contrary to thousands of earlier decisions, it did not change the result. The 5 to 4 Miranda decision written by Chief Justice Warren became the law-and it still is. It is, of course, essential that some court have final authority. There must be a final answer to every dispute. It is not, however, necessary that judges with that awesome power have it for life. There should be some method of terminating the authority of those who choose to rule according to their own whims and prejudices rather than according to established law. We are supposed to have a government of law and not a government of men. With no available grounds for removal except bad conduct and no procedure for that available except the completely impractical procedure of impeachment, there is no remedy at all. The legislative branch and to an extent executive branch of the government are not independent but are subject to the control of the judicial branch. I think most of us would agree with the nominee to the Supreme Court who said that the Court should not be a "continuous constitutional convention." Federal Judges appointed for life and with a most liberal life time pension have complete independence, are responsible to no one. In the words of Thomas Jefferson they have a "freehold of irresponsibility." Some men can stand that kind of independent security, respected position of authority and power. Some cannot. Like prosperity, some people cannot stand it. Senator BYRD. Mr. J. Sloan Kuykendall, an outstanding member of the Virginia Bar, and hoped to be here today. He is a past president of the Virginia Bar Association, and he is now chairman of the State board of bar examiners, and that committee has met for the last 2 days and hoped to conclude its business but has not been able to do so; so, he is unable to be here today. But I understand the committee has his statement. Senator BAYH. We will put his statement in the record, and we regret that he could not be here. [The prepared statement submitted by Mr. Kuykendall follows:] BIOGRAPHICAL INFORMATION-J. SLOAN KUYKENDALL, ESQ., WINCHESTER, VA. Mr. Kuykendall is a senior partner in the firm of Kuykendall, Hall and Whiting in Winchester, Virginia. A graduate of the University of Virginia Law School, Mr. Kuykendall was admitted to the Virginia Bar in 1931. He is a member of the American Bar Association, the American Law Institute, the American Judicature Society, the American Bar Foundation, and is a Fellow in the American College of Trial Lawyers. He served as Commonwealth Attorney for Frederick County from 1942 to 1947. At present he is President of the Virginia Board of Bar Examiners. Responding to the request of Senator Byrd, I state my views regarding Senate Joint Resolution 106 respecting tenure for Federal Judges. The amendment to the Constitution proposed by Senator Byrd focuses attention cnce more on the role of the judiciary in our democratic form of government. When the Constitution, as drafted by the Convention of 1787, was submitted to the Thirteen States for ratification, the provision for life tenure for Federal Judges came into question. Alexander Hamilton dealt with this question in the Federalist Papers. In Paper No. 78, Mr. Hamilton justified tenure for judges during good behavior by the argument that the Judicial Branch of the Government was the weakest of the three coordinate branches, and he observed: "From the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches. He further observed: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them . . ." He reasoned, therefore, that courts were impotent to enforce upon the people and the coordinate branches of Government a will of the courts that may prove to be at variance with the rights and demands of the States and the people, and with the views and commitments of the Executive and Legislative Branches. He insisted that independence of the judiciary can be assured only by providing life tenure for judges during good behavior. The provision for tenure during good behavior was placed in the Constitution, and ratification was effected, before the courts had had an opportunity to function and before it could be determined exactly to what extent the courts would extend their jurisdiction and would enforce their decisions and decrees. Further, the scope and nature of judicial review respecting constitutionality of congressional enactments or executive action was not part of the colonial experience, nor did the courts of England exercise the ultimate judgment as to the validity of acts in question. Since Hamilton's day, the scope of judicial review and the power and authority of the courts have developed and increased to a point not envisioned by the framers of the Constitution and the advocates of life tenure. It is, therefore, proper at this time to seriously reconsider the tenure provision of the Constitution to determine whether the considerations that prompted the inclusion of this provision in the Constitution as originaly drafted are valid and compelling at this time. Since the founding of the Republic, the scope and nature of judicial review, as exercised by Federal Courts, has been greatly enlarged. Not only has the number of litigated cases increased over the years, but our history has witnessed the adoption of twenty-six amendments to the original Constitution. The Fourteenth Amendment, with its equal protection and due process clauses, has provided a broad avenue for judicial opinions, some of which have not, I believe, adhered to the spirit or letter of the Constitution or the principle of stare decísis. The interpretation and application of the broad and general language of the commerce clause (Article I, Section 8) and the equal protection and due process clauses (Fourteenth Amendment) call for the utmost in judicial restraint in order to avoid trespass upon the legislative and executive powers and functions, and the established jurisdiction of the States and the rights of the people. The power of the judiciary is unlimited except in the exercise of judicial restraint. Some judges have exercised a very high degree of restraint, whereas other judges have envisioned a broad and expansive role for the courts. Alert and ingenious minds have used appropriate language to attain a desired judicial result while purporting to be merely interpreting the Constitution. Today, Congress, the President, and the People can be made subject to the will of the judicial mind under the guise of constitutional interpretation. It is, therefore, in order for the Senate to consider a longer range and continuing check on the exercise of judicial power. When the intent of the Constitution is clearly expressed, one can judge whether a decision of the court is within the meaning of the Constitution. However, when a court deals with the general language of the commerce, due process and equal protection clauses, which afford no inherent standards that limit their application, the courts may in cases of first