Roman v. Sincock – Oral Argument – December 09, 1963 (Part 1)

Media for Roman v. Sincock

Audio Transcription for Oral Argument – December 09, 1963 (Part 2) in Roman v. Sincock

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Earl Warren:

Mabel V. Roman, Clerk, et al., versus Richard Sincock, et al.

Colonel Wiener.

Frederick Bernays Wiener:

Mr. Chief Justice, may it please the Court.

This is the appeal of the state election officials in the Delaware reapportionment case.

I shall cover three topics, none of which simply repeat what was argued here last month in the other state cases.

First, I will discuss the meaning of the Equal Protection Clause of the Fourteenth Amendment in this connection with particular reference to contemporaneous construction and enforcement of that Clause.

And second, I will discuss the contemporaneously articulated reasons underlying the 1963 amendment of the Delaware Constitution which the judgment below struck down.

And finally, I will discuss with Your Honors the haste with which the District Court proceeded allowing the State of Delaware 13 calendar days to amend its Constitution which worked out to two legislative days.

Now, I’ll start with the contemporaneous construction of the Fourteenth Amendment and of the Equal Protection Clause and I’ll start there for the same reason that any construction of the Constitution itself, the instrument — the basic instrument must start with the records of the Federal Convention and must face some heat to what the — its framer said in the federals.

Now the date and points for the Fourteenth Amendment on the Due Process Clause are these, first is June 1866, when the Fourteenth Amendment was submitted to the States for ratification.

Second is March 1867, when the first Reconstruction Act was passed and the third is June 1868, when seven former Confederate States were readmitted or at least their readmission was outright.

These steps had been very recently reviewed by this Court in the case of United States against Florida in the 323rd United States.

But I think it will be helpful if I recall just what it was — just what the four steps were that the basic Reconstruction Act lay down.

First, it was required that these 10 Southern States which had been subjected to military government would draft and ratify new State Constitutions in conformity with the Constitution of the United States in all respects.

And the second step was that these Constitutions would be examined and approved by the Congress.

And the third step was that the several States seeking readmission to Congress would ratify the then pending Fourteenth Amendment.

And the fourth requirement was that the Fourteenth Amendment become a part of the Constitution and then and only then would those States be readmitted to representation in Congress.

One of the States that drafted a new State Constitution in conformity to this command was Florida.

The boundary clause of which was before Your Honors in U.S. v. Florida.

And under that Constitution, each county was entitled to at least one representative.

Now, the counties varied in size from some 12,000 people down to 83 and I am using the 1860 census.

Solicitor General says well, we’ll use the 1870 because the Civil War brought grave relocations of population.

True enough, we recognized that.

But the Congress in 1868 couldn’t pierce the veil of the future and look at the 1870 census reports.

So looking at the 18 census figures, the last available, with these population figures that I have indicated for the high and low of the Florida Counties and making three deductions, first for minority, second for femininity because women couldn’t vote that time and third, for apathy.

We came up with the figure of 24 voters in the smallest county which meant a ratio in the lower House of 74-to-1.

Now, the omnibus bill which readmitted six States had originally not included Florida.

Florida was added by the Senate and when the Senate amendments came back to the House for concurrence or rejection, the gentlemen in the House got up and it moved to strike out Florida from the Senate objection — from the Senate amendment saying, “I might refer to the apportionment of representatives.

By this Constitution, representatives in the legislature of Florida are apportioned in such a manner as to give to the sparsely populated portions of the State the control of the legislature.”

Skipping a sentence, “By this Constitution, every county in that State is entitled to a representative.

Frederick Bernays Wiener:

There are in that State counties that have not 30 registered voters, yet under this Constitution, every one of those counties is entitled to a representative in the legislature while the populous counties are entitled to only one representative each with an additional representative for every thousand inhabitants.”

Where will that passage that you’re reading (Voice Overlap)?

Frederick Bernays Wiener:

That is in our replied brief, Your Honor, starting at page 11.

It is from the congressional flow.

Well, the — his motion to strike Florida out of the omnibus bill was rejected and among those voting to reject his amendment were Mr. Benjamin Butler of Massachusetts, and certainly was no southern sympathizer or copperhead.

Mr. Thaddeus Stevens of Pennsylvania who was the father of the reconstruction and Mr. John A. Bingham of Ohio and Mr. Bingham was the man who was the draftsman of the second sentence of Section 1 of the Fourteenth Amendment, the one that contains the privileges, immunity — and Immunities Clause, the Due Process Clause and the Equal Protection Clause.

Now, when he presented his amendment during the drafting of the Fourteenth Amendment, this is what he said, reading from page 25 of the reply brief, “The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.

The second section excludes the conclusion that by the First Section, suffrage is subjected to congressional law.”

And this was concurred in, I have it on the next page, by Senator Howard of Michigan who was a radical Republican and the proponent of the Fourteenth Amendment but served the first section of the proposed amendment does not give the right of voting.

The right of suffrage is nearly the creature of law.

It does not regarded as one of those fundamental rights lying at the basis of all society and without which the people cannot exist except as slaves.

And that representative, if the Court please, that represented the general contemporaneous understanding because if it happened, why did they bother to pass the Fifteenth Amendment which dealt specifically with the right to vote?

And the part of which would’ve been plainly surplusage if the right to vote without discrimination had been extend by the Equal Protection Clause.

Moreover —

Earl Warren:

May I ask —

Frederick Bernays Wiener:

Yes, Your Honor.

Earl Warren:

— may I ask, how is the other house under the Florida Constitution —

Frederick Bernays Wiener:

I —

Earl Warren:

(Voice Overlap)

Frederick Bernays Wiener:

— I cannot tell if there was provision for senatorial districts to be created by the legislature.

It is not clear at all from the face of the Constitution whether it was to be apportioned according to population or according to political subdivisions.

Now, Congress in proposing the Fifteenth Amendment of the States obviously thought that something more was necessary.

And more than that, by the time that the Fifteenth Amendment had been proposed to the States, there were still four former Confederate States that were in fact in Congress.

And Congress passed two statutes laying down an additional condition for the readmission of those four States, namely, the ratification of the Fifteenth Amendment as well.

And that understanding was plain also to this Court and I refer to the case of Minor against Happersett in the 21st of Wallace and this is what you — the Court said, “And still again,” page 30 of the reply brief.”

