject matter of this suit.

Now, may it please the Court, I asked that the Court consider one of the cases that we cited in the brief Coleman against Miller in 307 U.S.

And I wish to discuss those facts a little bit later if time permits, but I called this Court’s attention at this time to an opinion by one of the three judges who were sitting at that time and are now on this Court.

And that’s the opinion, concurring opinion by Mr. Justice Frankfurter in which Mr. Justice Douglas and Mr. Justice Black specifically concurred and that opinion is trace the subject of the subject matter to be considered by our federal court under the constitutional provision permitting federal courts to hear cases and controversies.

Felix Frankfurter:

Mr. Attorney General, is the fact that I’m still allowed, that brings us to the opinion?

Jack Wilson:

May it please the Court, I think that that opinion much little of the century yet to come.

Felix Frankfurter:

And I can —

Jack Wilson:

May it please the Court in that opinion which is the opinion of three members of this Court now sitting.

The Court discusses the subject of what type matters the federal courts hear and what is the first length that said that traditional matters that was — of concerned at the courts of Westminster, oh, at the colonial judges, the courts of England from which the columnist had come.

And what else is said in that opinion that the subject matter must held the expert field of the lawyer.

The expert field of the lawyers, as a trial lawyer in the courts of Tennessee day in and day out as one who is concern with procedure, with practice, with the weight to elegance, there are many questions in this case which concern me because they do not have the expert field of the lawyer.

What is the injury in this case incidentally?

What is the injury that survived?

The inequitable distribution of state tax bonds is that legal cloth for the judiciary to cut?

As a trial or lawyer, how would you prove in a court of equity that taxes are inequitably distributed?

In Tennessee, and our State Chancery courts and we have courts of equity, separate courts of law.

We may have a jury in the State Chancery court.

How would a trial judge charge a jury on what constitutes the inequitable distribution of state taxes?

Is this a type of issue that this Court or any federal court will have?

I suggest not.

What else has this Court said?

And it was mentioned in the period before lunch, this Court has said that it will not give the advisory opinion.

Perhaps the outstanding example in the early history of this Court and it is said out in one of the great opinions for this Court is the reply of Mr. Chief Justice Jay to President George Washington who had called upon this Honorable Court for legal advised.

The response is firmed, its accordance, its specificity.

But in short, Mr. Chief Justice Jay informed the first President of the United States that this Court was in the business to decide cases and not to give advice, and it has ever been such from that day until this day.

Now, may it please the Court another one of the great constitutional principles with which this Court is here concern is the question of sovereign immunity, sovereign immunity.

I respectfully ask the Court to turn to Page 115 of the printed record.

I believe the pages at that point are not in proper sequence but they are properly numbered, page 115.

Midway of that page begins a letter.

The letter is written by two of the counsels for the appellants in this case.

That letter is addressed to the Legislature of Tennessee.

And what does that letter say?

Watch out Mr. Members of the Legislature if you do not reapportion, we will file a lawsuit.

Members of this Court ever see such a letter?

I never saw one before.

Jack Wilson:

What does that indicate to the lawyer?

What does that have to do with the expert field of a lawyer?

Why it’s a legislative matter.

It’s a legislative matter.

Why was this letter not addressed to the Secretary of the State of Tennessee?

Why was this letter not addressed to the Attorney General of Tennessee?

Because there’s no issue with those who had issue or with any of the other appellee mount before the Court.

The issue is with the Legislature of Tennessee.

What does that mean then?

It means that this is an issue not with these appellees before the Court.

It’s an issue with the sovereign State of Tennessee, one of the biggest states.

Well, count me out, count me out, what are you going to do about it?

We are doing this, may it please the Court.

We are in opposing the plea of sovereignty on behalf of the Sovereign State of Tennessee that it has not in its Constitution by statute or otherwise given its consent to be sued in the Federal District Court on a reapportion matter.

Does the Eleventh Amendment apply here?

If it does, what is its significance?

Well, I think surely on that ground alone that this suit, this appeal would have to be dismissed.

Now, may it please the Court, we come to another great constitutional principle and that is the principle of separation of powers, and that is mentioned only incidentally by the appellant, I wonder why.

Did they think it not applicable or did they wish not to bring it into the open?

It may be decisive of this case, it could be.

Now, what — what about the separation of powers?

Well, this Court has said that the founders, the writers of the Constitution would not doctrinaires.

And I suggest Mr. Chief Justice and the members of this Honorable Court are not doctrinaires.

Let’s look for a moment, a very brief moment at the declaration of independence.

Perhaps one of the greatest governmental indictments ever drawn, let’s look at some of the counts in that indictment.

What did the sign has say to that?

George III is speaking of, he has called together legislative bodies and places unused.

He has dissolved representative houses repeatedly.

Oh, were the columnists concerned with someone mentally with legislative?

It seemed so, it seemed so.

Jack Wilson:

Now at this point, may it please the Court, may I pause just a moment to respond to one of the appellants in systems at here that one type of relief in this case might be for this Court to remand the case to the Federal District Court and in substance do nothing.

What does that mean?

It means that the appellants would have a three judge — three judge District Courts sitting here, eyeing 132 members of the Tennessee General — General Assembly each seeing which will make the first move.

Is that the way this Government of ours operates?

Not under the separation of powers.

I suggest that we never reach that point, but what is that?

That’s coercion and some of the newspapers of Tennessee and now editorials have said, “Yes, it’s coercion and that’s what we want.

That’s what we must have.”

Is it true?

Is it so?

If this Court will take one defends, a misdemeanor case, a felony case, and set aside the conviction because of a confession obtained by coercion, would this Court lend its sympathy to coercing a state legislative body where the rights of 3.5 million people were involved?

I suggest not, I suggest not.

What does that involve?

Does it involve the integrity and honesty of individual judges?

Oh no, oh no.

That is the question.

It involves the integrity of the judicial refinement of the United States of America.

If this is a matter with which the federal courts are concerned, let the decree be in it.

Let it be executed simply and surely, and we, in Tennessee, have great respect for our Federal District Court.

But if this is not legal calls to be cut by the federal judiciary, we respectfully suggest that the federal judiciary should not undertake to suggest to the Tennessee Legislature or to come right up to its face and say, “Watch out!”

If you don’t reapportion, oh, we’ll see what it would do.

I do not believe that that is the American way.

It certainly is not the judicial way of handling controversy.

What did Hamilton have to say on this subject of separation of powers?

And I invite the Court’s attention to the federal released, Number 51 where Hamilton writing for the benefit of the people of the State of New York as to why they should adopt and approve the Constitution of the United States as proposed.

Hamilton said this, “Ambition must be made to counteract ambition.”

And then he seemed somewhat self-conscious and his writing.

He said, oh well he says, “You know that may sound like a reflection on human nature.”

And then he picked up again and he said this, “What is Government itself but the greatest of all are reflections of human nature.”

And then he defined what must be true now and certainly was then in framing a Government which is to be administered by man over man, you must do two things.

Jack Wilson:

First, you must enable the Government to control the Government, and in the next place oblige it to control itself.

Now, may it please the Court in the great case of Miles against United States and the Court will recall as its being the postmaster case considerable significance.

Mr. Justice Brandeis in his dissenting opinion considers it some length what the bounders had in mind in connection with the doctrine of separation of power.

And Mr. Justice Brandeis said that, “That doctrine was not to promote efficiency he got.”

Oh no, it was to prevent the exercise of arbitrary power.

And what else did he say?

He said that the doctrine of separation of powers was designed not to avoid the friction.

Oh no, but by virtue of that inevitable friction to prevent the arbitrary exercise of power.

The appellees submit in this Court — in this case, may it please the Court as one of the equities which you’ll be balanced by this Court, which is worse or the Legislature of Tennessee not to reapportion, and I am not here depending the Legislature of Tennessee in that failure, that body if not a defendant here.

Is it worse for the Legislature of Tennessee not to reapportion or is it worse for the Federal District Courts to violate the agile doctrine of separation of power?

That is one of the equity as I submit which must and should be balanced by this Honorable Court in reaching a decision.

Now, may it please the Court, it has been said and by persons with then the sound of my voice that if America is to export Democracy, America must be a democratic nation and certainly that can be no argument with that sort.

The question that follows if America is to export Democracy, what type of Democracy shall America shall export.

Will it be constitutional Democracy consistent without form of government or will it be Democracy by a pressure?

Democracy, the result of great need as this of course.

Charles E. Whittaker:

Mr. Wilson, may I ask you sir, do you consider it to be to use your term, “pressure” merely to say if it is in fact, that a certain system does violate federal constitutional rights?

If you just said that then nothing more, is that a pressure?

Jack Wilson:

May it please the Court, that is not pressure.

The point that I would make if this Court or the District Court finds that the general assembly of Tennessee or any official of Tennessee is violating the Constitution of the United States do not simply state.

Do not write it in the find battalion hand.

Write it in a bold hand and enforce that decree if the Federal District Court is empowered to do so.

Charles E. Whittaker:

Do not —

Jack Wilson:

I say in it —

Charles E. Whittaker:

Isn’t that what the petition asks?

Jack Wilson:

It does indeed Your Honor.

It does indeed.

That’s the question — one of the great questions to be determined by this Court.

And so I say may it please the Court that if America is to export Democracy, we must export constitutional Democracy and if is for this Court to say.

