ROMAN v. SINCOCK

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Argument of Frederick Bernays Wiener

Chief Justice Earl Warren: Mabel V. Roman, Clerk, et al., versus Richard Sincock, et al.

Colonel Wiener.

Mr. 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.

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."

Justice John M. Harlan: Where will that passage that you're reading (Voice Overlap)?

Mr. 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 --

Chief Justice Earl Warren: May I ask --

Mr. Frederick Bernays Wiener: Yes, Your Honor.

Chief Justice Earl Warren: -- may I ask, how is the other house under the Florida Constitution --

Mr. Frederick Bernays Wiener: I --

Chief Justice Earl Warren: (Voice Overlap)

Mr. 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.

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?

Justice Arthur J. Goldberg: It was brought into your argument (Inaudible) Equal Protection Clause of the suffrage itself (Inaudible)

Mr. 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.

Justice 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)

Mr. Frederick Bernays Wiener: That --

Justice Arthur J. Goldberg: (Inaudible) Constitution play the litigation.

Mr. 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.

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: Well, it's not so very far remote.

You say in your brief that the other house wasn't on -- in accordance with population --

Mr. Frederick Bernays Wiener: Well --

Chief Justice Earl Warren: -- either so, how far could they go if it --

Mr. 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 --

Chief Justice Earl Warren: Yes.

Mr. Frederick Bernays Wiener: -- to see whether it was one or the other.

Chief Justice 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.

Mr. 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.

Chief Justice Earl Warren: Do you believe that there is constitutional compulsion that at least one house be according to population?

Mr. 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.

Justice William J. Brennan: 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 --

Mr. 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 --

Justice 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.

Mr. Frederick Bernays Wiener: Exactly, and we -- we're entirely satisfied with -- with that.

And what -- I'm now going on to say Your Honor is --

Justice William O. Douglas: That is invidious for one branch why isn't it for another?

I mean that's the --

Mr. Frederick Bernays Wiener: Yes, I'm coming to that.

Justice William O. Douglas: -- question (Voice Overlap) --

Mr. 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.

Justice 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?

Mr. Frederick Bernays Wiener: I am -- I'm afraid I -- I --

Justice William O. Douglas: They were talking about Equal Protection whether they weren't talking about Fourteenth Amendment.

Mr. Frederick Bernays Wiener: They were talking about the -- the --

Justice William O. Douglas: They were talking about the -- any -- whether or not it -- it was justiciable.

They were talking about a political question.

Mr. 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.

Justice Arthur J. Goldberg: Tell me if I'm correct (Inaudible)

Mr. Frederick Bernays Wiener: That -- that is correct.

Justice Arthur J. Goldberg: (Inaudible) senatorial district.

Mr. Frederick Bernays Wiener: That is correct.

Justice Arthur J. Goldberg: Now otherwise (Inaudible)

Mr. 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.

Chief Justice Earl Warren: Legislative what?

Mr. 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.

Unknown Speaker: (Inaudible)

Mr. 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.

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.

Chief Justice Earl Warren: Well, --

Mr. Frederick Bernays Wiener: Now --

Chief Justice 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?

Mr. Frederick Bernays Wiener: Yes.

Chief Justice 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 --

Mr. Frederick Bernays Wiener: Yes sir.

Chief Justice Earl Warren: -- according to population --

Mr. Frederick Bernays Wiener: Yes.

Chief Justice Earl Warren: -- and that if it is not that we -- we have a malapportionment under the Constitution?

Mr. 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.

Chief Justice Earl Warren: And that's part of the checks and balances.

Mr. 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 --

Chief Justice Earl Warren: Didn't the court below stay its hand for -- for a period of time in order to --

Mr. Frederick Bernays Wiener: 13 calendar days which added up to two legislative days.

That's all the time they would give us.

Chief Justice Earl Warren: That is all --

Mr. Frederick Bernays Wiener: That is all.

Chief Justice Earl Warren: -- they give?

Mr. Frederick Bernays Wiener: Yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. 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.

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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Yes, but it's also got a lot of very plush executives, Your Honor.

It's got the -- it's --

Justice Arthur J. Goldberg: I mean in terms of vote.

Mr. Frederick Bernays Wiener: In --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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 --

Justice Arthur J. Goldberg: (Inaudible) position is the first (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: June -- June of 1962.

Justice Arthur J. Goldberg: I find the first opinion of the Court in July (Inaudible)

Mr. Frederick Bernays Wiener: No --

Justice Arthur J. Goldberg: -- that the Court of Appeals (Inaudible)

Mr. 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.

Chief Justice 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?

Mr. Frederick Bernays Wiener: No, no, no, I -- I'm sorry.

I then -- I then -- I haven't --

Chief Justice Earl Warren: Perhaps --

Mr. Frederick Bernays Wiener: -- I haven't made myself --

Chief Justice Earl Warren: -- I just want to be straightened up, that's all.

Mr. 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.

That's our position.

I want to make that very clear.

Justice 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 --

Mr. Frederick Bernays Wiener: Well, that would be --

Justice Potter Stewart: -- that would be intelligible, that will be a policy with that?

Mr. Frederick Bernays Wiener: No, that would be capricious.

I think that would be (Voice Overlap).

Justice Potter Stewart: That would be ascertainable -- intelligible?

Mr. Frederick Bernays Wiener: It would be capricious and -- and it --

Justice Potter Stewart: Why?

Now, why would it?

Mr. Frederick Bernays Wiener: Because -- because the number --

Justice Potter Stewart: Under your (Voice Overlap).

Mr. 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.

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.

Chief Justice Earl Warren: Colonel, may I ask you if the -- the apportionment of the lower House was done according to any formula?

Mr. Frederick Bernays Wiener: Yes, it was, sir.

Chief Justice Earl Warren: What was the formula?

Mr. 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.

Chief Justice Earl Warren: What was the result?

Did it -- did it give more representation --

Mr. Frederick Bernays Wiener: Oh, yes.

Chief Justice Earl Warren: -- proportionate -- proportionately to --

Mr. Frederick Bernays Wiener: Yes, it did.

Chief Justice Earl Warren: (Voice Overlap)

Mr. Frederick Bernays Wiener: New Castle County went from 15 up to 25 which is 55% of the -- of the House.

Chief Justice Earl Warren: But is that --

Mr. Frederick Bernays Wiener: Well, it's they have --

Chief Justice Earl Warren: -- proportionately?

Is it proportionately greater than they had before?

Mr. 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 --

Unknown Speaker: (Inaudible)

Mr. Frederick Bernays Wiener: Yes, Your Honor.

Justice William J. Brennan: 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?

Mr. 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.

Chief Justice Earl Warren: How much more time, Colonel, need the District Court have given in order to accomplish that purpose?

I -- I realize (Voice Overlap) --

Mr. 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.

Chief Justice Earl Warren: Under your constitutional (Voice Overlap) --

Mr. Frederick Bernays Wiener: Yes, yes, because it have --

Chief Justice Earl Warren: -- which requires two successive legislatures.

Mr. 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.

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: I beg your pardon.

Mr. 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 --

Chief Justice Earl Warren: Yes.

Mr. Frederick Bernays Wiener: -- question by -- by --

Chief Justice Earl Warren: Go ahead.

Mr. Frederick Bernays Wiener: -- some introductory (Voice overlap).

Chief Justice Earl Warren: Go ahead, Colonel.

Yes.

Mr. 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.

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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Yes, well --

Justice Arthur J. Goldberg: -- they were functioning as they said (Voice Overlap) --

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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.

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.

Unknown Speaker: (Inaudible)

Mr. 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.

Justice Hugo L. Black: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: They would have mooted the case and stultified their -- their -- themselves on -- on directing the appeal.

Justice Arthur J. Goldberg: (Inaudible) judicial proceedings that was in favor of the (Inaudible) equitable apportionment in the districts --

Mr. Frederick Bernays Wiener: The only --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Well, the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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.

Chief Justice Earl Warren: When was the last reapportionment in -- in Delaware --

Mr. Frederick Bernays Wiener: In -- in the --

Chief Justice Earl Warren: -- prior to the -- prior to the 1962 --

Mr. Frederick Bernays Wiener: The 1897 Constitution.

Chief Justice Earl Warren: That's the last reapportionment?

Mr. 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.

Justice John M. Harlan: But Colonel Weiner, do you consider the standard is against which rationality of (Inaudible) should be tested?

Perhaps you better answer that.

Mr. Frederick Bernays Wiener: Well, I will -- I will -- I can answer that very simply.

The irrational standard is the crazy quilt.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Frederick Bernays Wiener

Chief Justice Earl Warren: (Inaudible)

Mr. Frederick Bernays Wiener: Yes, Your Honor.

Chief Justice Earl Warren: (Inaudible)

Argument of Vincent A. Theisen

Mr. Vincent A. Theisen: Mr. Chief Justice, may it please the Court.

The decision of the statutory court below, consisting as this Court knows, of Judge Biggs, Judge Wright and Judge Layton, declaring the apportionment provisions of the Delaware Constitution inviolate under the Fourteenth Amendment and the subsequent injunction which restrained the defendants, appellants below from conducting any elections for the membership of the General Assembly was, in our opinion, clearly correct in both instances and we ask that the opinion below be affirmed.

Now, because my friend, Mr. Wiener, suggests that there are maybe some novelty present in the Delaware litigation that was not argued heretofore in the other reapportionment cases that your -- the bench heard during the week of November 12th of this year, we think it might be appropriate to define more precisely the issues that were presented to the court below, the issues therefore they are before you, and are set forth, if I may, a more clear exposition of the grounds upon which that decision below rests.