And still again, after the adoption of the Fourteenth Amendment, it was deemed necessary to adopt the Fifteenth as follows,” and then they quote, “The Fourteenth Amendment had already provided that no State should make or enforce any law which would’ve bri — which should’ve bridged the privileges or immunities of citizens of the United States.”

If suffrage was one of it, these privileges or immunities, why amend the Constitution to prevent its being denied on the count of race et cetera?

Nothing is more evident than that the greater must include the less.

And if all were already protected, why go through with the form of amending the Constitution to protect the party?

Now, Minor v. Happersett was the claim of a Missouri lady, Mrs. Minor, to vote.

Frederick Bernays Wiener:

She said, she was a citizen under the Fourteenth Amendment and she had a right to vote.

And this Court unanimously held that she had no rights either under the Fourteenth Amendment or under the Guarantee Clause.

And as a matter of fact, women had no federally protected right to vote until the Nineteenth Amendment and part of that would’ve been surplusage.

Now, if the Equal Protection Clause of its own force had wiped out all discriminations in respect to the exercise of voting rights, why was it necessary to bother with the Fifteenth Amendment and make those last Southern States ratify it and why was it necessary to follow with the Nineteenth Amendment?

Arthur J. Goldberg:

It was brought into your argument (Inaudible) Equal Protection Clause of the suffrage itself (Inaudible)

Frederick Bernays Wiener:

I — I’m inclined to think that that follows but I don’t go that far.

What our position briefly is that having regard to that very fragile foundation, it will not support the burden that was sought to be placed on it by the arguments last month, namely, that the Equal Protection Clause requires both houses of a legislature to be apportioned according to population or that — and this was actually the holding below that the Equal Protection Clause somehow or rather incorporates the multiplication tables.

Arthur J. Goldberg:

Going back to the question asked by Chief Justice Warren, I thought (Inaudible) of the original brief or quite appeared (Inaudible) draft the apportionment according population than (Inaudible)

Frederick Bernays Wiener:

That —

Arthur J. Goldberg:

(Inaudible) Constitution play the litigation.

Frederick Bernays Wiener:

That — that may well be.

I just — I just was not able to run it down with the data at hand and certainly, it wasn’t before Congress.

But going back to 1868 and I think the contemporaneous construction of the Fourteenth Amendment is particularly significant in view of Section 5 of the Fourteenth Amendment which gave the Congress power to enforce the entire amendment by appropriate legislation.

Now, Your Honors’ opinion in United States v. Florida shows the care with which these Constitutions were examined and there are three other aspects of that careful meticulous microscopic, I think, one member of Congress said examination.

When Florida, as I’ve indicated state in the bill, when the senators from Florida presented themselves, there was violent debate not over the malapportionment in the legislature, the debate extended for 10 printed pages over whether Florida which had adopted the Fourteenth Amendment, quote adopted, in conformity with Section 5 of the Reconstruction Act but hadn’t ratified it in conformity with using the language of the Omnibus Readmission Act of 1868 whether that was a compliance and they talked for 10 printed pages about that.

Then, the South Carolina Constitution came up.

The South Carolina Constitution of 1868 arranged its legislature basically on the federal pattern.

The lower House according to population, the Senate according to counties, one senator for each county except Charleston County which would have two, applying the 1860 census figures conscious that those were not accurate because after all, Carolina — South Carolina was that they are a seed of the theatre of war but they were the only ones available.

We find a discrepancy between senatorial districts of 5.2-to-1.

In the same way, Georgia had a Constitution that follow the fed — that constructed its legislature on the federal pattern.

Its House according to population, its Senate by groups of three contiguous counties each.And the discrepancy in respect of the senators to which came to 5.7-to-1.

Now, it is even more significant in the case of Georgia because it took three separate acts for Georgia to get back into the Congress.

First, they would — it was permitted in under the blanket of the Omnibus Act of June 1868 and they went to work and they drafted their Constitution.

They set up a legislature then they admitted of a — ejected a Negro member and they substitute it in his place an ex-confederate brigadier and that rouse the Congress and they put Georgia back under reconstruction the second act of December 1869 and added the condition of ratifying the Fifteenth Amendment also.

And then General Meade and his officers went through the Georgia Legislature with the fine-tooth comb and finally they got a legislature that satisfied at least those who examined it and then Congress passed a third act in July of 1870 to readmit Georgia finally and the Georgia senators finally took their seat in — in the Senate in 1871 but nowhere during any of those discussions on the Omnibus Act of 1968 on the further Reconstruction Act of December 1869 or on the final Readmission Act of July 1870 was there a word said by any one anywhere?

We cannot readmit the State of Georgia because its legislature’s inconsist — is formed in a manner inconsistent with the Equal Protection Clause on the multiplication tables.

Earl Warren:

Well, Colonel, suppose in Florida the — they have apportioned the other house, the second House in the same way that they did the one you are talking about, would your argument be the same here?

Frederick Bernays Wiener:

I think it — well, I’d — I don’t know.

I just don’t know, Your Honor because it would be a hypothesis on my part.

Earl Warren:

Well, it’s not so very far remote.

Earl Warren:

You say in your brief that the other house wasn’t on — in accordance with population —

Frederick Bernays Wiener:

Well —

Earl Warren:

— either so, how far could they go if it —

Frederick Bernays Wiener:

I — Your Honor, I just don’t know because I never had the time to run down the other — the Florida Senate —

Earl Warren:

Yes.

Frederick Bernays Wiener:

— to see whether it was one or the other.

Earl Warren:

What I’m — what I’m coming to was — was this.

I was going to ask you after that, if you were asking us to reconsider Baker versus Carr.

Frederick Bernays Wiener:

I — I am — our position is we’re asking that Baker v. Carr be applied as written, namely, the well developed and familiar standards under the Equal Protection Clause.

What I’m trying to say here is that those standards do not include the proposition that both houses of a state legislature must be apportioned primarily according to population.

And I think it’s particularly important here because when the same Congress that was readmitting Florida and Georgia and South Carolina when the same Congress was in a field where it was master, namely, the territories under Article IV.

When it organized territories, it provided for the both houses to be apportioned according to population.

It was a boilerplate provision that we have found in 14 territorial organic acts from the Mexican War through 1868 and my guess would be that probably it existed earlier.

I haven’t gone earlier because I have sought contemporaneous construction.

Now, that is very important because its — it illustrates, it — it indicates that Congress made a — drew a line between what it considered desirable political standards and constitutional compulsion.

When it was left to its own, it set both houses according to population and we have cited acts where giving the Governor power to reapportion when the territorial legislatures failed to do so or did so improperly.