In this case above many other cases, what is a constitutional Democracy?

Now, may it please the Court Mr. Chief Justice?

Jack Wilson:

It seems to me that in this case and I use this term advisably and respectfully.

But it seems to me that it has been a great deal of loose talk by the imposed and the Solicitor General as to whether the issue is here presented a political in nature.

Are they political or what difference does it make if they are?

If I may, I would like to assist the Court in putting that question in proper perspective.

I might say that I hope that no judge ever seats on an Appellate Court in the United States of America.

I hope that no justice ever seats on this High and Honorable Court who does not have a clear and real understanding of the political nature of the Government of the United States of America.

But now, does that mean that the Court considered political questions and all political questions?

Is there a dividing line?

Let’s look at that a moment.

What was the growth of the common law itself?

It seems to me if I understand that the political philosophers of Greek that the growth of the common law in England was political.

Politics of the very highest tide did not the courts of England developed the law merchant from the customs in the commercial world?

Indeed, they did, legal history shows and what was that?

That was the action, the relation, the interaction of people in a society, oh yes, political.

Now, what else do we find in the common law?

Well, negligence for instance, should a husband’s negligence be imputed to his wife?

Oh, what — is that statutory?

Isn’t that common law?

The interaction, the relations within a family, political, yes, must there be consideration for a contract?

All of those things grew up in the common law.

They were political.

They were political in some sort.

And then we come to the land of cases upon which the appellants rely in this case.

Nixon against Herndon, Terry against Adams, and those cases have been waived like banners in the briefs and before this Court.

Political right, yes, the right to vote, personal political right.

And this Court has held time and time again that that is a right which can be enforced.

Now, where does this Court draw the line?

Where does the federal judiciary draw the line?

Is it not at the point where a matter is to be performed by another branch of the Government?

Is not that one of the dividing line?

Jack Wilson:

Is it not?

The President of the United States of America is under a constitutional duty to see that the laws of the United States are being faithfully executed.

Are the income tax laws in the State of New Mexico being enforced?

I don’t know.

Would this Court inquire into it?

I suggest not and yet, that is a constitutional duty of the executive branch of the Government.

Now, this Court in the Pacific Telephone case cited in the briefs held that in the case of this time, the dividing line was simply this.

Is the attack made on the law?

For instance here is an attack made on any tax in Tennessee and they’re not.

The attack is made on the Legislature which enacts the laws, which provide for the collection and distribution of those taxes.

Now, we suggest, may it please the Court, that we referred to Coleman against Miller just a little bit a go, that is a great case and that case, Mr. Justice Black wrote a separate opinion not on the subject covered by Mr. Justice Frankfurter but on the question of, “What is a political question?

What is a political question?”

And in that opinion, Mr. Justice Black said in substance this, “A political question is a question which must be left to the political department who has the duty with which the subject matter is concerned.”

And in making that statement, he cited two cases which the appellees have cited in their briefs.One is the Pacific States Telephone case and the other is Luther against Borden, both involving the question of what is a Republican Reform of Government?

Now, may it please the Court, there is a question here as to what the analyst of these appellees is or — the appellants, what use do they have here?

Is it a legal interest?

What if the case involves individual voting, I suggest that the appellants do have a personal view.

If this case involves the reapportionment of the Tennessee legislative, I suggest that the rights which these appellants claimed are the same as the citizens or all other citizens in Tennessee.

Now, may it please the Court, a question not previously mentioned I believe.

In the United States, we have room, tolerance for all religious view, racial views, opinions of all types.

Suppose a citizen in Tennessee went into the Federal District Courts to complain of over representation, over representation, might he not do so?

If the courts can hear cases on under representation might they not hear cases on over representation?

We submit and most respectfully that this is a case, a gets the state of case.

It is a case with which all the citizens and voters of Tennessee are concerned.

We suggest that under the holdings of this Court that these appellants cannot maintain action of this type, political, yes, but on the other side, they lack.

(Inaudible)

Charles E. Whittaker:

Is there any allegation in this complaint that the rule legislators vote as a block or that the city ones or urban ones voted as a block?

Jack Wilson:

Well that, may it please the Court, is the clear implication which is refuted by the vote on the 1959 Legislative Act for instance where the State Senate unanimously voted in favor of the measure regardless of how important, and I wish to speak about that a little later if the Court would permit me.

Now, it may please to Court, of course one of the crucial questions in this case, one of the decisive issues is whether there is any federal rights here involved.

Stated simply and I believe fairly, the issue is presented by the appellant in this fashion.

Jack Wilson:

It’s a personal individual right.

It involves the right to vote.

It is protected by the Fourteenth Amendment.

Now, I suppose it is the man individual right.

Suppose it doesn’t concern the right to vote but concerns legislative representation, is it protected with the Fourteenth Amendment, is it?

How has this matter then presented to this Court in this case and in the other cases as a Fourteenth Amendment case?

Why just this?

And it’s so simple that it’s almost alarming if — if I understand it.

It said that where you vote for Congressman or United States Senate that that ballot must be put into ballot box and that that ballot must be counted, and reliances had upon two cases, United States against Classic, United States against Saylor, both sound dependent.

What were those cases?

Indictments in criminal cases and what was the advancement, may it please the Court?

Well in the vernacular, it was stopping the ballot box, stopping the ballot box, sound cases of course.

Now, it said because of the decision of this Court in those cases, that it follows that a citizen in one of the 50 States or in all of the 50 States of the United States held the right to have equal representation in a State legislature.

What about the expert field of lawyer?

Does it follow?

Is there really any causal connection?

I suggest not.

That is still just a little bit farther and looked at those cases.

And I emphasized Mr. Chief Justice that the appellees think those cases are sound in their content.

Well, if there was an indictment somebody was arrested?

Who’d they arrest in those cases?

Legislator, legislator.

Now, they — if those — the rule in those cases applies here, someone in the State of Tennessee is subject to be indicted by Federal District Court, who is it — who is it?

Well not the election official that the ballot box alleged, just (Inaudible).

Is it any of the appellees before this Court?

Indeed, not.

No wrongdoing but who would you indict?

Would it be the members of the legislature of Tennessee?

I leave it with this Honorable Court, I suggest in most respectfully that those cases sound as they are do not support legislature.

Indeed not.

Jack Wilson:

Now, may it please the Court, may I speak as to this proposition of discrimination in the event that this Court should find.

And I do not see how it possibly can but in the event that it finds that this is a matter, protected by the Fourteenth Amendment, the Court must find, I take it, under the insistence of the appellants that there has been discrimination.

I don’t know — I — I — seriously, truthfully, I do not understand how they can say that this discrimination, it would exist, is purposeful and systematic.

They don’t say any such thing.

They say it’s due to the passage of time.

It’s due to shifts in population.

And may it please the Court in Tennessee, we not only have the passage of time, we do indeed have shifts in population.

Within the past 25 years, there has been constructed a multiple system of dams by the Tennessee Valley authority, a great nuclear installation at Oak Bridge which 20 years, the goals is — the top of — of a ridge out in the mountains and hills.

Surely, that is purposeful and systematic discrimination.

Now, this Court said in Snowden against Huge where such terms were used willful and malicious discriminations.

And this Court said that doesn’t add anything to it.

That doesn’t add anything to it.

You still must look to see what brought it about.

And so we suggest, may it please the Court, that there is not and there cannot be any purposeful and systematic discrimination.

Now, what about the injury alleged in this case?

And I take it that the courts generally are not concern with discrimination unless there is some major.

What is the anxious here?

It’s a void that there is an inequitable distribution of textbooks in the State of Tennessee.

And I want to take just a very few minutes and explain to the Court if I may what has happened in the State of Tennessee that brings this complaint about.

Tennessee’s count is range in size from some half million or more to 3000, 3500 people out.

Gasoline tax funds, sales tax funds must be used with state purposes and of course distributed in part among the counties of the state.

Now, whenever this subject is brought up in Tennessee and my friend’s adversaries here will bear me out on view.

Whenever this subject is brought up in Tennessee, what is said?

Shelby County, half million people them all paid so much into the State Treasurer.

What’s on the (Inaudible)?

Van Buren County, Tennessee about 3000 people and I may say it to the — to the members of this Court that Van Buren County lies almost out of the middle Tennessee, almost into East Tennessee.

The beauty of it is almost unbelievable, the valleys, the hills, the mountains, it’s a mountainous camp.

And there’s the trouble with Van Buren County, how do you make a living on the side of the mountain?

Well, you must make a living before you can pay taxes.

Those citizens in Van Buren County are energetic.

Jack Wilson:

They are progressive, they have small industries, they have small funds but I was distressed to line just before coming here to argue this case.

Van Buren County has been classified by the Federal Government as a depressed area, a depressed area.

I regretted to hear that.

Now, how do you pay taxes to maintain school in Van Buren County?

Well, you do the best you can, and then you get what money you can from the State of Tennessee.

And remember, it is a sovereign state.

It is just a group of municipalities.

It’s one of the sovereign states.

Now, the complaint is made and that’s what the proof would be in this case, if it’s in Van Buren.

You are sending too much money to Van Buren County.

Now, may it please the Court, what is the Legislature of Tennessee?

What is the Department of Education of Tennessee trying to do in Van Buren County?