As a prologue to my argument, permit me to agree in principle with Colonel Wiener that Delaware, perhaps, in some ways, is very unique.

It was, as Your Honors know, the first case -- the first state rather to ratify the Constitution of the United States, an event which we celebrate in our State each December 7th of each year.

One of the 13 original colonies, it ranks second smallest in area of the 50 States.

It is smaller in this regard as this Court heard than Saint Lawrence County in New York State.

It is smaller, of course, than many counties throughout this nation.

It is 48th of the 50 States in population in -- and that is, it ranks 48th in numbers.

Its northern border is about 94 miles away from its southern border.

At its widest point, it is about 35 miles in width that is on the southern end of the State.

On the upper end, it is about an arc of 8 miles drawn from New Castle County's Courthouse.

Its highest point, Your Honors please, is about 440 feet above sea -- sea level.

It contains no dormitory counties, such as you have heard exist in Maryland or in Connecticut or in New York.

It has no large military concentrations within its borders such as Virginia.

It has no offshore islands such as Rhode Island or Massachusetts, nor does it have any widely separated regions such as -- are to be found in the upper peninsula of Michigan.

Delaware is uniquely compact and uniquely accessible from one end of the State to the other.

Our capital is, as you know, in Dover and Dover is situate about 50 miles from Wilmington.

It is within easy accessible driving range, within one hour from any portion of our State.

Our legislators who meet in the General Assembly, a number of whom are here today to hear these arguments, commute daily back and forth from their homes to Dover into the General Assembly.

So we have none of the other problems as we see it that might affect your decision in other cases.

Ours is uniquely our case and we would like to confine our unique case for your consideration to the following facts.

The Delaware General Assembly is a bicameral body.

It consists, of course, of a Senate, an upper House and a House of Representatives.

The composition of both of these Houses was fixed by the Convention of 1896 and became effective in 1897.

We have not had reapportionment prior to the institution of this suit since 1897 and before that we had no apportionment in our State -- reapportionment from the period of 1831 to 1897.

Now then, in 1897, the Convention contrived of a House of Representatives consisting not of county representation, if you please, but it created geographical representative districts.

It created 35 of those districts.

Now, it happens that 10 of the representative districts are to be found and were allotted to the rural areas of our three counties and as Mr. Wiener has stated, we have but three counties in Delaware.

The five remaining of the 35 representative districts were allotted to the City of Wilmington.

In the Senate, it created again 17 representative geographical rather senatorial geographical districts.

And those 17 geographical distri -- districts were again so constituted that geographically, five or in each of the rural areas of the three counties and two were to be found within the City of Wilmington.

Now, as I stated we've had no reapportionment prior to the institution of suit and the Constitution of 1897 provided for no periodic reapportionment of our General Assembly.

We have neither initiative nor referendum in our Constitution.

When the Constitution was adopted in the State of Delaware in 1897, the population of our State was approximately 180,000 inhabitants.

105 of those persons resided in the city -- resided rather in New Castle County.

70,000 of them resided in the City of Wilmington and 35,000 in the rural areas outside of Wilmington.

At that time, 35,000 persons inhabited the rural areas of Kent County and 38,000 resided in the rural areas of Sussex County.

Now, when the Constitution was adopted, as will appear by the debates of the Constitutional Convention of 1896, the people who lived in the rural areas of our State were considered to be identical not only in their vocations but in their interest and consequently, I believe it made logical sense to allot to them equality since their representation, the number of persons who lived in the rural areas were substantially identical.

However, Wilmington, with a population of 70,000, was given different considerations.

Instead of allotting representation to Wilmington on a population basis, it was given a SOP of two senatorial representatives and five additional representatives in the House.

Now, what happened in Delaware is, I suppose, what has happened in a great number of other States.

We have had a tremendous population explosion in our State.

It was not conceivable, I'm sure in 1897 for our legislators to have known or to have anticipated the direction in which this population explosion might have occurred.

We did not know that by 1960, our Sate would've reached 446,000 in inhabitants.

We did not know, of course, that by 1960, 307,000 of 446,000 would be residing in New Castle County.

We didn't know what would happen in the suburbs of Wilmington and what has happened since 19 -- 1896 is that that population has increased now to 211,000 persons from which we now still get the same representation of five members in the House -- rather 10 members in the House and five in the Senate.

In the same period of time, New Castle County or rather Kent County has grown to 65,000 and Sussex County about 75 -- 73,000.

Thus, by 1960, 69% of our entire state population resides in New Castle County, 14%, approximately, reside in Kent and approximately 16% in Sussex County.

Because of this irregular population explosion, and the fact that all attempts prior to 1962 to reapportion the state legislature had failed, and I might point out to Your Honors that in the six years that preceded, the institution of this suit, there had been seven attempts made in the General Assembly of our State to achieve some kind of reapportionment in the General Assembly.

Of the seven bills that were presented, one reached the floor and was promptly voted down.

The other six never came out of committee.

So that in 1960, with this irregular population explosion and the districts frozen in, the representative districts ranged in size from about 1643 inhabitants in the New Castle County 15th representative district to over 58,000 in New Castle County's 6th District.

This, gentlemen, is a disparity of over 35-to-1.

Similar disparities are to be found between the districts not only in New Castle County, not only in Kent County, not only in Sussex County but also, of course, in the City of Wilmington.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: No, sir, it does not.

It lies outside of the city as known as Brandy 100.

In the --

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir, I believe so.

You will find that in Delaware, in the House of Representatives generally in the 1896 Convention, drew the districts, representative districts to be -- to follow the old ancient boundaries of hundreds.

You'll find that in the Senate, there are combinations of hundreds and other representative districts, but in general, they do follow them.

Now, in Kent County, we had -- well, in Wilmington, for example, we had one district, the 4th District that has 5300 in population and right next to it in the 5th District, there are over 30,000 inhabitants living there.

Similarly, in the City of Wilmington, another district has 33,000 as compared with the 5300 in the 4th District.

In Kent County, they had one district that has 17,800 in it. In the second district and right next to it, in the 3rd District, there are about 3300.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: Not at all, sir.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: In -- in the City of Wilmington, sir?

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Well, I have read the -- I've read the debates of the Convention of 1896 and there are three very large volumes and I cannot find anywhere in the committee on the legislature any explanation ever offered for the creation of these districts.

As you read those debates, you'll find that there were four reports of the committee on legislation.

They apparently wrestled with the problem of numbers first.

That is how many representatives was each county going to get, how many was Wilmington going to get?

There were three different plans suggested that dealt with Wilmington.

They finally settled on Wilmington getting five additional representatives and two senators.

They then reassigned this task of districting to the committee and the committee came back with a report which was adopted.

There's no explanation as to how they arrived at the districting.

No -- no basis that I can find that they considered the population whatsoever.

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: You mean in physical areas, Chief Justice?

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: Or you mean --

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: Chief Justice Warren, I would say that Delaware is unique for one other matter and that is the quality of the people that you find from one end of the State to the other cannot be divided or separated or told apart.

You just can't tell a Sussex countian, in my opinion, from a New Castle resident.

I don't think you can tell a Kent countian from a Sussex countian.

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: In the -- yes, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: There is nothing of that sort whatsoever.

It is true that the City of Wilmington maybe considered to be more industrial than the county suburbs or suburban areas around it.

The 6th District is solidly suburban and residential.

But it was interesting, the record will show this that by 1910, Delaware had lost its status as a rural state according to the census and I think Chief Justice, the record will show that it's becoming more and more industrialized through out the State.

The indu -- industry is not confined to New Castle any longer.

It's to be found in Kent and Sussex, both.

Now, I might add that in the 1963 amendment that you asked me about, there was no effort made, for example, in dividing the or in providing for additional representation, no effort was made to combine any of the small districts.

For example, the 15th District of New Castle County which is the smallest one with 1643 inhabitants, was left that way even though since 1890, that hundred has increased about 143 inhabitants in that entire time.

It remained with one house representative.

What they did was to take the larger areas such as Brandy 100 and subdivide that according to a 15,000 population or a major fraction thereof, but they left the smaller ones completely intact.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Oh!

I think that's absolutely explicit if not implicit.

As a matter of fact, Mr. Justice Goldberg, if you would -- the record shows and we have it in our appendix that Mr. Wilson, who was admitted here today, a fine lawyer in Wilmington, was chairman of the committee, the Governor's bipartisan committee, stated in the trial of this cause that the reason they didn't change the provisions of Article II, Section 2 of 1897 as far as it relates to future constitutional conventions was because they didn't want the reapportionment to apply to that Convention.

It's obvious that this is a question of under representation or being bucked by the overrepresented areas.

If I may continue, I was reciting the situation that existed in 1960 insofar as the House was concerned.

In 1960, as we have stated, 18.5% of the population of the State of Delaware was able to elect a majority in the House of Representatives.

In the Senate, a similar situation existed.

The seven geographical senatorial districts that lie within New Castle County represented a total population of over 307,000 while the five in Sussex County represented about 73,000 and those five in Kent, 65,000.

The senatorial districts in 1962 ranged from 65,000 to 4000 so that a vote in the smallest senatorial district in Delaware was worth almost 16 times the vote in the largest.

22% of our entire population elected the majority in the Senate.