But when it came to constitutional compulsion, there is no constitutional compulsion that requires the second House of a state — of a state legislature to be apportioned according to population.

Earl Warren:

Do you believe that there is constitutional compulsion that at least one house be according to population?

Frederick Bernays Wiener:

Well, it’s very difficult to spell constitutional compulsion which respect to voting rights out of Fourteenth — out of the Equal Protection Clause.

I mean after all Minor v. Happersett, now, whatever else can be said about Your Honors predecessors on this bench in 1875, they were closer to the Fourteenth Amendment and its adoption and they didn’t have to indulge in recondite start or research and thumb through dreary pages of congressional debates to find out what it meant.

They were there.

They were then mature men in their professional prime.

They knew what it meant and it never occurred.

William J. Brennan, Jr.:

But Colonel Wiener, you just — I understood you just say to the Chief Justice that Baker and Carr did find an Equal Protection Clause.

Some constitutional imposes —

Frederick Bernays Wiener:

Yes, and — and — we — we accept that.

What we say is, you — its — it is not a firm foundation on which you can build these mathematical tables in the both houses according to population and that reject every proposition that we’ve ever had because —

William O. Douglas:

Of course, we never — we reduced it to — to mathematics.

Our standard has been there as in other cases in standard invidious discrimination.

Frederick Bernays Wiener:

Exactly, and we — we’re entirely satisfied with — with that.

Frederick Bernays Wiener:

And what — I’m now going on to say Your Honor is —

William O. Douglas:

That is invidious for one branch why isn’t it for another?

I mean that’s the —

Frederick Bernays Wiener:

Yes, I’m coming to that.

William O. Douglas:

— question (Voice Overlap) —

Frederick Bernays Wiener:

The argument for the appellants here has roots to go far deeper than a construction of what Congress did or did not do at the most critical period.

The Congress is nearest in time to the drafting the submission, the ratification and the enforcement of the Fourteenth Amendment.

William O. Douglas:

But you wouldn’t really — if you were writing a textbook, put as a footnote to Equal Protection under the Fourteenth Amendment, this just of course a question between the congressmen and senators would you?

Frederick Bernays Wiener:

I am — I’m afraid I — I —

William O. Douglas:

They were talking about Equal Protection whether they weren’t talking about Fourteenth Amendment.

Frederick Bernays Wiener:

They were talking about the — the —

William O. Douglas:

They were talking about the — any — whether or not it — it was justiciable.

They were talking about a political question.

Frederick Bernays Wiener:

No, they weren’t talking about justiciable, they weren’t talking about the political question but they were talking about the scope of the first section of the Fourteenth Amendment and then they proceeded to pass the Fifteenth then ran part of that Fifteenth down southern throats.

But far more deep-seated, we think, than the question of the original scope.

The — to affirm the — the judgment below which deny the State the power to construct its federal — its legislature on the federal pattern that is one house not apportioned according to population at all to use the language of the reservation in Gray v. Sanders.

Affirmance of that judgment would involve two unacceptable incongruities.

It would amount to a holding that there is forever embedded in the Constitution of the United States and ineradicable discrimination, a denial, if you please, of the substance of equal protection to the people of the most populous States.

Now, the population disparities in Delaware and Delaware has only three counties, Your Honor, three counties and one of them has about 69% of the population.

The other two have 31% of the population.

There’s a lot of been, a lot of talk last month and then the briefs filed last month about the principles of majority rule and voter equality being at the very foundational stone of our principle of Government but the United States Constitution has a build in guarantee of minority rule in one house and that can’t be — when I say build in, I mean it can’t be changed.

Article V, the amending article, doesn’t permit to represent the senatorial representation to be changed.

Now, that comes, that comes under the 1960 census to a majority of the Senate representing 16% of the population.

And when you subtract the 40% of the population who are minors, 40% are minors and then 60% of those who are eligible on paper don’t work — don’t vote either because of apathy or because they can’t qualify to — having been there long enough to register.

And take off 60% again to see who gets elected because after all 60% is a landslide.

The result is that something around 4% of the population or a little less, 4% of the population elects the majority of the Senate of the United States.

Now, if the basic design of the Delaware 1963 reapportionment which gives to each of the three counties equal representation in the Delaware Senate, if that is to be held bad as the District Court here held it bad, then Your Honors have in effect said well, we can’t change it in the Constitution of the United States but it’s an invidious discrimination against New York and California and Massachusetts and Ohio and all — Illinois and all the large States.

Arthur J. Goldberg:

Tell me if I’m correct (Inaudible)

Frederick Bernays Wiener:

That — that is correct.

Arthur J. Goldberg:

(Inaudible) senatorial district.

Frederick Bernays Wiener:

That is correct.

Arthur J. Goldberg:

Now otherwise (Inaudible)

Frederick Bernays Wiener:

Yes, Your Honor.

I expect to cover that.

I think it will — I think it will appear more intelligibly in its setting if I — if I take it later but I expect to — I’d expect to discuss that.

As — now, the second unacceptable incongruity that the holding below involved is this, that the whole notion of checks and balances is bad because it prevents the will of the majority from being translated into immediate action.

I think if we, if we go back to the fundamentals, we see that the basic principle underlying the Constitution of the United States is checks and balances not the nose count.

Let me take some familiar examples just to recall them to mind, a bill passed by a House of Representative apportioned according to population can be rejected by a Senate in which the majority represents less than one-sixth of the population.

A bill passed by — by both houses of Congress can be vetoed by a President who was elected indirectly.

A bill passed by Congress and approved by the President can be struck down by this Court for being in violation of the Constitution.

And the fact of the matter is, if the Court please, that the only — the reason we have checks and balances is because it’s the only way to protect minorities.

If you want an almost laboratory example of instant effect to a momentary majority community decision, I don’t know of any better example than a lynching that gives instant effect without any checks or any balances.

Now, what are some legal aspects of checks and balances?

If you have a legislature, one house of which is arranged on the federal pattern, the Governor is still elected at large and you will have the majority expressing their influence not only in the election of the Governor but in the control of the Executive Department with all its control over patronage that the holder of the Governor’s chair and the majority party can exercise and that extends, of course, to all kinds of appointments in Delaware to the commissions only partly to the — to the judges because they’re required to be bipartisan but the Governor has the power of selection and that is the mighty power which can be exercised with infinite influence on the future of the State.