Is it trying to give those mountain boys and girls an education so that they may come here to this great national gallery and with painting about Renoir or Van Gogh?

Is it that they may have that foolish appreciation of Beethoven’s greatness owned as desirable as that might be?

Is it that they — they may be equipped to make a living?

Well in Van, yes.

But, may it please the Court, what the State of Tennessee would like to do for these children, is to give them education and make them aware about democratic society.

Make them aware of the type of life we live in the United States of America.

Oh, the municipalities say, “We cannot do it.

We entitle the more money.”

Is this the urban view point?

The municipalities want in the Legislatures of the United States of America, God forbid.

Now, may it please the Court, how is — why is it that at the varied time, the United States of America is concerning itself with parody, not only materially things.

We say as I understand it, we want other people, other cultures and other lands to know about our democracy, to know about our way of life.

Well, I’ve delivered children in Van Buren County entitled to it too, and Tennessee is fine to give too.

What does this Court say and I believe one member of the Court mentioned the adjournment of Congress a few days ago.

They do agree on certain legislation.

Do you know, may it please the Court, that the mighty mayors of this mighty cities of Tennessee, while the federal aid the education bail was pending, that they was standing almost in a trance without stretched hands.

Let us help some of the education money.

And where is it coming from?

Jack Wilson:

Tennessee?

Oh, must — it must be some other state.

Tennessee doesn’t have that type.

How can they say as an injury in this case that the children of Van Buren County are not entitled to an education while they themselves are seeking these enormous bonds from the Federal Government?

May it please the Court, I suggest to this Honorable Court, that the question here presented is the broad question of the lack of Republican Form Government.

I also suggest, may it please the Court, that it is not primarily a legal method.

I suggest that it is one of the ills of our Democracy.

What has this Court said?

In the great case Youngstown Sheet & Tube against Sawyer, decided lefts in a decade ago.

In that case, whether then the Pressman sought to take over the steel industries.

Mr. Justice Douglas said this in substance, “We pay a price for our system of government and indeed we do.

It is a price that today,” meaning on that day, “may seem exorbitant to me.

I indeed, we do fail the price.”

The failure to reapportion one of them, it may be, it may be.

In the same case, Youngstown Tube and Steel Case, Mr. Justice Frankfurter said this in subject, “A constitutional Democracy like ours is perhaps the most difficult of man’s social arrangements to manage success.”

Is it not true, and yet we fight the wars.

We give life in order to maintain it.

What did this Court say in Colegrove against Green and that case too has been batted around and waived in the briefs and here before this Court.

In the majority of opinion in that case, there appears this thing.

Throughout our history, the most glaring disparities have prevailed as to the contours and the population of business.

There were some three or four or five other opinions in that case, but I have fixed those opinions up and down and back and forth, no member of the Court then sitting took issue with that as such, and I suggest that no issue can be taken with them, it has ever been one of the evil of our Democracy.

Now, in the Youngstown Sheet & Tube case, one of the great cases decided by this Court, it is also said not just suggested, it is said that the founders, the framers of the Constitution did not make the Supreme Court of the United States, the over sale of the entire federal establishment.

I would like to amend that if I may by saying that there is no evidence or indication either that the framers intended to make the Supreme Court of the United States the overseer of the several states of the unions and that several establishment.

Now, if this is one of the ills about moneys and the Court must decide their case from here.

What is to be done about it?

How are reforms and a democracy brought about?

Well, first I suggest, may it please the Court, that the wrongs must be real and not theoretical.

They must be real enough that they are actually hurting somebody, his pocketbook, his mentality, his disposition?

That’s when the American people become aroused.

What does history show?

Jack Wilson:

Is it true that the only thing that history teaches is that history teaches nothing?

What about the rights in Magna Carta?

They want theoretical work, oh no.

Well what about these rights in this — in the indictment here, the decoration of independence?

They weren’t theoretical, oh, no.

The rights determined by the immense patience proclamation were not theoretical.

When rights become concrete, when citizens are concerned with those rights, they will enforce it.

Now, how do you enforce democratic rights, political rights in a Democracy?

Well, traditionally it’s done it ballot box.

The people must be educated.

They must be interested.

They must want to do something about it.

Now, may it please the Court, it said in this case, it said in this case, that the appellants have no way of getting any help of any kinds, any way.

I don’t believe the members of this Honorable Court will accept that statement.

Isn’t it strange that that has never to this date, then a campaign for the Office of Governor in the State of Tennessee where real apportionment was an issue?

Where do people present that issue?

They present their issues through persons who are candidates for statewide offices.

No candidate for any statewide office particularly the Governor of Tennessee has ever made that, a plank in his place.

It may happen.

And when it does, the Legislature of Tennessee may take action.

I don’t know.

Is it not necessary in a Democracy of outside that this political views, they hand for the political process?

And I want to recall briefly if I may Mr. Chief Justice, as to an instance that occurred in 1953, Tennessee’s Constitution had not been amended for 80 years.

The citizen said we think that it should be amended.

The Legislature authorize that the question be submitted to the people as to the vote, whether they wanted a constitution event, and then what happened?

That question was talked up and down, the life and breathe of the state.

It was discussed on the radio, through the newspaper by editorial and in my home City of Chattanooga.

I know and this is a matter of rapid, may it please the Court, groups were formed, representatives of labors thereon, representatives of industry, representatives of a Negro.

Tennessee voted for that constitutional convention and it was held.

And one of the amazing things is the way and mainly in which that convention was held.

Jack Wilson:

What did Tennessee do?

Well, I’d say this first, that in choosing its delegates to that constitutional convention, that first in 80 years, it didn’t go to the (Inaudible) around the City Hall.

Who composed that convention?

Former governors, former congressmen, school teachers, college professors, farmers, businessmen, some of them I suggest, the majority of them had never offered themselves at the ballot box in any type of allege.

Most of them never will again.

They sought to serve thus thing.

Now, that constitutional convention did adopt some amendments.

For instance, it increased the term of our governor from two years to four years.

It made some changes as to the way in manner in which the Constitution itself may be amended.

And this is an interesting thing and something that I think this Court should know.

That constitutional convention was not concerned alone with Government at the state.

It was dissatisfied with Government at the local level.

Listen to this.

They said, “We think there should be some means of consolidating city and county from it, whether it’d be education or whether it’d be in all services.

Now, what has happened under that?

And I think this is material to this case.

What has happened under that constitutional amendment?

This past Legislature enacted a law, committing the people of the City of Knoxville and Davidson County to set up a charter commission, to write a charter, to submit to the people of the county and the city as to whether the county and city government should be consolidated.

And as I understand it Mr. Chief Justice, the result would be something like the Government of the great city of Saint Louis or the great city County of Denver.

And if I am not misinformed, that charter commission will meet tonight for another meeting in the City of Knoxville (Inaudible).

Well, they have a label represented them on and he has that type too, that’s the way he spoke.

They have an industry representative.

They have a Negro lawyer on that commission, all elements of the committee.

I am not here advocating Metropolitan Government.

I do not know whether it is good or bad.

But what I want to say to this Honorable Court is that the channels of democracy are opened in Tennessee.

Let there be no dispute about that.

And incidentally, may it please the Court, Tennessee held another constitutional convention in 1950.

Nobody has told us to go there.

We came all along more often than every six years.

Jack Wilson:

Now, may it please the Court, let it not be said at the bottom of this High Court that if the people of Tennessee are interested in our reform of any type, that the challenge of Democracy are closed too.

It is not true.

Felix Frankfurter:

The suggestion is, Mr. Attorney General that the selfish interest of those who profit by this — by these inequities, by this disparate, the selfish interest, the natural selfish interest, not immoral but just human nature being what it is, always will be a — this is like a loaded guys, it will always be a loaded votes to retain the advantages they’ve got.

Jack Wilson:

Well, may it please the Court, one of the things that —

Felix Frankfurter:

That’s what the case did sound to you.

Jack Wilson:

That’s what it is but here, may it please the Court, but all humans are subject to certain lifespan.

We all subject to this world’s illness and loss, perhaps that situation may appear to be true in Tennessee today, but I suggest that the matter has not yet been brought out in the political region.

May I say Mr. Justice Frankfurter, the level on which it is now being bought out in Tennessee, of course the office of the Attorney General of Tennessee is having one lawsuit houses.

How is it being bought in the political region?

The honorable mayor of the City of Nashville comes out in the newspapers of Tennessee and makes the statement.

Behold, send more county Tennessee, held more representation in the Legislature of Tennessee that a citizen of Davidson County.

Well, I don’t know but that’s good campaigning or not but it doesn’t seem to —

(Inaudible)

Jack Wilson:

Halves may it please the Court.

And more county has another one of household counties of some 3000 population.

Perhaps that type of campaigning in Tennessee would appeal to some voters, it so far has not appealed to the majority.

Why not tell that people of Tennessee about these great constitutional principles we are discussing here today?

Why not provide them with cartoons of a type that have been published in some of the briefs submitted to this Court surprisingly?

Cartoons have their effect.

Earl Warren:

Well Mr. Wilson, is there — is there any remedy in the courts of Tennessee to these people if they are and they say, now the end of the road if don’t — we don’t take this case?

Jack Wilson:

I would say, may it please the Court, that on the present status of the case law in Tennessee and of the views held as in to the constitutional law in Tennessee that this right, alleged right is not enforceable in any of the courts of Tennessee, to any degree, whatsoever.