And this, if Your Honors will recall, prompted the Solicitor General in his brief to say that Delaware represented the worst represented General Assembly of any of the 50, third worst, sorry.

Now, these disparities that I have spoken off existed not only on an inter-county basis, they're also on an intra-county basis and they are to be found, as I pointed out, within the City of Wilmington.

My friend would state that the basis of discriminatory, the utmost of discrimination in this field would be a crazy quilt type of apportionment.

I don't think that you can find a better example of a crazy quilt apportionment than you can in the Delaware situation.

Often, the discriminations exist, as I pointed out, in adjoining districts.

Sometimes, the difference is simply the question of whether you live on one side of a street or on the other side of a street.

Sometimes, it's a question of whether you live on this side of a creek or on the other side of a creek, even though the persons on both sides of the street are identical and on both sides of the street are identical.

Now, we have heard today about the amendment of 1963.

This was instituted in the 1962 legislature and finally consummated in 1963 and we refer to it as the 1963 amendment.

And we think the effect of that represent -- of that amendment was to freeze into the senatorial districts representation of New Castle County, the seven existing districts and the effect of adding two additional floterial or at large senators in both Kent and Sussex and where the total membership of the Senate was increased from 17 to 21 and by adding the four floterial senators to areas having about 31% of the population at the expense of the areas containing 69% of the population and it's interesting to know that when questioned, the chairman of the bipartisan committee that prepared this bill, stated that when they allotted the four additional senators to the two lower county areas, they did not take into account population at all.

Now, in the House, they divide the House into 10 additional districts by dividing the more populous districts on the basis of 15,000 populations.

The smaller districts, even in the same county, were left untouched.

The amendment, as I have pointed out, also froze into future constitutional conventions, the composition of the General Assembly as it existed in 1897.

And so the effect of the amendment, if I may summarize it, was that in Kent and Sussex Counties, in the House, it had no effect and it perpetuated discrepancies that existed of over ten-and-half to one in Kent and over eleven-and-half to one in Sussex.

In New Castle County even after the subdivision and the creation of 10 additional districts, we still have discrepancies as high as 12-to-1.

We still have numerous discrepancies of 11-to-1 and many at 10-to-1 and under the amendment, instead of the 18.5% of the population that prior to the -- could elect the majority, it now is about 28% of the population of our State that can elect the majority in the House.

After the amendment, the disparities in population in New Castle ranged from 4100 to 64,000 or over 15-to-1 in New Castle.

In Kent, they range from 7000 to 46,000 or six-and-half to one, in Sussex, from 9000 to 38,000 or over four-and-half to one.

After the amendment, Kent, with a population of about 14.5%, now elects one-third of our Senate.

Each voter in Kent County now elects two-twenty-first of our Senate.

The same thing is true in Sussex County with about 16.5% of the population, but after the amendment, New Castle with 69% is still permitted to elect about one-third of the Senate and our residents in our county in our senatorial districts can vote for about one twenty-first of the Senate.

Now, it was obviously in the light of these facts and many others that were developed during the trial in the District Court below that the opinion of April 17th which held Article II, Section 2 as existed both before and after the amendment to be unconstitutional in violation of the Equal Protection Clause should be viewed.

The court below said that these disparities resulted in gross and invidious discrimination against the plaintiffs in violation of the Equal Protection Clause.

The court could find no rational or reasonable basis for the apportionment.

Contrary to what has been said here, it -- I think throughout the entire course of the litigation considered that basically, the problem of reapportionment was a matter for the General Assembly of the State to properly apportion itself in accordance with the Fourteenth Amendment.

In this regard, honoring the request of counsel for the defendants below, the court laid down certain guidelines, standards that in the apportionment of the House of Representatives of Delaware, the basis must be one of population.

It adopted this Court's ruling in Sander Gray -- Sanders versus Gray and announced that one vote, one person must be the aim and that in the Senate, while population must be given the heaviest vote, other factors such as diverse interests, county governmental functions, geography, area, historic and economic differences might be considered provided that no wide deviation from the principle of population representation would be permitted and then, only if the deviation served a valid legislative purpose.

In reaching that conclusion, the Court applied the guarantees of the Equal Protection Clause and in this regard, I believe it is explicitly supported and sustained by the ruling of this Court in Baker versus Carr whereas as we see it, Baker stated a rule that was more than procedural.

Baker stated the rule that gross dilutions of voting rights which result from unlawful discriminations against people lead to limitations that exceed the constitutionality.

And that this conclusion of the Court in Baker versus Carr is correct, we believe is supported by the overwhelming number of federal, lower federal and state courts, which have followed that rule since the ruling of Baker versus Carr.

We think also that the court below was following the mandate contained in the closing words of Mr. Justice Brennan's opinion in that case where he said, "The complaint's allegations of a denial of equal protection presents a justiciable constitutional cause of action upon which the plaintiffs were entitled to a trial and a decision.

" Now, in reaching the conclusion below, it is our feeling that the Court followed what it considered to be and what are traditionally considered to be the well-established concepts and tests of the Fourteenth Amendment.

It found that the discriminations, inequalities that existed reflected no policy and were simply arbitrary and capricious.

The Court, as I have stated, adopted the principle of representation or the principle or the equality and majority rule, the concept that one person and one vote must be applied according to the court below to both houses of the General Assembly.

Chief Justice Earl Warren: (Inaudible)

Mr. Vincent A. Theisen: Chief Justice, we believe that there could be little doubt, the case was decided on the question of the House and could have been left on the question of the House alone.

The court below unanimously found that there were no separability provisions in our Constitution.

It, therefore, found that the invidious discrimination that existed in the House was sufficient, but during the course of the trial, if Your Honor please, there was a very extensive pretrial had in this case and in the course of that pretrial, the plaintiffs below wanted to go further.

They felt that one of the issues in the case that remained was, what kind of a plan of apportionment, if any, should be adopted by the Court.

We certainly felt that we were litigating the question of what kind of a plan would be acceptable.

We, therefore, presented our own plan which included both houses.

In the course of the trial as has been stated by Colonel Wiener, the Court did hand counsel a former plan for the House alone and asked our comment on that, but we had hoped that we would get across-the-board relief because we don't think relief in one house is substantial relief in Delaware.

But I think technically, I must say to Your Honor, that the Court could have decided the matter only on the House and I think it did, but the Court went on because counsel, in the course of trial, had requested guidelines be established.

The Court then went on and in Judge Biggs' words, used precatory, precatory advice, gave precatory advice to the General Assembly as to what that Court considered would be the minimum plan under the Equal Protection Clause.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Mr. Justice Goldberg, it would be hard to imagine three more distinguished judges than the three we had.

They are all Delawarians and as old as we can find in Delaware and as the footnote of Colonel Wiener has documented, Judge Biggs -- Judge Biggs' father was the President of the Convention of 1897.

His grandfather participated in the Convention of 1852.

Judge Layton is as old as Sussex County and so is Judge Wright.

Justice Arthur J. Goldberg: Am I correct in saying that (Inaudible)?

Mr. Vincent A. Theisen: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Never.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: I think that's correct.

Until the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Well, sir, in that case, the Convention adopted a Constitution but it was subject to approval of the people and the people of Delaware defeated that Constitution at the polls and it was precisely over this very issue of representation by population that defeated it in 1852.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: That is absolutely correct.

There was a claim made in the -- in the Convention of 1896 that Delaware should adopt the federal analogy and we have quoted at page 10, I believe, 9 and 10 of our motion – brief in support of our motion to affirm below a few excerpts from the debates that took place.

I read from Mr. Nathan Pratt, "I do not regard a county as I do a state.

I cannot understand on what ground such a comparison can be made.

" And William Salisbury said, "In the State of Delaware, we have no such conditions.

A county is not an independent sovereignty.

The counties of New Castle, Kent and Sussex were never free and independent States of themselves.

" Now, this federal analogy was rejected completely in the Convention of 1896 and why it should be resurrected in 1963 is something beyond me, I can't understand it.

I come to this question of county sovereignty.

We think that the claim that Delaware should be in the classification of federal analogy is erroneous.

First, we can find no comparable incidence of history in Delaware which are analogous to the situation that necessitated that compromised in the federal system.

We never had such a historic event as we had in the Connecticut compromise.

Secondly, the counties of Delaware were never sovereign and I don't believe that any of the witnesses in the trial of this Court so stated, but if they were, it would be our position that such fact would be irrelevant to any of the issues before this Court.

We are concerned here not with county discriminations.

We are concerned here with the action of the State of Delaware in denying these plaintiffs equal protection.

I know of no charge that any county is involved in these discriminations and as a matter of fact in Delaware, counties have -- they're integral part of our State but they form no governmental function.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Unquestionably.

The State had existed under Colonel Wiener's argument from September of 1776 until the date of the 1868 period and it had existed without federal analogy.

Of course, another comment on that is that the Delaware House of Representatives is, of course, not apportioned strictly on population while the federal house, we believe is so apportioned.

And in Delaware, as we pointed out, 18.5% or 28% whichever -- you are considering the old Constitution or the amendment of the population can now elect the majority in the House.

While, as we show in our brief, it takes approximately 50% of the population of the States to constitute a majority in the United States House of Representatives.

And lastly, the federal analogy is not applicable to Delaware because our senators are not chosen from the counties.

They're chosen from representative districts that happen to be situated in the counties and the discrimination that exist is not a county vis-à-vis county, it's a representative district or a senatorial district vis-à-vis one another.

So that we don't think that Mr. Wiener's argument on the federal analogy should be applied to the Delaware Legislature.