Now, there was talk here last month about the legislative deadlock.

Earl Warren:

Legislative what?

Frederick Bernays Wiener:

Deadlock.

Legislative deadlock.

Now, legislative deadlock is an expression of preference for a particular kind of legislation.

Let me take an example close to that.

The House of Representatives has passed a bill to repeal the Mallory Rule.

That bill is in the Senate and according to those who are pretty good prognosticators that hasn’t got a chance of passing the Senate.

Now, if you don’t like the Mallory Rule, this is an example of legislative deadlock because it prevents its repeal.

On the other hand, if you agree that the Mallory Rule is a sound and civilized rule of the — for the administration of criminal justice, then the circumstance shows the great wisdom of the framers in providing for a bicameral legislature.

And that’s the difficulty with talk about legislative deadlock.

It involves a — a — if I may lapse in the socio — sociological jargon, it involves a value judgment on particular bills.

(Inaudible)

Frederick Bernays Wiener:

Precisely.

Now, there had been proposals, of course, to — to get the nose count principle into the administration of justice, Your Honors.

Remember 50, 60 years ago, there was a great campaign for the repeal of judicial decisions.

Frederick Bernays Wiener:

And now, if you got to — recall that, sorry I misspoke, recall of judicial decisions in — in criminal cases to recall judicial decisions might verge on the bill of attainder.

You can’t — you simply — the basic — the underlying principle, the fundamental premise of the Constitution of the United States is checks and balances because that is the only way to protect minorities.

Now, the paradox, the ironic paradox of this case is that the plaintiffs have appealed to the checks and balances machinery of judicial review in order to remove the principle of checks and balances from the Constitution of Delaware.

Earl Warren:

Well, —

Frederick Bernays Wiener:

Now —

Earl Warren:

— Colonel, I suppose you could say the same thing about the United States Government as you could say for the — the Delaware State Government that the President has the same powers that the Governor has to influence legislation, is that correct?

Frederick Bernays Wiener:

Yes.

Earl Warren:

Well then in order to make the analogy complete, is it not necessary to take into consideration that our Constitution does require at least one house to be strictly —

Frederick Bernays Wiener:

Yes sir.

Earl Warren:

— according to population —

Frederick Bernays Wiener:

Yes.

Earl Warren:

— and that if it is not that we — we have a malapportionment under the Constitution?

Frederick Bernays Wiener:

Well, the — the Constitution of the United States lays down a very specific formula that says that the House shall be apportioned according to population.

Earl Warren:

And that’s part of the checks and balances.

Frederick Bernays Wiener:

Exactly and — and as I will say — as I will show, this was the effort in Delaware to apportion the House according to population.

And the only reason they were not able to do so is because of the shortness of time.

The complaint made in the opinion below —

Earl Warren:

Didn’t the court below stay its hand for — for a period of time in order to —

Frederick Bernays Wiener:

13 calendar days which added up to two legislative days.

That’s all the time they would give us.

Earl Warren:

That is all —

Frederick Bernays Wiener:

That is all.

Earl Warren:

— they give?

Frederick Bernays Wiener:

Yes, sir.

Earl Warren:

(Inaudible)

Frederick Bernays Wiener:

The District Court says, “Well, this is a very unfair system.

New Castle County pays most of the taxes.

It should have most of the votes.”

Well, that’s a curious resurrection of the old federalist notion that Government should be restricted to the wise, the good and the rich.

And we say that there’s nothing in the Equal Protection Clause that forever subjects the few and the poor to the domination of the many and the rich.

Frederick Bernays Wiener:

Now, when I say protecting minorities, they’re all kinds of minorities.They’re racial minorities.

You can see the — you can see those very clearly because all you have to do is look at the man.

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

Yes, but it’s also got a lot of very plush executives, Your Honor.

It’s got the — it’s —

Arthur J. Goldberg:

I mean in terms of vote.

Frederick Bernays Wiener:

In —

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

— “rural” New Castle County, I would — if — is it permissible to go on to party distribution?

But most of the Republicans in the State live in a “rural” New Castle County.

Now, it’s — it has housing developments, yes.

It has housing developments but it has also a lot of very lovely expensive suburban homes.

It’s like — there are various kinds of minorities.

There’s the minority you can easily see, the racial minority.

There is the religious minority.

There is the minority that is unpopular because of the beliefs that it holds.

And finally, there is the minority of the downstate — two downstate counties in Delaware who are a minority only in the sense that they’re small.

They only represent 31% of the people and they prefer not to be kicked around by the other 69%.

Now, I think we — the Court can avoid both the incongruities that I have mentioned and can avoid passing judicial comment on political theories if we stick to Baker v. Carr as written.

Let me recur to the heart of that decision, page 226, “Judicial standards under the Equal Protection Clause are well developed and familiar and it has been opened to courts since the enactment of the Fourteenth Amendment to determine if on the particular facts they must that a discrimination reflects no policy but simply arbitrary and capricious action.”

Now, I would like to review briefly what those well developed and familiar standards are.

We’ve done so in our reply brief, which by the way is — contains a great deal of new material because of the deadlines we were under about two-thirds of it has new material only one-third reply.

There’s been an ebb and flow over the years which in the related field of the Due Process Clause, Your Honors, have only very recently reviewed in the case of Ferguson against Skrupa.

And as an essential similarity between the construction of the Equal Protection Clause and the Due Process Clause, both are generally — generalized commands in — with very vague contours, the problem is essentially the same.

Now, under the Due Process Clause, we think there are four standards for well developed and familiar standards to be drawn from the cases.

In the first two things and most important of these is that the Equal Protection Clause should — cannot properly — should not properly be used as a vehicle to erect personal preferences and sociology or economics or political theory into constitutional absolutes.

And the second principle is that we don’t use the Equal Protection Clause to stop experimentation in the insulated chambers of the several States.

And the third principle is that we don’t use the Fourteenth Amendment to overturn long settled principles particularly fourth in the area of poli — the exercise of political rights.

And it seems — seems to me that this admonition is particularly significant here, where the holding of the court below would overturn the — diametrically the conception of the Equal Protection Clause held by those who framed it nearly a century ago.

This Court has, as I’ve said, only very recently reviewed in Ferguson and Skrupa a very unfortunate period of its history when the Due Process Clause was used to write personal preferences sincerely held, sincerely held by dedicated judges writing those preferences into the Due Process Clause.

Frederick Bernays Wiener:

Now, there’s no, and perhaps somewhat, cynical comment to the effect that history teaches us only that history teaches us nothing.