And I would be less and truthful to you Your Honor if I did not choose it.

Earl Warren:

Has your — has your Supreme Court ever held, one way or the other concerning the validity of — of this particular law?

Jack Wilson:

May it please the Court, it has not squalled, it has not.

This Court, the members of this Court are familiar with the case of Kidd against McCanless.

But the decisions of the Court of Tenne — courts of Tennessee and other less serious matters involving the separation of powers, and many of those decisions are set out in the appellees’ supplemental brief, clearly indicate at least to me as a practitioner in Tennessee that the Supreme Court of Tennessee would not entertain such an action.

Earl Warren:

Has the question here presented ever been fairly presented to the Supreme Court of Tennessee.

Jack Wilson:

I think Kidd against McCanless, may it please the Court, was fairly presented.

I think it was squarely presented.

And the meaning and the extent of that decision is of course for this Court but we think that that Court said, that while it placed its decision on the de facto, if it had not done so, it would have placed it on the doctrine of separation of powers.

Jack Wilson:

I think it would have on the out concept of constitutional government in Tennessee.

Earl Warren:

Was that — was the question was properly raised below here?

Jack Wilson:

In this case?

Earl Warren:

But it is now before us, yes.

Jack Wilson:

I think so, may it please the Court, from the standpoint of practice, I think it was properly raised.

Earl Warren:

What did you — how did your Court deal with it?

Jack Wilson:

Well, you’re speaking of the District Court then?

Earl Warren:

No.

Jack Wilson:

Kidd against McCanless?

Earl Warren:

Yes.

Jack Wilson:

Our District — our Supreme Court did this, may it please the Court.

It said that the insistence in Kidd against McCanless was that the Act of 1901 the last Apportionment Act was unconstitutional.

Our Supreme Court said that if we hold that the Act of 1901 is unconstitutional, we, therefore, deprive the State of Tennessee of the present Legislature and we deprive the people of Tennessee of all proud Legislatures.

Because if the 1901 Act was unconstitutional, prior acts were unconstitutional and there would be no law such as in the Tuskegee case to fall back.

And our Supreme Court said the result is and must be that the State of Tennessee would be without one of its coordinate righteous of government.

That’s what that case holds to mean, may it please the Court.

Hugo L. Black:

Mr. Attorney General may I ask you one question?

Let’s assume the Legislature has divided squarely in its law, the votes, people living in rural communities are here and set out defining geographical area as rural community shall be counted in each election ten times while the — while they’re counted once in the city.

Did you say that would be a denial of equal protection?

Jack Wilson:

Not Sir, I would not.

Hugo L. Black:

You would not?

Jack Wilson:

I would not.

Hugo L. Black:

I would say that the irrational classification?

Jack Wilson:

I would never reach the question of whether it was rational, may it please the Court.

I would say that the apportionment and distribution of legislative representatives within a state is a state map.

Hugo L. Black:

I understand that.

Let’s assume, however, that you’re taking a position there that I took in the case about the constitutional amendment as to the power of the Congress to declare that amendment.

Jack Wilson:

(Inaudible)

Hugo L. Black:

Therefore, you’re saying that it’s not a justiciable matter?

Jack Wilson:

Yes.

Hugo L. Black:

But let’s assume that you were overruled on that.

Let’s just assume that and if were held to be a justiciable matter and the Act were written in the form that I’ve stated, would you say that that should be supported as a rational classification to discrim — to distinguish between the voters and the rural community and in the city?

Jack Wilson:

It might not, may it please the Court.

It might not but I — I think that I would have to held —

Hugo L. Black:

Of course, there’s room for argument on both sides.

Jack Wilson:

I beg your pardon?

Hugo L. Black:

There’s room for argument on both sides.

Jack Wilson:

Well, certain there is then in our Democracy, may it please the Court, on any substance.

Certainly would not deny to these appellants or anyone else their right to present their views.

I only asked that we may be allowed to present ours on one.

Hugo L. Black:

But if it justiciable, why is that basic, and we should not refrain by passing on it, but should pass on, why is not that substantially the issue, the question that we have?

Jack Wilson:

Well, may it please the Court?

Maybe I’m too precedence but I — I do not see that — that the Court reaches that point without exposing of a number of others.

For instance, the question of standards which has not been —

Hugo L. Black:

I’m assuming now that they have standings, they have a right to bring in.

Jack Wilson:

Standards, may it please the Court, standards, discrimination, contemplates on departure —

Hugo L. Black:

Well —

Jack Wilson:

— from some point.

Hugo L. Black:

— mine was — my question was intended to state the specifics there that the County that you’re talking where you say it, and six other counties are the rural counties who have that votes counted in all elections so as to each vote overcome five votes to get and shall be added in Shelby, Tennessee, Shelby County, Tennessee.

That would be a very clear standard, but the question challenged — it was challenged then on the basis that it denied equal protection of the law.

It was not a reasonable classification under that Amendment.

What would you say?

Jack Wilson:

Well, may it please the Court, I would say that I wouldn’t like it and that tomorrow, it might be wrong.

I would say that is not a legal of constitutional question there.

If there is, how is it that the great case, say, State of Pennsylvania, its Commonwealth.

The great Commonwealth essential bank provides special representation for each cities and the complaint there as I understand it is not that but that these cities want more than they have now.

Now, how much more?

Is it seven or eight as Your Honor suggest?

Is it ten to one?

Hugo L. Black:

I understand it that plenty of arguments about that.

Hugo L. Black:

But let’s assume, maybe the Court will decide later on the other question.

Let’s assume that all procedural hurdles and political hurdles and restraint hurdles have been old town and straight, square question before as to whether the law down there now that I see who protection of the law.

What is the difference between it supplies classification is concerned and the one which I have just stated here?

Jack Wilson:

Well, I think — I think that if the Court had proceeded to the point that it had reached the point of which Your Honor speakers, I don’t believe any statement on the subject would be of much assistance to the Court.

I’m assuming as Your Honor did, if I understand Your Honor’s question (Voice Overlap) —

Hugo L. Black:

What I’m asking — what I’m asking is assuming that we get to the merits —

Jack Wilson:

Yes.

Hugo L. Black:

— of the controversies to whether giving the votes in certain locality, geographical locality, more value in all the election than the votes in ceratin other locality, the rural community over the city.

Would that be a denial of equal protection of the law if they were given the value of six to one?

Jack Wilson:

I suggest that it would not, may it please the Court.

Now, I do not think that I could answer that.

Otherwise, Tennessee has some three and a half million people.

I do not know the population of the great State of Delaware.

I had been there and I do know that the side was so small that if I remember correctly, all of their telephone numbers for the entire state in less than one total.

Well, now they have two United States Senators.

Tennessee, three and a half million people, 500 violence from one corner across it to another, I wouldn’t be satisfied.

I’m not satisfied now that Delaware or have many United States Senators in states.

Hugo L. Black:

A lot of them were not satisfied with that when the Constitution was adopted.

Jack Wilson:

Yes.

Hugo L. Black:

It was adopted that way clearly and specifically.

Here, we have a general term in the Fourteenth Amendment about denial of equal protection of the law.

Do you think that would be a reasonable classification under that Amendment?

Jack Wilson:

My answer, may it please the Court, is that it would not be a denial of due process.

Felix Frankfurter:

Could you — if you start with a hypothetical case which I appreciated you’re not wanting to answer specifically.

But assume you start with that hypothetical case, the Solicitor General, and correct me if I’m wrong, I didn’t hear him today from my — some others did.

But I certainly remember on his first argument, he agreed that there could be disparity between effectiveness of a rural voter and a city voter.

It make that clear as veil because it has left the vividly impression on my mind.

Now, won’t agree to that but there may not be mathematical, arithmetic equality as between urban and rural voters then how can you answer hypothetically without any disparity?

It doesn’t represent considerations which in a particular state of which some of us at least can’t take judicial notice may not find a justification.

Jack Wilson:

I think that’s —

Felix Frankfurter:

And it maybe in New York, two to one would be alright and maybe two to one would be wrong in some other states, the distribution of the population or the economic interest of the geography or whatnot, I don’t know.

Isn’t that — isn’t that true?

Jack Wilson:

I think it’s true, may it please the Court.

Felix Frankfurter:

Once you deny that — once you reject the claim that there must be numerically quality then how can any abstract consideration except for the answer, except with reference to the circumstances, the facts, the history which can’t be thrown out of consideration of a particular state.

Jack Wilson:

I bring it if, I may Your Honor, bring it back to the — again, this question of the trial lawyer and the — and the expert field lawyer.

Now, it has been said by one of the members of this Court a statement most interesting to me and that it is very pertinent on the subjects and questions just asked.

It has been said that it’s possible to distinguish between double and portrait without being able to define what portrait is.

Now I suggest, may it please the Court, it may be able possible to distinguish.

But I suggest it would not be possible to tell someone else how to distinguish between —

William J. Brennan, Jr.:

Mr. Attorney General, I wonder if I could approach some — the subject that my brothers Black and Frankfurter discussing with you from a different angle, Moore county of rural county.

Jack Wilson:

Yes Your Honor, about 3000 people.

William J. Brennan, Jr.:

It’s Sequatchie and I’d like to know if that’s correct —

Jack Wilson:

Very small.

