dom of the court's interpretations have come down by which we are bound to understand what this Constitution is all about.

How do we tell not only the young people but all people of America today that under our present system you vote for a Dr. Bailey or a group of Dr. Baileys who, in turn, will think as to whether or not they will vote for the person they allegedly represented and called democracy.

Senator HRUSKA. With all due deference, there is that dead horse again. Get away from that concept. I know of no one who seriously seeks to preserve the personal presidential elector, and it may denote a little bit of weakness in your argument if you can think of nothing else but to come to a horse that has been successfully killed. Why do you continue beating it?

Dr. ASHMAN. I will agree with you as to the death of the horse, fine.

Senator HRUSKA. All right.

Dr. SHAO. Let me pick up my argument, Senator. If you want me to say "yes" or "no" to your question, I will say "yes," my interpretation of federalism is not a very strict one, not a strict construction of the Constitution as it was set up by our Founding Fathers.

I look at our country in its relationship to the other countries, and I look at the development of the National Government as well as the State government.

I have found now a need and a reality of an integral unity of National Government. In your case, you represent both the National Government and your State. But I think in the case of the President we need a national representative based on a national constituency. If this is in violation or is a departure from the original constitutional provision or meaning of the Constitution, then this is exactly what I am urging. Let us have a constitutional amendment in order to change that.

Senator HRUSKA. Yes, that is fine.

Dr. SHAO. Therefore, my answer is, yes.

Senator HRUSKA. Now then, what would your attitude be toward the Senate? Would you march right up to the Senate doors and say, "What I have said is persuasive. It has merit and virtue, but it does not apply to the Senate of the United States."

I ask that question because against the background that you have described, the Senate is an institution, that has two representatives from each State regardless of whether the State is as small as Alaska in population or as large as California.

Would you include in your constitutional amendment also the U.S. Senate?

Dr. SHAO. No.

Senator HRUSKA. And why not, and where is your consistency, if consistency is a virtue? I do not know that it is.

Dr. SHAO. I do not think it is a virtue, Senator. But I feel that within our complex federal system there ought to be different bases for different institutions of representation. It seems to me that the State as a territorial unit of the federal system ought to be given, in the Upper Chamber, equal representation regardless of their size and

their interests; and the House more clearly, more truly, I suppose, reflects the diverse interests of the people and, therefore, they are in districts.

At the national level I would like to have the President represent the whole Nation as the Union, with a national constituency.

When I look at the Constitution and its practices, and I find some provision which has given rise to an institution that is obsolete, I would be urging, as a political scientist living in the 20th century, educating students for the 21st century, I would like to urge an amendment.

Senator HURSKA. I see the gentleman to your left shaking his head. I know he wants to say something.

Dr. ASHMAN. I disagree with some of it.

Senator, you are very gracious. I cannot think of anyone else to quote, so I will quote myself in what was said in a political science class with some very clever seniors. I do not accept with purity the automatic concept and rightness of every segment of our Constitution. I consider it the most significant document of its kind I have ever had the pleasure of reading or hearing about.

What I think is necessary is to have it continuously interpreted, and it has growing, if you will, concepts.

By way of example, this purity, this consistency, this document provides for the Vice President of the executive branch to preside, does it not, over the legislative branch where you sit as Senators? Senator HRUSKA. Yes; that is part of the federal system.

Dr. ASHMAN. That is part of the federal system.

Senator HRUSKA. That is right.

Dr. ASHMAN. And, at the other end, on the other hand, it is a breach of another constitutional concept. Is it not a breach of the checks and balances or is it just an integration of checks and balances? Senator HRUSKA. No; it is not a breach. It is in compliance with it. Dr. ASHMAN. I see.

Second, the Congress of the United States under the Constitution was given the power to create those courts inferior to the Supreme Court, and if the judicial branch of Government is a solid third branch of this division, this separation, of powers, why then would a second branch have the right to create the subsidiary divisions of a third branch?