I hope that the history of the Due Process Clause will be of some service as Your Honors sit down to apply the Equal Protection Clause.

And I don’t think it’s any different here when you apply a label of a voting right as a personal right.

I don’t think you get very — you assist analysis if you use labels.

If you apply the Madison Avenue approach, as I might call it, to the question of constitutional law.

As the opinion by Mr. Justice Holmes for the Court in the 256 United States that the word “right” is one of the most deceptive of pitfalls.

It is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.

Most rights are qualified.

Nobody was prevented from voting by anything the election officials did.

The plaintiff sought an injunction against the holding of the 1962 election just last year, they it didn’t get it.

The District Court granted an injunction against any further elections which was stayed by the — by the Circuit Justice pending appeal.

And if that — but if that injunction had remained enforced, the people who live in the Wilmington District, where the member died last summer, would never been able to fill his seat.

Though the — the only prevention, the only people who’ve been prevented from voting are — are those who would have been under the injunctions.

I think also that to deal with the — the very difficult problem that Your Honors have amiss in the related cases to deal — speak of this in terms of personal rights.

It’s really to beg the question.

This isn’t a matter of personal right.

This is a question of the distribution of political power under a fundamental instrument of Government.

In — in the terms of the whole (Inaudible) analysis, it is not a question of right versus no right.

It is a matter of competing claims of right.

And the two competing claims that are asserted here and that must be resolved, are the asserted right of the New Castle County plaintiffs to walk roughshod over the downstate counties and the asserted right of Kent and Sussex Counties not to be smothered by New Castle County.

It’s not a question of rights, it’s a power struggle.

And all the —

Arthur J. Goldberg:

(Inaudible) position is the first (Inaudible)

Frederick Bernays Wiener:

Exactly, it’s — it’s that kind of a thing.

It’s — it’s all these principles and postulates and — that were aired here last month.

Those are — those are very interesting for the seminar in political science but — but to write them into the Constitution as absolutes which bind everyone of the 50 States, to do that with be — to repeat the tragic history of the Due Process Clause.

And now, against that background, Your Honors, I’m ready to consider the Delaware amendment of 1963 and I have in mind, Your Honor, the particular question.

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

June — June of 1962.

Arthur J. Goldberg:

I find the first opinion of the Court in July (Inaudible)

Frederick Bernays Wiener:

No —

Arthur J. Goldberg:

— that the Court of Appeals (Inaudible)

Frederick Bernays Wiener:

It — it was.

And let me explain that because it’s one of the factors that condition may work of the people who drew the amendment.

The Delaware Constitution provides that for the Constitution to be amended leaving out of account — a con — a constitutional convention, it is necessary for an amendment to be passed by a two-thirds vote of both houses of the General Assembly, then followed by a — an intervening General Assembly and then be repassed by two-thirds vote of both houses of the next General Assembly.

The Constitution also provides that this amendment must be published at least three months before the coming general election.

The — because of that, while the bipartisan committee, which I will refer to in detail, was work, the election officials asked for a stay.

The District Court gave them from July 25 to August 6 because there was an election coming up in — in November.

Actually, they had only until the 30th of July because the constitutional requirement for publication in the newspapers of each county involves some counties or at least one that has only a weekly paper which went to press on the 31st of July, so that actually the legislature — the — the Court’s opinion came down on the 25th of July.

The legislature was immediately convened in the Special Session on the 27th.

The 29th was a Sunday and they had to be through by the 30th.

Now, if the District Court has said, “Alright, we can’t make it in a hurry now.”

Why not take the first leg of a constitutional amendment for the 1963, 1964 session and get the next one passed by 1965.

That would’ve given ample time but the Court never allowed it.

And — and that was up the — that was — that single factor conditioned all of the defects which were recognized but in two — in three weeks work by the committee in two days work by the legislature was not sufficient either to redistrict the State.

Either they come up with a formula for redistricting or even to consider the District Court’s original suggestion of letting reapportionment in Delaware be regulated by statute.

Well, the — the idea may have merit.

It has certain demerits also.

Demerit number one, it reencountered to 106 — 186 years of Delaware tradition having it in the Constitution.

Demerit number two, it added an element of political instability because demerit number 3, it lasted in the power of a party temporarily in control of the — of the legislature to divide up the State to its own advantage.

Now, there is a lot to be said for the District Court’s suggestion but I submit that two legislative days isn’t sufficient to make at a — a knowledgeable informed choice on such a fundamental and far reaching step.

That’s why we say it is the haste and there’s some other factors also.

Earl Warren:

But Colonel, would you said here on this brief, as I understand it, do you — you do not attack Baker versus Carr.

You do say that this case does not meet the constitutional standards that would — would make the justiciable issue under Baker versus Carr?

Frederick Bernays Wiener:

No, no, no, I — I’m sorry.

I then — I then — I haven’t —

Earl Warren:

Perhaps —

Frederick Bernays Wiener:

— I haven’t made myself —

Earl Warren:

— I just want to be straightened up, that’s all.

Frederick Bernays Wiener:

Now, I say that when you apply Baker v. Carr as written, namely, that the only thing that is condemned is arbitrary action, capricious action, the action that reflects no policy then it’s bad and we say ours qualifies as good within those standards.

Frederick Bernays Wiener:

That’s our position.

I want to make that very clear.

Potter Stewart:

Colonel Wiener, let’s assume that a staying had 10 counties and that the legislature was apportioned by giving as many senators to each county as there were syllables in the name of the county, what would be —

Frederick Bernays Wiener:

Well, that would be —

Potter Stewart:

— that would be intelligible, that will be a policy with that?

Frederick Bernays Wiener:

No, that would be capricious.

I think that would be (Voice Overlap).

Potter Stewart:

That would be ascertainable — intelligible?

Frederick Bernays Wiener:

It would be capricious and — and it —

Potter Stewart:

Why?

Now, why would it?

Frederick Bernays Wiener:

Because — because the number —

Potter Stewart:

Under your (Voice Overlap).

Frederick Bernays Wiener:

— of syllables on the name has nothing to do with the number of — of representatives the people should have.

If — if Your Honor will let me expound what these people did here so that the — so that the 1963 amendment, as before Your Honors, not in the terms of the grammar school arithmetic that Your Honor decried last month but in terms of the principles that the drafting committee applied and that they said they applied.

First — first, let me state what the apportionment was when the suit was brought.