William J. Brennan, Jr.:

The Sequatchie, is that —

Jack Wilson:

Yes.

William J. Brennan, Jr.:

— also rural?

Jack Wilson:

— yes.

William J. Brennan, Jr.:

Well if my arithmetic is any good, based on more having a voting population of 2340, I think these are 1953 years, and Sequatchie about 600 more or 29104, it appears that Moore has a total representation that Senate and your lawyer house of two and Sequatchie, 600 larger of 0.63.

In other words Moore apparently has about three times the representation as Sequatchie although it was smaller of the two counties.

Jack Wilson:

It maybe.

William J. Brennan, Jr.:

Now what — how — how could that be justified if there both rural counties?

What would be the factors which perhaps you might justify a disparity rural city, but how do you it among rural counties and in fact —

Jack Wilson:

May it please the Court, we have interposed a plea of sovereign immunity here and these —

William J. Brennan, Jr.:

No, no.

Jack Wilson:

This —

William J. Brennan, Jr.:

This is on the same premise but the same premise that Mr. Justice Black’s view that this is a justiciable question.

Jack Wilson:

Well, may it please the Court, and even so the appellees here are not authorized to speak for the State of Tennessee or to explain or to justify why the Legislature has not done this and if I could answer Your Honor —

William J. Brennan, Jr.:

Well, that you said you’re not authorized or you couldn’t or couldn’t be justified?

Jack Wilson:

Well, both.

Maybe it couldn’t be.

Jack Wilson:

I don’t know but someone would have to come here and speak for the legislature.

They are not —

William J. Brennan, Jr.:

May I ask you, what is — what is Gibson County?

Is that a rural county?

Jack Wilson:

Gibson County is — is substantial county, city, town.

It’s generally in the rural area but —

William J. Brennan, Jr.:

How about Blount?

Jack Wilson:

What, Blount —

William J. Brennan, Jr.:

Blount.

Jack Wilson:

County?

William J. Brennan, Jr.:

The other one.

Jack Wilson:

That’s adjacent to one of the four largest counties.

William J. Brennan, Jr.:

And is that largely rural or is that suburban or which?

Jack Wilson:

Suburban.

William J. Brennan, Jr.:

Well, now again, looking at these figures, Gibson apparently has a population or did have in1950, 29,832 and Blount, 30,353, about an 800 diff — or 500 difference I guess.

And Gibson had a total representation of five and Blount have only 1.60.

Jack Wilson:

Yes.

Gibson is over represented.

Felix Frankfurter:

Mr. Attorney General, can you tell us cities (Inaudible) whether all urban counties are the same?

Jack Wilson:

In what —

Felix Frankfurter:

Are they — I mean when you say urban county, is that defined — is that a specific defined content —

Jack Wilson:

It is not in Tennessee, may it please the Court.

Felix Frankfurter:

I don’t mean to say in practice but — but in fairness, when you say an urban county, is every urban county like every other urban county?

Jack Wilson:

Not so in Tennessee.

I cannot speak for the other states that people of Tennessee are independent in nature.

They do a great deal of their own thinking and what might be the vote in Shelby or the Mississippi might not suit the citizenship, not the county at all.

So to say that an urban voter in Tennessee feels this way or that way, I think they cannot be put in the debt —

Felix Frankfurter:

As a matter officially I — I’m entitled to say that — that Tennessee is an interest in political state, can I say that?

Jack Wilson:

Indeed, it is and I wish I might say it all but —

William J. Brennan, Jr.:

Oh why didn’t you tell me that Tennessee — where is Campbell?

William J. Brennan, Jr.:

What Campbell County?

Jack Wilson:

Campbell County is in East Tennessee, a few miles from Knoxville County, one of the full largest counties.

William J. Brennan, Jr.:

Well apparently Campbell has a population of 17,477 or did in 1950 and more at that time, population of 2,340.

In other words, about apparently 160 size, yet more it had a total representation of two or has rather, is Campbell a representation of 0.76?

One third the representation over Campbell was apparently six times more population than Moore.

Jack Wilson:

Maybe it will be Your Honor.

Maybe it will be.

Now, if the Court and I — I say this very respectfully, those questions are fortunate.

Why not put them to the Legislature of Tennessee?

Why not sue the Legislature of Tennessee and let them act but all the all voice said, “No, no, you can’t do it.”

Hugo L. Black:

Mr. Attorney General, may I ask you why is that argument is valuable?

We would have the right to try any cases through a man who says he’d been deprived of voting on the basis of his race?

And it’s true there’s a specific amendment which requires that but they claim the amendment here protects them against this kind of discrimination.

I just don’t quite understand your argument since there is no standing.

Jack Wilson:

Well, may it please the Court, race for instance where the White and Black.

That’s something due to burn.

What about your urban voter or your rural voter?

I don’t know (Voice Overlap).

He may be at Memphis for six months and then he may move to Morgan.

The State has no control over that matter.

Hugo L. Black:

Let’s say it does have control over their apportionment law —

Jack Wilson:

Well, the Legislature does —

Hugo L. Black:

— justice has it — justice has control over the law with reference to voting so far as racism.

I do not understand.

Its opinions subject to the grave, in fact man cannot claim.

It’s a discriminate against in voting because it’s not based on the color, that maybe the claim is unsound.

I can understand that argument but I do not understand the other one.

Jack Wilson:

Well may it please the Court?

I am not the one who injected the question of color into the argument.

I believe that was mentioned —

Hugo L. Black:

For different religion, what’s about (Inaudible)?

Jack Wilson:

No, I — I don’t believe — I don’t believe that’s been discussed and maybe you narrowed it that.

Hugo L. Black:

But I said supposed it was, whether you have outstanding duration if you’d been discriminate — somebody had been discriminated against some kind of religion —

Jack Wilson:

Well certainly —

Hugo L. Black:

— or color?

Jack Wilson:

— certainly he would, may it please the Court, but not his representation in the state they claim.

I think Your Honor’s —

Hugo L. Black:

Well, supposed

Jack Wilson:

— question —

Hugo L. Black:

–legislation has been written in certain way that will guarantee by reason of the population, it wasn’t a case done in (Inaudible).

In certain group, either they call it their religion or call it with their color, would not be properly represented.

Would you say then it couldn’t be raised?

Jack Wilson:

Well, certainly it — it could and was right, of course.

Now, may it please the Court, I wish —

It’s an honor if it’s — why — why was (Inaudible)?

Jack Wilson:

I would say, may it please the Court, that the matter had not gone beyond the theoretical and to thinking — the theoretical and to think there was no popular demand for it.

There was no popular demand that the constitutional convention consider reapportion.

Had that been, it would have been included in what we call the call for the convention.

William J. Brennan, Jr.:

Well, the call is by the Legislature —

Jack Wilson:

Indeed, it did.

William J. Brennan, Jr.:

Well, what was this — I was curious, you said there had been what a state wide referendum sought by the Legislature whether the Legislature should call.

Jack Wilson:

No, may it please the Court.

The Legislature submitted to the people under the Constitution of Tennessee whether the people decide to hold a constitutional convention.

William J. Brennan, Jr.:

Well now, do I understand?

I just don’t.

What is your law?

May the legislature convene a constitutional convention whether the people decide or not?

Jack Wilson:

No, may it please the Court.

There are two ways of amending our Constitution.

And the Constitution may be amended by the Legislature itself by action of two successive legislatures.

Jack Wilson:

Then our Constitution provides that the Legislature may submit to the people of the state at any given general election.

The question of whether the Constitution of Tennessee shall be amended altered or abolish.

(Inaudible)

Jack Wilson:

Yes, may it please the Court.

Felix Frankfurter:

Must — when the Legislature submits a call for a constitutional convention, does it also submits the specific subject matter of the constitutional convention?

Jack Wilson:

It made — it is required that it did so.

In other words, you do not call a constitutional convention any more than you call an extra session of the Legislature in Tennessee without defining its scope.

William J. Brennan, Jr.:

And you — your point is that reapportionment was not included in the call because there was no statewide demand that —

Jack Wilson:

Indeed so, indeed so.

Now, may it please —

William J. Brennan, Jr.:

It might — it might be another reason I suppose.

Jack Wilson:

Yes, it might be.

Yes.

Indeed so, Your Honor.

Felix Frankfurter:

Is the — is the scope of the proposed constitutional convention of subject matter for discussion in the Legislature?

Jack Wilson:

Yes, Your Honor.

Debating justice —

Felix Frankfurter:

In other words — in other words, when this call for the 1953 and 1959 Convention was up and it must have been, wasn’t it?

Jack Wilson:

Yes.

Felix Frankfurter:

When this — when this proposal in the form of a resolution or whatever the technical form, what is it?

Jack Wilson:

Resolution.

Felix Frankfurter:

A resolution.

When that resolution was up, was it opened to the representatives of Memphis to say, “We ought to include the question of apportion?”

Jack Wilson:

Indeed so Your Honor, indeed so.

And I — it may have been raised at that time Mr. Justice Brennan.

I’m not prepared to say —

William J. Brennan, Jr.:

I mean Memphis may have asked (Voice Overlap) —

Jack Wilson:

May have done though, but I do not deny it.

What I am saying is there was not sufficient public interest in our democratic system.