impression, determine whether a legislative act, executive directive, or non-governmental act falls within the purview and influence of those clauses. However, once there has been a judicial pronouncement of the highest court respecting a given set of facts calling for the application of either one or all of those general constitutional provisions, then there is judicial precedent that should be followed. It is in cases where judges depart from the express language of the Constitution and controlling precedent that a judge may be readily said to have violated the obvious restraints upon him. In areas where the general language of the Constitution is susceptible to varied interpretations, the judicial function is put to its most difficult test. The ultimate check on the judiciary is the self-imposed restraint of the judges in an effort to avoid the imposition of their will rather than adhering to the Constitution or precedent. This is a high and serious responsibility. It is submitted that the exercise of this unique and delicate function, that of constitutional interpretation, is a continuing one and ought then to be subject to some control. It is, therefore, submitted that it is proper that the Senate should have the duty to review the continuing performance of those clothed with judicial power. It is taken as fundamental that the people themselves are the ultimate repository of power in this Republic. The Senate is properly constituted and qualified to pass upon the continuing fitness of those whose occupy the bench. The proposed reconfirmation by the Senate constitutes a moderate check upon the life tenure of a judge who now enjoys the last vestiges of an unrestrained arm of government. This procedure, which comes into play once in eight years, serves to add symmetry and a degree of responsibility to each of the co-equal and coordinate branches of government. The proposed amendment assures that the judiciary, as is true of all other branches of the Federal Government, is subject to review and are answerable to the governed through their representatives. There are those individuals, who in good faith but mistakenly, exhort the courts to engage in new and bold enterprises of judicial activism. They see the Supreme Court and the lower Federal Courts as having a duty to rescue this nation from the supposed failures of the other branches of government; and further envision the courts as a special guardian for defining and operating the political processes in America. What is more disturbing is the plea for the judiciary to strike out boldly in identifying ideals and setting public policy they deem appropriate, and commanding public officials to begin the pursuit of those ideals, as formulated and characterized by the judiciary. This open appeal to judges to rewrite the Constitution in their own image flies in the face of the best traditions of Anglo-American jurisprudence. That everpresent temptation to substitute one's own will for that which the Constitution plainly or by necessary implication directs or prohibits is one of the continuing and pervasive problems of our constitutional form of government. But the unarticulated or perhaps patent recognition that judges do and will make law jeopardizes the concept of the rule of law and the role of the judiciary as a dispassionate referee, and it undermines the restraints which the Constitution should place on all citizens, even the judiciary. From the vantage point of this observer, the seductive sirens of aggressive judicial activism nullify the famous phrases of Mr. Chief Justice Marshall in McCulloch v. Maryland (1819), "It is the Constitution we are expounding. . . ." It is further submitted that the judges or justices of the Federal system are not ordained with any monopoly of a "finer vision" of what the best means for achieving a particular social goal may be in the absence of constitutional direction or mandate. If it be admitted that the courts have effectively abandoned the precepts of faithful constitutional construction, judicial self-restraint, and adherence to precedent, there is no reason why they should not be subject to some restraint also. There is no reason why admittedly policy conscious judgments should not be subject to some further scrutiny by the duly elected representatives of the people. If it be further admitted that the abstract policy decisions are an encroachment on the functions of Legislative and Executive Branches, a constitutional amendment making the judiciary's behavior responsible to the Senate is the only reasonable, moderate and controlled mode of assuring that Federal Judges or justices remain servants of the people rather than public rulers. Some of the most searching and scathing criticisms of the failure of the judges or justices to exercise self-restraint and avoid the temptation to substitute their own will for judgment has been made by their brethren of the bench. One of the most famous of all dissents in Supreme Court history is that of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed. 937 (1905). In that case, the majority of the court held invalid a New York statute which prohibited employees of bakeries from working more than sixty hours in any one week. The court held that the statute was an impermissible exercise of the police power and that no reasonable foundation existed for upholding the legislation on the grounds of health of the workers. The majority embraced the concept of "liberty of contract". That majority reasoned that under the circumstances the "freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution." In his succinct and eloquent dissent, Mr. Justice Holmes condemned the court for writing into the Constitution the theory of laissez faire economics under the guise of constitutional interpretation. Justice Holmes went on to say: 66 ... The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics. Some of these laws (limiting or regulating hours or working conditions) embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word “liberty", in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundmental principles as they have been understood by the traditions of our people and our law...." Again, in the New Deal era, the laissez faire concept, which had been written into the judicial opinions of the latter half of the 19th Century and early parts of the 20th Century, came into question as Congress passed a series of enactments designed to ameliorate the effects of the Great Depression. In U.S. v. Butler, 297 U.S. 1, 53 S. Ct. 312, 80 L.Ed. 477 (1936); the Supreme Court invalidated the Agricultural Adjustment Act of 1933. Mr. Justice Stone, later Chief Justice, took issue with the court's declaration that the congressional act was not justified or sanctioned under the Commerce Clause, Article I, Section 8 of the Constitution. "That the governmental power of the purse is a great one is not now for the first time announced. Every student of the history of government