Senator HRUSKA. Because of provisions in the Constitution. And not only that, the Congress has been endowed since the beginning of this Republic the Congress has had the power to define the jurisdiction of the Supreme Court, and that is no violation of the federal system. It is not a violation of the fashion in which this country was created or the way that it has functioned since that time.

There is no breach.

Dr. ASHMAN. I submit that you cannot take one concept of one constitutional provision and strictly interpret it, and then not apply the same strict interpretation to others.

Were we to take this approach, why not take the provision of the Constitution or the protection of the laws owed to all citizens, and

why not take an extension of the law and why not go into the election laws which, if you want to extend the word "protection" there is not an equal protection of election laws.

Senator HRUSKA. We are working on it, are we not?

Dr. ASHMAN. We have made progress.

Senator HRUSKA. We have been working on it.

Dr. ASHMAN. In 1890, Wisconsin enfranchised the women, and it only took the rest of the country 30 years more to catch up, and the District of Columbia finally got around to it, and I understand the poll taxes are really gone now and, perhaps, in your wisdom, Senator, the 18-year-old vote will come about soon.

But on this point I respect, and even more so than before I came before the committee, the significance of the concept of federalism that you put forth. But I suggest to you that the Constitution is a growing thing, that it must be interpreted, that the functions of the Presidency are national, and that when you weigh this the danger you speak of historically of taking away from the original concept of federalism, even arguendo the strict interpretation, against the need for the people, all the people, to elect their President on equal terms, than those who preceded you from New Jersey and from Virginia, that compromise that gave forth this Republic, I do not think they would have any objections, sir.

Senator HRUSKA. Well, of course, there are differences in the Constitution. You say you think the Constitution is a growing document and subject to interpretation, and I agree with you.

I agree with Mr. Warren that we ought to lower the voting age, for example, and I

Dr. ASHMAN. Good.

Senator HRUSKA. I campaigned for it. I favored it in the State of Nebraska. It missed adoption by a very small margin, for which I am sorry. We are going to try again, and are going to succeed.

But, on the other hand, the Constitution also is a document which contains some things which are not susceptible of interpretation.

When it says, for example, that when the President vetoes a bill and sends it back to Congress, the veto will stand unless it is overridden by a two-thirds majority. How are you going to make twothirds mean something in 1969 that it did not mean in 1789? That is a pretty tough requirement. I just do not know, how it can be interpreted.

Dr. ASHMAN. But, Senator, no one is saying let us not construe the Constitution the way it is. We are saying amend the Constitution. That amendment is given full force and dignity as part of it, and you will interpret it in light of the new amendment. Absent the new amendment enfranchising women, and you go on with the old Constitution, and the argument is the same.

Senator BAYH. What specific provision of the Constitution are we really talking about?

Senator HRUSKA. None, except that our friend, in testifying, ventured the idea several times that the Constitution is a growing document subject to interpretation and construction. In some respects I agree with him. In other respects I do not.

Dr. ASHMAN. Then we amend it.

Senator HRUSKA. Now, the issue here is that we have included in the Federal principle the assignment to each State in the presidential election process a minimum of two votes, plus one for each congressional district.

Some people wish to abandon that. It is of course, possible for us to abandon it. But I raise this question again, wherein lies the wisdom and the necessity or, the desirability for it? That is what I am asking. There still remains in this Republic, regardless of the passage of the 180 years, the conflict between big States and small States. It still exists in many, many areas, and I predict, as I did on the Senate floor last week, that those conflicts will assert themselves even more strongly in years ahead as the National Government gets more into economic fieds and social fields more and more than we have ever before. You will find again and again that the conflict between big States and small States will become more apparent.

But here some wish to chip away at this Federal idea and have the smaller States sacrifice a portion of their voting strength in presidential elections. With such actions there will come a time when the small States will be hanging on the ropes. When they will become negligible factors, and pretty much defenseless entities if their strength is ground down more. And further there are a large number of people who would dearly love to put the Senate of the United States in the same category and do to it what this amendment would do to the electoral college. They would just love to do it.