Now, the next argument that Mr. Wiener has asserted, as we understand it, is that of contemporaneous construction.

We pointed out at the beginning that this has nothing to do whatsoever with the rationale of the disparities existing in the General Assembly of the State of Delaware.

It is an argument, we believe, that was made first had its genesis in the dissenting opinion of Mr. Justice Frankfurter in Brown versus Topeka.

It was -- I'm sorry, Baker versus Carr.

It was started in Brown versus Topeka.

It was repeated with special application by Mr. Justice Frank -- Frankfurter in the dissent in Baker versus Carr and there rejected and as I understand it, it has been reintroduced into the reapportionment suit -- arguments in the Maryland case.

Now, in the Brown case, it was rejected as being incon -- inconclusive in the field of public education.

It was not accepted by this Court in Baker.

In the Brown case, this Court refused to turn the clock back to 1868 and considered public education in the light of a full development and present place in American life throughout the nation.

No other apportion, we believe, of the Constitution with the exception perhaps, of the Commerce Clause, has had so much elasticity as the due process, public, Equal Protection Clause, but we're not here, it seems to us, to argue the abstract questions, which Mr. Wiener presents of what the Fourteenth Amendment might have meant in 1868 in the field of apportionment.

If we are here, it seems to us, to argue the question of whether the Equal Protection Clause means today what you said it meant, as we interpret it, in Baker v. -- versus Carr.

We are here today to argue what the Fourteenth Amendment means to the apportionment of the Delaware General Assembly.

Now, we don't think that Mr. Wiener's contemporaneous construction helps us very much in arriving today at what the Fourteenth Amendment means in the field of apportionment of General Assemblies.

Moreover, we think that it's apparent from the discussion that we've heard this morning that the Fourteenth Amendment was not particularly designed to meet the challenge or the problem of the apportionment of state legislatures.

We think that a careful reading of the cases of this Court indicates that the Fourteenth Amendment was chiefly concerned with the then current problem of protecting the rights of Negroes.

Apportionment of state legislatures was not then a current problem and under the standards of equality of the times was like separate facilities being in advance over no facilities and improvement over that which antedated it.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: I'm not familiar with that, I'm sorry to say.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: I'm sorry I'm not familiar with it.

Justice John M. Harlan: Of course Section 2 of the Fourteenth Amendment shows on its face that it was concerned with voting to some extent?

Mr. Vincent A. Theisen: Well, it may have been concerned with voting and I think it was.

I think it was designed to mean this, that insofar as suffrage then existed, insofar as classifications then existed, the Equal Protection Clause operated to help and to protect those persons who then existed in those particular roots of suffrage.

I don't think it was meant to take away from the States but --

Justice John M. Harlan: But I thought your argument was that since equal protection was written in Section 1 without any definition of qualification that the mere fact that it may have been passed to the context of the racial situation does not provide it -- does not prevent it from being expanded now to cover voting situation which in that time was not a -- a live concern that he was talking about.

Mr. Vincent A. Theisen: Yes, sir.

Justice John M. Harlan: Is that it?

Mr. Vincent A. Theisen: Yes, sir.

Justice John M. Harlan: And yet, I'm suggesting to you that the Section 2 of the Fourteenth Amendment specifically shows that apportionment in some degree was within the minds of the people who wrote the Fourteenth Amendment?

Mr. Vincent A. Theisen: Well, I think that if it was designed to meet, it was designed to apply solely to voting, if Your Honor please, I don't think there would've been any real need for the Fifteenth Amendment.

I don't think that there would have been any need for the Nineteenth Amendment.

I don't think that the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

Justice Arthur J. Goldberg: -- in the Fourteenth Amendment in relation to apportionment (Inaudible) is getting near to the original constitutional provisions of count of three fifths --

Mr. Vincent A. Theisen: Yes, sir.

Justice Arthur J. Goldberg: -- in terms of any representation in Congress, is it not?

Mr. Vincent A. Theisen: Yes, sir.

And I think that again --

Justice Arthur J. Goldberg: (Voice Overlap) --

Mr. Vincent A. Theisen: -- I think that is the explanation as to how it was to apply the apportionment but I don't think it was applying to apportionment as in the General Assembly generally, although I do admit that it had no limitations.

Justice John M. Harlan: It goes a little further that what my brother Goldberg has suggested.

I think that's (Inaudible)

Mr. Vincent A. Theisen: I think it perhaps does, but I would think that today there are many cases that were tried and days gone by when the Fourteenth Amendment was set --

Justice John M. Harlan: (Voice Overlap) --

Mr. Vincent A. Theisen: -- not to extend the protection that I think today probably would have reached different result.

Justice John M. Harlan: But it says that anybody deny the vote that --

Justice Hugo L. Black: (Inaudible) law.

That doesn't mean that they should -- that doesn't limit it (Inaudible) 1862 has implied (Inaudible) being denied the equal protection of the law that (Inaudible) as the law thereafter was passed.

Mr. Vincent A. Theisen: Yes sir.

Justice Hugo L. Black: It was never denied of equal protection of the law.

Mr. Vincent A. Theisen: Yes, sir.

I think that's correct.

I think that's why we've had the general expansion and development of the Fourteenth Amendment.

Justice Hugo L. Black: Well, it's not necessarily an expansion of amendment.

Mr. Vincent A. Theisen: Well, the application of it.

Justice Hugo L. Black: I understand expansion from its application to mean is such a way (Inaudible) the equality of the existing law that happened to be denied.

Mr. Vincent A. Theisen: Yes, sir.

I think in the field of public education for example, we had problems, we had separate facilities then and I don't suppose before Brown versus Topeka, the courts would have applied the Fourteenth Amendment, the equal protection to that situation, but they had expanded it and they did in Brown versus Topeka.

Justice Hugo L. Black: You are not authorized to say that in full force.

Mr. Vincent A. Theisen: No, sir.

May I continue?

Justice Hugo L. Black: That happens to be the primaries that followed that.

Mr. Vincent A. Theisen: Yes, sir.

Justice Hugo L. Black: (Inaudible) it was important since that --

Mr. Vincent A. Theisen: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: So our conclusion on the question of contempora -- contemporaneous construction is that at this time, it is not of any great material help to this Court.

We think it -- at best it is inconclusive and speculative and there we leave it.

Now, what happened below was, of course, that the court having found the provisions invalid was faced with an appropriate type of relief to be granted to the plaintiffs.

My friend has alluded to the injunction that was entered and perhaps, I should state the frame in which -- frame of time in which that injunction was issued.

This suit was instituted on June 5th, 1962.

In early July, as Colonel Wiener has stated, of 1962, the Governor appointed a bipartisan reapportionment committee.

They met.

They had three sessions prior to July 25th, 1962.

One of the members at least to that committee was one of the attorneys representing the defendants below.

appellants in this Court.

It was represented to the court below that a plan had been devised for the reapportionment of the State of Delaware.

An application was made prior to July 25th by the appellants below to stay the action of the court until that plan could be presented to the General Assembly.

The court did grant the stay to the -- in the proceedings until August 7th, and it did so because of the representation that this plan was ready and would be presented to the court below.

Now, my friend would make haste out of this.

I say to you that he was not present below and I think might have misjudged a little bit of the tempo of the trial, the speed of the trial and the necessity of the moment.

Judge Biggs, with all of his many, many years on the bench, stated on at least three occasions as an indication of his concern with the importance of this case that it was the -- the most important case that he had sat on in the 25 years that he had sat on the federal bench.

I can assure you gentlemen, if assurance need be given, that the question of haste, pressure and so forth that is alleged to have been attributed to Judge Biggs just did not exist.

He granted the stay until August 7th and there was good reason for granting the stay until August 7th because if the plan was to be adopted, an amendment to the Constitution, it would require publication.

The publication had to be made before the 4th or 5th of August.

And therefore, if the plan was not going to be passed by the -- by the General Assembly, there was no reason to stay the proceedings any longer.

I might point out that in the -- in the first opinion of Judge Biggs, he suggested to the General Assembly that they consider the question of passing a statute providing that apportionment in the General Assembly of this State shall be by statute, not as a permanent harbor but as a temporary haven.

This, of course, was ignored by the legislature which went ahead and passed the invalid amendment.

Now, I think the briefs are adequately replete with the references which we have made to the timing of this case.

It was April 17th, 1963 before the court handed down its final opinion on the merits to this case.

Between July 25th, 1962 and April 17th, 1930, counsels were completely aware of what was going on.

The legislature was completely aware of what was going on.

On April 30th when the opinion was handed down, the court, again, in its over abundance of caution to try to help the General Assembly assume its responsibility which it had not assumed to reapportion the State, granted the legislature an additional time from the date of the decree which is April 30th until October 1st to pass an appropriate statute relating to reapportionment.

As Mr. Justice Goldberg has pointed out through his questioning, the legislature just has -- simply has not taken any effective steps since that date and here it is, December of 1963 and still no steps have been taken.

This, I submit, is in line with what the -- we have alleged in our brief.

We have stated the numerous occasions on which we have attempted to get a reapportionment in the State of Delaware.

We have met with legislatives still made on this question and unless this Court will lay down the minimum standards or will affirm below, I don't think we're going to get -- let any reapportionment in Delaware for good number of years to come.

Justice William J. Brennan: Mr. Theisen, when is the next election of the general legislature?

Mr. Vincent A. Theisen: 1964 general election.

Justice William J. Brennan: And it consists of both the Senate and the House?