William J. Brennan, Jr.:

Well, not sufficient votes to the Legislature but really (Voice Overlap) —

Jack Wilson:

Yes, that’s — that’s true, may it please the Court.

But you get votes in the Legislature when the people demand it.

Hugo L. Black:

How many counties in Tennessee?

Jack Wilson:

95, Your Honor.

Hugo L. Black:

How many would you classify as urban in the general acceptation of that?

Jack Wilson:

Perhaps half dozen and I would not want to slice it.

Hugo L. Black:

You have about 90 to 1?

Jack Wilson:

Something.

Hugo L. Black:

And how many members of the Legislature come from five urban counties?

Jack Wilson:

May it please the Court, I cannot give you those figures off hands there.

In the charts, I — I’m sorry that I do not have them in mind.

I think the short of the matter is and — and I think there’s no need to quibble about it.

The urban counties ought to have more representation.

I am not here arguing that.

Oh no, I’m here arguing this lawsuit.

Hugo L. Black:

What I’m — what I asked you the question for was to find out whether there was any real genuine chance after what you’ve said about the Legislature columnist, whether there was any real genuine chance to vote down probably to 85 counties by five counties.

Jack Wilson:

Well, may it please the Court, the only thing I could say and I say this with the great deal of respect would be to invite Your Honor to come to Tennessee and observe Tennessee powers.

Hugo L. Black:

I know a little about it.

Jack Wilson:

Now, may it please the Court —

Felix Frankfurter:

I think before — before we leave this interesting subject, you answered did you not in before new — before lunch a question of the Chief Justice, which I’d like to understand.

Is Memphis and the other portion of this always voted down when they propose something?

Jack Wilson:

Oh no Your Honor.

Oh no, that — that isn’t true.

I could name numerous — this matter —

Felix Frankfurter:

I mean other than that we should have a Holiday on the given day or —

Jack Wilson:

Oh no, Your Honor.

This matter of legislative committee is no different in Tennessee than in the Congress of the United States.

We may be a peculiar people as to our legislature and reapportionment but we are not otherwise cute.

Earl Warren:

Well, Mr. Wilson, you can’t you tell us approximately how many rural and how many urban members there are of your Legislature?

Jack Wilson:

May it please the Court, I — I would like to do this.

Jack Wilson:

I would like to ask my associates —

Earl Warren:

Oh, you may do that.

Yes.

Jack Wilson:

— if they will make an estimate while I cover two remaining points.

Earl Warren:

Oh, yes certainly.

Jack Wilson:

And try to give you those figures if I may.

Just one matter —

Jack Wilson:

Now — one matter of information.

— is your Legislature (Inaudible)?

Jack Wilson:

They keep a journal, may it please the Court.

(Inaudible)

Jack Wilson:

(Inaudible) indeed so.

William J. Brennan, Jr.:

Well, now a journal would not include.

Would it all the offers of subjects to be included on a constitutional convention call?

Jack Wilson:

May it please the Court, it would show motions made, the action on those motions.

It would show amendments.

It would show the members of each House who voted for and against, rather complete and they, I am sure and this Court’s liable.

Now, may it please the Court some two or three other subjects I wish to discuss within the time remaining.

This suit is the second reinforcement suit in Tennessee, although we will have many others, I do not know.

I personally had rather not make it real of reapportionment litigation.

But what is happening in Tennessee as a result of this lawsuit?

Well, we are hearing rumors that the municipal barns may not be able to sell it, and Tennessee has no great financial status.

Many municipal bonds are sold locally.

But the truth to the matter is and I hate — hate to say it before this Honorable Court, but if the 1901 Act in Tennessee is unconstitutional, each and every one of these four urban cities doesn’t exist.

There have to be no odds here and they would create by a virtue of legislative act.

I don’t know if they know that much but that’s so.

Hugo L. Black:

Do you have such a rule (Inaudible) de facto official bodies?

Jack Wilson:

In certain instances, may it please the Court.

Now may — if I may —

Earl Warren:

Certainly.

Jack Wilson:

continue — there is this question, some two or three years ago, we had a criminal judge in Tennessee who it was said had forgotten the duties of his House and the Legislature of Tennessee.

And they said dominated with the rural element, call that judge in.

The House of Representatives impeached.

The State Senate tried to convict him.

He’s not on a bench (Inaudible).

Not long after that judge was tried and convicted, the Bar Association of Tennessee filed disbarment proceedings against.

And the Chief ground of — the disbarment proceedings’ was his impeachment as the trial judge in Tennessee.

That case has been through the trial courts of Tennessee through Tennessee as intermediate appellant court.

It will be heard before the Supreme Court of Tennessee, a week from today, and one of the issues in it, isn’t that Legislature which tried and convicted that criminal judge was illegally constituted.

The question is being raised, not theoretically.

It’s in the court papers.

What else is happening in Tennessee?

From day-to-day, the lawyers on the step, the Attorney General of Tennessee are confronted with habeas corpus petition, averring.

They had been convicted on the unconstitutional law because the Legislature was improperly constituted.

When I was instituted before this Court in April, I raised the question of what the situation would be if the District Court entered a decree declaring the Government of Tennessee operating unconstitutionally, whether that Government then so constituted could execute criminal.

Some of adversaries my appraisers say, “Oh, he’s putting the ox in the ditch, so he can take him out.”

Now may it please the Court, I stand before you today in the month of October, in the maximum security ability at the State of Penitentiary at National, as I speak now, sit eight condemned men, condemned to death, maybe the largest number of Tennessee has had in sometime if not at any time.

Those men have been convicted of rape, had been convicted of murder, other capital crimes.

One of those men has filed a petition for writ of habeas corpus asserting that death by electrocution based on law that was inactive by a Legislature improperly constitute.

I assume that case will come to this Court and I will not discuss it further.

But I will say to this Court that the Governor of Tennessee, our Chief Executive, has announced and has acted, he has suspended the executions in all criminal cases including these eight men, until it is determined whether Tennessee may lawfully execute criminals by the electric chair.

(Inaudible)

Jack Wilson:

I beg your pardon?

(Inaudible)

Jack Wilson:

Well, I don’t think the Court can and — and I think the matter may be determined and rapidly and should be that this District Court will not interfere with the Government of Tennessee.

Now, what else is happening in Tennessee may it please the Court that is on the certiorari docket of this Court is not disposed off today.

Codes number 342 (Inaudible) against State of Tennessee, I will not of course discuss that case.

But counsel for the State of Tennessee in that case, Senate Counsel table and one of the questions varied to is that Legislature of Tennessee illegally constituted and acted — enacted a law under which that taken which the petitioner was convicted.

Now, I will not repeat at this time a discussion given in April as to the possible effect upon the operations in the Government of Tennessee in the event this Honorable Court authorizes the District Court to enter a decree of unconstitutionality.

But I do want to discuss and most briefly the question of, “What would be the general effect of an adverse ruling in this case?”

William J. Brennan, Jr.:

May I ask this question Mr. Attorney General, why mislead the holding in Kidd and McCanless that is by your Tennessee’s Supreme Court to be that the points you’re now raising as to the effect upon past statutes and the life, would not ensue one told of the date of a judicial declaration of invalidity and then only perspectively?

Jack Wilson:

No, may it please the Court.

If this Court follows the case of Luther against Borden and there is —

William J. Brennan, Jr.:

No, no.

I’m speaking of your own Tennessee Supreme Court.

Jack Wilson:

Upon the declaration being made —

William J. Brennan, Jr.:

Yes.

Jack Wilson:

Yes Your Honor.

William J. Brennan, Jr.:

But that means perspectively then nothing — in other words, all these past events?

Jack Wilson:

No, I do not so interpret it Your Honor.

The Court —

William J. Brennan, Jr.:

It is susceptible of that interpretation?

Jack Wilson:

I think it is, may it please the Court, because they say and very specifically that if it is held that this Act is unconstitutional then this Legislature doesn’t exist and prior legislatures, I think it could not have insisted.

William J. Brennan, Jr.:

Well, it’s not ladder whether or not.

Jack Wilson:

Well now, what — what might be the general effect of an adverse decision in this case?

As I understand it, there are some 40 states concerned with this problem.

There are some 20 states who — which are in a riffs, their reapportion.

Is this Court to authorize the several District Courts of United States to get busy straighten up the State Governments — submit to State Governments, would not that result follow?

Now, may it please the Court, it isn’t just a question of whether a Legislature had failed to apportionment.

Oh no, if I understand the New York case in which a three-judge District Court had been convened, it is not a followed, it is not insistent that the Legislature of New York has failed to apportionment, oh no.

It is insisted that under a valid apportionment, constitutionally valid in accordance with their constitution, there is inadequate representation of certain aliens.

Must that not follow?

Must that not follow if this Court is to enter the field?

And as was suggested a little while ago, does it really make any difference what the constitution provides?

Doesn’t it really?

Would not this ruling, may it please the Court, would not this ruling applied to all city counsel all over the United States would not interplay to the districts and the counties and parishes’ all over the United States equality of representation?

And I regret to have — to have to tell this Court that in the City of Nashville, whose male is (Inaudible) all in this case.

Citizens are plummeting for more equal representation on the city counsel.

And what does the Honorable Mayor said?

“We are worth it.

Jack Wilson:

We are worth it.”