That was under the 1897 Constitution.

“Rural” New Castle, Kent and Sussex County each had five senators.

The City of Wilmington had two additional senators so that New Castle had seven, the other two had five.

“Rural” New Castle, Kent and Sussex each had 10 representatives and the City of Wilmington had five so that all of New Castle had 15 whereas, the other two had 10 and the boundaries were set up prescribed right in the Constitution.

Now, the suit was brought in June.

The Governor appointed the bipartisan committee to look into reapportionment and draft an amendment early in July.

The committee met throughout the month of July and here were the factors that condition their work.

First, as I’ve said, Delaware has three counties only, one of which has 69% of the people.

Second, in Delaware unlike the other States, and I’ll take that up in just a minute, in Delaware, the counties had made the State, the State didn’t make the counties.

Third was the time limit, the short time limit and fourth were the amending requirements of the Delaware Constitution to which I have already adverted.

Now, this — this commission came up with a new pattern.

First, they equalized the Senate seats so as to give each county seven, then they divided up the largest representative districts on a quotient with the result that New Castle County got 25 instead of 15 so there are now 45 representatives in the House.

And third, there was provision made for future redivisions dividing up of the largest districts after each census.

At the same time as the committee was acutely aware, the retention of the existing districts made for the continuation of the disproportions — population disproportions in the existing districts.

Frederick Bernays Wiener:

And that plan because largely — well, partly because of those disproportions and partly because of the adoption of the federal pattern was held neither reasonable nor rational by the District Court and it is similarly denounced by our opponents here.

Our plaintiff say it’s half hazard.

They denied the existence of any pattern, it has no reasonable basis, it has no rhyme or reason, and the Solicitor General chimes in with a loud “me, too”.

He says it’s without rational foundation in policy, there’s no explanation, represents a disingenuous efforts as no policy to support the capricious discriminations italicizing “no”, says there are gross inequalities and finally winds up by triumphant peroration that it’s a crazy quilt having neither rhyme nor reason.

But none of the people, whose denunciations I have quoted, ever looked at the reasons given by the people who grew up the plan.

Now, it’s true, they extend to 240 printed pages in this record and they extend it to 375 typewritten pages.

They were somewhat summarized by the Chairman of the committee when he testified but there isn’t a single reference to the proceedings of the committee.

The word for word contemporaneous discussions not rationalizations after the event, we have something that looks funny.

Let’s see if we can justify it somewhat.

This is contemporaneous.

These are the words just as they were spoken and nobody looked in.

Now, I don’t need to recall to the Court’s mind that some of the Court’s decisions have not always met with complete acceptance in the community.

I don’t suppose they ever will.

But recently, some members of the Court have said and there he justly you can disagree with us if you like but read the opinions first.

Now, the people who disagree with the 1963 Delaware reapportionment have never read the opinions.

They haven’t gone through this to see the reasons that were given for arriving at this reapportionment.

Earl Warren:

Colonel, may I ask you if the — the apportionment of the lower House was done according to any formula?

Frederick Bernays Wiener:

Yes, it was, sir.

Earl Warren:

What was the formula?

Frederick Bernays Wiener:

The formula was this.

They took the existing districts, because there wasn’t time to change it.

And where there was a district that had over 15,000, it would get an additional representative for each 15,000 or major fraction thereof.

That was the formula that was used.

They wanted to apportion according to population.

In their second report, they presented a plan which would have apportioned the entire House on a statewide basis according to population quotients but they never got the time to put that into effect.

Earl Warren:

What was the result?

Did it — did it give more representation —

Frederick Bernays Wiener:

Oh, yes.

Earl Warren:

— proportionate — proportionately to —

Frederick Bernays Wiener:

Yes, it did.

Earl Warren:

(Voice Overlap)

Frederick Bernays Wiener:

New Castle County went from 15 up to 25 which is 55% of the — of the House.

Earl Warren:

But is that —

Frederick Bernays Wiener:

Well, it’s they have —

Earl Warren:

— proportionately?

Is it proportionately greater than they had before?

Frederick Bernays Wiener:

Oh, yes, they — they went from — they went from 15 to 25 which I think is from 43% to 55%.

So that the New Castle County now has a majority of the House and if there had been time to affect the equalization which we’ve set out in the appendix to our reply brief, they would’ve had pretty close to 69%.

It would’ve been on a population basis.

Now, as I sat down to read these 240 pages and that’s a chore, of course.

But I — I do think that before a product is denounced, we have to look at the reasons.

I was struck with a similarity to our own constitutional convention in — in 1787 and I reread the summary of those proceedings by the scholar who edited the records, Professor Ferrandiz framing of the Constitution.

And they found five points of similarity between what was done in — in Philadelphia in 1787 and what this bipartisan committee did in 1862.

But first, they preceded step by step, one resolution after another.

And then they got snagged up in a — in a basic crisis and they surmounted that in a spirit of compromise.

And after that, everything went much more easily.

And at the end, they were completely unanimous and recognizing, of course, their — the imperfection of the plan.

Let me — I’ve mentioned the bipartisan commission, let me indi —

(Inaudible)

Frederick Bernays Wiener:

Yes, Your Honor.

William J. Brennan, Jr.:

Would you suggest that it had — that there had been more time this commission might have come up with an outright population basis through the three counties in one house?

Frederick Bernays Wiener:

Yes, Your Honor.

They — not only might have, they did.

In the appendix to our required brief at page 74, they came up with that.

Earl Warren:

How much more time, Colonel, need the District Court have given in order to accomplish that purpose?

I — I realize (Voice Overlap) —

Frederick Bernays Wiener:

I think — I think to do an effective job, they should have allowed the General Assembly that was to be elected in 1964 to have completed the second leg of the amendment.

Earl Warren:

Under your constitutional (Voice Overlap) —

Frederick Bernays Wiener:

Yes, yes, because it have —

Earl Warren:

— which requires two successive legislatures.

Frederick Bernays Wiener:

Two successive General Assemblies.

Now, they passed this one in six months.

I mean, because they were — one was in July of 1962.

There was a general election close at hand then they — they repassed it in January 1963.

And the — the other reason why we — and I’m — we’ll go on to that in detail a little later.

The other reason why we say we should’ve had more time is — is here was — here was an order to sail on an uncharted sea.

We don’t know yet what the standards are but I’ll — I’ll come to that later.

Earl Warren:

May I ask you this, suppose that they had given the two successive legislatures an opportunity to — to do something about it and they maintained the same reapportionment that they have, what position would you say the District Court would it be in then?