If that happened, eight States could thoretically govern the entire Republic without let, or hindrance, and here is one Senator who does not like that idea, and he is going to oppose any idea of that which would lend any impetus to that kind of a result.

Now then, Mr. Chairman, I must apologize because I assumed the role of a witness for a little while, and I testified.

Dr. ASHMAN. May I question the witness. [Laughter.]

Senator HRUSKA. I throw it out to the witnesses for their comment. Senator BAYH. If I might interject, I think in light of the course which this amendment must follow that the testimony from the Senator from Nebraska is probably as valuable, if not more valuable, than anybody we have heard all day.

Senator HRUSKA. You are not only a friendly chairman but you are a very flattering one. Thank you very much.

Senator BAYH. I am a very realistic observer of the legislative process.

Let me pursue this, if the witnesses will bear with us a moment. I feel very strongly, as does my colleague from Nebraska, about the need to provide a vehicle which will ensure as much protection as is possible for each individual State, and those who would take away the right of each individual State to be equally represented in the Senate of the United States will not be looked on with favor as far as this Senator is concerned.

There may be some who think this way, but I must say I have not heard this thought expressed.

The degree to which this protection is dependent upon the present distribution of electoral votes, I think, is subject to a considerable amount of legitimate discussion, if not dispute. Although our Found

ing Fathers may have envisioned it as providing some protection, with certain developments in our political structure that protection is relatively non-existent if, indeed, it does not work the other way.

A careful reading of the debates at Philadelphia shows that one of the main concerns that the framers had, and I know my coleague from Nebraska is as aware of this as I am, was that once Washington, Adams, and Jefferson, and our Founding Fathers had disappeared, there would not be a leader or leaders that could develop a national constituency. Thus there would be a proliferation of the electoral vote and for that reason they originally provided that the top five electoral vote winners would have their names placed before the House of Representatives.

The electoral college, in a sense, was a nominating committee, a screening committee, and then the actual decision would be made on a one-State, one-vote basis in the House.

Then came the growth of political parties and a little later on, the unit rule. In my judgment, these developments took away what protection was given to the small States. If this matter of reform is presented on a large-State versus small-State basis, then I predict there will be no change at all. We have to have a plan that transcends these narrow considerations and looks to the people-all of the people, wherever they live.

We had a very interesting discussion between Senator Thurmond and Mr. Sorensen this morning in which Mr. Sorensen pointed out that, in fact, campaigns are centered on the large States. So, maybe the electoral college system did provide some basis for protection for the small States earlier, but now with the unit rule and with the development of the parties this protection no longer exists.

Senator HRUSKA. Well, of course, the original electoral college was not a nominating committee. To protect the smaller States in addition to the representation of each State on a proportional basis of population there were two votes additional for each State. It is that feature which I would seek to protect regardless of how we change the present system. Lacking that feature I think great violence would be done to the Nation's progress and its unity because of the overriding of many rights and many prerogatives that will mean life or death in many of the less populated States, and a nation cannot exist without such a situation.

France could not survive with the government entirely in Paris. America cannot survive with the Government entirely in the hands of a small number of States to the disregard of 40 other States. That is what I am concerned about. On the other hand, giving each State two votes does not give control to the small States. It is not a matter of control. It is a matter of a little bit of a drag. Two votes for each State which, combined, perhaps with 30 States can mean something. Combined with others, while it will not control, it will be influence where we go, and that is the sense of balance that should be preserved.

Dr. SHAO. Senator, may I respond to this? I think Senator Bayh and Mr. Ted Sorensen have very eloquently expressed my understanding of the existing practices insofar as the electoral college is concerned.

The electoral college as it exists now, as a system, is for the protection of small States and rural populated States.