Mr. Vincent A. Theisen: Yes, sir.

Justice William J. Brennan: In terms of what?

Are they the same in both houses?

Mr. Vincent A. Theisen: No, sir.

Two years for the House and four years for the Senate.

Justice William J. Brennan: And these are primary before --

Mr. Vincent A. Theisen: Yes, sir.

Justice William J. Brennan: -- election and when is that?

Mr. Vincent A. Theisen: It starts -- well, not -- wait a minute.

The -- I believe it's in the May that they -- it starts.

The primaries are in August.

Justice William J. Brennan: In August.

Mr. Vincent A. Theisen: Yes sir.

Yes sir, that's right.

Justice William J. Brennan: A primary is that popular or by -- they are about the primaries on it.

Mr. Vincent A. Theisen: Yes.

Justice William J. Brennan: I mean no convention is set out.

Mr. Vincent A. Theisen: No.

We have -- well -- now, wait I'm -- I'm very sorry.

We have what we call the little and the big conventions.

We have direct primaries, we also have conventions and statewide officers are elected in the conventions.

Justice William J. Brennan: Nominated you mean?

Mr. Vincent A. Theisen: Yes, sir.

Justice William J. Brennan: Nominated --

Mr. Vincent A. Theisen: I'm sorry, nominate, yes.

Justice William J. Brennan: Well, now, these are not statewide officers.

Mr. Vincent A. Theisen: No, these are not.

Justice William J. Brennan: (Voice Overlap) --

Mr. Vincent A. Theisen: No, General Assembly.

Justice William J. Brennan: So this is just direct primary in -- in August?

Mr. Vincent A. Theisen: Yes, sir.

Justice John M. Harlan: This suit had been started as I understand it originally before Baker and Carr came down.

Mr. Vincent A. Theisen: Oh, no, sir, no sir.

Justice John M. Harlan: They're not?

Mr. Vincent A. Theisen: No, sir.

Baker v. Carr came down in March.

We started this in June.

Justice John M. Harlan: Oh, I'm thinking of another case.

Mr. Vincent A. Theisen: Yes, sir.

Justice John M. Harlan: Thank you.

Mr. Vincent A. Theisen: On this question of relief, I think it should be clear that the plaintiffs had asked the court below to accept the plan or to adopt the plan along the lines of what the plaintiffs had suggested.

Justice William J. Brennan: May I ask one more question?

Mr. Vincent A. Theisen: Yes, sir.

Justice William J. Brennan: Is your -- when does your general legislature meet before the (Inaudible)?

Mr. Vincent A. Theisen: Well, they're in session now.

Justice William J. Brennan: Continuous?

Mr. Vincent A. Theisen: Well, they had been, on and off.

They're on the call of the chair throughout the year and they -- they meet and then they don't meet for long periods of time and -- then they'll go back for a day or so and they'll be off but they're at the call of the chair.

Unknown Speaker: (Inaudible)

Mr. Vincent A. Theisen: No, sir.

Chief Justice Earl Warren: Is that the situation at the time that the court below told them to -- to act by a certain day?

Mr. Vincent A. Theisen: Yes, sir.

Chief Justice Earl Warren: (Inaudible) adjourned a few days, come back later all through the year?

Mr. Vincent A. Theisen: Yes, sir, all through the year.

They could do it (Inaudible) question.

Justice Potter Stewart: If this is true, whatever year just the odd numbered years.

Mr. Vincent A. Theisen: No, this is true in every year.

They meet year round.

Justice Potter Stewart: The Senate --

Mr. Vincent A. Theisen: It used to be that they would --

Justice Potter Stewart: -- term is four years, isn't it?

And the --

Mr. Vincent A. Theisen: Yes.

Justice Potter Stewart: -- the other is just two?

Mr. Vincent A. Theisen: Yes, yes.

Justice Potter Stewart: And then they meet off and on throughout the biennium --

Mr. Vincent A. Theisen: Yes, sir.

Justice Potter Stewart: -- every year.

Mr. Vincent A. Theisen: Yes.

Justice Hugo L. Black: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir.

I think it maybe be shorter.

On occasions, I think it's been overnight.

Justice Hugo L. Black: I just want to (Inaudible) Mr. Justice Brennan would meet your objection (Inaudible)

Mr. Vincent A. Theisen: I would say that it would meet our objections as far as the House is concerned.

It -- as I understand the bill, it divides the State into 45 districts and then divides the number of 45 into the number of population and then allots the different districts according to the number of the popular quotient.

And as I understand it further, the bill permits an additional representative to go to those counties that have a larger population after one has been elected or appointed to each district.

Now, as I understand it, it will require combinations of districts.

If it doesn't require combinations of small districts, it would not be satisfactory.

It was my understanding that there would be a reapportionment committee that would engage experts and so forth and would meet and would combine small districts throughout the State and come up with -- with -- it doesn't say how many districts as I read it, but I think it could be worked out.

I'm not sure of the -- exactly of the mechanics but I -- it's a step forward, but as far as the Senate is concern, no, no sir.

Justice Hugo L. Black: Had there been (Inaudible)

Mr. Vincent A. Theisen: No, sir.

I know of no such statement by the House.

I believe, and this is a speculation, I believe that there will be no of further attempts until this Court rules.

I think that's the sum and substance of it.

Justice William J. Brennan: Well, I gather this -- this proposed bill is not before us, is it (Voice Overlap)?

Mr. Vincent A. Theisen: No, sir.

I -- I don't think that's before you at all.

I think its all be -- all is before you is the question whether you affirm or don't affirm the decision below.

Justice William J. Brennan: Which bears on the -- on the 1962 amendment?

Mr. Vincent A. Theisen: Yes, sir.

Justice William J. Brennan: Not on this one.

Mr. Vincent A. Theisen: 1897 and the 1962 amendment.

They're both before you and they were both before the court below.

Justice Hugo L. Black: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir, it might be, I think.

Justice Byron R. White: Well, do you say both houses -- the question of both houses is before us?

Mr. Vincent A. Theisen: No, sir.

I'm afraid it is not.

I wish it were and if -- if I might throw out my own thoughts on --

Justice Byron R. White: Well, which house is here?

Mr. Vincent A. Theisen: Well, the House below -- the House that's here is the House of Representatives certainly.

If it hadn't been for the fact that the Constitution was inseverable, I think we would have had both of them here.

I think -- I think that's where we stand.

I -- I wish that it were both, Mr. Justice White.

Justice Byron R. White: But if -- if I understand the other side correctly, they say there's perhaps one house maybe handled one way and one another and consequently, if -- if you accepted that view, there's some essential relationship with the other house to -- it seems to me it's very difficult to deal with one house without dealing with the other.

Mr. Vincent A. Theisen: I don't see how you can myself.

I -- I think that the same -- the same dogma --

Justice Byron R. White: What I believe is --

Mr. Vincent A. Theisen: -- the same principles apply in both houses.

My own feelings and I think supported by --

Justice Byron R. White: Well of course, your -- your opponent doesn't agree with that.

Mr. Vincent A. Theisen: Well, we would disagree on the standards that you apply.

We will ask you to apply by analogy the standards you adopted in Sanders versus Gray and we'd ask you to apply under both houses because if it's arbitrary with respect to one house, it’s got to be arbitrary with respect to the others.

Justice Byron R. White: Well, accepting that will be -- accepting that view then you may deal just for one house I suppose.

Mr. Vincent A. Theisen: Yes, sir.

Justice Byron R. White: But if you take another approach, it would seem to me you'll have to deal with two houses.

Mr. Vincent A. Theisen: Yes, sir.

I think that there can be a difference in the second house providing, there's a good legislative purpose to be served by the disparities.

I think there can be permissible deviations if they serve a good valid legal or rather governmental or legislative purpose.

And if they do not resolve in invidious discrimination against the other parties discriminated against, they had a very closed balance.

Justice Arthur J. Goldberg: What will be (Inaudible)?

Mr. Vincent A. Theisen: Well, if -- if we were the upper peninsula of Michigan situation, I think we could deviate in the second house and permit representation even though population wouldn't warrant it.

Justice Tom C. Clark: (Inaudible)

Mr. Vincent A. Theisen: Yes, sir, inaccessibility which we do not have in Delaware.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

I must confess that I found the task of planning a fifth argument on the subject of apportionment within a month is somewhat difficult.

I concluded that it would be most helpful if I were to devote my time today to three aspects of this specific case.

First, I shall endeavor to show that this case does not raise any question about the power of a State to model its legislature after the federal analogy.

The case to which appellants' briefs are chiefly directed in our judgment simply isn't here.

Second, coming to the case that is here --

Justice William O. Douglas: Petition of the Senate is not here?

Mr. Cox: No, that's because there is, in our judgment for reason I'll state in a moment, no resemblance between the apportionment of either house of the Delaware Legislature and the apportionment of the seats in the Federal Congress.

Second, coming to the case that is here, I shall argue that the apportionment of the Delaware Legislature results in gross discrimination between persons, groups of persons without any basis in policy and is therefore, unconstitutional under established principles of equal protection.

And third, I shall try to answer briefly some of the appellants' arguments directed to the Fourteenth Amendment, particularly its early history and interpretation which I submit if they have any relevance are really abridge to reargue Baker against Carr.

The appellants state on page 10 of their reply brief that the basic question for decision is whether anything in the Equal Protection Clause forbids a State from patterning its legislature on the federal model.

As I said a moment ago, we submit that this case does not present that question.