Frederick Bernays Wiener:

Well, it would be in a very different position but that was precisely what the bipartisan committee wasn’t going to do.

Earl Warren:

I beg your pardon.

Frederick Bernays Wiener:

That was precisely what they weren’t going to do.

They weren’t going to stand still and — and continue the old reapportionment.

They — I mean, there was a — may I answer that —

Earl Warren:

Yes.

Frederick Bernays Wiener:

— question by — by —

Earl Warren:

Go ahead.

Frederick Bernays Wiener:

— some introductory (Voice overlap).

Earl Warren:

Go ahead, Colonel.

Yes.

Frederick Bernays Wiener:

This bipartisan committee was composed of eight members, four from New Castle County, two from each of the downstate counties.

Both parties were equally represented, two Republicans and two Democrats from New Castle, one each from Sussex and Kent and they were all unanimous.

Now, the basic premises and I think, Mr. Chief Justice, this will answer your question.

The basic premises were these.

They had studied Baker v. Carr and they knew that their task was to draw a rational plan which would not be — create an invidious discrimination.

That’s perfectly apparent from the — from the discussions and out of the eight, six were lawyers.

They were keenly aware that legislative apportionment was better than judicial apportionment.

They knew that what they have had to be palatable to four — the four groups in the General Assembly, upstate, downstate, Republicans, Democrats.

They knew they had to persuade the — and convince the District Court that they were acting in good faith.

They were keenly aware of the pressure.

And they — and they — they were right.

Frederick Bernays Wiener:

The — the Court wouldn’t give them until 1965.

And they also knew that in the time available, they couldn’t propose an ideal solution because the time didn’t permit redistricting.

Well, they came up with — with 13 steps, all of them unanimous.

First, they decided the bicameral legislature, then they decided that the Senate should be apportioned on a rational geographical basis, then they came up with equal county representation in the Senate.

I think this is probably as appropriative places any for me to mention Delaware history very briefly.

It’s fully documented in our brief but the number of it for present purposes is that Delaware was formed by a union of counties.

The counties were not made by the State and the knob of this is that after June 1776, when they threw off the yoke of the crown, the three counties, the three lower counties on Delaware were sovereign in the sense that each was free to go its own way that it didn’t have to join together.

They could’ve gone their own way and both of the experts on both sides agreed at the trial.

And in September 1776, the three lower counties formed the Delaware State.

They weren’t really a political unit until then.

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

They had a common assembly that the legitimacy of which was denied by so (Inaudible) a lawyer as Lord Mansfield when he was Attorney General, Sir William Merck and —

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

Yes, well —

Arthur J. Goldberg:

— they were functioning as they said (Voice Overlap) —

Frederick Bernays Wiener:

They were functioning but the — the common assembly was much less of a bond joining the three lower counties whenever the Articles of Confederation were joining, this — the States that had declared themselves independent in July 1776 because if you read the Articles of Confederation, you’ll know the powers of each and everything is spelled out.

The — the all you find as to fundamental law for the three lower counties is one paragraph of William Penn’s Charter of Liberties that the territories, which was another name for the three lower counties, may have a distinct assembly.

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

Yes, they — they considered themselves a government also.

But it was a government in which each of the counties were separately represented and they were referred to by all contemporaries and in the Journals of the Continental Congress says the lower counties and on the question of where they bound together so that they either had to be independent or join Pennsylvania or join Maryland or could they go their own ways.

They could go their own ways.

And certainly, I mean, that the bond linking them was far more tenuous and far less specific than the bond linking these States under the Articles of Confederation.

Going back to the committee, they decided to keep the existing senatorial districts and then, in order to give the lower county, the downstate counties two additional, they device floterial districts.

That took care of the Senate.

Now, the House was more difficult.

There was the same impossibility of redistricting.

There was the strong probability of tremendous population growth in the near future because between 1950 and 1960, Kent had nearly doubled.

And there was the same difficulty of the imbalances which they recognized so their solution was to add one more representative in each of the representative districts that had over 15,000 in a major fraction.

And that, then they came up against their biggest problem, House subdivide and that took a considerable discussion and it — it was finally settled at the suggestion of a — a motion of the Wilmington member, namely, subdivide the existing districts on this basis and let Kent and County and Sussex keep their own and after each census, subdivide them again.

In other words, if a district — if one of the new districts had 15 — had 22,000 people which wouldn’t entitle it to two representatives, that wouldn’t be conclusive.

Frederick Bernays Wiener:

The existing constitutional 1897 districts would be redivided after each census.

That was the best they could come up with then.

And then the remaining steps were very easy.

They provided for a redistricting commission to set up these new districts, they set up anti gerrymander criteria, they set time limits for redistricting, they made it subject to judicial review, they made it enforceable by mandamus and finally they unanimously approved the entire plan.

And all agreed that it was a step forward and all agreed it was imperfect.

Well, it was a compromise.

The Constitution of the United States in the well-worn phrase was a bundle of compromises and yet the District Court criticized the plan because it represented the compromise.

Now, in the light of these criteria which we have summarized to point three of our reply brief beginning at page 42 of that document ease somewhat the task of going through these voluminous materials.

We don’t think that the plan deserves the strictures either of the District Court or of our plan because after all, what is — what do we mean by reason?

As a definition by Mr. Justice Brandeis, which I think as good as any, we call that action reasonable which an informed, intelligent, just-minded, civilized man could rationally think.

I think that if any other eight persons trying to reapportion the State of Delaware in this short time period would’ve come up with a very similar plan and I don’t think we can charge them with being irrational or unreasonable because in the time available, they didn’t come up with a better plan or because in 1962, they didn’t come up with the plan, the — the equalization features that they came up with in 1963.

Now, I come to the matter of the haste.

This, after all, represents a stately — what is involved here?

The principal litigant will not — the docket litigant is the state of the union.

And Your Honors indicated in the long and bitter and hard-fought Virginia versus West Virginia suit, how litigation involving a state of the union should be carried on slowly with all deliberate speed that’s the source of this oft recently repeated expression with all deliberate speed as Virginia versus West Virginia.

And we will wait for the next session of — of the legislature and we will wait even when there is only sought a money judgment, even when the liability of the defendant is clear, even when we know down deep that the defendant is dragging its feet, its feet.

Even then we go slowly.