Now answering your question if I may, my associates advised me that in their opinion and some half of the voters of the State would be considered urban voters under their calculations and of course that can be no more than — than rough calculations.

Hugo L. Black:

How about the number of county?

Jack Wilson:

Roughly had, may it please the Court.

Hugo L. Black:

Roughly had the counties or have the voters?

Jack Wilson:

Yes Your Honor.

Hugo L. Black:

That’s it?

Which one?

Jack Wilson:

I beg your pardon?

Hugo L. Black:

Which one?

As I understood you.

Jack Wilson:

Counties, may it please the Court, counties.

Hugo L. Black:

You mean half the counties —

Jack Wilson:

Yes Your Honor.

Hugo L. Black:

— that are urban counties.

Jack Wilson:

Now, let me put it this way.

My time is quite limited.

If the members or any member of this Court desires a memorandum on that subject or any other, we will make every effort to furnish it.

But I — I cannot give a more definite answer to Your Honor at this time.

Earl Warren:

Well, Mr. Wilson that isn’t the question I asked at all.

I asked you, what representation the rural counties had in your Legislature and what representation the urban counties and you said your associates.

The Attorney General would supply that information to it.

It doesn’t seem to be a very difficult question to answer.

Jack Wilson:

May it please the Court Mr. McCanless, the Attorney General of Tennessee, tells me that his estimate is that the rural vote in the general assembly of Tennessee is approximately two thirds.

And I apologize to you Your Honor if we did not understand the question.

Earl Warren:

Does that answer my question?

Jack Wilson:

Well, may it please the Court, that’s the best answer I could give that they have to —

Earl Warren:

I didn’t ask you what the population was.

You’ve given us that now, approximately two thirds rural.

Now, how much representation do the rural counties have in your Legislature and how much representation do the urban counties have?

Jack Wilson:

Well, may it please the Court, it was our intention to answer that as I did and we — we believe that it is approximately two thirds to one urban county.

Members — members, may it please the Court.

William J. Brennan, Jr.:

That means two thirds of the 99 and the lower house would be — or 66 might be called rural and 33 urban, is that it?

Jack Wilson:

That’s correct.

William J. Brennan, Jr.:

And then the upper house, 22 rural and 11.

Jack Wilson:

Approximately, yes Your Honor.

Earl Warren:

Alright, now how is the population divided between urban and rural owner?

Jack Wilson:

That’s roughly half and half, perhaps predominantly urban.

Earl Warren:

Very well, that’s the answer of my question.

Jack Wilson:

And I’m sorry I didn’t get you.

Now, may it please the Court, closing.

It seems I believe that the Court must and should balance the default of the Legislature of Tennessee as to each constitution with the question of whether this Court, in view of the plea of sovereign immunity, in view of the question of its being a State Legislature will for the first time step over into the state figure.

And we think that that is one of the serious and one of the important questions to be determined by the Court.

Now, may it please the Court, this case is most important to Tennessee, most important to the states of the United States and we feel that if a large major, the future of the Government of the State of Tennessee rests in the hands of this Court, and indeed we feel that in an enlargement future of constitutional government in the United States of America rests with this Court.

Potter Stewart:

General Wilson just before you sit down, one of the questions in this case, a question which to be sure would not be raised and until or unless certain other questions are answered in certain — a certain here way.

One of those questions, one of the possible questions in this case is a question of a remedy.

And that as Mr. Justice One of those questions, one of the possible questions in this case is a question of a remedy and that, as Mr. Justice Rutledge pointed out that Colegrove against Green involves practical considerations.

It’s with that in mind that I’d like to ask you, one or two just practical factual questions.

When is the next general election in Tennessee of the Legislature?

Jack Wilson:

The next general election will be held on August the 4th of next year.

That is the first Thursday of August 4th, that’s — of August.

That is the primary election for the members of the Legislature.

It is a general election for the election of such judges as ought to be elected.

Potter Stewart:

That is —

Jack Wilson:

Then — then the general election for the members of the Legislature would be the following November of next year.

Potter Stewart:

Then we’re not speaking about 1962.

Jack Wilson:

Yes Your Honor.

Potter Stewart:

August 1962 would be the primary election.

Jack Wilson:

Yes Your Honor.

Potter Stewart:

Is the Legislature now in session?

Jack Wilson:

No Your Honor, it’s during the — in March of this year.

Potter Stewart:

Will it — the ordinary course of events be in session between now and next August?

Jack Wilson:

It will not, unless called into special session by the Governor and that is the only mode in which it maybe called and inspected session.

Potter Stewart:

It cannot on its own motion (Voice Overlap) —

Jack Wilson:

No Your Honor, not on that Constitution.

Potter Stewart:

It has to be called by the Government.

Jack Wilson:

Yes.

Potter Stewart:

And then can the Governor limit the agenda of a special session by his call?

Jack Wilson:

He must do so.

Potter Stewart:

He must do so.

Jack Wilson:

Yes Your Honor.

Potter Stewart:

And this can be done by the Governor at anytime and as frequently as he liked.

Jack Wilson:

In fair — not in recent years but in the history of the state and in the recent past history of the state, presidents during World War II when times prior to that, an extra session was not of use.

Potter Stewart:

That’s all I want, thank you.

Jack Wilson:

Mr. Chief Justice —

Earl Warren:

Mr. Osborne.

Z. T. Osborn, Jr.:

Mr. Chief Justice, may it please the Court.

The Attorney General of Tennessee envisions a situation in which the State Legislature and the United States District Court tie each other and to say, “Who will make the first move?”

March of — a considerable part of the argument that the Court has so patiently heard has been of that — of that type.

That is this conjectural or speculated matters.

What would happen then?

Now, we would like on behalf of the appellants to say, that we seek a decoration that an Act of Apportionment which indirectly but very effectively gives some voters in time as much representation as others is unconstitutional.

We seek then, we think that the history of the matter is that these speculations that the Legislature might say denies the District Court are out of order.

They’re not born out but what actually has happened where reinforcement has been ordered or where an active apportionment has been held unconstitutional.

And in effect, they are a departure from the judicial presumption which is that other officials will follow the law if the law is laid down too.

In a substantial way, they slander the people of Tennessee might next elect to its legislature and so we say that the — these matters that are pointed up, they’re not supported by a presumption.

We’re not entitled to presume that the State Legislature would if this Act of Apportionment were struck down that it would sit and refuse to do anything.

Felix Frankfurter:

May we presume that it will sell its clothes the line of selfishness as it’s think it justifies.

Z. T. Osborn, Jr.:

Unless the —

Felix Frankfurter:

— to have or make a change from say from two thirds — from two-thirds and one-third and three-fifths and two-thirds and you will then be here again, wouldn’t you?

Z. T. Osborn, Jr.:

Well —

Felix Frankfurter:

Wouldn’t you?

Z. T. Osborn, Jr.:

— if employed to come, yes.

Felix Frankfurter:

I never — I don’t — I don’t know of a federal basis on which can employ and bring a lawsuit.

Z. T. Osborn, Jr.:

Yes, if —

Felix Frankfurter:

Could you be here again?

Z. T. Osborn, Jr.:

We would try to be here again because as the Attorney General says, this is a longstanding, a continuing evil and the weakness in our system of government.

Felix Frankfurter:

Yes, but if you — if you start with your assumption with which Mr. Solicitor General — Mr. General of the United States does it that there may be differentiation and not equality between urban and rural representation then the Tennessee Legislature may act on that assumption and think three fifths of against — as against two thirds might satisfy the Supreme Court of United States, couldn’t then conscience he thinks that?

Z. T. Osborn, Jr.:

He says only rational differentiations as you have seen from the questions asked for — other of your associates, in this particular apportionment.

No rational basis can be discovered.

Felix Frankfurter:

I understand that —

Z. T. Osborn, Jr.:

Yes.

Felix Frankfurter:

— and I accept that.

And I assume it struck down when it goes back to the Legislature and under the — that will known difference that the witness to the south in many states, they would had once obeyed the law of this — the petition of this Court, they would pass a new Apportionment Act, changing the present proportion of two thirds and one third to three fifths and two thirds.

You would then be here because I’m conferencing what you employed and wouldn’t you?

Z. T. Osborn, Jr.:

Yes we would.

Felix Frankfurter:

But could no Legislature conscientiously think if there maybe, it please a loading of urban as against rural — against — rural as against urban that it is not at all democracy that — that have been one vote, one man throughout the state.

They may make a change which would again call it to pray this process of mitigation, wouldn’t it?

Z. T. Osborn, Jr.:

I have no doubted that yet and yet — against that you have this Your Honor that the Rotenberg had game entered, it can never be defended by someone who believes then the Fourteenth Amendment to the United States Constitution and I (Voice Overlap) —

Felix Frankfurter:

I know but then what your conception is of the function of a court.

Z. T. Osborn, Jr.:

Yes.

My conception being this that if an unconstitutional act was placed, it is the —

Felix Frankfurter:

Yes, but it is the question when you said unconstitutional.

It may be unconstitutional under the law of Tennessee non-concept therefore that it’s unconstitutional leaving the Fourteenth Amendment so as to give this Court power to knock it down from a very different problem.

Z. T. Osborn, Jr.:

The language of the Fourteenth Amendment itself suggest to the contrary.

It says that, “No state shall enact to its citizen’s equal protection of law and it specifically prohibits an abridgment of the right to vote for members of the Legislature.”