The Delaware Legislature is unlike the Congress of the United States for four -- because of four fundamental differences.

In the first place, the composition of the Delaware Senate is utterly unlike the composition of the Senate of the Unites States.

The United States senators are there to represent States.

The States are, for many purposes, sovereign entities, each with its own historical identity, each with existing political function, a coherence of its own and the senators are chosen at large by the peoples of the State to represent them.

Now, assuming that counties are like States and I assume it’s solely for the purpose of argument, still, the Delaware senators do not represent the counties.

The 21 senators are chosen by 21 geographical districts established for the sole purpose of choosing senators.

Each senator is chosen by his district, represents the district and not the county.

So far as one can see, the legislature might establish these five counties instead of three or abolish all counties and it would have not the slightest effect on the state legislature.

That essential difference, as a matter of fact, is reflected in the fact that the Delaware Senate today is apportioned very like the apportionment under the 1896 Constitution and the districts are the same except for a few that was added or one can get out it in other way and suppose that it were possible to amend the Constitution so as to divide each State into senatorial districts.

We would suppose that that was a very radical change in the composition of our Congress and I think it shows the radical difference between the composition of the Delaware Senate and the composition of the Senate of the United States.

Now, the appellants say, "Well, this was never suggested to us before."

The point is here, whether it was suggested or not and they say, "Well, we didn't want to have our senators chosen at large."

Well that's all right, they may have had very good reasons for rejecting the federal analogy, but their reasons for rejecting it cannot make something fundamentally different into the same thing as the Senate of the United States.

Second, the Constitution, the Federal Constitution contemplates a lower House apportioned essentially in accordance with population.

Nothing in the Constitution requires or sanctions gross inequalities in per capita representation in the lower chamber.

Seats in the Delaware Lower House on the other hand are not apportioned either among counties or within counties on the basis of population.

To take a single fact, Kent County has almost twice the per capita representation of the people of New Castle County --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Cox: Well, I should have supposed that it has to historically meant that they would be elected at large.

I could say as I never considered the question.

I suggest that -- well, I -- what I was about to say, I don't -- I don't think it will stand up, but when we talk about the federal analogy, it seems to --

Unknown Speaker: (Voice Overlap) --

Mr. Cox: -- me we ought to talk about it historically as it has always been.

Certainly, I would find nothing in the Seventeenth Amendment to authorize creating districts within a State which gave the people of -- which put -- attempt the number of people in one district that was in another as there is in Delaware.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Cox: I -- I assume that the history was the law, Your Honor.

I had never reflected on the point.

I suspect that it will continue to be the practice.

Appellants' answer to our point about the lack of per capita representation in the House is that well, the House -- the purpose was to make the apportionment of the House conform to population, a purpose which the subsequent unadopted report of the committee would have effectuated.

Well, I submit that if that was their purpose, they fell far short and we're concerned with what they did not with their purposes.

And so far as their future intentions go, there would be nothing adjudicated here that would prevent them from carrying out their future intentions but we're concerned now with the constitutionality of something on the books.

Third, in Delaware, there is no rational basis for the apportionment of seats in either house -- either branch of the Delaware Legislature whereas the apportionment in the Federal Constitution is certainly in accordance with an intelligible rule.

And fourth, we find out that Delaware's 1963 amendment creates or perhaps I should say continuous gross discrimination of a kind which the federal system has never created.

Appellants say to that in their reply brief that this assertion is contrary to fact and they go on to say that inequalities in per capita representation in the United States Senate are greater than the ine -- inequalities between the three Delaware counties.

Well, that's true, but I think its a little acting whoever says that an orange is different from an apple is a liar, both have skin.

The fact is that there are many other kinds of gross discrimination under the Delaware apportionment which do not exist in the Congress of the United States.

First, some senatorial districts have three, four, 10 and even 15 times the per capita representation of other districts in the same county.

There's nothing similar to that in the federal arrangement.

Second is gross discrimination in the lower House, both between counties and between districts in different counties.

On the average, as I said a moment ago, the people of Kent County have twice the per capita representation in the lower House of the people in New Castle County.

There's nothing in the Federal Constitution that contemplates that kind of discrimination.

Third, a numerical majority in the Delaware Senate could come from districts containing only 28% of the population.

There's nothing of that kind required or sanctioned by the Federal Constitution.

So we think that taking the apportionment that is before the Court and comparing it with the federal system is an utter lack of resemblance and all the argument about the federal analogy is utterly beside the point.

Appellants say in their reply brief, well, the issue of the federal analogy is inescapably in the case for two reasons.

First, they say the legislature might have equalized the senatorial districts in each county.

Well, this case doesn't concern with what the legislature might have done.

It's concerned with what it did and then it says that the legislatures, second, might have followed the suggestion that we made in our brief.

Well again, it didn't and we're not concerned with what might have been.

Nor I submit made the court be concerned with any future apportionment that might be enacted by the Delaware Legislature that may or may not satisfy the District Court.

The decree leaves the legislature to adopt its own apportionment.

It doesn't forbid the adoption of a plan truly analogous to the Federal Congress.

If it doesn't, then it will be time enough to adjudicate that question.

This Court does not sit and certainly in this field, I submit, should not undertake to render advisory opinions on hypothetical questions that are not here.

I turn now to the second point that I -- that I wish to cover and that is -- excuse me.

Chief Justice Earl Warren: Go ahead.

Mr. Cox: Now, the second point and that is our argument that taking the case that is here, the apportionment of the Delaware Legislature violates the Equal Protection Clause of the Fourteenth Amendment because it creates gross discrimination between persons and groups of persons without any support in policy whatsoever.

We're contend here to take as appellants say they're content to take, the rule suggested by Baker and Carr to it that if the discrimination reflects no policy but simply arbitrary and capricious action then it violates the Equal Protection Clause of the Fourteenth Amendment.

The findings of the District Court and the undisputed evidence, we think, demonstrate that this is such a case.

I don't want to take the time of the Court with a lot of figures because there's something that have to be again looked at and studied in order really to grasp them that if you were to look at the tables on pages 25 and again, over on 30 of our brief, you'd find that there is really the most enormous differences in the number of people in each district and remember that each district elects one representative or one senator as the case may be.

For example in Sussex County, you find the 8th District has as fewest three -- just under 3000 people and the 10th has as many as 12, the 9th has four so your differences of 2-to-1, 3-to1, 4-to1.

Within Kent County, you find districts running up from 2, 3, and 4-to-1 up to a difference of 6-to-1.

Within the City of New Castle curiously, you find the difference as great as 3-to-1 -- I -- I said City of New Castle, I meant City of Wilmington and within the County of New Castle, you find ratios running up to 12-to-1 and of course, you find differences of the same order when they are taken across county whereas I was stating it simply between counties, at page 25.

On page 30, we deal with the Senate.

You'll note that in New Castle County, the 7th Senatorial District has 4000 people and the 6th has 14,000 people.

The others run up to 63 to 64,000 people with a couple of (Inaudible).

Kent County, there's a ratio of at least 3-to-1 and another 2-to-1.

Sussex County is a little bit better.

They are the worst ratio isn't quite as bad as 2-to-1.

If you compare them cross county, you find that the same number of senators are assigned to the 300,000 people in New Castle County as or assigned to the 61,000 people in Kent County.

And remember, they are not assigned by county.

Those figures show in average rather than specific comparisons because comparison can't be county against county.

Chief Justice Earl Warren: Is their any reason assigned -- assigned, General, to the fact that in New Castle County and the Senate, one -- one district should have 4000 and another 52, does the legislature make any explanation?

Mr. Cox: We've -- we found no explanation of this except to, it was suggested that no senator could be expected or representative could be expected to give up his seat so there was no use proposing a plan that wouldn't preserve all the existing district.

Well I suggest that in trench power is not a constitutional justification for a denial of equality.

And similarly --

Chief Justice Earl Warren: That would be -- that would be the same in the House?

Mr. Cox: That would be the same in the House.

Similarly, it is said that, well, the existing legislature would have to approve the plan.

Therefore, it had to be one that would commend itself to a -- commend itself to a malapportioned body, but I submit again that that kind of justification doesn't show the differences in representation to be rational.

Certainly, we would always agree that if the matter of providing transcripts to the record on appeal to proper defendants in criminal cases came up and then majority of the legislature said, "We'll never stand for this.

It's an outrage.

The Supreme Court is all wrong.”

They finally compromise by supplying them in capital cases but not in any other cases.

I suppose from the standpoint of one seeking legislation it might be rational to take the compromise as if there were no other solution, but in constitutional terms that's not an acceptable kind of justification.

And you can imagine other cases.

I suppose that my State of Massachusetts years ago had disenfranchised Irish and there was fight in the legislature over it.

And it was agreed “Well, we will franchise those who have been in the country for four generations or three generations.

Now this is the only way we can get a bill through.

It would make the discrimination and it last on constitution but I think that's essentially what's involved here.

Justice John M. Harlan: Would you say the same thing, I realize that it isn't here but I'm just interested in testing your argument, would you say the same thing in this field that if this -- this present apportionment were put up the people of Delaware and to take an extreme example, they unanimously voted to a man to sustain the apportionment against the decision of this Court, does that would make any difference?

Mr. Cox: Well, I would think the future man who came into Court and appealed that he would have standing to complain.

I have discussed this, Justice Harlan, that --

Justice John M. Harlan: In your --

Mr. Cox: -- at some little length in our brief.