Now, here, here where we had a matter affecting the very structure of the State’s Government where we had a situation where the guidelines have not yet been determined, where this Court has not spoken on the guidelines that governed legislative apportionment within a state legislature.

We have first, what Mr. Justice Clark called “blackjacking” because that’s what it amounts to.

And we have not the standard of Virginia versus West Virginia but rather the circus barkers’ “Hurry, hurry, hurry!”

As I’ve indicated, I got two calendar days.

And then the — the Court on two occasions said, “We must proceed promptly.”

On — throughout the trial and in the later opinion that talked about the — people of Delaware being caught in the box of time, they were constricted by a box of time but it was that box was constructed by the District Court.

And then in its final opinion, the Court gave the legislature until the 1st of October to come up with a statute that would follow its guidelines and after the appeal was noted, they refused to stay.

They required — the Court required the Delaware General Assembly to come up with answers on the 1st of October, answers that haven’t been found here yet two months later.

Take the question of the federal analogy and principle.

The — the House chosen — one house chosen without regard to population used in precise language of the reservation in Gray v. Sanders.

The District Court rejected that in toto.

The — there were some suggestions that there — they said there can be no wide deviation from the principle of population representation in the Senate.

Now, in the — in the bipartisan committee’s second report, they endeavored to correct these disproportions to which Mr. — Justice Goldberg adverted by equalizing the districts within each county.

Frederick Bernays Wiener:

And such a — a bill for that purpose actually passed the Senate on the day that the stay pending appeal was granted.

And there were some suggestions in — in the opinions that what was bad was the lack of equalization of the — of the districts within each county.

And now, for the first time in the — in the brief amicus, we’re told that their redistricting within counties would be wrong because that wouldn’t be the federal analogy, that to follow the federal analogy, they all have to be elected at large.

Well, the bipartisan committee was strongly opposed to elections at large within counties or anywhere else because it defeats minority representation where your parties are equally divided and you have districts, the minority party can get some representation.

But if all the seven senators regarded the elected at large, then one party is going to get all of them even though it only controls 51% of the electorate.

These are — these are unsolved questions on the federal pattern or principle or model.

As I say, these are unsolved questions but the — the Delaware General Assembly was directed to come up with answers to them two months ago.

(Inaudible)

Frederick Bernays Wiener:

Nothing happened.

No further action was taken after the stay was granted pending appeal except I think the direct overtaking of the appeal and very considerately provided an appropriation for that purpose.

Hugo L. Black:

(Inaudible)

Frederick Bernays Wiener:

No, but it would’ve made the case moot.

It might have made the case moot.

They would have stultified themselves after all.

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

They would have mooted the case and stultified their — their — themselves on — on directing the appeal.

Arthur J. Goldberg:

(Inaudible) judicial proceedings that was in favor of the (Inaudible) equitable apportionment in the districts —

Frederick Bernays Wiener:

The only —

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

Well, the —

Arthur J. Goldberg:

(Inaudible)

Frederick Bernays Wiener:

The only way — the only way I could answer that question, Your Honors, is to say what this Court said in the (Inaudible) in the 328 United States, it’s very treacherous business to try to draw inferences from legislative silence.

There are half a dozen reasons why they could properly upheld up.

They didn’t say.

Now, the second instance of pressure here has been the prohibiting the amendment of — further amendment of the Constitution because if — if the legislature had gone along and had changed the — had proposed a new constitutional amendment to equalize the House and Senate — the House districts within the State and the Senate districts within the county.

It couldn’t have been repassed because the injunction enjoin the holding of further elections so that what the District Court did was to prohibit, to prevent, to render impossible any further amendment of the Delaware Constitution according to its terms.

It is said here that the legislature won’t reapportion, that it have in the amicus, says it have the opportunity.

Well, there’s really no record support for that.

This isn’t like Baker v. Carr where there was a constitutional obligation which had been ignored for 60 years.

And 13 calendar days or two legislative days isn’t an opportunity.

Frederick Bernays Wiener:

And they are — they would go ahead if they — if they had the time or if they — if — when the litigation comes to oppose but to say that it proves that the legislature is unwilling because they wouldn’t comply with the deadline that had been stayed by the Circuit Justice or to say that they’re unwilling because before Baker v. Carr, they never did anything.

I think those are epithets.

Earl Warren:

When was the last reapportionment in — in Delaware —

Frederick Bernays Wiener:

In — in the —

Earl Warren:

— prior to the — prior to the 1962 —

Frederick Bernays Wiener:

The 1897 Constitution.

Earl Warren:

That’s the last reapportionment?

Frederick Bernays Wiener:

That was the last one.

And — and once Baker v. Carr was decided, they moved promptly.

Now, one other and final disturbing feature about this case was that the District Court was irresistibly drawn to reapportioning the State by judicial decree.

They presented a plan.

The Court presented a plan to counsel at pre-trial conference — at the pre-trial conference.

They invited the witnesses to testify in the Court’s plan, then the plaintiffs amended their complaint to ask the Court to redistrict, then the — it might have introduced a plan of their own.

They introduced testimony on it that the Court commented on the plaintiff’s plan at some length.

We think that these actions far outweigh the pious disclaimers, the — this hurts me more than it does you that permeate some of the Court’s opinion.

They had an itch, an uncontrollable itch to redistrict by judicial decree.

Now, that would raise constitutional questions that have — terribly serious questions that have never yet been thought throughout.

There’s one thing for a court to say, “Well, this statute is unconstitutional or this constitutional provision won’t stand up.”

It’s quite another to say, “Well, this won’t stand up.

We will redraft this — the statute.

And we will — we will rewrite the Constitution.”

So that we say that if Your Honors will apply Baker versus Carr as written, apply the well developed and familiar standards of the Equal Protection Clause, reject the proposals being made to ridiculer philosophies into the Equal Protection Clause.

If you examine the proceedings of the people who drafted this amendment under great difficulties, endeavoring loyally to comply with the mandate of this Court in Baker v. Carr, endeavoring to find a rational plan that would not represent an invidious discrimination, you’ll find that the plan — does the 1963 amendment does reflect the policy.

It is not arbitrary.

It is not capricious.

It is action which an informed, intelligent, just-minded civilized man could rationally think.

But Colonel Weiner, do you consider the standard is against which rationality of (Inaudible) should be tested?

Perhaps you better answer that.

Frederick Bernays Wiener:

Well, I will — I will — I can answer that very simply.

The irrational standard is the crazy quilt.

Earl Warren:

We’ll recess now.