Felix Frankfurter:

Do you agree with the Solicitor General don’t you that there maybe inequality as between urban and rural protest that do not conflict with the Fourteenth Amendment?

Z. T. Osborn, Jr.:

I do not agree in that.

Felix Frankfurter:

Well, you don’t have (Voice Overlap) —

Z. T. Osborn, Jr.:

Well, I agree that there may be in equality —

William J. Brennan, Jr.:

Well Mr. Osborn, —

Z. T. Osborn, Jr.:

Yes.

William J. Brennan, Jr.:

— there’s more here as I understand it and then equality between urban and — and rural voter.

Z. T. Osborn, Jr.:

Well, of course (Voice Overlap) —

William J. Brennan, Jr.:

But apparently, inequalities among rural counties, between rural counties with the same size and different sizes.

Z. T. Osborn, Jr.:

It was a club that was organized in (Inaudible) and — and that is all that it matters to it.

Felix Frankfurter:

But my question wasn’t — or to accept that you succeed in having this statute declared unconstitutional.

My question was before seeing the next step, couldn’t your Legislature with entire conscientiousness then they could pass an reapportionment statutes which from your point of view would raise the same question which is not altered here.

Z. T. Osborn, Jr.:

No, they could not with —

Felix Frankfurter:

They could not.

Z. T. Osborn, Jr.:

— with good conscience, and —

Felix Frankfurter:

Not with your conscience

Z. T. Osborn, Jr.:

— accept by rational basis.

Felix Frankfurter:

— not with your conscience but their conscience.

Z. T. Osborn, Jr.:

No, both of us are supposed to have the conscience provided for in the Fourteenth Amendment to the United States Constitution.

Felix Frankfurter:

And then there would — will be difference of opinion on this Court if you were right.

Hugo L. Black:

Can you —

Z. T. Osborn, Jr.:

Thank you Your Honor.

Hugo L. Black:

— imagine any case where we hold a law unconstitutional whether they decide its settlement against what we hold in the community as the Legislature wouldn’t try to pass another and (Inaudible) as much as possible?

Z. T. Osborn, Jr.:

Always they have done that.

Hugo L. Black:

Is that (Inaudible) the reason why we shouldn’t hold them unconstitutional if they are?

Z. T. Osborn, Jr.:

Never has this Court failed — have the courage to do what its conscious mind.

Hugo L. Black:

I would like to get your view on one thing (Voice Overlap) —

Z. T. Osborn, Jr.:

Yes, Your Honor.

Hugo L. Black:

Adversary says that the Legislature couldn’t meet.

He said that it was illegal, it couldn’t meet and that you couldn’t elect a new legislature because if — if only apportionment lawyer have is what you have.

What do you say to that?

Z. T. Osborn, Jr.:

Well —

Hugo L. Black:

How could you get a constitutional legislature under his argument?

Z. T. Osborn, Jr.:

May I answer and not take too long because I appreciate the — the time of course given to me.

Z. T. Osborn, Jr.:

In the first place, the de facto doctrine is not as described by the Supreme Court of Tennessee and — and the special ruling was handed down by the Supreme Court of Tennessee in Kidd vs McCanless on the de facto doctrine in which they departed from theirs — their earlier pronouncements.

But in — in good legal logic, you actually never reach the defect of doctrine because the Constitution of United States, the Constitution of every state in the union gives exclusive jurisdiction of the right of a person sit in a Legislature, the right of individual person now to sit in that Legislature to the legislative body itself.

That is —

Hugo L. Black:

Suppose the legislative body is unconstitutional.

Z. T. Osborn, Jr.:

Well, the — the — we’re — we’re seeking now to the same thing (Inaudible) thing.

We’re saying an Act of Apportionment is unconstitutional, not that the Legislature is unconstitutional.

The Legislature exists independently of any of its own acts.

It is the creature of the constitution and the fact that the Legislature passed an unlawful Act of Apportionment, could not destroy it.

It has no power to destroy itself, and none of its Acts would by any Court of any of the states be construed in such basis as to destroy the Legislature.

Hugo L. Black:

You mean you’re invoking the de facto idea?

Z. T. Osborn, Jr.:

I’m invoking really a more basic doctrine meant.

Let’s take the Tennessee Legislature.

It consists of 20 people from the urban area, the halves.

The balance of the 99 members comes probably what we have called the non-urban communities.

The Supreme Court of Tennessee would never examine an act on the question of its constitutionality to see whether people who came from too smaller district voted for or against that act.

I’m saying that their acts are not subject to attack all their thinking.

William J. Brennan, Jr.:

Well the fact — Mr. Osborn, supposed — supposed this that the Apportionment Act itself were declared unconstitutional.

Z. T. Osborn, Jr.:

Yes Your honor.

William J. Brennan, Jr.:

Suppose my reading of Kidd and McCanless as I read it, as I suggested to rather said all that has said is the current legislature.

Z. T. Osborn, Jr.:

Yes sir.

William J. Brennan, Jr.:

Would not be validly constituted that not that any of the actions of earlier legislatures would be invalid (Voice Overlap) —

Z. T. Osborn, Jr.:

They did not.

William J. Brennan, Jr.:

Let’s — and suppose it’s not limited but then your Tennessee Supreme Court would set while the action of the federal courts invalidating the Apportionment Act, does have the effect invalidating the current legislature.

Would that be a matter of state law or would that be something which we could review?

Z. T. Osborn, Jr.:

Your Honors would review that.

Hugo L. Black:

Well —

William J. Brennan, Jr.:

Well, how?

Z. T. Osborn, Jr.:

Well, Your Honor would — would always review and — the question and the extent of the affect of a ruling by this Honorable Court.

One of the things that this Court has to do is interpret its opinion.

Felix Frankfurter:

I have no doubt about that — I have no doubt about that.

Felix Frankfurter:

But suppose the state — suppose the Tennessee Court doesn’t say we construe the decree of the federal court but we construe Tennessee law.

You mean that if the apportionment has been illegal since 1901 or consequences would have never been a valid legislature, would that be a federal question?

As the — the case that was put to you by my brother Brennan, specifically inserted that the State Court would be the — in construing the federal degree and I agree with you that that was solved and he would really —

Z. T. Osborn, Jr.:

When you have review that.

Felix Frankfurter:

But suppose they don’t make any reference with the federal decree and say Tennessee law as such.

Z. T. Osborn, Jr.:

Well, that —

Felix Frankfurter:

That’s a different problem isn’t it?

That’s all you have to say.

Z. T. Osborn, Jr.:

That’s a hard question and —

Felix Frankfurter:

You want me to put you an easy ones?

Z. T. Osborn, Jr.:

No.

But it is — it comes down of this, so first it would suppose that Tennessee Supreme Court would say, “Well, since there were probably apportioned, there’s been no legislature, and everything is invalid and there’s no way to establish new legislature.”

Well, it would depart from every press of them and yet if they did that, we would — we would be in bad effects of this as we are with the Legislature that refuses to apportionment.

We might be in bad effects without a legislature as we are by the ones we have.

I say that.

Charles E. Whittaker:

Isn’t that what — Mr. Osborne —

Z. T. Osborn, Jr.:

Yes Your Honor.

Charles E. Whittaker:

Is not that what they did say in Kidd against McCanless?

The Supreme Court?

Z. T. Osborn, Jr.:

Yes, to be frank, they did as what they (Inaudible) to say.

They said, “Chaos was dissolved, it will destroy the State Government.”

Charles E. Whittaker:

Right, now, that’s a matter of state law —

Z. T. Osborn, Jr.:

Yes.

Charles E. Whittaker:

— and they don’t take it back, where do we go from there?

Z. T. Osborn, Jr.:

Well, it might have been quite possible and observant was done in all of the cases that have come before this Court involving individual human rights.

Well, not those — Supreme Court Tennessee is fiat justitia ruat caelum, let justice be done if the skies should fall.

And yet that same Supreme Court with that same motto wrote the decision in Kidd vs McCanless.

And I am certain that when the state held that it was alright to exclude Negroes neighborhoods from (Inaudible) some judge wrote that that was perfectly alright and could destroy the state if it was not to the contrary.

And so on those arguments would have to be met one at a time.

We cannot say — we cannot batch for the — the wisdom nor for the judicial integrity or the legislative integrity of everyone but we do say, the presumption is that others will follow the law.

Z. T. Osborn, Jr.:

The presumption is that upon a declaration of the invalidity of this unconstitutional act, the Legislature would follow the law.

We have no other place to go.

We are at the capital of the world.

William J. Brennan, Jr.:

But what you’re telling is then is if the 1901 Act is invalidated, we ought to count on the existing and as the legislatives then enacting an Apportionment Act which does comply with the, is that it?

Z. T. Osborn, Jr.:

That’s what we should —

William J. Brennan, Jr.:

And then I take it and you’re saying that if someone is going to challenge that on the ground that the Legislature itself to invalid body, let’s wait till that happens.

Z. T. Osborn, Jr.:

Well, the Supreme Court of Tennessee has — has twice held that it would not entertain such a challenge.

Every state in the union that has had the question before it is held that they would not entertain such a challenge.

So I say that we have very strong precedent, never reaching the de facto doctrine for the refusal reports.

Thank you very much.

Earl Warren:

We’ll recess now.