Justice John M. Harlan: -- in your --

Mr. Cox: In the -- in this case, we didn't deal with it so explicitly in the earlier cases because the argument kept bringing out the points we have really dealt with, but that point is fully explained in our brief in this case.

There are some other reasons assigned and I would like to try to deal with each of them briefly.

In the first place, it suggested that the apportionment is rational because of the work of the bipartisan committee, had all the virtues of the work of the federal constitutional convention and that indeed they pass through 13 steps of procedure in expounding this plan of apportionment, but of course, we're concerned with what they did.

I have no desire to criticize the membership.

They may have had all the virtues attributed to them, but it's the result that the Court was concerned itself with and similarly the procedure that it went through 13 steps seems hardly decisive for all unconstitutional legislation goes through a good number of steps in the legislature not all was a faithful 13 steps, but nevertheless, it does go through committees and resolutions imposed.

We're told here substantively that one of the things that justifies the apportionment is that it is on a rational geographical basis.

Unfortunately, it has not been explained to us just what this rational geographical basis is.

Looking at it and there's a map attached to the complaint so you can see the configuration of the district, there are seven within each county but I don't know why that's particularly rational anymore than they have five in one, eight in another and 12 in another.

Even within the counties, the districts are widely different in area and population.

There seems to be no relationship between the area of the population that no significant topographical features as would explain to us at bar.

The two floterial districts in Kent County are divided between what is said to be the Eastern and Western House but I don't suppose that that's meant to explain why one has placed as many people in it and therefore half the representation of the other.

It's suggested the likelihood of population growth in the future would wipe out these inequities.

Well, it might, but when the county has to increase 15-fold, and another one has to increase a 12-fold and another one has to increase 11-fold and many of them 8-fold, it seems to me that -- that hope that maybe it will someday in the hereafter workout fairly is not enough to justify in -- unfairness in the present choice of the legislature.

Then it is said that this was compelled by time.

Mr. Theisen has pointed out one answer to that and that is that the District Court taking the facts and provisions of the Delaware Constitution really acted quite reasonably.

Another answer, I suggest, is that when constitutional ranks are denied, it's not a sufficient answer to say, "Oh, we did it in a hurry.

" The appellants are here arguing that this plan as a permanent continuing piece of legislation conforms to the Equal Protection Clause.

Indeed, they explain in answer to a question before the bench that they didn't want to moot the case, they didn't want to make this into stopgap legislation and enact another permanent end until they had their whack in having this one upheld.

Well, then it must be judged as continuing permanent legislature.

None of these explanations, I submit in conclusion, explain the gross inequalities that exist between the senatorial districts and the representative districts.

Indeed, I have yet to hear the explanation that was going to be given to Justice Goldberg for the difference in size between the districts -- the senatorial districts in New Castle County.

Finally, I want to say just a word with reference to the argument based on the early history of the Fourteenth Amendment and the early cases under the Fourteenth Amendment.

Now, their only relevance, as I see it, is to an attack upon Baker and Carr.

I recognized that counsel claims that, but I cannot so the life of me saying what bearing the quotations from Minor and Happersett have or the references to the Fifteenth and Eighteenth Amendments have or to Fifteenth -- thank you, Fifteenth and Nineteenth Amendments have or that the quotations from Congressman Bingham have unless it is an argument that the Fourteenth Amendment has nothing to do with case -- with questions that have to do with voting.

Now, there it is all water long over the bend.

It is but settled ever since Nixon and Herndon in 273 U.S. that the Fourteenth -- that the equal protection of the Fourteenth Amendment clause does have something to do with voting right.

True, it is still up to the States to lay down the qualifications for voting, but the guarantee of equal protection applies to the opportunity to participate at primaries, to the right to have your vote counted equally with other votes so as to prevent against frauds, stuffing the ballot box and such to voting -- to having your vote counted as one vote in an election for Governor.

And as I read the decision in Baker v. Carr, it applies to the claim of equality and the right to representation.

So that going back over that history, it seems to me quite unnecessary at this stage.

Now, appellant say that the references to the readmission of Florida and the other discussion of the Fourteenth Amendment is intended to show that the Fourteenth Amendment does not require the principle one man, one vote to be applied to representation in both houses of the legislature.

Certainly no such question is raised by this case and I think no such question is raised by any of the other cases that have been argued here during the past month.

Someday, that question may come here.

Someday it may have to be considered, but certainly Florida's Constitution, in terms of what was known about it when it came before the Congress in the 1860s, is no justification for what we know about the Delaware apportionment today.

All that appeared on the face of the Florida Constitution was that every county in the lower House was assured at least one representative and then remaining representatives were to be apportioned per capita and nothing appeared on the face of it about the upper House, but quite plainly that isn't altogether a different case than is before us in terms of the Delaware situation.

I think one another thing should be said about the history.

It is not quite as easy as appellants' quotations from the objection to the readmission of Florida and the reply by Benjamin Butler make out.

In the first place, there was considerable amount of debate in between and while Congressman Farnsworth of Illinois, of course said what Colonel Wiener said he said, he made a great many other points.

Congressman Butler took out for all the arguments that have been made by Congressman Farnsworth and at least one other representative and answered each of them one by one except this matter of apportionment and it was after that that he said, "All these matters have been going into by our committees."

Justice Arthur J. Goldberg: (Inaudible) as I read the (Inaudible) is being denied and probably most of the officials were being appointed, not elected.

Mr. Cox: Not only that.

I would fully concur with that.

I would go one step further.

The conclusion I brought I suppose all this history once across different conclusion.

The conclusion I would draw was that the first of the argument was -- let's take Florida in anyway.

Justice Arthur J. Goldberg: Go on.

Mr. Cox: It was partly that.

Partly, it was pointed out on the Florida that the House Committee on Reconstruction had repeatedly turned down to Florida Constitution and had repeatedly found themselves dissatisfied with it.

I don't mean to imply that anything has to do with apportionment because I don't know of the slightest grieves to think so.

But it had repeatedly rejected and this is stated in about the same part of the debate that the quotations are taken from a little bit late.

The thrust of the argument for readmitting Florida was I would say two-fold or two points in addition to that mentioned by Justice Goldberg.

The first was what else are we going to do?

We've got to get on here.

We can't remand Florida back to the State as territory.

What else are we going to do but to take or despite the committee's dissatisfaction and that's what the committee recommended.

And the second thing was that we need Florida in for the purpose of having the Fourteenth Amendment ratified so as well are your doubts and vote to have Florida readmitted.

In other words, it comes to what Mr. Justice Douglas suggested if I heard him right this morning to words that there was a political decision to readmit Florida, governmental decision, I mean political in that sense and not a scrutinizing of everything Florida had done or stood for with the idea of writing it as a rubric on the meaning of the Fourteenth Amendment yet to be adopted.

So that we think to preclude that the arguments are directed to the Fourteenth Amendment insofar as they attempt to overrule all the cases from Nixon and Condon and Nixon and Herndon down to Gray and Sanders come much too late and that so far as they are directed to sustaining this Delaware apportionment, they simply missed the point.

Chief Justice Earl Warren: Colonel Wiener.

Rebuttal of Frederick Bernays Wiener

Mr. Frederick Bernays Wiener: If the Court please, there is a tradition at the bar of this Court and on one occasion when the lateness Mr. Justice McReynolds asked the question, he was answered by the familiar, "I am coming to that Your Honor" and he replied rather testily, "You're here now.

The question of the Senate in the Delaware Constitution is here now.

" Two of the judges below concurred in saying that it was impossible, it was impermissible to deviate from the population factor as the major factor in apportioning the Senate.

Judge Biggs at page A49 and Judge Wright at page A62, that problem is here.

Now, what I have talked about as the federal analogy what everyone else has talked about federal analogy means basically a one house not apportioned according to population.

Now, the two ways of doing that within the basic framework of the Delaware amendment, one is to have all the senators at large and the other is to have the senatorial districts equalized within the counties and the Solicitor General has said that you cannot expect anybody to vote away his seat, entrenched power is too strong and that's the reason why nothing has been equalized.

I suggest it is not very helpful particularly with those who -- on the part of those who represent the United States to deal with questions of this seriousness in terms of epithets and motives.

The fact of the matter is that when the equalizing bill which we have in our -- in the appendix to the reply brief got to the Senate, the Delaware Senate on the very day that the circuit justice stayed the -- the injunction, it passed unanimously.

Let's not have any talk about entrenched power.

They were prepared to equalize the -- equalize the Senate and perhaps vote away their own seats, but the State --

Unknown Speaker: (Inaudible)

Mr. Frederick Bernays Wiener: Yes, Your Honor.

Yes, yes.

That dealt with the Senate.

That equalized the senate districts.

Page 69 in their reply brief and that passed the Senate 12 to nothing.

No reply of absent.

Yes, they passed it and then they didn't do anything more because the case was on appeal, the injunction had been stayed and Judge Biggs himself had said at the trial, "I hope this case will be appealed to the Supreme Court.

" But the Delaware General Assembly of the State of Delaware is powerless to amend its Constitution if this injunction now stay a pending appeal remains in effect because if the Delaware General Assembly sometime in 1964 as soon as it -- as long as it sits proceeds to do whatever this Court's decision says is necessary, it can't do it by way of constitutional amendment because no subsequent General Assembly can ever be elected.