and economics is aware of its magnitude and of its existence in every civilized government. Both were well understood by the framers of the Constitution when they sanctioned the grant of the spending power to the federal government, and both were recognized by Hamilton and Story, whose views of the spending power as standing on a parity with the other powers specifically granted, have hitherto been generally accepted. The suggestion that it must now be curtailed by judicial fiat because it may be abused by unwise use hardly rises to the dignity of argument. So may judicial power be abused. The power to tax and spend is not without constitutional restraints. One restriction is that the purpose must be truly national. Another is that it may not be used to coerce action left to state control. Another is the conscience and patriotism of Congress and the Executive. "It must be remembered that legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Justice-Holmes, in Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270. A tortured construction of the Constitution is not to be justified by recourse to extreme examples of reckless congressional spending which might occur if courts could not prevent-expenditures which, even if they could be thought to effect any national purpose, would be possible only by action of a legislature lost to all sense of public responsibility. Such suppositions are addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern. Congress and the courts both unhappily may falter or be mistaken in the performance of their constitutional duty. But interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction, is far more likely, in the long run, "to obliterate the constituent members" of "an indestructible union of indestructible states" than the frank recognition that language, even of a constitution, may mean what it says: that the power to tax and spend includes the power to relieve a nation-wide economic maladjustment by conditional gifts of money." In recent years, the Federal Courts, often led by the Supreme Court itself, have taken unto themselves a broad range of problems which had heretofore been deemed beyond the ambit of their jurisdiction. My remarks here must be limited to certain salient examples of a general tendency which I see in the Federal Courts today. Consequently, it is not within the scope of my remarks to catalog exhaustively and critique the many opinions which have come from the courts in recent times. My chosen emphasis will be upon what is generally termed the "voting cases", because the problem and the marked change of the attitudes of the Federal Courts can be succinctly summarized. In Colegrove v. Green, Mr. Justice Frankfurter cautioned against courts entering the "political thicket" of reapportionment cases in delivering the opinion of the court: "It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the law. . . . The one stark fact that emerges from a study of the history of Congressional ap portionment is its embroilment in politics, in the sense of party contests and party interests. . . . To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislators that will apportion properly, or to invoke the ample powers of Congress. The Constitution has many commands that are not enforceable by courts because they clearly fall outside the conditions and purposes that circumscribe judicial action." Yet, in 1962, the Supreme Court reached the opposite result in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L.Ed. 2d 663 (1962). The court held that there was jurisdiction, standing and a justiciable controversy presented, and that the Federal Courts could reapportion voting districts under the equal protection clause of the Fourteenth Amendment. Justices Frankfurter and Harlan dissented. Mr. Justice Frankfurter then stated: "The notion that representation proportioned to the geographic spread of population is so universally accepted as a necessary element of equality between man and man that it must be taken to be the standard of a political equality preserved by the Fourteenth Amendment-that it is, in appellants' words, "the basic principle of representative government"-is, to put it bluntly, not true.. However desirable and however desired by some among the great political. thinkers and framers of our government, it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial. system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today. Unless judges, the judges of this Court, are to make their private views of political wisdom the measure of the Constitution-views which in all honesty cannot but give the appearance, if not reflect the reality, of involvement with the business of partisan politics so inescapably a part of apportionment controversies-the Fourteenth Amendment, "itself a historical product," provides no guide for judicial oversight of the representation problem. . . Yet the Baker case was not the terminus of the march of the court. In 1964, the Supreme Court decided Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). The court held that the federal analogy which would allow the States to have one house of the bicameral legislature to be elected on a basis other than population was rejected as inapposite and in violation of the equal protection clause of the Fourteenth Amendment. In Reynolds, Mr. Chief Justice Warren said: "We hold that, as a basic constitutional standard, the equal protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State... We... find the federal analogy inapposite and irrelevant to state legislative districting schemes. Attempted reliance on the federal analogy appears often to be little more than an after-the-fact rationalization offered in defense of maladjusted state apportionment arrangements. . . ." "... Lower courts can and assuredly will work out more concrete and specific standards for evaluating state legislative apportionment schemes in the context of actual litigation. For the present, we deem it expedient not to attempt to spell out any precise constitutional tests. . . . Thus, we proceed to state here only a few rather general considerations which appear to us to be relevant." In an able dissent, Mr. Justice Harlan said of the majority opinion: "Since it can, I think, be shown beyond doubt that state legislative apportionments, as such, are wholly free of constitutional limitations, save such as may be imposed by the Republican Form of Government Clause (Const. Art IV, Sec. 4), the Court's action now bringing them within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court." The most disturbing aspect of the majority decision is the self-evident resort to the unarticulated assumptions of the court, that it is the court's function to alter the form of government, and that judges should use their offices in order to enforce and expand their views of a properly constituted Republican form of government. Unfortunately, the Constitution has not, and did not, require the |