Chief Justice Earl Warren: But Colonel, you -- you ask us to sustain the 1963 method of apportionment and may I ask you on what basis the legislature in New Castle County outside of Wilmington had one district with 1643 people in it and another one 20,000 --

Mr. Frederick Bernays Wiener: Well, on the basis that it had the -- it had the existing districts, it would -- did not have the time in two legislative days to change them and it provided for 10 additional representatives for New Castle County, two for Wilmington, eight for rural New Castle with provision for redistricting in the next 10 years.

And even -- even this business of the 1600, this 15th representative district block for 800, the Court itself in its own plan on 98A of the record said there's a new plan coming in here that led 1200 people and the committee recognized that.

Chief Justice Earl Warren: Well, I know this -- that the plan the same in all the district --

Mr. Frederick Bernays Wiener: Yes.

Chief Justice Earl Warren: -- is 15 as against 18.

Mr. Frederick Bernays Wiener: There -- there's no question about it, Your Honor.

There's no question about it.

We were -- the committee was not able in the three weeks it had to redistrict the State and the General Assembly had very little choice.

They either would adopt the plan which they did or they'd be tied up the way they are.

I mean --

Chief Justice Earl Warren: Well, I understood counsel to say that they were not up against any -- any necessity for adjournment that they -- that they could adjourn for a few days --

Mr. Frederick Bernays Wiener: I'm -- I'm --

Chief Justice Earl Warren: -- recess for a few days and comeback and that they have been doing it (Voice Overlap) --

Mr. Frederick Bernays Wiener: -- I'm -- I'm sorry, Your Honor, Page 57 of the reply brief, the Governor's message.

This is -- this is to the -- to the session, “Unfortunately the time is short to assure the passage of the constitutional amendment for reapportionment within six months.

We must act promptly by providing the necessary two-thirds majority in the House in order that the first leg of the amendment might be approved before the 3-month constitutional period before election begins to run when notice must be given in the newspapers of our three counties.”

Chief Justice Earl Warren: And what was the latest date that -- that they could've given notice?

Mr. Frederick Bernays Wiener: I will continue, “The deadline is August 6th,” that was the Court's --

Chief Justice Earl Warren: Yes.

Mr. Frederick Bernays Wiener: -- deadline.

“The last date for publication of our weekly newspapers before this is Friday, August 3.

Most weekly newspapers will go to press Tuesday, July 31.

Our work if it is to be timely must be concluded by Monday, July 30.

I act -- urge you to act promptly.”

Chief Justice Earl Warren: Now, when was the -- when was the legislature adjourned actually in this situation?

Mr. Frederick Bernays Wiener: When was it what?

Chief Justice Earl Warren: Adjourned.

Mr. Frederick Bernays Wiener: Oh, it could -- it could have sat right at -- at least to the general election in November but it could not have passed the first leg of -- it could not validly have passed first leg of a constitutional amendment because the Constitution, Article XVI, Section 1 requires that a constitutional amendment passed for the first time by the General Assembly must be advertised for at least three months before the -- the intervening general election.

It couldn't if it didn't act by the 30th of July, it would have to go over until 1965 and nobody --

Chief Justice Earl Warren: When -- when did -- when did they act here?

Mr. Frederick Bernays Wiener: They acted on the 30th of -- of July.

Chief Justice Earl Warren: 30th of July.

Mr. Frederick Bernays Wiener: Yes, and then they -- then -- then when the new General Assembly came in after the intervening general --

Chief Justice Earl Warren: I got your point.

Mr. Frederick Bernays Wiener: -- election, they passed it on January 1963.

That is the box of time that the District --

Chief Justice Earl Warren: Yes.

Mr. Frederick Bernays Wiener: -- Court constructed.

If the District Court had said, “Well, this is very complicated, this -- we're now at July, you've got to act by August, that's too short of time, we will give you until -- through 1965.”

We could have had a well nigh perfect but we don't have.

Now --

Justice William O. Douglas: What date did I grant the stay?

Mr. Frederick Bernays Wiener: 27th of July, Your Honor.

Of June, I'm sorry, June, 27th of June.

Now, three things happen on the 27th of June.

Your Honor, granted the stay.

The Senate equalizing, this bill equalizing senate district passed the Senate, the House bill to equalize representative districts throughout the entire State so that each one of the 45 districts within the House would have substantially the same population that was introduced into the House.

Justice John M. Harlan: (Inaudible)

Mr. Frederick Bernays Wiener: No, I -- I --

Justice Byron R. White: Well, Colonel --

Mr. Frederick Bernays Wiener: -- I think it was entirely proper.

I think -- I think for the District Court not to grant the stay was an abuse of discretion as Your Honors ruling found.

Justice Byron R. White: Colonel Wiener, I take it then that -- that if the District Court hadn't acted, there would have been -- certainly it was introduced in the House an issue to base the House on population?

Mr. Frederick Bernays Wiener: Yes, Your Honor.

Justice Byron R. White: And they made you pass the Senate, to base the Senate on population?

Mr. Frederick Bernays Wiener: Yes, of their population within the counties.

Justice Byron R. White: Within the county?

Mr. Frederick Bernays Wiener: Within the county, equalizing the districts within the counties, seven senators for each county equalizing the districts within.

Justice Byron R. White: I see and the House bill was just introduced?

Mr. Frederick Bernays Wiener: It was just introduced.

Now, the purpose, the purpose of the -- the purpose of the bipartisan committee was to apportion according to population.

The chairman said on the stand in answer to the question, "What prompted you to put the House on a population basis?"

And the answer was, and I admire his courage in front of that court, “We felt this Court had a gun at the back of the General Assembly of Delaware and we have better apportion the House of Representatives on a population basis under Baker versus Carr as fast as we could.”

That's what they set out to do.

Justice Byron R. White: And to what -- under the Senate -- under the bill for the reapportionment of the Senate, what would have been necessities that could have controlled it?

Mr. Frederick Bernays Wiener: Well, I don't know exactly but there'd be seven senators in --

Justice Byron R. White: Yes.

Mr. Frederick Bernays Wiener: -- each county.

Justice Byron R. White: Yes.

Mr. Frederick Bernays Wiener: And --

Justice Byron R. White: Percentage of population I'm certainly (Voice Overlap) --

Mr. Frederick Bernays Wiener: -- to -- together majority of -- Sussex has 16.5% and have in Kent would be seven more, about 23% which is more generous than the Senate of the United States where 16.3% of the population controls the -- control --

Justice Byron R. White: 23% elects two-thirds of the Senate then?

Mr. Frederick Bernays Wiener: I don't know what percentage elects the two-thirds, Your Honor.

It would be --

Justice Byron R. White: Because the --

Mr. Frederick Bernays Wiener: Well, 31% -- in -- in Delaware 31% would elect two-thirds.

What the percentages in the United States --

Justice Byron R. White: No, I understand that.

Mr. Frederick Bernays Wiener: 31%.

Now, we think that unless rational and reasonable means personal preferences, this effort under these time limits, these terribly constricting time limits, passes a test of rationality.

However, if the matter needs to be -- if the Court feels that the existing plan needs to be perfected before it passes muster then we would like to do it by constitutional amendments and we can have such a constitutional amendment through this General Assembly and the next.

We think in that event, the matter ought to be returned with the injunction dissolved with directions per State to permit us, to permit the State of Delaware to perfect the basic plan and to affect the necessary equalizations consistently with what this Court tell the judge but do it according to the terms of the Constitution of the State and indicate how we can equalize.

Do we need to have everybody elected at large and wipe out the minority interest in every county or can we do it the way we set out to do it under the second report of the bipartisan committee tying up the inequalities by making every senate district within the State equal.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: 1966.

The -- the General Assembly, it's either house of -- for only two years and -- and in Delaware, the -- the General Assemblies are numbered.

Every biennium has a number.

Justice Arthur J. Goldberg: The senators are (Inaudible) I suppose.

Mr. Frederick Bernays Wiener: Well, yes but they have staggered terms.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Frederick Bernays Wiener: Yes.

The -- the one General Assembly is now sitting and I think it's the 122nd, the next will be the 123rd, but what we're principally concerned with and what concerns us so very much is the rejection of the federal -- basic federal pattern of area representation in one house and population representation on the other.

The whole of that is outlawed under the Equal Protection Clause means a construction of that clause directly of variance with what the way Congress construed it in the case of Florida and South Carolina and Georgia.

And Mr. Cox’s the arguments here about the Congress not scrutinizing the Florida Constitution are just like Mr. Rankins in U.S. v. Florida but they didn't look the boundary.

And it would be a construction also of the Equal Protection Clause that would repeat the tragic era of the Due Process Clause construction that’s been so recently reviewed here.

And it would be a -- a result achieved not as a matter of elasticity on a case to case basis.

But at one fell swoop, it would -- not on the basis of experience put overnight and it would really, it would really be amending the Constitution with a cleaver and what would be the result?

I think the necessary, the inescapable result is that it would reduce the States of the union to mere geographical subdivisions when their -- their instrument of Government for constructing their legislature is subjected, it can be subjected at the instance of a single disgruntled citizen to a scrutiny far more searching then any of its legislation and in the process would be hurried and harried and sneered up by those who represent the United States as completely inadequate (Inaudible) efforts.

Now, I don't think, I don't think that the States -- the relationship of the States to the nation properly can be the same as the relationship of municipalities to a State.

That would be the inevitable consequence if a State is denied in the right to apportion, to mold, to construct, to -- its legislature on the federal pattern and the necessary consequence would be with that kind of a holding and the republic as it has existed.

Our federate republic as it has existed for 175 years would no longer be a federated republic.